Briggs v. Washington Metropolitan Area Transit Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 22, 2007 Decided March 27, 2007

No. 06-7037

JUDITH C. BRIGGS, PERSONAL REPRESENTATIVE

FOR THE ESTATE OF GREGORY DERRINGER, DECEASED,

APPELLANT

v.

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv01876)

Calvin Steinmetz argued the cause for appellant. With him

on the briefs was Thomas Lester.

John J. Hathway and Andrew J. Marcus argued the cause

for appellees Washington Metropolitan Area Transit Authority,

et al. With them on the brief were Michael C. Gartner, Keith M.

Bonner, and Andrew Butz.

James C. McKay, Jr., Senior Assistant Attorney General,

Office of the Attorney General for the District of Columbia,

argued the cause for appellee District of Columbia. With him on

the brief were Robert J. Spagnoletti, Attorney General at the

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time the brief was filed, Todd S. Kim, Solicitor General, and

Edward E. Schwab, Deputy Attorney General.

Before: ROGERS and KAVANAUGH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

EDWARDS, Senior Circuit Judge: Judith C. Briggs filed a

wrongful death and survival action seeking to recover damages

from the Washington Metropolitan Area Transit Authority

(“WMATA” or “Metro”), the District of Columbia (“District”),

the Washington Convention Center Authority (“Authority”),

Clark Construction Company (“Clark”), and Sherman R. Smoot

Company (“Smoot”) after an unknown assailant murdered her

son near the top of the escalators at a Metro station in

Washington, D.C. Under D.C. law, a plaintiff alleging

negligence “‘has the burden of proving . . . the applicable

standard of care, a deviation from that standard by the

defendant, and a causal relationship between the deviation and

the . . . injury.’” Varner v. District of Columbia, 891 A.2d 260,

265 (D.C. 2006) (quoting District of Columbia v. Wilson, 721

A.2d 591, 597 (D.C. 1998)); accord Butera v. District of

Columbia, 235 F.3d 637, 659 (D.C. Cir. 2001). “Where an

injury is caused by the intervening criminal act of a third party,

. . . liability depends upon a more heightened showing of

foreseeability than would be required if the act were merely

negligent.” District of Columbia v. Beretta, U.S.A., Corp., 872

A.2d 633, 641 (D.C. 2005) (en banc) (internal quotation marks

omitted).

Before the District Court, appellees moved for summary

judgment on the grounds that Briggs had both failed to establish

foreseeability and demonstrate an applicable standard of care.

The District Court granted appellees’ motion, holding that

Briggs had not satisfied the requirement of a heightened

showing of foreseeability. Briggs v. WMATA, Civ. No. 01-1876

(D.D.C. Mar. 6, 2006), reprinted in Joint Appendix (“J.A.”)

627-38. On appeal, Briggs argues that summary judgment for

3

appellees was unwarranted, because she made out a prima facie

case of negligence that was more than enough to get the case

before a jury. We disagree. We need not decide whether Briggs

failed to establish foreseeability. Rather, we hold that appellees

are entitled to summary judgment because Briggs did not offer

creditable evidence sufficient to establish a controlling standard

of care. Under D.C. law, this shortcoming is “fatal to a

negligence claim.” Scott v. District of Columbia, 101 F.3d 748,

757 (D.C. Cir. 1996). Accordingly, we affirm the grant of

summary judgment.

I. BACKGROUND

After determining that a new convention center “would

have a significant economic impact, directly and indirectly, on

the District,” the D.C. Council established the Authority and

charged it with “acquir[ing], construct[ing], equip[ping],

maintain[ing], and operat[ing] the new convention center.” D.C.

CODE §§ 10-1201.01, 10-1202.02 (2001). The Authority

contracted for construction management services with a joint

venture formed by Clark and Smoot. Because construction of

the convention center required improvements and modifications

to the Mount Vernon Square-UDC Metro Station, the Authority

also entered into an agreement with WMATA.

During construction, pedestrians could only access the

Mount Vernon Square Metro station through a walkway

separated from the street by chain link fencing. In order to

protect people from construction debris, sheets of plywood

nearly two stories high enclosed the portion of the passageway

closest to the station’s escalators. The body of Dr. Gregory

Derringer was found at approximately 1:00 a.m. on August 20,

2000, inside this plywood enclosure near the top of the

escalators at the station. It was determined that Dr. Derringer

had been murdered by a single stab wound to the heart. There

has been no arrest in connection with the murder, because all

attempts to identify the assailant have failed.

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In 2001, Dr. Derringer’s mother filed a wrongful death and

survival action in the D.C. Superior Court, alleging that

WMATA, the District, the Authority, Clark, and Smoot

breached a duty of care to take security precautions for her son’s

safety. In particular, Briggs asserted that appellees caused Dr.

Derringer’s death by leaving the plywood walls in place for too

long and failing to adequately illuminate the enclosed area

leading into the Mount Vernon Square Metro station. Briggs

argued that the plywood enclosure was only necessary during

the slurry wall construction phase of the project, which ended

prior to August 20, 2000, so the enclosure should not have been

in place when her son was killed. She also contended that

several lights within the enclosure were not working, leaving the

lighting too dim on the night of her son’s murder. WMATA

removed the case to the federal District Court.

Pursuant to Federal Rule of Civil Procedure 26(a)(2),

Briggs designated Ralph W. Witherspoon as an expert witness

on safety precautions. In his supplemental report, Witherspoon

concluded that appellees

created a security hazard . . . by erecting 16-foot high

wooden barriers . . . that afforded criminals concealment

and hiding places; also, by permitting lighting within th[e]

enclosure to fall to levels which neither created a deterrence

to criminals, nor afforded [individuals within the walkway]

the ability to discern potentially threatening persons or

situations while still at a distance. In so doing, they

violated generally accepted security practices.

Second Supplementation of Plaintiff’s 26(a)(2) Statement (filed

Jan. 1, 2005) (“Witherspoon Report”), reprinted in J.A. 547-48.

In his report and during two depositions, Witherspoon

proffered four sources of these “generally accepted security

practices.” First, he cited Crime Prevention Through

Environmental Design (“CPTED”) as “an increasingly important

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and widely used concept in security design and practice . . . that

many security practitioners have used in their work over the

years.” Id. at 548. According to Witherspoon, the CPTED

concept focuses on “increasing visibility by occupants and

casual observers (police, others) to increase the detection of

trespassers or misconduct within the facility.” Id. (emphasis

omitted). Witherspoon also discussed “studies” demonstrating

that street lighting decreases crime. Id. at 552-53. Third,

Witherspoon referred to Occupational Safety and Health

Administration (“OSHA”) guidelines which he claimed “have

been used for years throughout the United States in addressing

robbery prevention in a wide variety of retail stores and

facilities.” Id. at 553. Specifically, Witherspoon cited two

OSHA recommendations: “Improve Visibility” and “Maintain

Adequate Lighting.” Id. (emphasis omitted). Finally,

Witherspoon referred to standards enunciated in WMATA’s

internal manuals, including specific footcandle lighting

requirements. Witherspoon offered nothing to suggest that there

are any applicable standards governing when protective fencing

should be removed from a construction site.

WMATA, the Authority, Clark, and Smoot moved for

summary judgment, asserting various governmental immunities

and arguing that Briggs failed as a matter of law to make the

heightened showing of foreseeability necessary to impose

liability for the intervening criminal act of a third party,

establish a standard of care, or prove that any lack of visibility

proximately caused Dr. Derringer’s death. The District filed a

separate motion for summary judgment on substantially the

same grounds. After considering Briggs’ detailed memoranda

responding to each of the arguments, the District Court held that

Briggs failed to carry her burden of demonstrating heightened

foreseeability. Briggs, Civ. No. 01-1876 (D.D.C. Mar. 6, 2006),

reprinted in J.A. 627-38. Since this conclusion was dispositive,

the District Court granted summary judgment for appellees

without addressing their other contentions.

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II. ANALYSIS

A. Standard of Review

Because it is undisputed that D.C. tort law controls the

disposition of this case, the duty of this court “is to achieve the

same outcome [that] would result if the District of Columbia

Court of Appeals considered this case.” Novak v. Capital Mgmt.

& Dev. Corp., 452 F.3d 902, 907 (D.C. Cir. 2006). Under D.C.

law, Briggs bore the burden of proving “that the murder was so

foreseeable that it became [appellees’] duty to guard against it

by adhering to a recognized standard of care, that [appellees]

breached that standard of care, and that the failure to exercise

due care proximately caused [Dr. Derringer’s] death.” Clement

v. Peoples Drug Store, Inc., 634 A.2d 425, 427 (D.C. 1993);

accord Novak, 452 F.3d at 907-08.

Summary judgment is appropriate where “‘there is no

genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.’” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting FED. R. CIV. P.

56(c)). “Rule 56(c) mandates the entry of summary judgment

. . . against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Thus, appellees were entitled to summary judgment, if viewing

the evidence in the light most favorable to Briggs, no reasonable

jury could find that Briggs established each of the elements of

negligence. See United States ex rel. Bettis v. Odebrecht

Contractors of Cal., Inc., 393 F.3d 1321, 1327 (D.C. Cir. 2005).

We review the District Court’s grant of summary judgment

de novo, George v. Leavitt, 407 F.3d 405, 410 (D.C. Cir. 2005),

and we “may affirm . . . on a ground not relied upon by the

lower court, provided that the opposing party has had a fair

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opportunity to [address] that ground,” Washburn v. Lavoie, 437

F.3d 84, 89 (D.C. Cir. 2006).

B. Establishment of an Applicable Standard of Care

1. WMATA Owed No Special Duty to Dr. Derringer by

Virtue of a Common Carrier/Passenger Relationship

Briggs argues that, under District of Columbia law, a

common carrier owes a special duty to protect its passengers,

and, therefore, she need only establish the foreseeability of the

harm against which she alleges WMATA failed to protect Dr.

Derringer. In other words, Briggs contends that she was not

required to put on expert testimony to establish the standard of

care in this case. In support of this position, Briggs cites

WMATA v. O’Neill, 633 A.2d 834, 840 (D.C. 1993) (“A

common carrier is required to protect its passengers against

assault or interference with the peaceful completion of their

journey.” (internal quotation marks omitted)). O’Neill relied

upon the Restatement (Second) of Torts § 314A(1)(a), which

provides, “A common carrier is under a duty to its passengers to

take reasonable action . . . to protect them against unreasonable

risk of physical harm.” Section 314A is an exception to the

Restatement’s general rule that “[t]he fact that the actor realizes

or should realize that action on his part is necessary for

another’s aid or protection does not of itself impose upon him a

duty to take such action.” The District Court rejected Briggs’

reliance on O’Neill and § 314A of the Restatement, holding that,

because Dr. Derringer’s body was found outside the Metro

station entrance, no common carrier/passenger relationship

existed between WMATA and Dr. Derringer. Briggs, Civ. No.

01-1876 (D.D.C. Mar. 6, 2006), reprinted in J.A. 633 n.7. We

agree.

The controlling case on this point is McKethean v. WMATA,

588 A.2d 708 (D.C. 1991). In that case, the D.C. Court of

Appeals held “that WMATA owed [victims who had been

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waiting at a bus stop] no duty of care because they were not its

passengers at the time they were injured.” Id. at 712. The court

explained that “‘[u]ntil a person has placed himself in some

substantial sense in the custody or under the control of the

carrier, he is not a passenger and no special duty of care is owed

him. An intent to become a passenger is not enough to confer

that status or to charge the carrier with the duty to exercise that

degree of care owed by a carrier in the transportation of a

passenger.’” Id. (quoting Baker v. D.C. Transit Sys., Inc., 248

A.2d 829, 831 (D.C. 1969)). A similar judgment was reached in

Gillot v. WMATA, 507 F. Supp. 454 (D.D.C. 1981), where the

court held that WMATA owed no special duty to a parking lot

patron who was abducted while she was on a parking lot owned

and maintained by WMATA. See id. at 457 (“WMATA owed

the Plaintiff the same duty any parking lot owner would owe any

parking lot patron.”). O’Neill is inapposite, because the plaintiff

in that case was a passenger riding on a bus. In this case, Dr.

Derringer was neither a passenger inside a subway station, nor

a passenger riding a subway train.

Briggs argues that, because a Metro farecard was

discovered on Dr. Derringer’s body, it is fair to assume that he

intended to use the Metro. But, as the court noted in

McKethean, an intent to become a passenger is not enough to

create a common carrier/passenger relationship. See 588 A.2d

at 712. Briggs also cites Robinson v. WMATA, 676 A.2d 471

(D.C. 1996), where the court treated Robinson as a passenger

despite the fact that she had not yet actually passed through the

WMATA faregate. But the court tellingly noted that “WMATA

[had] not contended that Ms. Robinson was not a Metro

passenger to whom it owed a duty of care,” id. at 473 n.2, so the

issue was not joined in that case.

In short, Briggs cites to no authority supporting her claim

that Dr. Derringer was a WMATA “passenger” when he was

killed. He had not entered the train station and “placed himself

9

in some substantial sense in the custody or under the control of

[WMATA].” McKethean, 588 A.2d at 712; see also

Restatement (Second) of Torts § 314A cmt. c (“The rules

[covering common carriers and passengers] apply only where

the relation exists between the parties, and the risk of harm, or

of further harm, arises in the course of that relation. A carrier is

under no duty to one who has left the vehicle and ceased to be

a passenger . . . .”). Therefore, he was “not a passenger and no

special duty of care [was] owed him.” McKethean, 588 A.2d at

712.

2. Necessity of Expert Testimony

Pursuant to the “expert testimony requirement,” District of

Columbia v. Hampton, 666 A.2d 30, 35-36 (D.C. 1995), “‘[a]

plaintiff must put on expert testimony to establish what the

standard of care is if the subject in question is so distinctly

related to some science, profession or occupation as to be

beyond the ken of the average layperson,’” District of Columbia

v. Arnold & Porter, 756 A.2d 427, 433 (D.C. 2000) (quoting

Messina v. District of Columbia, 663 A.2d 535, 538 (D.C.

1995)); accord Butera, 235 F.3d at 659. “There is, however, a

partial exception to this rule,” Hampton, 666 A.2d at 35: “no

expert testimony is needed if the subject matter is within the

realm of common knowledge and everyday experience,” Hill v.

Metro. African Methodist Episcopal Church, 779 A.2d 906, 908

(D.C. 2001) (internal quotation marks omitted); accord

Daskalea v. District of Columbia, 227 F.3d 433, 445 (D.C. Cir.

2000).

Briggs argues that “safety [and] lighting . . . are matters of

common knowledge which should not even require expert

testimony.” Appellant’s Br. at 28; see id. at 35-36. “At first

blush, there is arguably some . . . appeal to [Briggs’] suggestion

that the average juror does not require advice from experts” to

determine whether lighting must be increased or plywood taken

down. Varner, 891 A.2d at 266. But such a judgment based on

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bare intuition of this sort would be misguided. The D.C. Court

of Appeals has required expert testimony in a number of cases

that, on first blush, appear to be within the realm of common

knowledge. For example, the court has held that the following

subjects require expert guidance despite the fact that they might

be familiar to jurors: maintenance of leaning trees, Katkish v.

District of Columbia, 763 A.2d 703, 706 (D.C. 2000);

application of hair relaxer, Scott v. James, 731 A.2d 399, 400

(D.C. 1999); tightness of handcuffs, Tillman v. WMATA, 695

A.2d 94, 97 (D.C. 1997); cushioning for the ground underneath

playground monkey bars, Messina, 663 A.2d at 538;

maintenance of street lights to prevent falling light globes,

Rajabi v. Potomac Elec. Power Co., 650 A.2d 1319, 1322 (D.C.

1994); time frame for ordering building materials on a

construction project, Lenkin-N Ltd. P’ship v. Nace, 568 A.2d

474, 479 (D.C. 1990); response when an arrestee is found

hanging in his cell, Toy v. District of Columbia, 549 A.2d 1, 7

(D.C. 1988); and installation of “a crosswalk, instead of a stop

sign, light, or crossing guard,” District of Columbia v. Freeman,

477 A.2d 713, 719-20 (D.C. 1984). The case law indicates that

the “common knowledge” exception to the expert testimony

requirement is recognized only in cases in which everyday

experience makes it clear that jurors could not reasonably

disagree over the care required. See, e.g., Bostic v. Henkels &

McCoy, Inc., 748 A.2d 421, 425-26 (D.C. 2000) (holding that no

expert testimony was necessary where boards covering a half

block long and three foot wide trench were laid so as to produce

a six to seven inch gap between boards); District of Columbia v.

Shannon, 696 A.2d 1359, 1365-66 (D.C. 1997) (same where

child’s thumb was ripped out of her hand after getting caught in

an open hole in the metal handrail of a playground slide);

Jimenez v. Hawk, 683 A.2d 457, 462-63 (D.C. 1996) (same

where abandoned tank containing used motor oil led to fire).

Moreover, expert testimony is routinely required “in

negligence cases . . . which involve issues of safety, security and

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crime prevention.” Varner, 891 A.2d at 267. For example, in

a case in which a student, who had been disciplined for various

acts of misconduct including repeated major thefts, was not

expelled and subsequently murdered two classmates, the D.C.

Court of Appeals concluded that “questions as to the

appropriateness and sufficiency of academic discipline should

not be left to a lay jury to decide without expert testimony.” Id.

Similarly, where a woman was injured as people rushed to leave

an event, the court held that “common knowledge and

experience . . . is a far cry from any experience with the process

of planning for the handling of large crowds in such

circumstances.” Hill, 779 A.2d at 910.

In light of this precedent, we are constrained to hold that

expert testimony was required in this case. While lay persons

can certainly distinguish between illumination and complete

darkness, there is nothing to indicate that common knowledge

includes a universal standard of “adequate” lighting within a

temporary construction walkway. And at what point safety

permits and requires the removal of barriers erected to protect

pedestrians is a question involving engineering determinations

that are beyond everyday experience. See Levy v. Schnabel

Found. Co., 584 A.2d 1251, 1255 (D.C. 1991) (holding expert

testimony “undisputedly” required to establish the applicable

standard of care for “sheeting, shoring and underpinning” a

building during construction). Inquiries of these sorts involve

issues of safety, security, and crime prevention with respect to

which the D.C. Court of Appeals has repeatedly found unguided

resolution by lay persons inappropriate. Whether plywood

construction fencing must be replaced with chain link fencing at

a particular time and whether the lighting provided within a

temporary construction walkway must be increased are not

“within the realm of common knowledge and everyday

experience.” Therefore, Briggs was required to “adduce expert

testimony . . . to establish the applicable standard of care.”

Varner, 891 A.2d at 265 (internal quotation marks omitted).

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3. Sufficiency of the Expert Testimony Proffered

Briggs contends that she did in fact produce sufficient

expert testimony. In support of this claim, Briggs says that

Witherspoon cited “numerous applicable written standards of

care” either widely accepted or specific to WMATA.

Appellant’s Br. at 28-35. However, a careful review of what the

law requires and what Briggs offered shows that she failed to

meet her burden.

Expert testimony

is not sufficient if it consists merely of the expert’s opinion

as to what he or she would do under similar circumstances.

Nor is it enough for the expert simply to declare that the

[defendant] violated the national standard of care. Rather,

the expert must clearly articulate and reference a standard

of care by which the defendant’s actions can be measured.

Thus the expert must clearly relate the standard of care to

the practices in fact generally followed by other comparable

. . . facilities or to some standard nationally recognized by

such units.

Clark v. District of Columbia, 708 A.2d 632, 635 (D.C. 1997)

(internal quotation marks and citations omitted). The D.C.

Court of Appeals has found “generalized references” to

standards insufficient. District of Columbia v. Moreno, 647

A.2d 396, 400 (D.C. 1994); District of Columbia v. Carmichael,

577 A.2d 312, 315-16 (D.C. 1990). The expert must proffer “a

specific, articulable (and articulated) standard of care.”

Carmichael, 577 A.2d at 315; see Phillips v. District of

Columbia, 714 A.2d 768, 773 (D.C. 1998) (“[T]he expert must

testify as to specific . . . standards and must relate them directly

to the defendant’s conduct.” (internal citation omitted)).

“Absent such testimony, the jury will be forced to engage in idle

speculation which is prohibited.” Hughes v. District of

Columbia, 425 A.2d 1299, 1303 (D.C. 1981). And articulation

13

of a specific standard is essential “[e]specially in circumstances

in which . . . the defendant is alleged to have failed to protect the

plaintiff from harm.” Varner, 891 A.2d at 269.

In this case, Witherspoon’s report and depositions, when

viewed in the light most favorable to Briggs, pointed to no

“specific standards” contained in the CPTED concept, cited

studies, or OSHA guidelines. Instead, Witherspoon’s testimony

rested on only generalized objectives. See Pannell v. District of

Columbia, 829 A.2d 474, 479-80 (D.C. 2003). The only

arguably relevant CPTED standard to which Witherspoon

pointed is denominated “increasing visibility”; the studies that

he cited merely focus on providing street lighting generally; and

the OSHA standards upon which he relied suggest that late night

retail establishments “Improve Visibility” and “Maintain

Adequate Lighting.” Witherspoon Report, reprinted in J.A. 548,

552-53 (emphasis omitted). None of these recommendations

embodies a discernible standard that is applicable to this case.

The recommendations, albeit laudatory, are too vague to allow

a jury to compare the requirements of a specific “standard” with

appellees’ conduct. In other words, the material cited by Briggs’

expert do not fix standards of behavior that can be used by a jury

to assess claims of culpability in this case. The purported

standards here are both too general and too vague to satisfy the

requirements of D.C. law.

Even when a purported standard sounds like nothing more

than “a lofty goal,” a party may still satisfy the expert testimony

requirement if the expert demonstrates that the purported

standard is “not merely a goal but [is] in fact . . . a national

standard applicable to [the defendant’s] efforts.” National

Telephone Coop. Ass’n v. Exxon Mobil Corp., 244 F.3d 153, 157

(D.C. Cir. 2001). But an expert must do more than simply state

that a purported standard sets a national norm. An expert’s

“own conclusory opinion,” Pannell, 829 A.2d at 479, without

any showing that the proffered standard “ha[s] been

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promulgated, or [i]s generally known,” Messina, 663 A.2d at

539, is insufficient. Alternatively, an expert may support a

purported standard by showing that it has been accepted as

controlling in facilities and enterprises that are similar to

defendants’ facilities or enterprises. See Clark, 708 A.2d at 635

(finding that expert who “never testified with any specificity that

the standard of care he had in mind was used by other facilities

comparable to the Receiving Home” failed to demonstrate an

applicable standard of care); Messina, 663 A.2d at 539 (same

where expert presented “no evidence of the extent to which

municipalities or other school systems actually complied, or

even attempted to comply, with the [proffered] guidelines”);

Toy, 549 A.2d at 8 (same where there was “no indication of how

many police departments . . . ha[d the] type of emergency

equipment [at issue] available”).

Witherspoon simply asserted that the CPTED concept is

“widely used . . . in security design and practice,” and that the

OSHA standards “have been used for years throughout the

United States in addressing robbery prevention in a wide variety

of retail stores and facilities.” Witherspoon Report, reprinted in

J.A. 548, 553. These unsupported claims do not demonstrate a

national standard. Indeed, in his deposition, Witherspoon

acknowledged that there is no national security standard for

lighting. And there is nothing in his testimony that even vaguely

suggests a standard covering the appropriate timing for the

removal of construction fencing. He stated that he could not

recall whether any of the cases on which he previously had

served as an expert witness involved a construction company,

and he confirmed that none of them featured a local traffic

authority. In short, Witherspoon failed to establish that the

vague goals provided by the CPTED concept, studies, and

OSHA guidelines have been implemented by similar entities or

achieved nationwide acceptance.

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“Nor can [Briggs] prevail on the basis of the provisions in

the [WMATA manuals]. . . .” Varner, 891 A.2d at 269. The

D.C. Court of Appeals has held that such internal policies –

standing alone – cannot demonstrate the applicable standard of

care. See Clark, 708 A.2d at 636-37 (“In essence, plaintiff’s

case here is based upon the proposition that the District deviated

from its own Plan. That is simply not enough.”); see also

Varner, 891 A.2d at 269-70; WMATA v. Young, 731 A.2d 389,

398 (D.C. 1999) (“[C]ompany rules are not ‘conclusive’ or

‘wholly definitive’ . . . .”). While internal regulations may be

“admissible as bearing on the standard of care,” admission at

trial of the WMATA manuals alone would be insufficient,

“because expert testimony [would still be] required to establish

that the [manuals] . . . embod[y] the national standard of care

and not a higher, more demanding one.” Clark, 708 A.2d at

636; see also Rajabi, 650 A.2d at 1322 (holding that a

contractual “maintenance schedule itself did not define the

standard of care”). “‘To hold otherwise would create the

perverse incentive for [WMATA] to write its internal operating

procedures in such a manner as to impose minimal duties upon

itself in order to limit civil liability rather than imposing safety

requirements upon its personnel that may far exceed those

followed by comparable institutions.’” Arnold & Porter, 756

A.2d at 435 (quoting Clark, 708 A.2d at 636); see Varner, 891

A.2d at 272 (“Aspirational practices do not establish the

standard of care which the plaintiff must prove in support of an

allegation of negligence.”).

On the record before us, we conclude that Briggs’ expert

offered only his own opinion in attempting to describe national

standards that might be applicable to establish standards of care

in this case. This is insufficient under D.C. law. Varner, 891

A.2d at 269; National Telephone, 244 F.3d at 157. Because

failure to establish a standard of care is “fatal to a negligence

claim,” Scott v. District of Columbia, 101 F.3d at 757, appellees

were entitled to summary judgment. We may affirm on the

16

basis of this conclusion alone, since Briggs fully developed and

briefed this required element of her claim. We thus have no

need to address appellees’ arguments with respect to the

remaining elements of negligence, their assertions of immunity,

and the District’s contention that it cannot be held liable under

either an agency or a landowner theory. See Odebrecht

Contractors, 393 F.3d at 1327 (refraining from addressing

additional arguments after making a dispositive conclusion);

Moreno, 647 A.2d at 401 (same).

III. CONCLUSION

For the reasons stated in this opinion, we affirm the

judgment for appellees.

So ordered.