Walen v. United States

• Decision Date: 09 September 2019
• Docket Number: Civil Action No. 15-1718 (BAH)
• Parties: MARY LOU WALEN, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

MARY LOU WALEN, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

Civil Action No. 15-1718 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 9, 2019

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

The plaintiff, Mary Lou Walen, brought this suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2674 et seq., and District of Columbia law against the United States and the District of Columbia (the "District") to recover for serious injuries she sustained when a tree limb fell on her as she walked along Connecticut Avenue, a major pedestrian artery in Northwest Washington. See Compl. ¶ ¶ 1-2, 7-8, ECF No. 1. On the day of the plaintiff's injury, Hurricane Sandy ("Sandy") was affecting weather conditions in the District. The plaintiff's complaint alleges that the defendants owed a duty to maintain and inspect the trees overlooking the relevant stretch of Connecticut Avenue, a bridge crossing the Klingle Valley, a wooded depression in Rock Creek Park between the densely populated neighborhoods of Woodley Park and Cleveland Park. See id. ¶¶ 19-20, 47-49. She also argues that the defendants' breaches of those duties—and not the storm—caused her injuries. See id. ¶¶ 21, 50. She seeks $5,000,000 in compensatory damages, plus reasonable attorneys' fees and costs. See id. at 8, 13. Pending are the United States' and District's motions for summary judgment. See D.C.'s Mot. Summ. J. ("D.C.'s Mot."), ECF No. 43; U.S.'s Mot. Summ. J. ("U.S.'s Mot."), ECF No. 47. For the reasons that follow, both motions are denied.

I. BACKGROUND

The factual and procedural background relevant to resolving the pending motions is summarized below.

A. Factual Background

A tree limb fell on the plaintiff on October 29, 2012, at about 3:15 p.m. as she walked on the sidewalk across the Connecticut Avenue Bridge ("the Bridge"), the portion of Connecticut Avenue that spans the Klingle Valley. See United States' Statement of Material Facts Not in Dispute ("U.S.'s SMF") ¶¶ 1-2, ECF No. 47-1, Defendant District of Columbia's Statement of Material Facts Not in Dispute ("D.C.'s SMF") ¶ 17, ECF No. 43-1; Compl. ¶¶ 6-9.¹ She was headed to pick up prescriptions at a pharmacy. See U.S.'s Mot., Ex. H, Dep. of Mary Lou Walen ("Pl.'s Dep.") at 33:1 to 33:6, ECF No. 47-10. The plaintiff has lost her memory of the incident, see id., but another person walking on the Bridge at the time "heard a loud crashing sound," "turned toward the sound . . . [,] noticed that a tree branch had fallen," and saw "a few people . . . spinning toward the southwest side of the bridge." Pl.'s D.C. Opp'n, Ex. H, Declaration of Eric Kimbuende ("Kimbuende Decl.") ¶ 4, ECF No. 49-7; see also Pl.'s Mem. Opp.'n Def. U.S.'s Mot. Summ. J. ("Pl.'s U.S. Opp'n"), Ex. D, Kimbuende Decl. ¶ 4, ECF No. 50-3. "Upon reaching them," the witness, Eric Kimbuende, "noticed that a woman had been struck by the branch." Id.

The Metropolitan Police Department ("MPD") arrived shortly thereafter, along with emergency medical responders. See U.S.'s Mot., Ex. D, Metropolitan Police Dep't, Police Report ("MPD Report") at 2, ECF No. 47-6. The MPD report of the incident stated that the plaintiff "was on the public sidewalk on the west side of the 3200 block of Connecticut [Avenue] NW when she was struck by falling tree limb. When the [responding officer] arrived on the scene, he . . . observed fallen tree limb debris on and around [plaintiff]." Id. The plaintiff was transported to George Washington University Hospital "in critical condition" and underwent "emergency surgery." Id.

"[T]rees under the maintenance jurisdiction of both" the National Park Service ("NPS"), a federal agency, and the District overhang the Bridge. U.S.'s SMF ¶ 3 (citing U.S.'s Mot., Ex. G, Dep. of Munevver Ertem ("Ertem Dep.") at 9:5 to 10:11, ECF No. 47-9); see also Pl.'s Mem. Opp.'n Def. D.C.'s Mot. Summ. J. ("Pl.'s D.C. Opp'n"), Ex. A., Ertem Dep. 9:5 to 10:11, ECF No. 49-3. NPS maintains the trees in Klingle Valley because the Valley is part of a national park, Rock Creek Park. U.S.'s SMF ¶ 2. A former D.C. Department of Transportation ("DDOT") road (now a trail) runs through the Valley, and the District shares with NPS jurisdiction over the trees growing in the now-eroded road and in the road's fifty-foot right of way. Ertem Dep., at 9:5 to 10:11, ECF No. 47-9 and ECF No. 49-3. DDOT does not perform routine inspections of trees in the Klingle Valley, relying instead on resident reports of obtrusive or hazardous trees to trigger inspections and maintenance. See D.C.'s Mot., Ex. G., Ertem Dep., at 12:3 to 13:7, 16, ECF No. 43-1. NPS has protocols for routine tree inspections. See Pl.'s D.C. Opp'n, Ex. F, Email from Tara Morrison, Superintendent, Rock Creek Park, to Richard Steacy, Advisory Neighborhood Commission (Nov. 20, 2012) at 5, ECF No. 49-3; U.S.'s Mot., Ex. F, Deposition of Donald Kirk ("Kirk Dep.") at 21:3 to 24:24, ECF No. 47-8 (describing how NPSprioritizes tree maintenance). In the pending motions, NPS's protocols are less at issue than the District's.

A photograph of the Connecticut Avenue Bridge taken two days after the plaintiff was injured, on October 31, 2012, by Diana Bramble, NPS's supervisory horticulturalist for Rock Creek Park, shows a several-foot-long pile of tree debris spanning half the width of the sidewalk. See D.C.'s Mot., Ex. H, ECF No. 43-1. Visible atop the pile of debris is a red umbrella, which the plaintiff has identified as her umbrella. Pl.'s D.C. Opp'n, Ex. G, Affidavit of Mary Lou Walen ("Pl.'s Aff.") ¶ 7, ECF No. 49-3; see also Pl.'s U.S. Opp'n, Ex. E, Pl.'s Aff. ¶ 7, ECF No. 50-3. Bramble also photographed a tree that had been uprooted at its base on the floor of the Klingle Valley, beneath the Bridge. See D.C.'s Mot., Ex. I, ECF No. 1. Bramble testified that she was "of the opinion that the debris on the bridge could possibly be from the large tree that fell," but she could not form a definitive opinion. D.C.'s Mot., Ex. B, Dep. of Diana Bramble ("Bramble Dep.") at 83:14 to 83:16. Kimbuende, the witness, attached to his declaration an image of a tree immediately next to the bridge; the tree is missing a branch, and Kimbuende states "it appears that the tree from which the branch fell is depicted . . . in the image." Kimbuende Decl. at ¶ 9.

The day of the plaintiff's injury, Hurricane Sandy was affecting weather conditions in the District. See D.C. SMF ¶¶ 1-10; U.S.'s SMF ¶¶ 7-16, 18; U.S.'s Mot., Ex. A, Nat'l Weather Serv. Nat'l Hurricane Ctr., Tropical Cyclone Report Hurricane Sandy, AL12012, at 3-4, ECF No. 47-3 (describing Sandy's path on October 29); Pl.'s D.C. Opp'n, Ex. C., Nat'l Hurricane Ctr., Sandy Graphics Archive, ECF No. 49-3 (showing Sandy's location 216 miles from D.C. at 2:00 p.m. on October 29); Pl.'s U.S. Opp'n, Ex. B, Nat'l Hurricane Ctr., Sandy GraphicsArchive, ECF No. 50-3 (same as previous);² Pl.'s D.C. Opp'n, Ex. E, Thomas E. Downs, Meteorological Assessment Report ("Downs Report") at 2-4, ECF No. 49-3 ("Hurricane Sandy was approaching the East Coast of the United states on October 29, 2012."); see also D.C.'s Mot., Ex. L, Downs Report at 2-4, ECF No. 43-1 (same); Pl.'s U.S. Opp'n, Ex. A, Downs Report, ECF No. 50-3 (same). The MPD report noted the weather conditions on the Bridge at the time of the police response as "heavy rain and wind." U.S.'s SMF ¶ 20 (citing MPD Report). The parties dispute the precise weather conditions on the Bridge at the time of the injury. Compare, e.g., Downs Report at 2, with U.S.'s SMF ¶¶ 7- 17 (describing the storm).

The following facts about the storm are not contested, however. Three days before the accident, on October 26, 2012, the District's then-Mayor Vincent Gray had declared a State of Emergency "[b]ecause a storm system associated with Hurricane Sandy" was then "rapidly approaching the District" and was "expected to have serious widespread effects in the region." D.C.'s Mot., Ex. A, Mayor's Order 2012-186, "Declaration of Public Emergency," (Oct. 26, 2012) ("D.C. Emergency Declaration"), ECF No. 43-1; see also U.S.'s SMF ¶ 10 (citing U.S.'s Mot., Ex. B, D.C. Emergency Declaration, ECF No. 47-4); D.C.'s SMF ¶ 1.³ At a press conference on October 28, Gray cautioned D.C. residents to "shelter in place during the peak of this storm." U.S.'s SMF ¶ 13 (citing U.S.'s Mot., Ex. C., Press Release, D.C. Multi-Agency, "Mayor Gray Closes District Government Monday," Oct. 28, 2012 ("Press Release"), ECF No. 47-5); see also D.C.'s Mot., Ex. F, Tim Craig, Hurricane Sandy: D.C. Mayor Gray Calls for Immediate Preparations, The Washington Post (Oct. 28, 2012), ECF No. 43-1 (recounting thepress conference).⁴ Gray also said that the District "is likely to suffer significant power outages due to fallen trees and other debris." Press Release. The District's press release issued about the press conference stated that "the peak of the extreme winds [were] expected between about noon Monday[, October 29] and the early hours of Tuesday morning." Id.

Before her injury, the plaintiff "knew that there was a hurricane coming" on October 29 but was unaware that the Mayor had declared a State of Emergency. D.C.'s SMF ¶ 18 (quoting D.C.'s Mot., Ex. J., Pl.'s Dep. at 67:6 to 67:23, ECF No. 43-1), ¶ 19 (citing Pl.'s Dep. at 68:16 to 68:21). When asked if she "recall[ed] if the news said when the hurricane would arrive," the plaintiff responded, "[t]hat evening"—that is, "[t]he evening of the 29th." Id. at 68:23 to 69:9.

NPS facility manager for Rock Creek Park, Donald Kirk, testified that "Hurricane Sandy brought a lot of trees down [in the Park]." D.C.'s Mot., Ex. C, Kirk Dep. at 44:5 to 44:6, ECF No. 43-1. Bramble, the NPS horticulturalist, stated that the uprooted tree under the Bridge "appeared to have fallen from the rain and heavy wind." Bramble Dep. at 101:8-9. The plaintiff has submitted an expert report by arborist Lew Bloch opining, after reviewing photographs of the tree debris found on the Bridge and other...