UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JAMES R. WISE, : : Plaintiff, : : v. : Civil Action No.: 12-01636 (RC) : UNITED STATES OF AMERICA : : Defendant. :

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION Plaintiff James R. Wise had an accident in a stairwell in the F ederal Reserve building in Washington, D.C on May 18, 2010. Claiming that a faulty stairwe ll handrail triggered his accident, Mr. Wise sued the United States for damages under the Federal Tort Claims Act. He charged the government with negl igence, negligence per se, and gross negligence. This Court concluded a thr ee-day bench trial on March 16, 2015. The Court now makes its Findings of Fact and Conclu sions of Law, as required under Federal Rule of Civil Procedure 52(a)(1). Any facts not expressly stated in the findings below are either immaterial or undisputed. The Court finds that Mr. Wise f ailed to produce expert testimon y at trial to prove the government’s standard of care, a s required by the District of C olumbia’s tort law. The Court also finds that Mr. Wise failed to prove the United States had actua l or constructive notice of the faulty handrail. Both the lac k of expert test imony and the gove rnment’s lack of notice prevent Mr. Wise from holding the United S tates liable for his accident , and so the Court enters judgment in favor of the United States.2 II. BACKGROUND On May 18, 2010, Mr. Wise was employed as an electrician under contract with the federal government, and he was wor king at the Federal Reserve b uilding at the intersection of 20th Street NW and C Street NW in Washington, D.C. Mar. 9, 2015 Trial Tr. 10:20–11:5, 124:21–125:6, ECF No. 42; Def.’s Ex. 18, at 1. That day, Mr. Wi se had an accident in a stairwell and injured his neck and b ack. Mar. 9, 2015 Trial Tr. 13:6–11, 16:2–17:1; Def.’s Ex. 18, at 1. He received medical care for his injuries that evening at Anne Aru ndel Medical Center’s emergency room in Annapolis, Maryland. See Mar. 9, 2015 Trial Tr. 30:6–31:7; D ef.’s Exs. 1, 8. In the months following his accident, he also received medical care fr om Maryland Primary Care Physicians, physical therapy from Bayside Physical Therapy and Sports Rehabilitation, and pain management from the Kahan Center for Pain Management. See Mar. 9, 2015 Trial Tr. 35:17–37:5, 61:11–16; Pl.’s Ex. 3; Def.’s Exs. 2, 14. Mr. Wise believed that a faulty s tairwell handrail came loose a nd triggered his accident. Mar. 9, 2015 Trial Tr. 13:6–11. Aft er filing an administrative claim with the Board of Governors of the Federal Reserve, Mr. Wise sued the United States in this Court under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2674. See Am. Compl. ¶¶ 1–4, ECF No. 13; Answer ¶ 4, ECF No. 8. 1 Mr. Wise claims that the government created a dangerous condit ion by allowing law enforcement officers to c onduct a physical fitness test in the stairwell that weakened the

1 Mr. Wise initially named the Fed eral Reserve Board as the sole defendant in his Complaint. See Compl. ¶ 6, ECF No. 1. But “the United States is the only prop er party defendant” in an FTCA action. Welsh v. Hagler , 83 F. Supp. 3d 212, 223 (D.D.C. 2015) (quoting Cureton v. U.S. Marshal Serv. , 322 F. Supp. 2d 23, 25 n.4 (D.D.C. 2004)). Mr. Wise therefore amended his Complaint to name t he United States as defendant. See Am. Compl. 1 (naming the United States as the defe ndant in the caption). The Court presumes that when the parties later refer to the Fed eral Reserve Board as the defendant in this case , they do so unintentionally. See, e.g. , Am. Compl. ¶ 6; Mar. 9, 2015 Trial Tr. 4:10–18.3 stairwell handrails over tim e. Mar. 16, 2015 Trial Tr. 56:21–65 :8, ECF No. 44. Mr. Wise therefore contends that the gove rnment had a duty to inspect th e stairwell handrails at least twice a year, and that the government wa s negligent when it failed to do so. Am. Compl. ¶¶ 17–18; Mar. 16, 2015 Trial Tr. 65:12–17; Pl. ’s Proposed Findings of Fa ct & Conclusions of Law ¶¶ 12–15, ECF No. 38. The government denies any negligen ce. It takes the position tha t Mr. Wise slipped, but the stairwell handrail was not the cause. Mar. 16, 2015 Trial T r. 75:20–22. The United States also contends that its law enf orcement officers were not using that particular handrail for their physical fitness test in the time around Mr. Wise’s accident, a nd that the government did not receive notice of any handrail def ects before Mr. Wise’s accide nt Id. at 79:11–80:5; Def.’s Proposed Findings of Fact & C onclusions of Law 34–36, ECF No. 4 5. Therefore, the government argues, Mr. Wise’s ne gligence claims must be dismiss ed. Def.’s Proposed Findings of Fact & Conclusions of Law 35–36. This Court conducted a three-da y bench trial on March 9, March 10, and March 16, 2015. The Court heard testimony from Mr . Wise, from persons employed at the Federal Reserve building at the time of Mr. Wise’s accident, and from doctors w ho evaluated Mr. Wise’s injuries. The Court finds that the govern ment lacked notice of any proble ms with the stairwell handrail before Mr. Wise’s accident, and that Mr. Wise has failed to pro duce expert testimony required to establish the appropriate sta ndard of care for installing and s ubsequently inspecting handrails under these circumstances. Because both of these things are pre requisites to establishing negligence liability in this case, the Court finds that the Uni ted States is not liable to Mr. Wise for his accident, for his injuri es, or for his subsequent medic al care.4 III. STANDARD OF REVIEW In an action tried wit hout a jury, “the court must find the fac ts specially and state its conclusions of law separately.” Fed. R. Civ. P. 5 2(a)(1). “But the judge need only make brief, definite, pertinent findings and conclusions upon the contested matters; there is no necessity for over-elaboration of deta il or particularization of facts.” Fed. R. Civ. P. 52(a) advisory committee’s note to 1946 amendment; accord Caffey v. Togo , No. 97-5092, 1998 WL 230269, at *2 (D.C. Cir. Feb. 9, 1998); Moore v. Hartman , No. 92-2288, 2015 WL 1812852, at *15 (D.D.C. Apr. 17, 2015). Therefore, the Court need not address all the e vidence presented at trial, and must simply make findings suffici ent to allow the appellate cou rt to conduct a meaningful review. Caffey , 1998 WL 230269, at *2; Hurwitz v. Hurwitz , 136 F.2d 796, 799 (D.C. Cir. 1943); Moore , 2015 WL 1812852, at *15. The Court’s findings and conclu sions “may appear in an opinion or a memorandum of decision filed by the court.” F ed. R. Civ. P. 52(a)(1). On appe llate review, findi ngs of fact “must not be set aside unless clearly erroneous.” Fed. R. Civ. P. 52( a)(6).

IV. FINDINGS OF FACT A. Stairwell 6 in the Fe deral Reserve Building 1. The Federal Reserve building in Washington, D.C. is located at the corner of C Street NW and 20th Street NW. See Mar. 9, 2015 Trial Tr. 10:25–11:5; Def.’s Ex. 18. 2. The Federal Reserve building has a stairwell, Stairwell 6, whic h includes a span of stairs connecting two basement floors, Floors 2-G and 3-G. M ar. 9, 2015 Trial Tr. 126:1–10; Def.’s Ex. 21. 3. Floor 2-G, also known as the “concourse” level, is the second g arage level of the Federal Reserve building. Mar. 9, 2015 Trial Tr. 126:8–10.5 4. Floor 3-G, also known as the “plant ” level, is the third garage level of the Federal Reserve building. Id. at 126:5–8, 163:25–164:1. 5. Floor 2-G is one floor above Floor 3-G. Id. at 126:5–10. 6. Because Stairwell 6 is the only stairwell that descends to Floo r 3-G, Stairwell 6 receives frequent foot traffic. Id. at 134:23–24, 135:4–5; Def.’s Ex. 21. 7. Stairwell 6 contains eight stair steps between Floor G-2 and th e midlevel landing between Floors G-2 and G- 3. Mar. 9, 2015 Trial Tr. 15:6; see also id. at 17:6–19:15; Pl.’s Ex. 1-A; Def.’s Ex. 21. 8. On May 18, 2010, Stairwell 6 had a handrail attached to the wal l on the left side of the stairs. Mar. 9, 201 5 Trial Tr. 12:24–13:2. 9. Three bolts, locate d at the top, middle , and bottom of the hand rail, attached the handrail to the wall. See id. at 16:19–21, 21:10–24; D ef.’s Ex. 18, at 2, 3. 10. The top and bottom bolts attachi ng the handrail to the wall wer e toggle bolts. Mar. 9, 2015 Trial Tr. 21:10–24, 90:1–6. 11. The Federal Reserve’s building op erations supervisors and its m anager of design and construction had not receive d any complaints about, or had any problems with, stairwell handrails in the building, eve n though at trial each employee h ad worked at the Federal Reserve building for more than ten y ears. Mar. 9, 2015 Trial Tr. 99:4–1 8, 106:17–107:18, 112:12–20, 128:23–129:1; see also id. at 93:8–24, 109:4–22, 112:18–20, 117:6–7, 118:3–4 (describing the employees’ roles and tenures at the Federal Reserve building). Plaintiff has not provided any evidence of any such prior complaints. 2

2 Mr. Wise attempted to establish a t trial that the handrail may have come loose and been repaired in the past. See Mar. 9, 2015 Trial Tr. 77:9–20 (opi ning, in a statement from M r. Wise’s6 12. The Federal Reserve building’s stairwell handrails have not bee n repaired since they were constructed. Id. at 127:11–24. B. Stairwell Inspections and Stair Climbing Tests 13. The Federal Reserve building’s law enforcement unit (LEU) had m ore than 100 members in May 2010. Mar. 9, 2015 Trial Tr. 141:6–16; Mar. 10, 2015 Trial Tr. 9:21–10:3, ECF No. 43. 14. At the time, the LEU patrolled t he stairwells twice daily to lo ok for hazards and safety concerns. Mar. 9, 2015 T rial Tr. 145:15–25; Mar. 10, 201 5 Trial Tr. 9:11–13. 15. For a period of time before M ay 2010, the LEU conducted “stair climbing tests” within the stairwells once or twice a year. Mar. 9, 2015 Trial Tr. 115:2–116:1, 127:25–128:16, 143:12–25, 144:10–13, 146:16–21; Mar. 10, 2015 Trial Tr. 13:14– 14:1; Def.’s Exs. 22, 23. 16. During each stair climbing test, all the LEU members climbed st airs to reach the penthouse level of the Federal Reserve Building. Mar. 9, 2015 T rial Tr. 143:22–23, 145:8–11, 146:12–21; Def.’s Exs. 22, 23. 17. Members of the LEU were allowe d to use the stairwell handrails while performing the stair climbi ng test. Mar. 9, 2015 Trial Tr. 143: 22–25, 145:12–14.

supervisor at the time of the accident, that “along the wall yo u could see where patches were in the plaster [where] maybe this [the handrail coming loose] migh t have happened in the past”). The Court does not find this t estimony persuasive. It is contra dicted by the testimonies of Federal Reserve building employees who deny any problems with t he handrail for at least ten years before Mr. Wise’s accident. See id. at 99:4–18, 106:17–107:18, 112:12–20, 128:23–129:1; see also id. at 93:8–24, 109:4–22, 112:18–20, 117: 6–7, 118:3–4 (describing the employees’ roles and tenures at the Federal Rese rve building). And to the extent that pictures of the stairwell Mr. Wise produced show patches in the p laster, those pictures date from after the accident. See id. at 18:7–9 (noting that Mr. Wise’s pict ures, entered into evidence as Plaintiff’s Exhibit 1, A–K, were taken “after the accident, m aybe two days afterwards”). Th us, any wall damage shown in the pictures could reflect the handrail’s removal and repair after Mr. Wise’s accident, and not problems with the handrail before his accident.7 18. Although the stair climbing test previously began on Floor 3-G in Stairwell 6, the test did not start on Floor 3-G in 2010. Mar. 9, 2015 Trial Tr. 139:23–140:9; Mar. 10, 2015 Trial Tr. 7:20–8:15; Def.’s Ex. 23, at 1. C. Mr. Wise’s Accident 19. Plaintiff James Robert Wise is a citizen and resident of Maryla nd. Mar. 9, 2015 Trial Tr. 9:16–17. 20. Mr. Wise is an electrician by training. Id. at 10:14–18. 21. On May 18, 2010, Mr. Wise was employed by Power Services, Inc., as a subforeman. Id. at 10:20–22. 22. That day, Mr. Wise was working unde r contract at the Federal Re serve building, located at the corner of C Str eet NW and 20th Street NW in Wash ington, D.C. Id. at 10:25–11:5, 124:24–125:13; Def.’s Ex. 18. 23. Mr. Wise was working a ten-hour shift beginning at 6:00 PM. Mar . 9, 2015 Trial Tr. 32:10–15. 24. Between 9:54 PM and 9:58 PM on May 18, 2010, Mr. Wise entered S tairwell 6 on Floor 2-G to go down the stairs to Floor 3-G. Id. at 12:14–20, 125:20-22, 126:10–11, 164:3–165:10; Def.’s Ex. 12, at 9. 25. While he was still on the Floor 2-G landing, Mr. Wise placed hi s left hand on the handrail attached to the left side of the stairwell. Mar. 9, 20 15 Trial Tr. 12:24–13:7, 15:7–17. 26. At the time, Mr. Wise weighed around 240 or 250 pounds. Id. at 13:23–24. 27. Mr. Wise testified that he put about ten percent of his body we ight on the handrail and began going down the stairs. Id. at 13:6–22.8 28. As Mr. Wise took his first step down the stairs, he stumbled an d held on to the handrail to pull himself upright. Id. at 13:10, 15:17–22. 29. At that point, although the handra il was still connected to the wall, the top bolt was loose. Id. at 15:23–24, 156:12–24. 30. After Mr. Wise stumbled, he sli d down the eight stairs to the l anding below him. Id. at 13:10–11, 15:4–6, 16:11–12, 27:24–28:2, 28:7. 31. After his accident, Mr. Wise fe lt pain in his neck and lower ba ck. Id. at 16:11–13, 28:6–7, 29:10–16, 75:11–12. 32. No one else was in the stairwe ll during Mr. Wise’s accident. Id. at 44:16–18. D. Mr. Wise After His Accident 33. After his accident, Mr. Wise walked down some more stairs to go to the electrical

room. Id. at 16:22–23, 28:19–24. 34. Mr. Wise then reported the incident to Bill Bucco, his supervis or at the time, and Scott Simons, a member of the LEU. Id. at 29:17–24, 74:23–75:4, 141:6–142:15. 35. Mr. Wise did not complete his sh ift that day; he went to a hosp ital instead. Id. at 30:6–9, 75:3–4. 36. Mr. Bucco asked Mr. Wise whethe r Mr. Wise would like a ride to the hospital, but Mr. Wise declined the offer. Id. at 75:13–17. 37. Mr. Simons asked Mr. Wise whether he would like an ambulance to a hospital, but Mr. Wise declined that offer as well. Id. at 30:12–20. E. Mr. Wise’s Medical C are After His Accident 38. Mr. Wise drove his own car to Anne Arundel Medical Center and r eported to the emergency room there. Id. at 30:6–31:7; Def.’s Ex. 1.9 39. When he arrived at the emergency r oom, Mr. Wise continued to fe el pain in his neck and lower back, as well as dow n the back of his left leg. Mar. 9, 2015 Trial Tr. 31:13–23. 40. Mr. Wise left the emergency room a couple of hours later and dr ove home. Id. at 32:2–9. 41. In the months following his accident, Mr. Wise received medical care from Maryland Primary Care Physicians, physical therapy from Bayside Physical Therapy and Sports Rehabilitation, and pain management from the Kahan Center for P ain Management. See id. at 35:17–37:5, 61:11–16; Pl.’s Ex. 3; Def.’s Exs. 2, 14. F. Stairwell 6 After Mr. Wise’s Accident 42. Michael Marx, an engineer employed at the Federal Reserve build ing, removed the damaged Stairwell 6 handrail after Mr. Wise’s accident. Mar . 9, 2015 Trial Tr. 56:8–11, 88:15–20; Def.’s Ex. 18. 43. The Federal Reserve building’s l ead carpenter Russell Jones rei nstalled the handrail the day after Mr. Wise’s accident, on May 19, 2010. Id. at 19:21–20:13, 95:20–21; Pl.’s Ex. 1-B. 44. When Mr. Jones reinstalled the h andrail in Stairwell 6, he adju sted the top and bottom toggle bolts’ positions to preserve structural integrity , so that the two toggle bolts met the wall at some distance away from their prior positions. Mar. 9, 2015 Trial Tr. 95: 22–96:3, 98:7–16.

V. CONCLUSIONS OF LAW The Federal Tort Claims Act (FTC A) is a limited waiver of sover eign immunity that makes the federal government liable to the same extent as a pri vate individual for certain torts committed by federal employees acting within the scope of their employment. 28 U.S.C. §§ 1346, 2674; United States v. Orleans , 425 U.S. 807, 813 (1976). The FTCA provides the10 exclusive remedy “[w]here a plain tiff seeks monetary damages ag ainst a federal agency for torts committed by federal employees.” Lempert v. Rice , 956 F. Supp. 2d 17, 28 (D.D.C. 2013) (alteration in or iginal) (quoting Jones v. United States , 949 F. Supp. 2d 50, 53 (D.D.C. 2013));

see 28 U.S.C. § 2679(b)(1) (declaring t he FTCA remedy “exclusive o f any other civil action or proceeding for money damages”). A court adjudicating FTCA claim s applies “the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)( 1); Girdler v. United States , 923 F. Supp. 2d 168, 186 (D.D.C. 2013) (confirming that the FTCA in corporates state tort law). Here, the Federal Reserve Board i s a federal agency for FTCA pu rposes. See 28 U.S.C. § 2671 (defining “Federal agency” fo r FTCA purposes to include “the executive departments” and “independent establishments of the United States”). Mr. Wis e’s complaint therefore seeks relief under the FTCA to obtain mone tary damages from the feder al government. Mr. Wise’s Complaint charges the federal government with neglig ence, negligence per se, and gross negligence. Am. C ompl. ¶¶ 15–48. Because Mr. Wise ’s accident occurred in the District of Columbia, the Court a pplies the District’s tort law to adjudicate Mr. Wise’s claims. See Mar. 9, 2015 Trial Tr. 10:25–11:5 (re porting that Mr. Wise was in the Federal Reserve building, located in Washington, D.C., on the day of his accide nt); Def.’s Ex. 18, at 1 (same). The Court addresses each claim in turn. A. Negligence To prove negligence under the Dist rict of Columbia’s tort law, “a plaintiff must show that ‘(1) the defendant owed a duty of care to the plaintiff, (2) th e defendant breached that duty, and (3) the breach of duty proximately caused damage to the plainti ff.’” Tolu v. Ayodeji , 945 A.2d 596, 601 (D.C. 2008) (quoting Haynesworth v. D.H. Stevens Co ., 645 A.2d 1095, 1098 (D.C. 1994)); accord Sullivan v. AboveNet Commc’ns, Inc. , 112 A.3d 347, 354 (D.C. 2015) (quoting11 Tolu , 945 A.2d at 601); D.C. Hous. Auth. v. Pinckney , 970 A.2d 854, 864 (D.C. 2009) (using the term “standard of care” instead of “duty of care”). Here, Mr. W ise did not show that the United States owed a duty of care, and s o his negligence case fails. “In the District of Columbia th e applicable sta ndard for determ ining whether an owner or occupier of land has exercised th e proper level of care to a pe rson lawfully upon his premises is reasonable care under all of the circumstances.” Night & Day Mgmt., LLC v. Butler , 101 A.3d 1033, 1038 (D.C. 2014); accord D.C. Hous. Auth. , 970 A.2d at 866. To prove the standard of care, however, the Distr ict of Columbia’s to rt law often requir es the plaintiff to produce expert testimony. See, e.g. , Night & Day Mgmt. , 101 A

. 3d at 1038–39. And, when negligence is predicated on a dangerous conditi on, the plainti ff must show th at the defendant had actual or constructive notice of the dangerous condition. See Sullivan v. AboveNet Commc’ns, Inc. , 112 A.3d 347, 356 (D.C. 2015); Croce v. Hall , 657 A.2d 307, 310–11 (D.C. 1995). 1. Expert Testimony When the standard of care is “s o distinctly related to some sci ence, profession or occupation as to be beyond the ken o f the average lay juror,” t he plaintiff must prove the standard of care with expert testimony. Night & Day Mgmt., LLC v. Butler , 101 A.3d 1033, 1039 (D.C. 2014) (quoting Tolu v. Ayodeji , 945 A.2d 596, 601 (D.C. 2008)). But if the alleged negligence occurred in a contex t “within the r ealm of common kn owledge and everyday experience,” expert tes timony is not required. Id. at 1038–39 (quoting Tolu , 945 A.2d at 601). The District of Columbia Court of Appeals has explained that ex pert testimony is required in cases involving “issu es of safety, security and cri me prevention.” Id. at 1039 (quoting Varner v. District of Columbia , 891 A.2d 260, 267 (D.C. 2006)). Thus the court has obliged plaintiffs to produce expert tes timony to prove the standard of care for negligence claims12 involving maintenance of a municipality’s dead and leaning tree that could fall on a house, see Katkish v. District of Columbia , 763 A.2d 703, 706 (D.C. 2000); maintenance of a municipality’ s water main pipe that could rupture, see District of Columbia v. Arnold & Porter , 756 A.2d 427, 433–34 (D.C. 2000); the tightness of handcuffs, see Tillman v. WMATA , 695 A.2d 94, 97 (D.C. 1997); cushioning of the ground a round playground monkey bars f rom which a child could fall,

see Messina v. District of Columbia , 663 A.2d 535, 538–40 (D.C. 1995); and maintenance of street lights from which light globes could fall, see Rajabi v. Potomac Elec. Power Co. , 650 A.2d 1319, 1322–23 (D.C. 1994). When negligence cases implicate safety issues but the D.C. Cour t of Appeals holds expert testimony unnecessary, the cases tend to arise from fact s showing an obvious hazard. These include claims arising from, for instance, “a large, unco vered vent in the wall of a parking garage” through which a child could fall, see Destefano v. Children’s Nat’l Med. Ctr ., 121 A.3d 59, 75 (D.C. 2015); “a gap of six to s even inches between board s” covering a large trench into which a pedestrian could fall, see Bostic v. Henkels & McCoy, Inc. , 748 A.2d 421, 425–26 (D.C. 2000); a hole in a playground slide where a child’s fingers cou ld get caught, see District of Columbia v. Shannon , 696 A.2d 1359, 1365–66 (D.C. 1997); and an abandoned tank of used motor oil that coul d spark a fire, see Jimenez v. Hawk , 683 A.2d 457, 462–63 (D.C. 1996). Mr. Wise’s case falls into the first category of cases. Because Mr. Wise has alleged two possible breaches of the standa rd of care—one relating to how t he Stairwell 6 handrail was installed on the wall, see Mar. 16, 2015 Trial Tr. 58: 25–59:2, 59:18–19, and the other re lating to the government’s alleged failu re to inspect the handrail, see id. at 61:21–62:5—the Court addresses the expert testimony r equirement for each allegation separately. Mr. Wise should have produced expert testimony to prove the standard of care for eac h alleged breach. Because he did13 not produce expert testimony for either allegation, he cannot e stablish the first element of his negligence claims, and those claims cannot prevail. a. Handrail Installation Mr. Wise contends first that th e government breached its duty o f care by fastening the Stairwell 6 handrail to the wa ll with a toggle bolt and “thin, rusty” metal lathe. See Mar. 16, 2015 Trial Tr. 58:25–59:2, 59:16–19; see also Mar. 9, 2015 Trial Tr. 42:21–23, 132:2–13; Pl.’s Ex. 1-I (describing and depicting meta l lathe and how it, working with a toggle bolt, can connect a stairwell handrail to wall plaster). Because handrail installat ion is an issue of safety, it triggers the presumption that expert testi mony is required to establish the standard of care. See Night & Day Mgmt., LLC v. Butler , 101 A.3d 1033, 1039 (D.C. 2014) (“[E]xpert testimony is requi red to establish the standard of care in negligence cases that involve ‘issues of safety . . . .’” (quoting Varner v. District of Columbia , 891 A.2d 260, 267 (D.C. 2006))). Determining whether a stairwell handrail was ins talled correctl y is also “distinctly related” to the construction professions. Destefano v. Children’s Nat’l Med. Ctr. , 121 A.3d 59, 75 (D.C. 2015) (“Expert testim ony is required . . . where the s ubject is so distin ctly related to some science, profession, or occupation . . . as to be beyond t he ken of the average layperson.” (quoting Toy v. District of Columbia , 549 A.2d 1, 6 (D.C. 1988)) (internal quotation marks omitted)); see Mar. 9, 2015 Trial Tr. 24:25–25: 19, 80:3–8 (drawing on Mr. Buc co and Mr. Wise’s construction experience to justify their claims about pr oper handrail inst allation). The standard of care for handrail ins tallations was therefore “beyo nd the ken of the average layperson” and a matter for whic h expert testimony was required

. Destefano , 121 A.3d at 75. Mr. Wise did not satisfy that requirement. To begin with, Mr. W ise did not designate any expert witnesses to testify on t he standard of care for handrai l installation. See Am. Joint Pretrial14 Statement 2–3, ECF No. 33. This f act alone is key, for offering expert testimony without disclosing or designating it as suc h can result in surprise and prejudice to the other party. See Heller v. District of Columbia , 801 F.3d 264, 270 (D.C. Cir. 2015) (explaining how one party’ s failure to disclose expert witn esses can unfairly surprise the opposing party); Daniels v. District of Columbia , 15 F. Supp. 3d 62, 71 (D.D.C. 2014) (“[A] court must determin e an appropriate response to avoid the prejudice a nd surprise that can result fr om the offering of expert medical testimony without the requi site disclosures.”). The only evidence Mr. Wise produ ced relating to the standard of care for handrail installation was lay testim ony offered by Mr. Wise and his supe rvisor Mr. Bucco. Both Mr. Wise and Mr. Bucco opined briefly tha t toggle bolts should not have been used to secure the stairwell handrail. See Mar. 9, 2015 Trial Tr. 21:22–24 (e xplaining that toggle bolts are used instead “to support pictures, light bookcases”); id. at 80:6–8 (“[A] toggl e bolt type anchor i s not the correct way to install a handrail.”); id. at 83:19–21 (“I don’t think I have ever seen a toggle bolt use d for a handrail.”). But though Mr. Wis e and his supervisor Mr. Bucco claim to have the construction experience and experience with ha ndrail installations to be dee med experts in this case, see id. at 9:23–10:18, 24:25–25:15, 73:2–19, 80:3–5, t heir testimony does not fulfill the requirements for expert opinion testimony under District of Columbia law. The District’s tort law, “at t he very least,” requires the expe rt to specify “what standards were violated and how they were violated.” Sullivan v. AboveNet Commc’ns, Inc. , 112 A.3d 347, 358 (D.C. 2015) (quoting District of Columbia v. Carmichael , 477 A.2d 312, 315 (D.C. 1990)). “Generalized references” to sta ndards of care are insufficient. Id. (citing Briggs v. WMATA , 481 F.3d 839, 846 (D.C. Cir. 2007)). And an expert may not simply r ender an opinion “as to what he or she would do under similar circumstances.” Briggs , 481 F.3d at 846 (quoting Clark v. District15 of Columbia , 708 A.2d 632, 635 (D.C. 1997)). Instead, the expert must “cle arly relate the standard of care to the pract ices in fact generally followed by other comparable governmental facilities or to some standa rd nationally recognized by such un its.” Katkish v. District of Columbia , 763 A.2d 703, 706 (D.C. 2000). Mr. Wise and Mr. Bucco’s tes timony does not meet those requirem ents. Their testimony merely declares that toggle bol ts are not appropriate for handr ail installations, but it does not offer an appropriate alternative. See Mar. 9, 2015 Trial Tr. 21:22–24, 80:3–8, 83:19–21. And in opining that toggle bolts are not appropriate, Mr. Wise and Mr. Bucco reference only their prior experience, not any national sta ndard of care that was violated

. See id. at 24:25–25:15 (“I have worked in staircases before the y’ve been finished.”); 83:19–21 (“I can only tell you what I see on the jobs . . . .”). What is more, their testimony contradicts o ther witnesses’ testimonies, which asserted, conversely, that toggl e bolts are routinely used to s ecure stairwell handrails. See id. at 96:12–97:2, 98:17–24. 3 This leaves the Court with onl y general and contested statemen ts about the standard of care for handrail installation, based solely on Mr. Wise’s and Mr. Bucco’s experience in construction. Because “considerable speculation” is necessary to decide the standard of care in these circu mstances, Mr. Wise has not met h is burden to prove the standard of care for handrail installation. Tillman v. WMATA , 695 A.2d 94, 97 (D.C. 1997). His negligent installation claim t hus cannot go forward.

3 In addition, Mr. Wise’s and Mr . Bucco’s testimony, given its c ursory discussion of the correct way to secure a handrail to a wall, almost certainly do es not satisfy the requirements for expert opinion testimony under Fe deral Rule of Evidence 702. See Fed. R. Evid. 702 (requiring expert testimony to have a basis in “sufficient facts or data,” to be “the product of reliable principles and methods,” and to res ult from the expert “reliabl y appl[ying] the principles and methods to the facts of the case”).16 b. Handrail Inspections As for Mr. Wise’s allegation th at the government breached its d uty to inspect the Stairwell 6 handrail, Mr. Wis e offered no evidence—expert or ot herwise—about the standard of care for an inspection. Instead, w hen he alleged that “the stan dard of care would have been to inspect [the stairwell handrail] at least twice a year,” he ref erred only to his counsel’s “reasonableness as a prudent person.” Mar. 16, 2015 Trial. Tr. 65:12–20. Because he did not provide any evidence of the standard of care for this claim, Mr . Wise’s failure-to-inspect claim is, like his negligent in stallation claim, lost. As with handrail installation, e xpert testimony was required to establish the standard of care for handrail inspections. G iven that no problems concernin g the Stairwell 6 handrail were reported to or observed by the Fed eral Reserve building’s staff in at least the last ten years, the stairwell handrail was unremarka ble and ordinary in the time be fore Mr. Wise’s accident. See Mar. 9, 2015 Trial Tr. 99:4–18, 106:17–107:18, 112:12–20, 128:2 3–129:1 (denying knowledge of any problems or complaints conc erning the stairwell handrail ); see also id. at 93:8–24, 109:4–22, 112:18–20, 117:6–7, 118:3–4 (descri bing the testifyin g employees’ roles and tenures at the Federal Res erve building). Thus, in contrast to cas es where the Distric t of Columbia Court of Appeals did not require expert testimony, the S tairwell 6 handrail here was not such an obvious hazard that “common sense and everyday experience” would allow the factfind er to infer negligence. Jimenez v. Hawk , 683 A.2d 457, 462 (D.C. 1996); see, e.g. , Destefano v. Nat’l Children’s Med. Ctr. , 121 A.3d 59, 75 (D.C. 2015) (holding expert testimony unneces sary to prove negligence involving a large, uncovere d parking garage vent); Bostic v. Henkels & McCoy, Inc. , 748 A.2d 421, 425–26 (D.C. 2000) (same, for gap -ridden boards covering a trench); District of Columbia17 v. Shannon , 696 A.2d 1359, 1365–66 (D.C. 1997) (same, for a playground sl ide’s hole); Jimenez , 683 A.2d at 462–63 (same, for abandone d motor oil). Instead, if the handrail was a hazard, it was at most an inconspicuous one, aki n to those for which the D.C. Court of Appeals required expert testimony to prove the standard of care. See, e.g. , Katkish v. District of Columbia , 763 A.2d 703, 706 (D.C. 2000) (requiring expert testimony to prove the standa rd of care for maintenance of a dead and leaning tree); District of Columbia v. Arnold & Porter , 756 A.2d 427, 433–34 (D.C. 2000) (same, for a water main pipe); Messina v. District of Columbia , 663 A.2d 535, 538–40 (D.C. 1995) (same, for playground cushioning); Rajabi v. Potomac Elec. Power Co. , 650 A.2d 1319, 1322–23 (D.C. 1994) (same, for street lights). Mr. Wise w as therefore obligated to put on expert testimony at trial to est ablish the standard of care in this case. Mr. Wise has altogether faile d to meet that burden. Mr. Wise of fered no evidence at trial, nor any expert testimony, to estab lish the standard of care for handrail inspections. See Mar. 16, 2015 Trial. Tr. 65:12–20 (offering onl y Mr. Wise’s counsel’s “r easonableness as a prudent person” as the basis for the standard of care). Nor did Mr. Wis e establish what, if anything, was deficient about the LEU’s stairwe ll inspections, which were per formed twice daily at the time of Mr. Wise’s accident. See Mar. 9, 2015 Trial Tr. 145:15–146:3 ( “[The LEU] would walk thr ough the stairwells to see if there was . . . any type of hazard or safety concern.”); Mar. 10, 2015 Trial Tr. 9:11–13 (“[E]ach stairwell gets checked in the morning and evening, at a minimum.”). If the standard of care requi red more from the government than the LEU ’s daily visual inspections ( e.g. , application of pressure to the handrail), Mr. Wise has neithe r specified what else was required, nor has he produced e xpert testimony to substantiate his allegations wit h reference to a national standard of care. See Katkish v. District of Columbia , 763 A.2d 703, 706 (D.C. 2000); cf

. Mar. 16, 2015 Trial Tr. 65:21–66:19 ( offering neither expert testimony for Mr. Wise’s18 assertion that a prudent person “ would at least test those rail s,” nor details about what such a test would look like or the frequency r equired). Thus Mr. Wise’s fai lure-to-inspect claim, like his negligent installation claim, cannot proceed. On both his alleg ations against the government, Mr. Wise has “failed to carry his burden for negligence.” See Katkish , 763 A.2d at 706. 2. Notice The Court turns now to the notic e requirement. To establish neg ligence predicated on the existence of a dangerous conditi on, the plaintiff must show tha t the defendant had actual or constructive notice of the dangerous condition. Sullivan v. AboveNet Commc’ns, Inc. , 112 A.3d 347, 356 (D.C. 2015); Croce v. Hall , 657 A.2d 307, 311 (D.C. 1995). The notice requirement exists in tandem with the genera l rule that “the applicable sta ndard for determining whether an owner or occupier of land has ex ercised the prop er level of car e . . . is reasonable care under all of the circumstances.” See Croce v. Hall , 657 A.2d 307, 310 (D.C. 1995) (articu lating first the general rule, then the more specific rule that, “to recover for injuries resulting from a hazard in a common area, the plaintiff must show that the [landowner] had a ctual or constructive notice of a dangerous condition he failed to co rrect” (emphasis added)). He re, because Mr. Wise did not show that the United States had a ctual or constructive notice o f the allegedly defective handrail, he cannot prove that the Unite d States owed him a duty of care. a. No Actual Notice The record here does not show t hat the United States ever had a ctual notice of a defective handrail in Stairwell 6. Stairwe ll 6 receives frequent foot tra ffic, and the Federal Reserve building’s law enforcement unit (LEU) inspects it twice daily. See Mar. 9, 2015 Trial Tr. 134:23–24, 145:14–25; Mar. 10, 2015 Trial Tr. 9:11–13. Given St airwell 6’s frequent use and the daily inspections, any problem s with the stairwell handrail s would have been reported to19 building employees as s oon as they were noticed. See Mar. 9, 2015 Trial Tr. 104:25–105:15, 107:2–18 (explaining, in the statemen t of the lead carpenter at the time of Mr. Wise’s accident, that the building services office receives “notices” and “a wor k order” as soon as a complaint is filed relating to the building’s el ectrical structures, carpent ry, painting plumbing, temperature, and the like). Yet, government emp loyees responsible for buildi ng maintenance had not received any complaints about, nor had any p roblems with, stairwell hand rails in the building, despite each having worked at the Federal Reserve building for more tha n ten years. See id. at 99:4–18, 106:17–107:18, 112:12–20, 128:23–129:1. Furthermore, both Mr. W ise and his supervisor Mr. Bucco had used Stairwell 6 reg ularly, and they did not notice a nything amiss with the handrail until the day of Mr. Wise’s accident. See id. at 53:23–54:1, 76:7–11 (de scribing how Mr. Wise and Mr. Bucco had both use d Stairwell 6 before); id. at 54:2–4, 77:9–10 (describing how neither Mr. Wise nor Mr. Bucco had noticed anything amiss with the hand rail). The record reveals, in sum, that the government lacked actual n otice of any problems with the Stairwell 6 handrail . Thus, Mr. Wise’s only hope is to show that the United States had constructive notice of a defective handrail. b. No Constructive Notice Under District of Columbia law , a defendant has constructive no tice of a dangerous condition when “the condition had existed for such length of ti me that, in the exercise of reasonable care, its existen ce should have become known and cor rected.” Sullivan v. AboveNet Commc’ns, Inc. , 112 A.3d 347, 356 (D.C. 2015) (quoting Anderson v. Woodward & Lothrop , 244 A.2d 918, 918–19 (D.C. 1968) (per curiam)); accord Wilson v. WMATA , 912 A.2d 1186, 1190 (D.C. 2006). Put another way, t o prove constructive notice , “a plaintiff must present evidence: (1) that a dangerous condition existed, and (2) that the dangerous condition existed for20 such a duration of time that the [defendant] should have been a ware of it if [it] had exercised reasonable care.” Lynn v. District of Columbia , 734 A.2d 168, 171 (D.C. 1999) (citations omitted). Thus, constructive notice “is usually found through the continu ance of the condition for an unreasonable period of time.” Croce v. Hall , 657 A.2d 307, 311–12 (D.C. 1995). Proving the duration of time that an alleged h azard existed is a “critical” and “important” factor needed to establish constructive notice. Wilson v. WMATA , 912 A.2d 1186, 1190–91 (D.C. 2006); accord Mixon v. WMATA , 959 A.2d 55, 60 (D.C. 2008) (citing Wilson ). When the plaintiff proves only that a hazard existed for an undetermined period of time, she h as not shown that the defendant had constructive notice. Wilson , 912 A.2d at 1190 (citing Smith v. Safeway Stores, Inc. , 298 A.2d 214, 217 (D.C. 1972)). Here, Mr. Wise has failed to pres ent evidence of the threshold requirement for constructive notice: t hat a dangerous condi tion existed in the first place. See Lynn v. District of Columbia , 734 A.2d 168, 171 (D.C. 1999) (“[A] pla intiff must present ev idence . . . that a dangerous condition existed . . . .”). Apart from speculation t hat the Stairwell 6 handrail may have had a problem before, see Mar. 9, 2015 Trial Tr. 77:14–20, nothi ng in the record indicat es that the handrail was loose or de fective at any point before th e day of Mr. Wise’s accident. By the year 2010, the LEU’s stair climbing test no longer took pla ce within Stairwell 6. See id. at 144:19–145:7 (indicating that stairwell use for the test ceased around 2010); Mar. 10, 2015 Trial Tr. 19:1–5, 21:12–19 (indicating that st airwell use for the tes t ceased in 2007). A t that time—and up to the day of Mr. Wise’s accide nt—people regularly used Stai rwell 6 without reporting any looseness in the handrail. See Mar. 9, 2015 Trial Tr. 134:23–24 (no ting that Stairwell 6 “has a lot of traffic in it”); id. at 99:4–18, 106:17–107:18, 112:12–20, 128:23–129:1 (detailing how21 building employees received no rep orts of problems with the han drails). And, as noted above, even Mr. Wise and Mr. Bucco di d not notice any problems with th e Stairwell 6 handrail until the day of Mr. Wise’s accident. See Mar. 9, 2015 Trial Tr. 54:2–4, 77:9–10. On this record, there i s no evidence that the handrail eve r created a dangerous conditio n for constructive notice. Even if the Court were to infer t hat the law enforcement unit ( LEU)’s stair climbing test created the dangerous condition required for cons tructive notic e, Mr. Wise can show only that a weakened stairwell handrail existed on the day of the accident and possibly for an undetermined period of time before that date. T he record does not establish a clear beginning or end for when the LEU’s stair climbing tes t took place in Stairwell 6. See Mar. 9, 2015 Trial Tr. 54:2–4, 77:9–10, 115:2–15, 127:25–128:16, 143:12–25, 144:10–13, 144:19– 145:7, 146:16–21; Mar. 10, 2015 Trial Tr. 7:20–8:15, 13:14–14:1, 19:1–5, 21:12–19. Moreove r, the record does not establish a clear beginning or end for whe n the stair climbing test took place on the actual span of stairs where Mr. Wise slipped—though, by all accounts it did not inclu de that span of stairs by the year 2010. See Mar. 9, 2015 Trial Tr. 139:23–140: 9; Mar. 10, 2015 Trial Tr. 7 :20–8:15; Def.’s Ex. 23, at 1. In short, the record show s only an undetermined period of time during which the government could be charged with c onstructive notice of weakene d handrails resulting from the LEU’s stair climbing test. Such an amorphous period of time is insufficient to prove constructive notice. See Mixon v. WMATA , 959 A.2d 55, 60 (D.C. 2008) (explaini ng that, when the factfi nder must resort to “sheer guesswork” to determine the length of tim e the hazard existed, the plaintiff failed to show enough evidence to pe rmit the factfinder to impu te constructive knowledge to the defendant). Mr. Wise also cannot claim that constructive notice existed bec ause, if the Federal Reserve building’s staff had fulfilled their duty of care and i nspected the handrail “at least twice22 a year following one of the [stai r climbing] tests,” the govern ment would have known that the handrail was a hazard. See Mar. 16, 2015 Trial Tr. 65:13–14. Thi s line of reasoning overl ooks the first prong of the District of Columbia’s constructive noti ce formulation, which requires the plaintiff to prove that a danger ous condition existed in the fi rst place. See Lynn v. District of Columbia , 734 A.2d 168, 171 (D.C. 1999). Mr. Wise cannot argue that an inspection would have revealed a problem; doing so invi tes this Court to engage in th e kind of speculation that the District of Columbia Court of A ppeals has discouraged in the co nstructive notice context. For instance, that court has held t hat the failure to prove how lon g a hazard existed meant that the factfinder “would have had to engage in sheer guesswork” to det ermine whether it existed for long enough to charge the defenda nt with constructive notice. Mixon v. WMATA , 959 A.2d 55, 60 (D.C. 2008). So too here, if the Court does not even know wh ether the Stairwell 6 handrail was defective, it can only guess wh ether a defective handrail e xisted for long enough to charge the government with constructiv e notice. Without proof of a dan gerous condition, the government cannot be charged with constructive notice, even if it breached an alleged duty to inspect. Mr. Wise’s failure to produce e xpert testimony also destroys hi s argument here. Even if the Court could infer construc tive notice from a failure to ins pect the handrail, Mr. Wise must prove the government’s duty of care with expert testimony. See supra Part V.A.1.b. Because Mr. Wise did not, he cannot establish c onstructive notice by relyin g on the government’s breach of its alleged duty to inspect the handrail. Because Mr. Wise cannot show that the government had actual or constructive notice of a defective handrail, his negligen ce claims against the United St ates cannot prevail. See Sullivan v. AboveNet Commc’ns, Inc. , 112 A.3d 347, 356 (D.C. 2015); Croce v. Hall , 657 A.2d 307, 31123 (D.C. 1995). 4 Both Mr. Wise’s failure to pr oduce expert testimony and his fa ilure to prove notice defeat his negligence claims. B. Negligence Per Se Mr. Wise also seeks relief on a negligence per se theory. See Am. Compl. ¶¶ 25–37; Mar. 16, 2015 Trial Tr. 66:16–17. “To prevail on a negligence per se theory, the plaintiff may, in certain circumstances and under specified conditions[,] rely on a statute or regul ation as proof of the applicable standard of care.” Night & Day Mgmt., LLC v. Butler , 101 A.3d 1033, 1039 (D.C. 2014) (alteration in or iginal) (quoting Clark v. District of Columbia , 708 A.2d 632, 636 (D.C. 1997)). Mr. Wise concedes that he has offered no evidence from the Dist rict of Columbia Code to substantiate his claim. Mar. 16, 2015 Trial Tr. 66:17–18. Nor d oes the record cite any specific statute or regulation that the government breached. See Mar. 9, 2015 Trial Tr. 83:13–24, 100:24–101:10, 110:22–111:5, 121:9–122:4; cf. id. at 129:2–130:12 (explaining how the Federal Reserve building was built to conform with the 1961 building co de). Without a statute or regulation to prove a standard of care, Mr. Wise cannot establi sh the government’s liability for negligence per se . C. Gross Negligence Under D.C. law, “gross negligence” implies “such an extreme dev iation from the ordinary standard of care as t o support a finding of wanton, wi llful and reckless disregard or conscious indifference for the rights and safety of others.” District of Columbia v. Walker , 689

4 The notice requirement here also m eans that Mr. Wise cannot re cover on a res ipsa loquitur theory of liability. “[I ]n cases in which notice is an essential element of a plaintiff’s claim, res ispa loquitur is inapplicable because it is inconsis tent with the requirement of notice.” Mixon v. WMATA , 959 A.2d 55, 60 (D.C. 2008). Mr. Wise’s case falls in that ca tegory.24 A.2d 40, 44 (D.C. 1997). But nonetheless, as with any negligenc e claim, the plaintiff must still establish “the applicable standa rd of care,” which is “a base p oint from which the magnitude of deviation can be assessed for pur poses of the gross negligence inquiry.” Id. at 45. As discussed above, because he did not produce expert testimony or prove the government’s actual or constructive notice of the fault y handrail, Mr. Wise has not es tablished the applicable standard of

care. See supra Part V.A. Just as he cannot r ecover on his plain negligence cl aim, Mr. Wise likewise cannot recover on his gross negligence claim.

VI. CONCLUSION For the foregoing reasons, the C ourt finds that Defendant Unite d States is not liable to Plaintiff James R. Wise for ne gligence, negligence per se, or g ross negligence under the Federal Tort Claims Act. Final judgment will be entered for Defendant. Dated: November 17, 2015 RUDOLPH CONTRERAS United States District Judge