McKethean v. WMATA, No. 86-1704.

• Docket Nº: No. 86-1704.
• Citation: 588 A.2d 708
• Case Date: March 29, 1991
• Court: Court of Appeals of Columbia District

588 A.2d 708

Charron McKETHEAN, et al., Appellants,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al., Appellees.

No. 86-1704.

District of Columbia Court of Appeals.

Argued May 10, 1988.

Decided March 29, 1991.

588 A.2d 709

Dean E. Swartz, with whom Elizabeth A. Karasik and Frederic W. Schwartz, Jr., were on the brief, Washington, D.C., for appellants.

Gerard J. Stief, Asst. Gen. Counsel, with whom Sara E. Lister, General Counsel, John G. Elligers, Associate General Counsel, and Robert J. Kniaz were on the brief, Washington, D.C., for appellee Washington Metropolitan Area Transit Authority.

Donna M. Murasky, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, were on the brief, Washington, D.C., for appellee District of Columbia.

Before FERREN and TERRY, Associate Judges, and MACK, Senior Judge.

TERRY, Associate Judge:

This case arose from an accident which killed seven persons and injured two more.

588 A.2d 710

All of the victims were struck by an automobile while standing at a bus stop at Third and M Streets, S.E. The injured parties and representatives of the deceased victims filed negligence actions against the driver of the car, the owner of the car (the driver's brother), and the Washington Metropolitan Area Transit Authority (WMATA). The District of Columbia was later added as a co-defendant. Included in one complaint was a claim by a relative of two of the victims for negligent infliction of emotional distress. The claims were eventually consolidated in an amended complaint, and after extensive discovery and the filing of several motions, the trial court granted WMATA's and the District's motions for summary judgment. The court then granted a motion for entry of judgment under Super.Ct.Civ.R. 54(b), thereby making its order appealable,¹ and stayed the proceedings with respect to the other defendants pending the outcome of this appeal by all of the plaintiffs. Appellants contend that the court erred in ruling (1) that WMATA and the District were immune from tort liability for their injuries, (2) that the driver of the car was an unforeseeable intervening cause of the accident, and (3) that no recovery could be had for emotional distress against WMATA and the District. We reject all their arguments and affirm the trial court's judgment

I. FACTUAL BACKGROUND

The pertinent facts are undisputed. At about 6:15 p.m. on August 25, 1984, Robert Lee Williams, while under the influence of alcohol and drugs, was driving a car in the 200 block of M Street, S.E. At that point M Street is a six-lane thoroughfare with a concrete median strip, approximately six inches high and four feet wide, separating the eastbound lanes from the westbound lanes. Williams, driving at more than twice the posted speed limit, was on the wrong side of the street, headed eastward into westbound traffic. Trying to steer into the proper lane through a gap in the median, Williams hit the median instead. The car lurched out of control, crossed over to the far curb, and struck nine persons waiting at a bus stop at the corner of Third and M.

Of the nine, only Charron McKethean and Willie Calliham, Jr., survived. The others—Theodore and Sandra Chrisp and their three children, Charron McKethean's six-month-old daughter Charquita, and Linda Taylor—were all killed. John McKethean, Charron's father, was at his home a block away when he heard the crash and ensuing screams. He ran to the bus stop and saw his severely injured daughter and the body of his granddaughter. He also saw the bodies of the other victims, all of whom he knew. Criminal charges were brought against Williams, and eventually he pleaded guilty to two counts of manslaughter while armed, five counts of manslaughter, and driving while intoxicated. The consecutive sentences he received on those convictions were affirmed by this court in Williams v. United States, 569 A.2d 97 (D.C.1989).

The bus stop at Third and M Streets had been established in 1952 by the Capital Transit Company, a predecessor of WMATA, under an administrative order of the District of Columbia Public Utilities Commission. Originally the stop was located on a seven-foot-wide grassy strip between the curb and the sidewalk, owned by the District of Columbia. On the other edge of the sidewalk stands a brick wall belonging to the federal government, behind which lies the Washington Navy Yard. In 1967 M Street was widened to three lanes in each direction, and the grassy section was removed, leaving only four to six feet of sidewalk between the curb and the brick wall. There has been no change since. Prospective passengers now must either stand on the sidewalk or lean against the brick wall while waiting for the bus.

Appellants filed suit against Robert Williams, his brother Bernard, who owned the car, WMATA, and the District of Columbia.

588 A.2d 711

Their complaint alleged that WMATA and the District were jointly and severally liable for the deaths and injuries because they were responsible for the location and maintenance of the bus stop and had negligently failed to follow applicable safety standards in placing it at Third and M Streets and in allowing it to remain there after the street was widened. This negligence allegedly was a proximate cause of their injuries, since the 1967 street widening had made the bus stop a hazard, leaving it too close to a busy street with no way for persons waiting there for a bus to escape oncoming traffic. Appellants also alleged that the District's negligent maintenance of the median strip was a proximate cause of their injuries. Finally, appellant John McKethean sought recovery from all the defendants for negligent infliction of emotional distress, claiming that witnessing the deaths and injuries of his family and friends caused him severe and continuing emotional injury

Following discovery, each of the parties moved for either partial or total summary judgment. The court granted WMATA's and the District's motions as to all of appellants' claims. The court said first that it could not determine from the record whether WMATA, the District, or both bore any actual responsibility for the accident. This did not matter, however, for the court went on to hold that both were immune from liability. The court reasoned that neither could be liable for the original placement of the bus stop because it was located in compliance with an administrative order. With respect to any decision about relocation or redesign of the stop after the 1967 street widening, the court ruled that the District was immune from liability because its actions were committed in the exercise of a discretionary function. Similarly, WMATA was immune from liability because its actions were governmental in nature.

As to the allegedly negligent maintenance of the median, the court ruled that Williams' criminal conduct was an unforeseeable intervening cause of the accident which absolved the District of liability. Finally, the court held that WMATA and the District were not liable for infliction of emotional distress since neither appellee's conduct was sufficiently extreme or outrageous to allow for recovery absent physical injury, although Williams' conduct could be so characterized. Consequently, in its order the court granted WMATA's and the District's motions for summary judgment as to all claims, but denied the motion of Robert and Bernard Williams for summary judgment on John McKethean's claim.²

II. WMATA

Appellants do not here argue that either WMATA or the District is liable for the original decision to locate the bus stop at the corner of Third and M Streets. Rather, they claim that the 1967 widening of M Street made the bus stop a safety hazard, and that appellees' alleged negligence was their failure to remedy the hazard. Appellants first contend that WMATA, as a common carrier, owes a duty of reasonable care to prospective passengers of its transit system. WMATA breached this duty, they say, by ignoring its own safety standards and allowing the continued existence of a dangerous bus stop. According to appellants, immunity should not attach to these breaches as a matter of public policy. More specifically, appellants maintain that WMATA is statutorily liable because the relocation and maintenance of its stops are proprietary activities. Thus, they argue, the trial court erred in ruling that WMATA was immune from suit.

WMATA responds that, under District of Columbia law, it owes no duty of care to prospective passengers on its transit system. Further, even if it did owe such a duty and breached it, the trial court correctly ruled that it was immune from suit because its alleged acts of negligence were governmental, not proprietary. We agree with both of WMATA's arguments.

588 A.2d 712

A. Duty of Care

We reject appellants' contention that WMATA owed a special duty of care to the victims of the accident, who were prospective passengers on its transit system. WMATA, like any common carrier, owes a duty of reasonable care to its passengers. D.C. Transit System, Inc. v. Carney, 254 A.2d 402, 403 (D.C.1969); RESTATEMENT (SECOND) OF TORTS § 314A (1965); see Standardized Civil Jury Instructions for the District of Columbia, No. 8.1 (1981). This duty arises, however, only in a carrier-passenger relationship. A common carrier has no special duty to non-passengers. See RESTATEMENT, supra, § 314A comment c; Standardized Civil Jury Instructions, supra, No. 8.2 (carrier's duty "begins when the intending passenger makes his first contact with the bus in the act of entering it"). More than twenty years ago, in a case in which the plaintiff was injured when she fell at a bus stop while waiting for a bus, this court affirmed a judgment n.o.v. in favor of the bus company. We held:

Until a person has placed himself in some substantial sense in the custody or under the control of the carrier, he is not

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