Robinson v. Wash. Metro. Area Transit Auth.

• Decision Date: 01 May 2012
• Docket Number: Civil Action No. 11–0723 (ESH).
• Citation: 858 F.Supp.2d 33
• Parties: Darlene C. ROBINSON, Plaintiff, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.
• Court: U.S. District Court — District of Columbia

858 F.Supp.2d 33

Darlene C. ROBINSON, Plaintiff,

v.WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.

Civil Action No. 11–0723 (ESH).

United States District Court, District of Columbia.

May 1, 2012.

Charles C. Parsons, Charles Nmn Krikawa, IV, Charles C. Parsons & Associates, Chtd., Washington, DC, for Plaintiff.

Kathleen Ann Carey, Washington Metropolitan Area Transit Authority, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

On April 16, 2008, plaintiff Darlene Robinson boarded a Metrobus operated by an employee of Washington Metropolitan Transit Authority (“WMATA”). (Compl. ¶ 4.) Before she reached her seat, she fell and injured her ankle. She has filed suit against WMATA for negligent operation of the bus. Before the Court is WMATA's Renewed Motion for Summary Judgment and Motion to Dismiss. (“Def.'s Renewed Mot.”)

BACKGROUND

I. FACTS

The facts here are largely undisputed. On April 16, 2008, near the intersection of 11th Street and Gallatin Street, NE, Robinson boarded Bus No. 2170, an E–2 Metrobus operated by WMATA employee Ronald Bumpass. (Compl. ¶ 4; Def.'s Mot. for Summ. J. (“Def.'s First Mot.”), Ex. 2 (“Accident Report Form”) at 1–2.) ¹ There were approximately seven passengers on the bus at that time. (Accident Report Form at 1.) After Robinson paid her fare, she walked down the bus aisle looking for a seat. (Def.'s First Mot., Ex. 3 (“Robinson Dep.”) 43:9–43:16.) By the time eight to ten seconds had elapsed, she was standing about halfway down the bus aisle with her hand holding a handrail on the back of one of the seats. ( Id. 39:22–44:9, 52:14–53:13.) At that point, she fell and injured her left ankle. ( Id. 52:14–53:13.)

The bus was moving when Robinson fell. According to the plaintiff, it was going “faster than the normal bus trip” ( id. 91:14–92:3) and moving with “sudden jerk speed.” ( Id. 102:9–102:11.) She testified that someone yelled “slow down” and the bus driver abruptly pressed the brakes. ( Id. 44:3–45:13; 100:5–100:22.) As a result, her body twisted, her hand slipped off the handrail, and she fell with her leg twisted under her. ( Id. 45:10–45:13; 102:5–102:22.)

During this time, Bumpass was sitting in the driver's seat, facing the windshield, and he did not see her walk down the aisle or fall. (Pl.'s Opp'n to First Mot., Ex. 3 (“Bumpass Dep.”) 50:20–51:2.) At his deposition, Bumpass testified that he did not look behind him or check the interior mirrors before he pulled away from the bus stop. ( Id. 50:20–51:2.) After plaintiff paid her fare, the next time that he was aware of her was when another passenger approached him and told him that Robinson had fallen. ( Id. 52:4–53:4.) When Bumpass approached her, she told him that her ankle was hurt, but declined his offer of help and said that she was going home to call her doctor. (Accident Report Form at 2.)

Plaintiff filed suit against WMATA on April 14, 2011, alleging that WMATA was liable for the bus driver's negligence in operating the bus. (Compl. ¶ 4.) During discovery, WMATA moved for summary judgment on the basis that plaintiff lacked expert testimony necessary to establish her claims. (Def.'s First Mot. for Summ. J.) Subsequently, plaintiff filed a supplemental Rule 26(a)(2) statement disclosing Carl Berkowitz as its transportation engineering expert (Pl.'s Supp. Rule 26(a)(2) Statement (“Berkowitz Rep.”)), and WMATA's motion was accordingly denied as moot. ( See Minute Order of Jan. 10, 2010.) Following the close of discovery, WMATA has now filed a renewed motion for summary judgment and to dismiss, arguing that the Court lacks jurisdiction due to sovereign immunity and that it is entitled to summary judgment because plaintiff has failed to establish a prima facie case of negligence.

ANALYSIS

I. SOVEREIGN IMMUNITY

WMATA, which was created through the Washington Metropolitan Area Transit Authority Compact signed by Maryland, Virginia, and the District of Columbia, see Pub.L. No. 89–774, 80 Stat. 1324 (1966) (codified as amended at D.C.Code § 9–1107.01 et seq.) (“Compact”), is entitled to share in the sovereign immunity of the Compact's signatories. Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C.Cir.1997). WMATA's sovereign immunity is therefore waived for “torts ... committed in the conduct of any proprietary function,” but preserved for “torts occurring in the performance of a governmental function.” D.C.Code § 9–1107.01(80).

Courts interpreting the Compact's sovereign immunity provision apply a two-part test to determine whether an activity enjoys its protection. WMATA v. Barksdale–Showell, 965 A.2d 16, 20 (D.C.2009). The first part of the test asks whether a particular act is governmental or proprietary. Id. Activity that is “quintessentially governmental” is shielded from suit by WMATA's sovereign immunity. Id. The second part addresses activities that are not quintessentially governmental functions; in those cases, immunity depends on whether the activity is discretionary or ministerial. Burkhart v. WMATA, 112 F.3d 1207, 1216 (D.C.Cir.1997). Only discretionary activity is protected by sovereign immunity. Id.

Discretionary functions are governmental actions and decisions that are “based upon considerations of public policy” and which require “an element of judgment or choice.” Berkovitz v. United States, 486 U.S. 531, 536–37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). If a “ ‘statute, regulation, or policy specifically prescribes a course of action’ ” for WMATA to follow, then no discretion is involved because WMATA had “no rightful option but to adhere to the directive.” Barksdale–Showell, 965 A.2d at 21 (quoting United States v. Gaubert, 499 U.S. 315, 322–23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). If there is no prescribed code of conduct and the decision involves “political, social, [or] economic” choices, it is considered discretionary. See Burkhart, 112 F.3d at 1217. “For a court to find that an act is discretionary, thus entitling the municipality to immunity, the court must determine that the act involves the formulation, as opposed to the execution, of policy.” Briggs v. WMATA, 293 F.Supp.2d 8, 12 (D.D.C.2003), aff'd,481 F.3d 839, 843 (D.C.Cir.2007).

In the instant case, WMATA has moved to dismiss plaintiff's complaint, arguing that it cannot be held liable for Bumpass' decision to drive while Robinson was standing because its policy allowing bus drivers to operate a bus while passengers are standing is the product of a discretionary decision. (Def.'s Renewed Mot. at 9–10.) It explains that “WMATA's policy [ ] permit [ing] buses to continue on the route with standing passengers” is based on considerations including efficiency, customer service, and budgetary constraints. ( Id. at 9–10.) Therefore, it argues, relying on Burkhart, 112 F.3d at 1216–17, it is entitled to sovereign immunity and the Court lacks subject matter jurisdiction. ( See Def.'s Renewed Mot. at 11.)

To the extent that this policy is part of plaintiff's theory of liability, the Court agrees that defendant is immune. However, WMATA's immunity for that policy does not justify dismissal of plaintiff's complaint because her negligence claim is not based entirely on the fact that Bumpass drove away from the bus stop while she was standing. ( See Compl. ¶¶ 3, 5, 6–7.)

Here, as in Washington Metro. Area Transit Auth. v. O'Neill, plaintiff does not challenge WMATA's rule itself, but rather claims “that the bus driver was negligent in not following WMATA's safety directives.” 633 A.2d 834, 838 (D.C.1993).² Specifically, she argues that Bumpass was negligent—and breached the WMATA Standard Operating Procedures (“SOPs”)—in at least two ways.

First, Bumpass failed to comply with WMATA's rule that he “[c]heck that passengers are secure and prepared for vehicle movement.” (Pl.'s Opp'n to Renewed Mot. at 13.) It is true, as defendant notes (Def.'s Renewed Mot. at 4), that Robinson complains about Bumpass not waiting to drive until she sat down, as bus drivers often do, but her negligence claim does not hinge on the fact that he did not wait. Instead, she attacks his failure to check on passengers at all since he did not look to see if she was secure. ( See Pl.'s Opp'n to Renewed Mot. at 2–7, 13–15.) Notably, defendant does not claim that this lapse was part of WMATA policymaking or necessarily compliant with its policies. In fact, defendant has proffered testimony which tends to support plaintiff's argument that Bumpass had an obligation to check on his passengers before moving. ( See Def.'s Reply to Pl.'s Opp'n to Renewed Mot. for Summ. J. and Mot. to Dismiss (“Def.'s Reply”), Ex. 1 (“Harris Aff.”) ¶ 4) (“By th[e] requirement [ (that the bus operator check that passengers are secure and prepared) ], the bus operator should be generally aware that passenger[sic] are in a position to hold on to one of numerous vertical and horizontal poles located around the fare box, along the aisle, and on top of most seats of the bus.”) Moreover, defendant does not dispute the fact that Bumpass was required to perform some “check” so as to “be generally aware” of Robinson's whereabouts, which he admits that he did not do.³ Therefore, WMATA cannot claim that his decision to violate its policy is entitled to immunity. See O'Neill, 633 A.2d at 839 (“WMATA's sovereign immunity did not bar this suit premised on the alleged negligence of its driver in carrying out express safety directives intended for the protection of its passengers.”).

Second, Robinson challenges Bumpass' failure to follow WMATA's directive that bus drivers “[s]tart gradually, stop smoothly, and turn slowly” ( see Pl's Opp'n to Renewed Mot. at 15; Pl.'s Opp'n to First Mot., Ex. 1 (excerpt from SOPs handbook) at 7) by accelerating and decelerating in a “very fast” and “jerky” way. Again, defendant does not claim that Bumpass' action was part of its discretionary decisionmaking and therefore it is not entitled to immunity on this aspect of plaintiff's claim....