Smith v. Wmata

Decision Date10 May 2002
Docket NumberNo. 01-1345.,01-1345.
Citation290 F.3d 201
PartiesRichard Lee SMITH, Individually and as Personal Representative of the Estate of Richard Hadaway Smith, Deceased; Nancy G. Smith, Individually and as Personal Representative of the Estate of Richard Hadaway Smith, Deceased, Plaintiffs-Appellees, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

David R. Keyser, Assistant General, Washington Metropolitan Area Transit Authority, Washington, DC, for Appellant. Jack Arthur Gold, Karp, Frosh, Lapidus, Wigodsky & Norwind, P.A., Washington, DC, for Appellees.


Cheryl C. Burke, General, Robert J. Kniaz, Deputy General, Gerard J. Stief, Associate General, Washington Metropolitan Area Transit Authority, Washington, DC, for Appellant. Lawrence S. Lapidus, Karp, Frosh, Lapidus, Wigodsky & Norwind, P.A., Washington, DC, for Appellees.

Before MICHAEL, KING, and GREGORY, Circuit Judges.

Vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge GREGORY joined. Judge MICHAEL wrote an opinion concurring in part and dissenting in part.


KING, Circuit Judge.

In July 1999, the parents of Richard Hadaway Smith, individually and as representatives of his estate, initiated this proceeding against the Washington Metropolitan Area Transit Authority (the "METRO") in the District of Maryland, seeking damages for the death of their son. In response, the METRO asserted governmental immunity and, upon the court's partial denial of its immunity claim, noticed an interlocutory appeal. Because the METRO is entitled to a broader grant of immunity than that accorded it by the district court, we vacate and remand.


On the afternoon of July 20, 1998, at the METRO's Bethesda station in Maryland, Smith climbed an escalator which was being utilized as a stairway, i.e., a "stationary walker."1 At the top of the escalator, Smith suffered a fatal heart attack. The METRO had decided to utilize the escalator as a stationary walker on that occasion because the two other escalators at its Bethesda station were inoperative.

Public access to the Bethesda station is normally provided by three escalators and an elevator. By design, each of the three escalators is capable of being operated either up or down, and the direction of each escalator can be altered by METRO officials on the basis of need. On July 8, 1998, twelve days before Smith's tragic death, one of the escalators at the Bethesda station ("Escalator Two") had failed an inspection by Maryland safety inspectors. A safety inspector thereafter refused to allow the METRO to utilize Escalator Two as a stationary walker, and it was inoperative on July 20, 1998. On the night of July 19, 1998, while the Bethesda station was closed, a second escalator ("Escalator Three") was being subjected to routine maintenance when METRO mechanics discovered a problem necessitating its repair. This problem rendered Escalator Three potentially unsafe for the METRO to operate, and on July 20, 1998, Escalator Three was in a state of disassembly awaiting a replacement part.

As a result of the inoperative status of Escalators Two and Three, the METRO made the decision to utilize its sole operating escalator ("Escalator One") as a stationary walker, thus enabling its patrons to both enter and exit the Bethesda station by a means other than the single elevator. Smith's fatal heart attack occurred at approximately 3:15 p.m. on July 20, 1998.2


This proceeding was initially filed in the district court on July 22, 1999, alleging that, due to its negligence, the METRO is liable for Smith's death. An amended complaint, filed August 15, 2000, consisted of two counts, each premised on the same allegation of negligence: one for wrongful death, made on behalf of Smith's parents, plus a second count under the Maryland survival statute, asserted on behalf of Smith's estate.3

In response to this allegation, the METRO sought summary judgment on the basis of multiple contentions, including the immunity claim now on appeal. The development of the case in district court revealed that Smith's negligence allegation concerning the Bethesda station embodied five theories, as follows:

1. The METRO had negligently braked Escalator One for use as a stationary walker;

2. The METRO had negligently left Escalator Three disassembled pending repair;

3. The METRO had negligently failed to warn its Bethesda patrons of the conditions on July 20, 1998;

4. The METRO's signage and illumination (the alleged "design defects") failed to comply with the requirements of the ANSI Code;4

5. The METRO had negligently failed to repair and maintain Escalators Two and Three.

Upon its consideration of the METRO's summary judgment request, and the assertions and related submissions of the parties on the legal and factual issues relating thereto, the district court declined to resolve the case fully in favor of the METRO. Smith v. Washington Metro. Area Transit Auth., 133 F.Supp.2d 395 (D.Md. 2001) (the "Opinion"). It concluded, inter alia, that the METRO's alleged failure to repair and maintain its escalators was not within its immunity protection. The court determined, however, that the METRO was entitled to immunity for the design of signage and illumination at its Bethesda station, which was alleged to violate the ANSI Code. The court also ruled in favor of the METRO on what it called the "alleged statutory violations" because Smith had failed to forecast sufficient evidence to warrant the conclusion that violations of the ANSI Code had proximately caused his death. The METRO has appealed the court's decision declining to fully recognize its immunity claim in this case.


It is settled that the denial of an immunity claim by a district court constitutes an appealable interlocutory decision. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); KiSKA Constr. Corp.-U.S.A. v. WMATA, 167 F.3d 608, 610-11 (D.C.Cir.1999). In this case, the court partially rejected the METRO's immunity claim, and "[w]hen the `defendant raises and the district court rejects immunity as a defense, the defendant enjoys the right of immediate appeal.'" KiSKA, 167 F.3d at 610 (quoting Rendall-Speranza v. Nassim, 107 F.3d 913, 916 (D.C.Cir.1997)).

To the extent the METRO's complained-of actions fall within its cloak of immunity, we lack subject matter jurisdiction over such claims. See, e.g., Medina v. United States, 259 F.3d 220, 223 (4th Cir.2001). In 1995, we observed that an assertion of governmental immunity is properly addressed under the provisions of Rule 12(b)(1) of the Federal Rules of Civil Procedure.5 Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995). As we noted, if the governmental entity challenges jurisdiction under Rule 12(b)(1), the plaintiff bears the burden of persuasion, and the court is free to consider exhibits outside the pleadings "to resolve factual disputes concerning jurisdiction." Id.

In this instance, the district court partially denied the METRO's immunity claim, thereby deciding that it possessed subject matter jurisdiction over Smith's causes of action. On interlocutory review of such an immunity denial, we do not decide whether a plaintiff can prove his claim at trial. Rather, we must examine whether any material jurisdictional fact is in dispute, and if not, whether the governmental entity "is entitled to prevail as a matter of law" due to our lack of jurisdiction. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 769 (4th Cir.1991).


In order to properly assess the METRO's claim of immunity, it is necessary to first understand certain legal principles governing the METRO's operations. First of all, the METRO Compact (the "Compact") was executed in 1966 by the State of Maryland, the Commonwealth of Virginia, and the District of Columbia, creating an independent entity to operate a mass transit system in and about the District of Columbia. Congress specifically consented to the Compact, and any legal issues relating to its interpretation are federal questions. Cuyler v. Adams, 449 U.S. 433, 438, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981); Morris v. WMATA, 781 F.2d 218, 220 (D.C.Cir.1986).

As a general proposition, multistate entities such as the METRO are not accorded governmental immunity absent some "good reason to believe" that immunity was intended to be conferred upon them. Morris, 781 F.2d at 224 (quoting Lake Country Estates v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979)). The Compact, however, evinces the clear intent of its signatories to effect such a conferral. Morris, 781 F.2d at 220. Pursuant to its Section 80, the METRO has waived immunity in certain circumstances, i.e., when it is engaged in proprietary functions, while specifically preserving its immunity for "torts occurring in the performance of a governmental function."6


As a threshold question, we must examine the legal framework to be utilized in assessing the immunity issue. While we have previously applied the traditional "governmental/proprietary" distinction to the METRO, we have also recognized the difficulty in determining when a particular function is a proprietary one.7 Martin v. WMATA, 667 F.2d 435, 436 (4th Cir.1981). In analyzing this distinction, the Court of Appeals for the District of Columbia has utilized the "discretionary/ministerial" dichotomy employed by the Federal Tort Claims Act ("FTCA").8 See, e.g., Sanders v. WMATA, 819 F.2d 1151, 1155 (D.C.Cir.1987).

Although these two tests — "governmental/proprietary" and "discretionary/ministerial" — are not coterminous, the discretionary acts of public officials are recognized as being within a "subset of governmental functions." Id. at 1155 n. 9. In essence, all "discretionary" activities...

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