Washington Metropolitan Area Transit Authority v. Johnson

726 A.2d 172, 1999 D.C. App. LEXIS 50, 1999 WL 104564

• Court: District of Columbia Court of Appeals
• Decided: March 3, 1999
• Docket: 96-SP-1784
• Status: Published

Opinions

ON REHEARING EN BANC

FARRELL, Associate Judge:

Pursuant to D.C.Code § 11-723 (1995), the United States Court of Appeals for the District of Columbia Circuit has certified the following question to this court:

Under District of Columbia law, and upon the facts described below, may a plaintiff who has voluntarily assumed an unreasonable risk of incurring a particular injury recover from a defendant who failed to take the last clear chance to prevent that injury?

Johnson v. Washington Metro. Area Transit Auth., 321 U.S.App.D.C. 260, 261, 98 F.3d 1423, 1424 (1996) (Johnson II). The “facts described” by the Circuit Court pose that question in the specific context of a voluntary act of suicide. The court states:

On March 20, 1986 Devora Johnson jumped from the subway station platform into the path of an oncoming WMATA train. The parties do not contest that Ms. Johnson jumped of her own volition and with the intention of committing suicide.

Id. at 261-62, 98 F.3d at 1424-25. The certified question therefore does not ask us to consider application of the doctrine of last clear chance to a negligent or even reckless plaintiff — one, for example, who sought to outrace an oncoming train in attempting to cross over the tracks. On the certified facts, Ms. Johnson intended the harm that resulted, her death. Nor are we asked to decide the question in the context of a claim of diminished capacity, where mental illness or other impairment is asserted to have limited the suicide victim’s ability to appreciate her peril or encounter it purposely.¹ The certified question concerns a plaintiff who, in the Circuit Court’s words, “voluntarily ... invited the particular harm that occurred.” Id. at 263, 98 F.3d at 1426. We hold as a matter of law that the doctrine of last clear chance may not be invoked in that situation.²

I.

“The last clear chance doctrine enables a plaintiff to recover despite [her] eon-tributary negligence." District of Columbia v. Huysman, 650 A.2d 1323, 1326 (D.C.1994) (emphasis added). Under the doctrine,

a plaintiff ... is permitted to recover, despite her own contributory negligence, if there is evidence (1) that the plaintiff was in a position of danger caused by the negligence o/both plaintiff and defendant; (2) that the plaintiff was oblivious to the danger, or unable to extricate herself from the position of danger; (3) that the defendant was aware, or by the exercise of reasonable care should have been aware, of the plaintiffs danger and of her oblivi[ousness] to it or her inability to extricate herself from it; and (4) that the defendant, with means available to him, could have avoided injuring the plaintiff after becoming aware of the danger and the plaintiffs inability to extricate herself from it, but failed to do so.

Felton v. Wagner, 512 A.2d 291, 296 (D.C.1986) (citing cases) (emphases added). To state the doctrine is thus to recognize, at the outset, that applying it to a plaintiff who was not merely negligent or even reckless, but who instead intended the very harm that befell her, would take it well beyond its normal application. Stated differently, the doctrine presupposes a plaintiff who, unlike Ms. Johnson, was oblivious to her peril or at least would have wanted to extricate herself from it if able to do so. See Johnson II, supra, 321 U.S.App.D.C. at 263, 98 F.3d at 1426.³ Although the certified question is one of first impression for this court, the answer follows logically from tort principles which this court and others have consistently employed. In applying these principles, we do not “punish” Ms. Johnson (or her estate) for her action, as Judge Ruiz’s dissent charges; rather we acknowledge and enforce the disincentives to voluntary self-destruction on which society, through the civil law, insists.

WMATA as defendant contends that the doctrine of assumption of risk bars plaintiffs recovery, citing inter alia J.D. Lee & Barry A. Lindahl, Modern Tort Law § 11.04, at 324 (Rev. Ed.1997) (“The doctrine of last clear chance has no application to assumption of risk but applies solely to overcome the defense of contributory negligence.”). The certified question also is framed in terms of assumption of risk. The Circuit Court was unsure how this court would analyze the relationship between assumption of risk and last clear chance because some of our decisions have “equated the voluntary assumption of an unreasonable risk with contributory negligence at least in some circumstances.” Johnson II, supra, 321 U.S.App.D.C. at 263, 98 F.3d at 1426. See, e.g., Janifer v. Jandebeur, 551 A.2d 1351, 1352 (D.C.1989); Scoggins v. Jude, 419 A.2d 999, 1004 (D.C.1980). But, as we have already seen, this case does not concern contributory negligence. (The trial court instructed the jury that Ms. Johnson was eon-tributorily negligent as a matter of law.). And even assumption of risk provides a loose fit considering that Ms. Johnson went beyond passive awareness and acceptance of a risk: she intended the very harm that befell her. Yet assumption of risk does furnish us guidance because it deals with the plaintiffs intentional, not merely negligent, exposure to a known danger, see Lee & Lindahl, Modern Tort Law, supra, § 10.04, at 271, and it explains the legal consequence: “Because [s]he elects to proceed in the face of a known danger, the plaintiff is regarded as having consciously relieved the defendant of any duty which he otherwise owed the plaintiff.” Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C.1985). For this reason, we have recognized that the doctrine may bar recovery even when contributory negligence does not.

In Martin v. George Hyman Constr. Co., 395 A.2d 63 (D.C.1978), for example, we held that the contributory negligence of a wage earner did not bar recovery for an accident stemming from an employer’s breach of a statutory duty to provide reasonably safe working conditions. Id. at 71. The statute embodied a legislative judgment to “impose! ] upon employers ... the sole responsibility for avoiding those accidents.” Id. at 70. At the same time, we held that assumption of risk would bar recovery where the employer proved that the wage earner voluntarily spurned a safe alternative to encountering the risk and did so “with willful, wanton, or reckless disregard for his own safety.” Id. at 74. In that event “the defense operates to relieve [the defendant of] ‘all legal duty ... to the plaintiff.’ ” Id. at 71 (citation omitted). See also East Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1118-19 (D.C.1990) (“Contributory negligence is not a defense to a strict liability claim, but assumption of the risk bars recovery under either [negligence or strict liability].”)

Applying these principles, Ms. Johnson did not merely act in reckless disregard of her safety, she purposely invited the harm that resulted. She thereby relieved WMA-TA of any duty it otherwise owed her, including a duty to grasp the final opportunity— the last clear chance—to avert a harm brought about by her own intentional act.

Plaintiff argues that this analysis wrongly emphasizes the conduct of Ms. Johnson to the exclusion of the behavior of the train operator, whom the jury found to have been reckless both in his primary negligence and in failing to take the last clear chance.⁴ However, there is widespread authority for the principle that when the plaintiff and the defendant are equally at fault, “the law leaves both parties where it finds them.” Griffin v. Shively, 227 Va. 317, 315 S.E.2d 210, 213 (1984). Thus, the Restatement (Second) of Torts § 503(3) (1965) provides:

A plaintiff whose conduct is in reckless disregard of [her] own safety is barred from recovery against a defendant whose reckless disregard of the plaintiffs safety is a legal cause of the plaintiffs harm.

Comment c explains:

In general, the effect of the plaintiffs reckless disregard of [her] own safety is the same as that of [her] ordinary contributory negligence. The exception to this rule, stated in Subsection (3), is that where the plaintiffs conduct is itself in reckless disregard of [her] own safety, it bars [her] recovery not only from a defendant who has merely been negligent, but also from one who has acted in reckless disregard of the plaintiffs safety. The greater fault in the one ease is balanced against the greater fault in the other.

The Restatement does not expressly discuss the effect of recklessness by a plaintiff upon the availability of last clear chance, although some case law does. E.g., Conn v. Young, 267 F.2d 725, 728 (2d Cir.1959) (noting “considerable authority” that despite availability otherwise of last clear chance doctrine, “contributory recklessness having a causal relation to an accident is an effective bar to an action based on recklessness”); Handley v. Halladay, 92 N.M. 76, 582 P.2d 1289, 1290 (1978) (citing cases) (“A plaintiff who is so reckless as to be in disregard of [her] own safety cannot be protected by the doctrine [of last clear chance].”). But this case does not even require us to decide the issue of reckless conduct by a plaintiff balanced against reckless conduct of a defendant. Plaintiff has cited no authority, and we have found none, that would apply last clear chance to a plaintiffs conduct deliberately intended to bring about the harm another inflicts, either negligently or recklessly. Volenti non fit injuria (“to the willing no injury is done”).

II.

Plaintiff argues that failure to focus ultimately on the train operator’s conduct rather than on Ms. Johnson’s suicidal intent would relieve WMATA of accountability for violating its public trust as a common carrier. That is not so. “WMATA, like any common carrier, owes a duty of reasonable care to its passengers.” McKethean v. Washington Metro. Area Transit Auth., 588 A.2d 708, 712 (D.C.1991). Absolving it of a duty to a person — legally a trespasser — who jumps into the path of an oncoming train to commit suicide leaves that obligation fully intact. Further, conceding as we do that one aim of tort law is to deter negligent (and certainly reckless) behavior by actors such as WMA-TA’s train operator, any deterrence achieved by extending tort protection to a victim who deliberately invites the harm incurred would be negligible. In the brief interval available to a train operator under the last clear chance doctrine, there is no time to determine the circumstances which placed the victim at risk, including her degree of fault (i.e., whether faultless, negligent, reckless, or intending the injury); the nearly conclusive assumption guiding the driver’s conduct will be his accountability to the victim at least for recklessness. See note 4, supra. And, too, the intoxicated train operator faces criminal sanctions, see D.C.Code § 25-127 (1996), including a possible manslaughter prosecution in case of the victim’s death.⁵ In sum, there is no reason to believe that a vehicle operator will react less resolutely in the case of a victim intending harm to herself because of the possibility that last clear chance will not apply.

We also cannot ignore the perverse incentive that a contrary holding might provide. At an earlier stage of this litigation District Court Judge Oberdorfer wrote:

There is a very respectable public policy and common sense argument that an assumption of risk defense, which precludes consideration of who had the last clear chance, would discourage suicides and that allowing a potential suicide to contemplate the possibility of compensation for heirs and next-of-kin would have an opposite and unfortunate consequence.

Johnson v. Washington Metro. Area Transit Auth., 901 F.Supp. 1, 3 (D.D.C.1995); see also Johnson II, 321 U.S.App.D.C. at 263, 98 F.3d at 1426 (“Allowing an individual to recover for injuries she has actively invited would provide an incentive — in the form of expected compensation for her heirs if not for herself — for a suicidal or financially desperate person to act upon her self-destructive impulses.”). It is no answer to say that no studies have shown this to be a factor in suicide attempts; the difficulty of proving the proposition factually — for reasons in part obvious — does not detract from its common sense. Moreover, even if this incentive were wholly speculative, we remain convinced that a tort system designed to compensate for injuries caused by the fault of others is incompatible with awarding damages for deliberately invited harm.⁶

Against these considerations plaintiff cites the ameliorative and humanitarian aims of the last clear chance doctrine, first in serving to ease the harshness of the contributory negligence defense, see W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 66, at 464 (5th ed.1984), but also in maximizing the incentives for persons able to do so to preserve the life of a helpless victim. Cf. In re A.C., 573 A.2d 1235, 1246 (D.C.1990) (en banc) (state has parens patriae interest in “preserving life [and] preventing suicide”). But the perceived harshness of contributory negligence and the need to ameliorate it through the last clear chance doctrine are considerations very distant from this case of a deliberately invited death. Moreover, our discussion of deterrence above explains why we are not persuaded that the values of preserving life and deterring suicide, important though they are, would be fostered by applying last clear chance to voluntary acts of suicide; quite the contrary. Retrospective application of the doctrine to WMATA’s train operator could not, of course, save Ms. Johnson’s life, nor would it, for the reason stated earlier, have any appreciable effect on the behavior of WMATA drivers generally, beyond the incentives already in place.⁷ Last clear chance in these circumstances reduces to a gesture of compassion by the courts at the expense of someone else.

III.

Suicide is a terrible act because it extinguishes a human life and because of the suffering it leaves behind. Despite these tragic consequences, or perhaps because of them, the civil law does not relax the accountability of the actor-victim: “The act of suicide generally is considered to be a deliberate, intentional, and intervening act which precludes a finding that a given defendant is, in fact, responsible for the decedent’s death.” District of Columbia v. Peters, 527 A.2d 1269, 1275 (D.C.1987).⁸ Whether science one day will cast enough doubt on the volitional nature of suicide to call in question this principle is something on which we decline to speculate. We adhere to the rule of Peters, and hold that last clear chance may not be employed to restore liability in another for a plaintiffs suicidal act.

The clerk shall certify this answer to the United States Court of Appeals for the District of Columbia Circuit.

So ordered.

1 . Although plaintiff cites evidence in the record of Ms. Johnson’s past mental illness, that is no part of the factual predicate upon which we are asked to decide the certified question. The jury was not instructed to consider past hospitalizations of Ms. Johnson as bearing on her responsibility for her suicide; it was instructed that she "intentionally jumped from the train platform on to the tracks” and that “she was aware of and able fully to appreciate the risk that her jump on to the tracks entailed.”

2 . This case has had a lengthy history. In Johnson v. Washington Metro. Area Transit Auth., 280 U.S.App.D.C. 53, 883 F.2d 125 (1989) (Johnson I), the Circuit Court reversed a grant of summary judgment entered in favor of WMATA in the District Court. After the first trial resulted in a mistrial, the trial court, at the second trial, instructed the juiy to determine whether WMATA had the last clear chance to save Ms. Johnson and, if so, whether the train operator had breached the applicable standard of care when he failed to take the measures available to avoid injuring Ms. Johnson. The jury found WMATA liable. Johnson II, supra, 321 U.S.App.D.C. at 262, 98 F.3d at 1425. WMATA appealed, and the question certified to us arises from that appeal. After a division of this court answered the certified question, see Washington Metro. Area Transit Auth., v. Johnson, 699 A.2d 404 (D.C.1997), we vacated the division’s opinion by order of January 15, 1998, and set the case for rehearing en banc. 704 A.2d 306.

3 .Neither the certified facts nor any evidence cited to us supports an inference that Ms. Johnson, after throwing herself on the tracks, abandoned her resolve to take her life but did so too late.

4 . Because Ms. Johnson was a trespasser on the track, see Holland, v. Baltimore & Ohio R.R. Co., 431 A.2d 597, 599 (D.C.1981) (en banc), the jury was instructed to determine whether the train operator had been reckless in failing to take the last clear chance he had to avoid injuring her. It answered that question yes, presumably because of evidence showing that he had tested positive for cocaine and marijuana shortly after the accident.

5 . Plaintiff cites § 25-127 (under pain of fine and imprisonment, ”[n]o person shall be intoxicated while ... operating any ... car or train of cars ... in the District of Columbia”) as expressing a legislative policy not to exempt a train operator from liability to a plaintiff injured as a result of the driver’s intoxication (drug or alcohol). We glean no such policy from the statute applicable in every case, i.e., without regard to the plaintiff's own fault, any more than we read the workplace safety statute in Martin v. George Hyman Constr. Co., supra, to eliminate entirely the assumption of risk defense.

6 . Whether this would hold true in a jurisdiction unlike ours in which damages are apportioned based on fault, we have no occasion to consider.

7 . Besides, as the District Court judge noted, focusing only on the helpless situation of the person who threw herself on the tracks ignores “the fact that decedent may have placed others in danger by her reckless act: By forcing the train operator to apply the mushroom brake, the decedent caused a sudden deceleration which might have injured passengers in the train.” Johnson v. Washington Metro. Area Transit Auth., 764 F.Supp. 1568, 1582 n. 14 (D.D.C.1991).

8 .The “important exception” to this rule noted by Peters where the defendant’s conduct "produces an abnormal condition which results in an uncontrollable impulse to commit suicide,” 527 A.2d at 1275, 1276 (emphasis added), has no bearing on this case. Nor is it a case of an institution, such as a psychiatric hospital, having a duty of custodial care of the suicide victim. See, e.g., McLaughlin v. Sullivan, 461 A.2d 123, 125 (N.H.1983).