Owen v. United States

• Decision Date: 22 October 2012
• Docket Number: Civil Action No. 10–01540(BAH).
• Citation: 899 F.Supp.2d 71
• Parties: Mary Jane OWEN, Plaintiff, v. UNITED STATES Of America, Defendant.
• Court: U.S. District Court — District of Columbia

899 F.Supp.2d 71

Mary Jane OWEN, Plaintiff,

v.UNITED STATES Of America, Defendant.

Civil Action No. 10–01540(BAH).

United States District Court, District of Columbia.

Oct. 22, 2012.

Jason W. Fernandez, Greenberg & Bederman, Silver Spring, MD, for Plaintiff.

Addy Schmitt, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

Plaintiff Mary Jane Owen filed a Complaint alleging that the defendant United States of America is liable for damages under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671, et seq., because the plaintiff was injured using a wheelchair lift negligently maintained and operated by an unknown employee of the John F. Kennedy Center for the Performing Arts (“Kennedy Center”).¹See Complaint (“Compl.”), ECF No. 1, 1, 6, 8–10. Following a period of discovery, the defendant filed a Motion for Summary Judgment in which it argues, inter alia, that the plaintiff has not made out a prima facie case of negligence. See ECF No. 13. For the reasons explained below, the Court agrees and will GRANT the defendant's motion for summary judgment.

I. FACTUAL AND PROCEDURAL HISTORY²

The plaintiff is a former employee of SD & A Teleservices, Inc. (“SD & A”). See Def.'s Statement of Facts Not in Material Dispute (“Def.'s Facts”), ³ ECF No. 13–3, 1; Pl.'s Mem. in Supp. of Opp'n to Def.'s Mot. for Summ. J. (“Pl.'s Opp'n”), ECF No. 14–3, at 2. SD & A is a private “telemarketing firm retained by the Kennedy Center to conduct on-site telephone solicitation and fundraising campaigns.” Def.'s Facts 1; Pl.'s Opp'n at 2. ⁴ The plaintiff at the time of the incident at issue in this lawsuit worked in an SD & A office located on what is known as the “second tier” of the Kennedy Center building. See Def.'s Facts 2; Pl.'s Opp'n at 2.

The plaintiff has been a partial quadriplegic since 1986 and “is confined to her motorized wheelchair for most of the day.” Def.'s Facts 5; Pl.'s Opp'n at 2. At all times relevant to this action, the plaintiff “used a Pronto M91 model motorized wheelchair manufactured by the Invacare Corporation.” Def.'s Facts 6 (citing Deposition of Mary Jane Owen (“Owen Dep.”), ECF No. 13–5, at 15–16; Expert Report of Jeffrey E. Fernandez, Ph.D. (“Fernandez Report”), ECF No. 13–7, at 7). The wheelchair in its entirety—the frame plus the battery—weighs 273 pounds. See Def.'s Facts 8 (citing Fernandez Report at 7). The plaintiff at the time of the incident weighed approximately 222 pounds, so the combined weight of the plaintiff and the wheelchair in its entirety (“excluding additional weight of clothing, bags, or other personal effects”) was nearly 500 pounds. Def.'s Facts ¶¶ 9–10 (citing Fernandez Report at 8–10, 14).

The only way for the plaintiff to reach her place of employment on the second tier of the Kennedy Center was to use the Garaventa GSL–1 model wheelchair lift. See Def.'s Facts ¶¶ 11–13 (citations omitted); Pl.'s Opp'n at 2; Def.'s Mem. in Supp. of Mot. for Summ. J. (“Def.'s Mem.”), ECF No. 13, at 4. ⁵ “The GSL–1 lift consisted of a wall-mounted track to which was affixed a platform that ran along the track and lifted the user above the stairs.” Def.'s Mem. at 4 (citing Fernandez Report at 6 (Fig. 2), 13 (Fig. 8)). The platform was equipped with ramps—or platform lips—“at its front, side, and rear,” as well as “with two bar guard safety arms at the front and rear of the lift.” Def.'s Mem. at 5; Def.'s Facts ¶¶ 18–19 (citing Fernandez Report at 6, 13). The weight capacity limit of this lift is 450 pounds. See Def.'s Mem. at 4 (citing Fernandez Report at 4).

The plaintiff “could not use the lift without the assistance of another person because it was operated by a control panel mounted on the wall at the top of the stairs near the entrance to the SD & A office.” Def.'s Mem. at 5 (citing Owen Dep. at 42–44); Def.'s Facts ¶ 20 (same). “Using the wall-mounted control panel, the person assisting [the plaintiff] ... would insert a key into the control panel to turn on the platform controls of the lift.” Def.'s Mem. at 5; see also Def.'s Facts ¶ 22 (citing Deposition of Amy Sloan (“Sloan Dep.”), ECF No. 13–6, at 15). The plaintiff would then drive her wheelchair onto the platform. See Def.'s Mem. at 4; see also Def.'s Facts ¶ 17 (citing Owen Dep. at 44–45). “Once [the p]laintiff was in place on the platform, the control panel operator would then press a button that engaged the lift's safety features.” Def.'s Mem. at 5 (citing Owen Dep. at 45); Def.'s Facts 23 (same). “[T]he lift would then begin to operate and the platform would move along the track and deliver [the p]laintiff to the end of the track at the top of the stairs.” Def.'s Mem. at 5; Def.'s Facts 27 (citing Owen Dep. at 42–45). “The control panel operator would then turn the key again, which would disengage the bar guard safety arms and platform lips, allowing [the p]laintiff to drive off the lift platform.” Def.'s Mem. at 5–6; Def.'s Facts 28 (citing Sloan Dep. at 15–16).

During the plaintiff's period of employmentwith SD & A,⁶ she experienced recurring problems with the lift as it sometimes stalled or “stopped mid-route, trapping the [p]laintiff until the lift could be re-started.” Pl.'s Opp'n at 2 (citing Owen Dep. at 55–57; Sloan Dep. at 18–24). “With regularity—at least once weekly—the lift would stall out when [the p]laintiff was riding it.” Def.'s Facts 29 (citing Owen Dep. at 55–56; Sloan Dep. at 18–21, 24). “Sometimes the lift could be restarted after waiting a while; other times, Kennedy Center technicians would have to be summoned to repair the lift while [the p]laintiff remained on it.” Def.'s Facts 30 (citing Owen Dep. at 56; Sloan Dep. at 22–23, 29). Though the Kennedy Center “properly maintained” and “serviced” the lift on multiple occasions “when the need arose,” the plaintiff continued to experience these problems and made several complaints regarding its operation. Def.'s Facts 15 (citing Fernandez Report at 7, 14); Def.'s Facts 29; Pl.'s Opp'n at 3. One stalling incident occurred where the plaintiff and her wheelchair had to be physically removed from the lift because the lift would not restart. See Def.'s Facts 31 (citing Owen Dep. at 57; Sloan Dep. at 23).

About three months before the incident in question, the Kennedy Center's Director of Accessibility, Betty Siegel (“Director of Accessibility”), “met with [the p]laintiff and inspected and tested the lift.” Def.'s Facts ¶ 32 (citing Declaration of Betty Siegel (“Siegel Decl.”) ¶¶ 5–9); see also Pl.'s Opp'n at 6 (“[The plaintiff] met with ... Betty Siegel, on or about May 21, 2008” and the “[p]laintiff, Ms. Siegel, and [two] other employees of the Kennedy Center witnessed the wheelchair lift both malfunctioning and functioning properly.”).⁷ The Director of Accessibility “then asked [the p]laintiff to inform her” of the plaintiff's weight and the weight of the wheelchair so that the Director could assess her safety on the lift. Def.'s Facts ¶ 35 (citing Siegel Decl. ¶ 9); see also Pl.'s Opp'n at 6 (“According to the email, Ms. Siegel alleges that the [sic] asked the [p]laintiff for the combined weight of the [p]laintiff and her chair.”). The plaintiff “promised to provide [the Director of Accessibility] with this information but never did.” Def.'s Facts ¶ 36 (citing Siegel Decl. ¶ 9); see also Pl.'s Opp'n at 6 (“There is no record of any followup.”). In fact, the combined weight of the plaintiff and her wheelchair “exceeded the weight capacity limit of the wheelchair lift by almost 50 pounds.” Def.'s Facts ¶ 37 (citing Fernandez Report at 11–12).

On the evening of August 29, 2008, the plaintiff again used the lift. See Def.'s Facts ¶ 38. The lift malfunctioned, and “[a]t some point during her use of the lift either [the p]laintiff or the co-worker assistingher [ ⁸] manually raised the safety bar guard [arm] located behind [the p]laintiff at the rear of the lift platform.” Def.'s Facts ¶¶ 38–39 (citing Fernandez Report at 12).⁹ The plaintiff and her wheelchair then “toppled over, backwards, off the lift platform and onto the floor.” Def.'s Facts ¶ 40 (citing Fernandez Report at 12); see also Pl.'s Opp'n at 3. ¹⁰ The coworker went for help at the SD & A offices, and the plaintiff's supervisor called Kennedy Center security personnel. See Def.'s Facts ¶¶ 41–42 (citing Sloan [Dep.] at 26–27).

Following this incident, the plaintiff submitted a Standard Form 95 to the General Counsel's Office at the Kennedy Center on April 23, 2009 seeking $5,000.00 in property damages and $1,000,000.00 in personal-injury damages. ¹¹See Pl.'s Opp'n at 3; Def.'s Facts ¶ 43; Def.'s Mot. Summ. J., ECF No. 13–4, Ex. D (Letter from Andrew Bederman, Esq., to JoEllen Dinges, Esq. (Apr. 23, 2009) (“Bederman Letter”)). The plaintiff, however, did not submit with this Form any medical records or other documentation to support her claim. See Def.'s Facts ¶ 44; Bederman Letter. On March 12, 2010, the Kennedy Center denied the plaintiff's claim. See Def.'s Facts ¶ 45.¹²

The plaintiff then filed a Complaint in the United States District Court for the District of Columbia.¹³ During discovery, the plaintiff filed a Rule 26(a)(1) Statement listing relevant documents as well as names of relevant witnesses, see ECF No. 7, as well as a Rule 26(a)(2) Statement with the names of two medical experts, both treating physicians of the plaintiff, see ECF No. 8. Although the plaintiff alleged that the experts would testify as to the extent of her injuries as well as to the cause of them (her fall on August 29, 2008), ECF No. 8 ¶¶ 1–2, the plaintiff did not submit medical records or any other documents. On July 15, 2011, the defendant submitted its Rule 26(a)(2) expert report by engineer Jeffrey E. Fernandez, PhD, PE, CPE, which contains his analysis of the wheelchair lift and the resulting incident. ECF No. 12.¹⁴ In his report, Dr. Fernandez concluded that (i) the lift “will fail to operate” if the weight—as in...