Gardel v. SK & A Structural Eng'rs PLLC
Gardel v. SK & A Structural Eng'rs PLLC
Opinion of the Court
On September 11, 2012, plaintiff Fabrice Gardel was filming a documentary outside of a building located at 1440 New York Avenue. Am. Compl. [Dkt. # 31] ¶¶ 1, 11. He leaned back against a chain linking two bollards together, and a 200-pound bollard fell on his leg and fractured it. Id. ¶¶ 4, 14-19. He has brought this action against defendants SK & A Structural Engineers, PLLC ("SK & A")
Both defendants have moved to dismiss plaintiff's single-count complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that the action is barred by the applicable statute of limitations, or in the alternative, that plaintiff has failed to state a claim for gross negligence. Mot. of SK & A to Dismiss Am. Compl. [Dkt. # 33] ("SK & A Mot."); Mot. to Dismiss Am. Compl. [Dkt. # 36] ("CPR Mot"). Because plaintiff filed his amended complaint over two years after the expiration of the three-year statute of limitations, the Court will grant defendants' motions. This holding does not mean that plaintiff was not injured, and it is not a finding on the question of whether defendants bear responsibility for the dangerous situation alleged in the complaint. Notwithstanding the pain and the ongoing inconvenience plaintiff has suffered, the Court is required to follow the law that governs when a lawsuit must be filed.
BACKGROUND
Plaintiff, a journalist and citizen of France, was in Washington D.C. with his cameraman on assignment filming a documentary. Am. Compl. ¶ 11. They decided *123to take a video of the window dressing in the White House Gift Store. Id. ¶ 12. Large bollards, linked by chains, had been placed along the sidewalk across the street from the store to prevent taxis from stopping there to pick up or drop off patrons. Id. ¶¶ 3-4, 15.
On September 11, 2012, while plaintiff searched for the best angle to film the window, he leaned back against one of the chains and, as he puts it, he felt it "release[ ] all resistance." Am. Compl. ¶14. As the top of one of the bollards tilted towards the street, the chain gave way and plaintiff "lost his balance and [fell] backward with all his weight on the chain." Id. ¶ 16. Plaintiff's body pulled on the chain, causing the 200 pound bollard to fall onto his left leg. Id. ¶ 17.
Plaintiff was immediately transported to George Washington Hospital and diagnosed with an open fracture of his left tibia. Am. Compl. ¶¶ 18-19. A few days later, he was repatriated to France. Id. ¶ 20. Plaintiff alleges that he developed an ulcer on his left leg which did not heal until December 2012, leaving a scar and "permanent and substantial muscular atrophy in his left leg." Id. ¶¶ 21-22. He claims that he has not regained full mobility in the leg and that he attends physical therapy several times a week. Id. ¶ 23. Plaintiff alleges that he has incurred $58,580.66 in medical bills and that he has lost income in excess of $80,028 due to his inability to continue work as a producer of television documentaries, a profession which requires "physical mobility and capacity that he has been unable to retrieve." Id. ¶¶ 24, 28-35. Plaintiff claims that the pain from his injury has caused him to stop participating in physical activities, and that it has "substantially deteriorated his relationship with his wife and his two young children." Id. ¶ 36. He also alleges that, as a result of the accident, he has been treated for depression since December 2012. Id. ¶ 37.
Plaintiff initially filed a complaint on August 21, 2015 against Clarion Partners, LLC, based on an allegation that it was the manager of the 1440 New York Avenue building. See generally Compl. [Dkt. # 1]. Clarion Partners represented that it did not own or manage the property at the time of the accident, so plaintiff substituted 1440 New York Avenue Corporation, the owner of the property at the time, as the defendant. See Consent Substitution of Party [Dkt. # 5].
Plaintiff's amended complaint alleges that in 2010, "SK & A was responsible for overseeing the renovation work at 1440 New York Avenue NW ... that was executed *124by CPR pursuant to a permit issued by the Government of the District of Columbia." Am. Compl. ¶ 1. Defendants had to "make sure that all work would be done in accordance with the Permit," which required the bollards "to be attached to the ground through four bolts anchored into the sidewalk concrete" to prevent them from falling. Id. ¶¶ 2, 5. The permit included drawings that depicted how to attach the bollards to the ground. See id. ; see also Ex. 2 to Pl.'s Opp. to Def.'s Mot. for Summ. J. [Dkt. # 21-2] ("Permit").
Both defendants moved to dismiss the complaint with prejudice, arguing that the action is barred by the three-year statute of limitations or, in the alternative, that it should be dismissed for failing to state a claim. See SK & A Mot.; Mem. of P. & A. [Dkt. # 33-1] ("SK & A Mem."); CPR Mot.; Mem. of P. & A. [Dkt. # 36-1] ("CPR Mem."). Plaintiff argues that the statute of limitations did not begin to run against defendants until he learned of their identities and wrongdoing through discovery, and he also maintains that the amended complaint includes sufficient facts to support a claim of gross negligence. See Pl.'s Opp. to SK & A Mot. [Dkt. # 35] ("Pl.'s SK & A Opp.") at 2-3; Pl.'s Opp. to CPR Mot. [Dkt. # 39] ("Pl.'s CPR Opp.") at 2-4.
STANDARD OF REVIEW
"To survive a [ Rule 12(b)(6) ] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal ,
A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe a complaint liberally in the plaintiff's favor, and it should grant the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp. ,
ANALYSIS
A federal court sitting in diversity "looks to the state law to determine whether a cause of action based upon state law has expired." A.I. Fin., Inc. v. Petra Int'l Banking Corp. ,
"[A] cause of action accrues for purposes of the statute of limitations when the plaintiff has either actual notice of her cause of action or is deemed to be on inquiry notice." Diamond v. Davis ,
When the fact of an injury is readily determined, "a claim accrues ... at the time the injury actually occurs." Mullin v. Wash. Free Weekly, Inc. ,
[T]he discovery rule is designed to prevent the accrual of a cause of action before an individual can reasonably be expected to discover that he has a basis for legal redress, [and] the statute should not commence until a claimant knows, or through the exercise of due diligence, should know, that his injury resulted from someone's wrongdoing.
Id. at 430.
Plaintiff contends that the "discovery rule" applies in this case because he did not discover the identity of the responsible party until after he had filed his initial complaint. Pl.'s SK & A Opp. at 3; see also Pl.'s CPR Opp. at 3. He insists that the statute of limitations should "be tolled and run from the time [p]laintiff became aware of the gross negligence, which [was] December 16, 2016."
"Under both the general rule of claim accrual and the discovery rule exception, the statute of limitations begins to run when a plaintiff either has actual knowledge of a cause of action or is charged with knowledge of that cause of action." Cevenini ,
"[I]nquiry notice will be charged to a plaintiff when he is aware of an injury, its cause, and some evidence of wrongdoing." Cevenini ,
The Court concludes that plaintiff was on inquiry notice of his claim against defendants on the day his injury occurred, *127and therefore, plaintiff's claims against any-and all-defendants accrued on that day. See Doe ,
Moreover, a reasonable person would have conducted an investigation after his injury, and that investigation would have revealed some evidence of wrongdoing on the part of the named defendants. See Cevenini ,
Plaintiff's repeated attempts to sue the proper defendant demonstrate the need to enforce the applicable statute of limitations in this case. Courts have "emphasized balancing the right of the plaintiff to a remedy against the right of the defendant to be free from stale claims." Diamond ,
Because plaintiff was on inquiry notice of his claim against all defendants on the day he was injured, the statute of limitations began to run on that day, and plaintiff's claim is time-barred.
CONCLUSION
The Court will grant both defendants' motions to dismiss with prejudice since the amended complaint was filed well after the expiration of the applicable three-year statute of limitations.
A separate order will issue.
In his amended complaint, plaintiff named SK & A Engineers, PLLC, but defendant clarified that the correct legal name of the entity is SK & A Structural Engineers, PLLC. See Mem. of P. & A. [Dkt. # 33-1] at 1 n.1.
As a result of the consent substitution, plaintiff dismissed Clarion Partners from the action. See Consent Substitution of Party [Dkt. # 5]; Min. Order (Oct. 7, 2015).
Plaintiff took the deposition of Thomas Garman, an SK & A employee, who verified that SK & A was hired to "supervise the renovation project including verifying that the work would be completed in accordance with the renovation permit." Pl.'s Mot. to Amend at 2.
Because the Permit is explicitly referred to in the complaint, the Court may consider it when ruling on the motion to dismiss. Gustave-Schmidt v. Chao ,
Defendants also filed replies to both of plaintiff's oppositions. See Reply of SK & A to Pl.'s SK & A Opp. [Dkt. # 38] ("SK & A Reply"); Reply of Def. CPR to Pl.'s CPR Opp. [Dkt. # 40] ("CPR Reply").
Defendants agree that the District of Columbia three-year statute of limitations for personal injury claims applies in this case, see SK & A Mem. at 3; CPR Mem. at 3, and although plaintiff does not expressly state his position on the issue, he cites to District of Columbia law in discussing the statute of limitations. See Pl.'s SK & A Opp. at 3; Pl.'s CPR Opp. at 3.
While plaintiff confuses the matter with his use of the word "tolled," the gist of his argument is that the cause of action did not accrue, and that the statute of limitations did not start to run, until after he learned in discovery who had acted negligently in connection with the condition of the bollards, not that any equitable tolling doctrine should be applied. See Pl.'s SK & A Opp. at 3 ("As in all cases where the discovery rule applies, the statute of limitations for gross negligence does not run from the time [p]laintiff was aware or should have been aware of the defendant's involvement with the bollards, but when he discovered or should have discovered its gross negligence ....").
In order to fully examine the legal issues before the Court, the parties were ordered to file supplemental briefing on whether Federal Rule of Civil Procedure 15(c) mandates that the amended complaint relate back to the date the complaint was originally filed. Neither party asserted that Rule 15(c) applies. See Pl.'s Answer to Ct.'s Req. for Br. [Dkt. # 44]; Def. CPR's Resp. to Req. for Br. [Dkt. # 46]; Supp. Br. of SK & A [Dkt. # 47]. Therefore, the Court will view the amended complaint filed on February 28, 2017 as separate from the original complaint filed on August 21, 2015.
There is a chance that plaintiff has still sued the wrong entities. In its motion to dismiss, defendant SK & A argues that it is "not the legal entity that performed any of the services discussed in the Amended Complaint. [Rather,] Smislova, Kehnemui & Associates, P.A., a Maryland corporation, [was] the legal entity that provided services associated with the referenced property." SK & A Mem. at 1 n. 1; see also Permit (naming this entity as the project's structural engineers). In light of this representation, plaintiff states that he "is prepared to substitute [Smislova], Kehnemui 9 Associates, P.A. for SK & A and serve it accordingly." Pl.'s SK & A Opp. at 4.
Reference
- Full Case Name
- Fabrice GARDEL v. SK & A STRUCTURAL ENGINEERS PLLC
- Cited By
- 3 cases
- Status
- Published