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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 18-CV-1299 & 18-CV-1386

DENISE MCKENNEY and KAMILAH WOODS, APPELLANTS,

 

v. 

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, APPELLEE.

Appeals from the Superior Court 

of the District of Columbia

(2018-CA-000473-B & 2018-CA-000474-B)

(Hon. Florence Y. Pan, Trial Judge) 

(Argued February 05, 2020 Decided July 18, 2024)

Erik J. Williams for appellant.

Andrew Butz, Associate General Counsel for the District of Columbia, with 

whom Barry D. Trebach, General Counsel for the District of Columbia, Sarah E. 

Allison, and Sean C. O’Hara, Associate General Counsels, were on the brief, for 

appellee.

Before EASTERLY, Associate Judge, and RUIZ and FISHER,

* Senior Judges.

RUIZ, Senior Judge: Appellants, Denise McKenney and Kamilah Woods, 

appeal the Superior Court’s grant of summary judgment in their negligence suit 

 

* Judge Fisher was an Associate Judge of the court at the time of argument. 

His status changed to Senior Judge on August 23, 2020.
2

against the Washington Metropolitan Area Transit Authority (“WMATA”). We 

affirm.

I. Background

Appellant Denise McKenney entered the Metrorail system at Foggy Bottom 

Station and boarded Metro railcar number 6090, traveling in the direction of Largo 

Station. Ms. McKenney took a seat towards the rear of the car. Her seat was 

forward-facing and located near one of the doors on the right-hand side of the car. 

The seat was bench-style, without arms or handles. Several stops later at the 

Smithsonian Station, appellant Kamilah Woods also boarded railcar 6090 and sat 

down next to Ms. McKenney on the same seat. As the train departed and proceeded 

towards Benning Road Station, appellants’ seat detached from the railcar wall and 

fell to the floor, bringing appellants tumbling down with it.

Appellants filed suit against WMATA on January 20, 2018, alleging they 

suffered personal injuries when their seat in a Metro railcar collapsed. During 

discovery, WMATA produced inspection records for railcar 6090, as well as an 

affidavit from James Poe, WMATA’s Assistant General Superintendent of Railcar 

Maintenance (“Poe Declaration”). Mr. Poe explained that he had “reviewed the 

maintenance records for car 6090 for the 6 months prior to January 21, 2015 . . . 

[and] found no malfunctions or defects in the . . . seats and anchoring systems for 
3

the seats.” He also described WMATA’s railcar inspection protocols, explaining the 

interior of each railcar, including the seats, is inspected before Rail Operations 

Supervisors release each train into service. He also noted that railcars are “inspected, 

tested, and if necessary, serviced every 30 days.” Appellants produced pictures of 

the collapsed seat along with declarations from Ms. McKenney and Ms. Woods 

describing the incident.

Following discovery, WMATA filed a motion for summary judgment 

asserting that, without expert testimony, appellants could not make a prima facie 

case of negligent maintenance, or show that WMATA had prior notice of a 

malfunction or defect with the railcar seat. Appellants opposed the motion, arguing

that omissions in the Poe Declaration, as well as photographs of and deposition 

testimony describing the damaged seat, were sufficient to establish a genuine issue 

of material fact on the issue of WMATA’s notice that obviated the need for expert 

testimony. 

The trial court granted WMATA’s motion for summary judgment, concluding 

appellants’ negligence claim must fail because they did not present any evidence 

demonstrating WMATA had actual or constructive notice of a defective condition 

in the railcar seat on which appellants sat. The trial court also rejected appellants’ 

claim that they did not need expert testimony to establish the applicable standard of 
4

care for maintaining Metro railcar seats to support a negligence claim. Finally, the 

trial court rejected appellants’ argument that the doctrine of res ipsa loquitor

obviated the need for expert testimony, explaining the doctrine was inapplicable on 

the facts of this case. These appeals followed. 

II. Standard of Review

“Summary judgment is properly granted when the pleadings and other 

materials on file demonstrate that there is no genuine issue of material fact to be 

resolved at trial.” Mixon v. Wash. Metro. Area Transit Auth., 959 A.2d 55, 57 (D.C. 

2008). “The moving party has the initial burden of demonstrating that there is no 

genuine issue of material fact and that he or she is entitled to judgment as a matter 

of law.” Tolu v. Ayodeji, 945 A.2d 596, 600 (D.C. 2008). Once the moving party 

meets its burden, such as by showing an absence of evidence supporting the nonmoving party’s claim, the burden shifts to the non-moving party “to present evidence 

showing the existence of genuine issues of material fact.” Id. In order to prevail, 

the “non-moving party may not rest upon conclusory allegations or denials, but must 

provide affidavits, depositions, or answers to interrogatories that ‘set forth specific 

facts showing that there is a genuine issue for trial.’” Id. (quoting Super. Ct. Civ. R. 

56(e)).
5

“On appeal, this court reviews summary judgment de novo, conducting an 

independent review of the record and applying the same substantive standard used 

by the trial court.” Id. at 601 (quoting Murphy v. Schwankhaus, 924 A.2d 988, 991 

(D.C. 2007)). Therefore, “[w]e determine the existence of any genuine issue of 

material fact by reviewing the pleadings, depositions, admissions and affidavits on 

file,” and “view the record in the light most favorable to the non-moving party.” Id. 

This means that “the party opposing summary judgment ‘is entitled to all favorable 

inferences which may be reasonably drawn from the evidentiary materials.’” Id.

(quoting Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198 (D.C. 1991)). 

III. Analysis 

Appellants contend the trial court erred in granting summary judgment in 

favor of WMATA because a genuine issue of material fact existed for jury resolution 

as to whether WMATA had notice of appellants’ defective railcar seat on the day 

the seat collapsed. Appellants also challenge the trial court’s determination that 

expert testimony was required to establish the applicable standard of care in this 

case, arguing they can prove WMATA’s negligence both directly and by a theory of 

res ipsa loquitor causation.

“The elements of a cause of action for negligence are a duty of care owed by 

the defendant to the plaintiff, a breach of that duty by the defendant, and damage to 
6

the interests of the plaintiff, proximately caused by the breach.” Mixon, 959 A.2d at 

58 (internal quotation marks omitted). “To create a jury question in a negligence 

case, the plaintiff must produce evidence from which a reasonable juror may 

conclude that a certain hazard caused the injury and that the defendant had actual or 

constructive notice of that hazard.” Marinopoliski v. Irish, 445 A.2d 339, 340 (D.C. 

1982) (emphasis in original). “[T]o prove constructive notice, then, a plaintiff must 

present evidence: (1) that a dangerous condition existed . . . and (2) that the 

dangerous condition existed for such a duration of time that [the defendant] would 

have been aware of it if [the defendant] had exercised reasonable care.” Lynn v. 

District of Columbia, 734 A.2d 168, 171 (D.C. 1999) (internal citations omitted); 

see also Rajabi v. Potomac Elec. Power Co., 650 A.2d 1319, 1322 (D.C. 1994) 

(defendants “must have had actual or constructive notice of [a hazardous condition] 

before they could be held liable”). The trial court in this case correctly concluded 

that on this record appellants could not meet this two-part burden.

A. Notice

Our review of the record compels us to agree with the trial court’s 

determination that appellants failed to produce sufficient evidence to raise a genuine 

issue of fact as to whether WMATA had actual or constructive notice of any defect 

with the railcar seat on which appellants were seated. Although appellants contend 
7

WMATA had constructive notice of the seat defect in railcar 6090 because “seats 

break periodically” on Metro railcars, appellants did not offer evidence sufficient to 

establish a genuine issue of material fact on this point. Appellants assert that the 

maintenance records produced by WMATA are evidence of “WMATA’s awareness 

of problems involving Metrorail car seats,” but these records pertain only to railcar 

6090, and make no reference to any damaged seats in that railcar. Thus, appellants’

mere assertion that “seats break periodically” on Metro railcars — a claim 

unsupported by any evidence in the record — is insufficient to establish a genuine 

issue of material fact as to whether WMATA had constructive notice of a defect in 

the railcar seat at issue here. See Tolu, 945 A.2d at 600 (explaining the “non-moving 

party may not rest upon conclusory allegations or denials, but must provide 

affidavits, depositions, or answers to interrogatories that set forth specific facts 

showing that there is a genuine issue for trial” (internal quotation marks omitted)). 

In an effort to avoid summary judgment, appellants point to alleged omissions 

in the Poe Declaration as evidence of disputed issues of material fact regarding 

WMATA’s maintenance of its railcar seats. Specifically, they argue that because 

the Poe Declaration conspicuously omitted “any detailed description of exactly what 

[WMATA’s] inspection entailed,” it necessarily raised a genuine issue of material 

fact. But appellants’ reliance on the Poe Declaration’s purported failure to offer a 

more detailed description of WMATA’s railcar seat inspection protocols is not 
8

sufficient to defeat summary judgment. Had this case gone to the jury on this record,

the jury would have been left with no choice but to “engage in idle speculation” to 

determine whether WMATA had notice of the defective railcar seat. Marinopoliski, 

445 A.2d at 341 (while “we recognize that an issue such as constructive notice is 

peculiarly within the province of the jury . . . juries cannot be permitted to engage in 

idle speculation” (citation omitted)). Rather, it was appellants’ burden to present 

affirmative evidence that WMATA had notice that this seat or its mounting was 

defective—a burden appellants have failed to meet.1

 See Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 257 (1986) (explaining “the plaintiff must present affirmative 

evidence in order to defeat a properly supported motion for summary judgment . . . 

even where the evidence is likely to be within the possession of the defendant, as 

long as the plaintiff had a full opportunity to conduct discovery.”) Therefore, we 

 1 Nor can the non-moving party meet its burden to show that a genuine issue 

of material fact exists by “impugning the honesty of the moving party’s witness.” 

Bradshaw v. District of Columbia, 43 A.3d 318, 323 (D.C. 2012) (brackets and 

internal quotation marks omitted). To avoid summary judgment by challenging the 

veracity of a witness, the non-moving party must point to some independent 

evidence in support of its claim. Perkins v. District of Columbia, 146 A.3d 80, 86-87 

(D.C. 2016) (finding appellant’s argument that the record cast doubt on the veracity 

of appellee’s witnesses insufficient to avoid summary judgment where appellant 

cited no independent evidence supporting their claim. (citing Bradshaw, 43 A.3d at 

323 and “explaining that when an argument in opposition to a motion for summary 

judgment boils down to an allegation that defense witnesses are lying and when 

challenges to witness’ credibility are all that a plaintiff relies on, and he has shown 

no independent facts — no proof — to support his claims, summary judgment in 

favor of the defendant is proper” (internal quotation marks omitted))). 
9

cannot say the trial court erred in granting summary judgment for appellee on the 

issue of whether WMATA had notice of the defective seat in railcar 6090 prior to 

its collapse.

B. Expert Testimony and the Standard of Care

Appellants contend that the trial court erred in requiring the presentation of 

expert testimony to establish the applicable standard of care on the ground that the 

subject matter at issue here, the maintenance of seats in a Metro railcar, is “beyond 

the ken of the average lay” person. District of Columbia v. Davis, 386 A.2d 1195, 

1200 (D.C. 1978). “The decision whether to admit or require expert testimony on a 

particular state of facts is confided to the sound discretion of the trial court, and we 

have described that discretion as broad.” Varner v. District of Columbia, 891 A.2d 

260, 266 (D.C. 2006) (internal quotation marks omitted). We perceive no abuse of 

discretion in the trial court’s ruling.

“In an action for negligence, the plaintiff has the burden of proving by a 

preponderance of the evidence the applicable standard of care, a deviation from that 

standard by the defendant, and a causal relationship between the deviation and the 

plaintiff’s injury.” Id. at 265 (internal quotation marks omitted). “Where negligent 

conduct is alleged in a context which is within the realm of common knowledge and 

everyday experience, the plaintiff is not required to adduce expert testimony either 
10

to establish the applicable standard of care or to prove that the defendant failed to 

adhere to it.” Id. (quoting Beard, 587 A.2d at 200). But, where the applicable 

standard of care is not known by the average juror because “the subject dealt with is 

so distinctly related to some science, profession, or occupation as to be beyond the 

ken of the average lay juror . . . expert testimony is required in order for a plaintiff 

to meet this burden.”2

 Tolu, 945 A.2d at 601; see Katkish v. District of Columbia, 

763 A.2d 703, 706 (D.C. 2000) (requiring expert testimony to establish standard of 

care because the “average lay person is not capable of discerning when a leaning tree 

may create a dangerous situation requiring an emergency response and whether the 

likelihood of the tree falling is related to the condition of the tree, the street, or other 

circumstances”).

Appellants contend expert testimony is not required to establish the applicable 

standard of care here because this case is “about a seat — a stationary, non-technical 

object —” a subject within the common knowledge and experience of a reasonable 

 2 We have repeatedly explained that the requirement to provide expert 

testimony to establish the applicable standard of care “has been applied more broadly 

to a variety of situations” with a “substantially smaller number of cases falling within 

the common knowledge exception.” Hill v. Metro. African Methodist Episcopal 

Church, 779 A.2d 906, 908 n.1 (D.C. 2001) (quoting District of Columbia v. 

Hampton, 666 A.2d 30, 35-36 (D.C. 1995)).
11

juror.3 We find appellants’ argument unpersuasive because it conflates the 

knowledge gained from experience by a lay metro user with the knowledge required 

to establish a standard of care. While a reasonable juror in the District of Columbia 

has likely sat in a Metro railcar seat and could easily infer maintenance was required 

for a seat that is visibly defective, there is no evidence that was the case here, where 

both appellants sat on the bench seat. But a lay metro user would not know about 

the inspection protocols applicable to the maintenance and repair of seats installed 

in mass-transit rail systems. Without the testimony of an expert familiar with such 

protocols, the jury would be left to speculate as to what inspection systems and 

procedures are available and in general use for mass-transit rail systems, what level 

of inspection was reasonable under the circumstances here, whether the daily and 

monthly inspections WMATA performs on its railcars as described in the Poe 

Declaration comport with such standards, and whether there was a causal 

relationship between any deviation from the standards and the collapsed seat in this 

case. See Hughes v. District of Columbia, 425 A.2d 1299, 1303 (D.C. 1981) 

(“Absent such [expert] testimony, the jury will be forced to engage in idle 

speculation which is prohibited.”); accord Hill, 779 A.2d at 910 (affirming entry of 

 3 Appellants assert the mere “fact that the seat collapsed is evidence in and of 

itself of WMATA’s failure to properly maintain the seat.” We reject this argument 

as a matter of law because “the mere happening of an accident does not impose 

liability or reveal proof of negligence.” Davis, 386 A.2d at 1200.
12

summary judgment where appellant did not designate an expert to testify as to the 

adequacy of crowd control measures in use at church where appellant was injured 

when a “pushing and shoving” crowd caused her to fall down a stairway). 

Appellants rely on Bostic v. Henkels & McCoy, Inc., 748 A.2d 421, 425-26 

(D.C. 2000) (expert testimony not required to establish standard of care where 

appellee was injured when he fell through a gap in wood boards covering trench on 

sidewalk), and District of Columbia v. Shannon, 696 A.2d 1359, 1365-66 (D.C. 

1997) (expert testimony not required to establish standard of care where child injured 

her thumb on playground slide with open holes that manufacturer recommended be 

closed), for the proposition that expert testimony is not needed to establish the 

applicable standard of care in this case. But the facts here render Bostic and Shannon

distinguishable because the complexities involved in determining the frequency with 

which the seats in Metro railcars should be inspected, as well as what the scope of 

those inspections should entail, are not comparable to the more straightforward 

issues in those cases. While “[i]t takes no expert knowledge . . . to know that 

children stick their fingers in holes[,]” Shannon, 696 A.2d at 1365, or that it is 

negligent to leave a six-to-seven inch gap between boards covering a trench on which 

pedestrians are expected to walk, Bostic, 748 A.2d at 425-26, the average juror could 

not say whether WMATA’s daily and monthly inspections were sufficient to satisfy 

the applicable standard of care owed by WMATA to appellants given the technical 
13

nature of this issue. Cf. Rajabi, 650 A.2d at 1322 (requiring expert testimony to 

establish whether a particular maintenance schedule for street lights was sufficient 

to protect passers-by from the dangers of falling street lamp globes, and explaining 

“without it appellants’ case could never have gone to the jury”).

Thus, having failed to present any expert testimony to establish the applicable 

standard of care, or any evidence as to whether WMATA’s monthly inspections and 

daily visual inspections were sufficient to comply with the applicable industry 

standards for the maintenance of seats in Metro railcars, and any causal relationship 

between a deviation and appellants’ injuries, the trial court properly entered 

summary judgment in favor of WMATA.

C. Res Ipsa Loquitor

Alternatively, appellants argue the trial court erred when it held the doctrine 

of res ipsa loquitor inapplicable to this case on the ground that they failed to proffer 

expert testimony establishing the applicable standard of care. Because appellants 

did not demonstrate that a lay juror could infer “as a matter of common knowledge” 

that Metro railcar seats do not collapse in the absence of negligence, we cannot say 

the trial court erred.
14

“The doctrine of res ipsa loquitur permits the jury to infer a lack of due care 

from the mere occurrence of an accident.” Hailey v. Otis Elevator Co., 636 A.2d 

426, 428 (D.C. 1994) (italics added, internal quotation marks omitted). This doctrine 

permits an inference of negligence “where [the] plaintiff establishes that: (1) an 

event would not ordinarily occur in the absence of negligence; (2) the event was 

caused by an instrumentality in defendant’s exclusive control; and (3) there was no 

voluntary action or contribution on plaintiff’s part.” Mixon, 959 A.2d at 60. “All

three elements must be established in order for the doctrine to apply.” District of 

Columbia v. Billingsley, 667 A.2d 837, 841 (D.C. 1995).

“At the threshold, [a] plaintiff must demonstrate that the injury ordinarily does 

not occur when due care is exercised.” Hailey, 636 A.2d at 429 (internal quotation 

marks omitted). Thus, res ipsa loquitor may be invoked only “where a layman can 

infer negligence ‘as a matter of common knowledge,’ or where expert testimony is 

presented, that such accidents do not occur in the absence of negligence.” Id. at 

428-29 (quoting Quin v. George Washington Univ., 407 A.2d 580, 583-84 (D.C. 

1979)) (doctrine of res ipsa loquitor inapplicable where “[n]o expert was called to 

testify that escalators do not [jerk forward] without some negligence in their 

maintenance”). Thus, where a plaintiff relies upon “common knowledge” to invoke 

the doctrine of res ipsa loquitor, forgoing the presentation of expert testimony, “the 

fact that such events do not ‘ordinarily’ occur ‘without negligence’ must be based 
15

upon a widespread consensus of common understanding.” Id. at 429 (citing W. Page 

Keeton et al., Prosser and Keeton on the Law of Torts § 39, at 244-48 (5th ed. 1984)). 

Appellants contend photographs of their collapsed railcar seat are sufficient 

to establish the first element of res ipsa loquitor, asserting the photographs 

demonstrate the “seat would not have ordinarily collapsed had it not been for” 

WMATA’s negligence. But appellants’ reliance on these photographs is misplaced, 

as they alone do not establish a layperson could infer, “as a matter of common 

knowledge,” that Metro railcar seats do not collapse in the absence of negligence. 

Hailey, 636 A.2d at 428; see also Crenshaw v. Wash. Metro Area Transit Auth., 731 

A.2d 381, 382 (D.C. 1999) (“we fail to see how a jury, in the absence of expert 

testimony or some other evidence of a violation of an established standard of care, 

can conclude that the [escalator] jerking motion in this case, as opposed to any other 

[escalator] jerking motion, is the result of negligence on the part of [WMATA]”). 

Rather, for appellants to establish a layperson could infer negligence as a matter of 

common knowledge from the collapse of their railcar seat, they needed to 

demonstrate that such common knowledge is “based upon a widespread consensus 

of common understanding,” Hailey, 636 A.2d at 428, a burden appellants cannot 

meet. This is because laypersons do not possess knowledge of WMATA’s railcar 

inspection protocols, let alone whether such protocols comport with applicable 

industry standards for the maintenance of seats used in mass-transit rail systems. Cf. 
16

Scott v. James, 731 A.2d 399, 406 (D.C. 1999) (explaining it was incumbent upon 

appellant to present expert evidence as to the standard of care and process for 

applying hair relaxer where “neither the judge nor the jurors had any hint as to the 

chemical composition of the relaxer, the actual process used to apply the chemical 

relaxer, or the proper procedure” for applying the relaxer to appellant’s hair or scalp). 

It is not enough to say that because the seat collapsed, there must have been a 

defect that would have been corrected but for WMATA’s negligence. Res ipsa 

loquitor is not a doctrine of strict liability, but an alternative means of proving 

negligence. In light of the absence of expert testimony and because there is no 

evidence that the relationship between acceptable inspection and maintenance 

schedules and the collapsed seat in this case are a matter of common knowledge, 

had this case gone to a jury, the jurors would have been left to “speculat[e] on 

possibilities rather than weighing probabilities based on the evidence[,]” Hailey, 

636 A.2d at 429, as to why appellants’ seat collapsed. Thus, we cannot say the 

trial court erred in declining to permit an inference of negligence where 

appellants failed to present any evidence establishing Metro railcar seats 

ordinarily do not collapse absent negligent maintenance by WMATA.4 

4 Appellants’ failure to satisfy the first element of res ipsa loquitor ends our 

review of the trial court’s determination that an inference of negligence was 

unwarranted based on the evidence before the court. We need not address whether 

appellants could have satisfied the second or third elements of the doctrine of res 
17

* * *

For the reasons set forth above, we affirm the trial court’s grant of WMATA’s 

motion for summary judgment.

So ordered.

 

ipsa loquitor, as all three elements must be satisfied for the doctrine to be applicable. 

Billingsley, 667 A.2d at 841.