Weston v. Washington Metropolitan Area Transit Authority

• Citation: 316 U.S. App. D.C. 321,78 F.3d 682
• Decision Date: 15 March 1996
• Docket Number: 95-7098,Nos. 95-7055,s. 95-7055
• Parties: Victoria Marie WESTON and Marie Beatrice Weston, Appellees, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 682

78 F.3d 682

316 U.S.App.D.C. 321

Victoria Marie WESTON and Marie Beatrice Weston, Appellees, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant.

Nos. 95-7055, 95-7098.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 23, 1996.

Decided March 15, 1996.

Appeals from the United States District Court for the District of Columbia (No. 92cv01750).

David R. Keyser, Takoma Park, MD, argued the cause for appellant, with whom Robert L. Polk and Robert J. Kniaz, Washington, DC, were on the brief.

Jay B. Dorsey, III, Washington, DC, argued the cause for appellees.

Edward J. Longosz, II and Adam W. Smith, Fairfax, VA, were on the brief for amicus curiae Schindler Elevator Corporation.

Before: SILBERMAN, BUCKLEY and ROGERS, Circuit Judges.

ROGERS, Circuit Judge:

The Washington Metropolitan Area Transit Authority ("WMATA") appeals from a judgment following a jury verdict finding that WMATA was negligent per se in the inspection and maintenance of its escalators, which proximately caused a hand injury to the two-year old plaintiff. WMATA makes seven claims of error on appeal, but we need only address its contention that the district court erred in instructing the jury on the meaning of § 902.5 of the D.C. Elevator Code. Although framed in terms of an error of interpretation, WMATA's contention necessarily presents the court with the question whether the jury was instructed on the correct law. Because the District of Columbia regulation, violation of which the district court instructed the jury was negligence per se, had been repealed at the time of the accident, the instruction was erroneous. Accordingly, we reverse and remand the case to the district court with instructions to enter judgment for WMATA, in accordance with the special verdict form finding that WMATA was not negligent.

I.

The accident took place on July 11, 1990, at the Minnesota Avenue Metro station. Marie Weston was riding up an escalator, with her seven-year-old son Alphonso on one side and her two-year-old daughter Victoria on the other. When Alphonso broke away from his mother and distracted her attention, Victoria somehow caught her right hand in the gap between the escalator steps and the "skirt" (the part below the balustrade) on the side. Victoria's hand injury required extensive surgery, and she retains some permanent disability. Marie Weston incurred medical expenses of $17,922.61 on behalf of her daughter.

Marie and Victoria Weston ¹ filed suit against WMATA in federal district court on July 27, 1992. ² At trial, the plaintiffs' theory was that WMATA had failed properly to inspect and maintain the escalator in question. They called the mechanic from Schindler Elevator Corporation, the manufacturer and maintenance contractor, who conducted the routine bi-monthly maintenance on the escalator, Guilford J. Bobo. Bobo testified that he inspected according to, and ensured compliance with, the manufacturer's guidelines of a three-sixteenths inch gap on either side, using a gauge calibrated at three-sixteenths of an inch. Similarly, the District government inspector who inspected the escalator after Victoria's accident, Leonard Harris, testified that he conducted visual inspections according to his understanding of D.C. law, which required a three-sixteenths inch gap on either side, and that on July 12, 1990, the escalator was in compliance with D.C. law. ³ The WMATA inspector who inspected the escalator after the accident, Theodore Perper, testified that he conducted a visual inspection to check compliance with the Safety Code of the American National Standards Institute ("ANSI"), and found that the gap was "in compliance" without specifying the applicable standard. Another WMATA escalator inspector, Girard P. McGrail, testified that he made a visual examination to see whether the gap complied with the ANSI Code, which he understood to require no more than three-eighths of an inch on either side. In an inspection that McGrail conducted on the same escalator on October 16, 1990, after a five-year-old girl suffered a hand entrapment injury similar to Victoria's, he found that the gap on the right side was greater than three-eighths of an inch.

The plaintiffs also called an expert witness in escalator engineering, Leroy T. Gravette III, who testified that under the law that he believed was in force at the time of the accident in the District of Columbia, D.C.Mun.Regs. tit. 13A, § 902.5 (1984), the gap clearance was required to be no more than three-sixteenths of an inch on either side, and the sum of the two gap clearances was required to be no more than one-quarter of an inch. ⁴ Section 902.5 of the D.C.Elevator Code provided:

The clearance on either side of the steps between the steps and the adjacent skirt guard shall not be more than three-sixteenths inch ( 3/16"'), and the sum of the clearances on both sides shall be not more than one-quarter inch ( 1/4"'); except where means are provided to cause the opening of the power circuit to the motor and brake if an object becomes caught between the step and the skirt panel as the step approaches the lower combplate.

Because WMATA's maintenance of the escalator so that the gap on either side was less than three-sixteenths of an inch was not inconsistent with the possibility that the sum of the gaps was more than one-quarter of an inch, the plaintiffs submitted that WMATA was negligent per se. The plaintiffs also presented evidence that WMATA's inspection and maintenance procedures were negligent. They sought to show that WMATA's escalator inspectors were assigned to too many escalators to do their job properly, were inadequately trained, conducted visual inspections rather than using tools for more precise measurements, and that WMATA lacked follow-up procedures to ensure that its contractor, Schindler, performed repair work as instructed. In addition, the plaintiffs introduced evidence of a prior accident on the same escalator to show that WMATA had notice of the dangerous condition of the escalator but had failed to warn the plaintiffs. ⁵

After instructing the jury, but before the jury began its deliberations, the district court suggested the use of a special verdict form that separated "negligence per se " from "ordinary negligence." The plaintiffs agreed to this verdict form. The jury thereafter found that WMATA was not liable under the theory of "ordinary negligence" but was liable under the theory of "negligence per se " and awarded damages of $218,000. The judge denied WMATA's motion for judgment notwithstanding the verdict or a new trial, and WMATA appeals.

II.

The jury verdict against WMATA, which was based on a theory of negligence per se, was predicated on § 902.5 of the D.C.Elevator Code, which was enacted in 1984. In the district court, and again on appeal, WMATA maintains that its inspection procedures were in compliance with § 902.5. WMATA urges a construction of § 902.5 that the requirement that the sum of the gaps not exceed one-quarter of an inch excluded escalators equipped with "means ... to cause the opening of the power circuit to the motor and brake if an object becomes caught between the step and the skirt panel as the step approaches the lower combplate" (known as a skirt switch). WMATA thus interprets § 902.5 to require a three-sixteenths of an inch gap on either side only for escalators equipped with a skirt switch--a safety device that will stop the escalator before an object caught in the gap strikes the edge of the combplate. However, plaintiffs' expert, Gravette, testified that this exception applied only to descending escalators because it is determined by the "step approach[ing] the lower combplate." The district court interpreted the exception to apply only to "the area where the safety switched is located" and not to the middle of the escalator. We need not resolve this dispute over the proper interpretation of § 902.5 because § 902.5 had been repealed at the time of the accident.

In the district court, the parties stipulated that § 902.5 was the governing regulation. Even though WMATA operates over five hundred escalators throughout the Metro system, WMATA's counsel never clearly informed the district court that § 902.5 had been repealed and, as on appeal, attempted to harmonize that section and the ANSI Code. Thus, counsel misinformed the district court (contrary to WMATA's legal interest) that the D.C.Elevator Code was in effect at the time of the accident. As amicus Schindler points out, § 902.5 was repealed by the District of Columbia before Victoria's accident occurred. While parties may enter into stipulations of fact that are binding upon them unless they can show manifest injustice, " '[p]arties may not stipulate to the legal conclusions to be reached by the court.' " TI Fed. Credit Union v. Del Bonis, 72 F.3d 921, 928 (1st Cir.1995) (quoting Saviano v. Commissioner, 765 F.2d 643, 645 (7th Cir.1985)). The court is authorized to determine what law was in effect at the time of Victoria's accident, and thereby avoid deciding a hypothetical case framed by the plaintiffs and WMATA. United States Nat'l Bank v. Independent Ins. Agents, 508 U.S. 439, 447, 113 S.Ct. 2173, 2179, 124 L.Ed.2d 402 (1993). Accordingly, we address whether § 902.5 remained in force at the time of the accident.

In 1987, the Council of the District of Columbia enacted the Construction Codes Approval and Amendments Act of 1986. D.C.Law 6-216, 34 D.C.Reg. 1072 (1987) (codified at D.C.CODE ANN. §§ 5-1301 to 5-1309 (1994)). The Act repealed "[t]he District of Columbia Elevator Act of 1977, effective November 3, 1977 (D.C.Law 2-36; 13A DCMR Chapters 1-16)." D.C.Law 6-216, § 12(a)(4), 34 D.C.Reg. at 1102. Thus, the 1984 D.C.Elevator Code, D.C.Mun.Regs. tit. 13A, was no longer in force at the time of the accident.

In place of the Elevator Code, the District of Columbia substituted the 1984 Basic/National Building Code promulgated by the...