Wash. Metropolitan v. Barksdale-Showell, Nos. 06-CV-1106, 06-CV-1178.

Decision Date19 February 2009
Docket NumberNos. 06-CV-1106, 06-CV-1178.
PartiesWASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant/Cross-Appellee, v. Patricia M. BARKSDALE-SHOWELL, Appellee/Cross-Appellant.
CourtD.C. Court of Appeals

Bruce Heppen, with whom Carol O'Keeffe, Mark Sullivan, and Gerard Stief were on the brief, for appellant/cross-appellee.

Jack Gold, with whom Lawrence Lapidus, and Douglas Sparks were on the brief, for appellee/cross-appellant.

Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and TERRY, Senior Judge.


A jury awarded Patricia Barksdale-Showell damages for injuries she suffered as a result of her fall down an escalator at Washington Metropolitan Area Transit Authority ("WMATA")'s Anacostia station, under the theory that WMATA was negligent in failing to warn of the dangerous wet condition on the escalator. On appeal, WMATA contends that the trial court erred in denying its post-trial Motion for Judgment as a Matter of Law because Ms. Barksdale-Showell had failed to establish a prima facie case of negligence. In her cross-appeal, Ms. Barksdale-Showell contends that WMATA waived its argument that she failed to establish a prima facie case of negligence; she further contends that the trial court erred in finding that WMATA was immune from suit on a theory of negligent maintenance. WMATA also contends that the trial court abused its discretion in extending the time limit for Ms. Barksdale-Showell to file her cross-appeal.

We affirm the trial court's finding that WMATA was immune from suit under a theory of negligent maintenance and operation, and we affirm its finding that WMATA was subject to suit under a theory of negligent failure to warn. Additionally, we affirm the trial court's denial of WMATA's post-trial Motion for Judgment as a Matter of Law because Ms. Barksdale-Showell established a prima facie case on the claim of negligent failure to warn. The issue of the reasonableness of WMATA's conduct was one for the jury, and sufficient evidence was adduced at trial for a reasonable juror to find for Ms. Barksdale-Showell. We discuss each issue in turn.

I. Factual and Procedural Background

On the morning of December 20, 2000, appellee/cross-appellant Patricia Barksdale-Showell noticed that it was "cold," and that there was snow still on the ground, which made it "slushy." She took the bus to the Anacostia Metrorail station, operated by appellant/cross-appellant WMATA, and walked across a "slushy and wet" path in order to enter the station. There were no safety cones, gates, signs, announcements or WMATA personnel warning of the wet conditions in the station. After paying her fare, Ms. Barksdale-Showell boarded the escalator headed down to the train platform. She initially stood on the right side and rode the escalator down. Then, Ms. Barksdale-Showell decided she wanted to walk down the escalator instead so she moved to the left side of the escalator. She took her first step, slipped, and fell to the bottom of the escalator. Another passenger activated the emergency stop button on the escalator when she heard Ms. Barksdale-Showell screaming. WMATA's police officers and an emergency team came to her aid and transported her to the hospital. Ms. Barksdale-Showell fractured her left leg, which required two subsequent surgeries to implant and maintain rod, pins, and screws in her leg to stabilize it.

On December 19, 2003, Ms. Barksdale-Showell filed her Complaint alleging that WMATA was negligent under two theories: (1) failure to inspect, maintain, and repair the wet conditions in the station; and (2) failure to warn of the wet conditions in the station. On February 18, 2005, the Honorable John M. Campbell granted WMATA's motion to strike testimony from Ms. Barksdale-Showell's expert regarding escalator maintenance. WMATA filed a motion in limine seeking to exclude expert testimony and other evidence on WMATA's alleged failures to inspect, maintain, and repair and warn of the wet conditions in the station. On November 29, 2005, on the eve of the scheduled trial date, Judge Campbell denied WMATA's motion in limine. That same day, WMATA filed a partial Motion to Dismiss based upon WMATA's purported immunity under Section 80 of the WMATA Compact. Hearings were held on the jurisdictional issue on December 12 and 19, 2005. At the conclusion of the hearing on December 19, 2005, Judge Campbell issued a bench opinion granting WMATA's partial Motion to Dismiss due to lack of subject matter jurisdiction for the negligent inspection, maintenance, and repair claim. In two orders issued on February 24, 2006, Judge Campbell confirmed that the negligent warning claim that had not been included in the partial motion to dismiss would proceed to trial, but Ms. Barksdale-Showell was precluded from presenting her expert at trial due to the earlier motion in limine because a failure to warn did not require expert testimony.

The trial was presided over by the Honorable Robert E. Morin beginning on April 24, 2006, and ended when the jury returned its verdict in favor of Ms. Barksdale-Showell and its award of $45,000 on April 25, 2006. Judge Morin denied WMATA's renewed Motion for a Judgment as a Matter of Law or, in the Alternative, Motion for a New Trial on August 2, 2006. WMATA filed its Notice of Appeal on August 31, 2006. Ms. Barksdale-Showell filed her Notice of Cross-Appeal on September 15, 2006, and her Conditional Motion to Extend Time for Noting Cross-Appeal on September 29, 2006. On November 15, 2006, Judge Morin granted the Conditional Motion to Extend Time for Noting Cross-Appeal.

II. Analysis
A. Sovereign Immunity

WMATA was created when Congress approved the Washington Metropolitan Area Transit Authority Compact ("Compact") that was 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. (2001)). The Compact confers upon the Transit Authority the sovereign immunity enjoyed by the signatories. Beebe v. Washington Metro. Area Transit Auth., 129 F.3d 1283, 1287 (D.C.Cir.1997). That sovereign immunity has been 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). Federal courts1 and this court interpreting the sovereign immunity provision of the WMATA Compact have applied a two-part test to determine whether an activity enjoys its protection. First, the test asks whether a particular activity is governmental or proprietary. Activity found to be "quintessentially governmental" falls directly within the scope of WMATA's sovereign immunity. See McKethean v. Washington Metro. Area Transit Auth., 588 A.2d 708, 713 (D.C. 1991) (adopting the two-part test used in federal circuit courts based upon the Federal Tort Claims Act for claims brought under Section 80 of the WMATA Compact); Dant v. District of Columbia, 829 F.2d 69, 74 (D.C.Cir.1987) (holding that operation of police force is "quintessentially governmental"). The second part of the test addresses activities that are not quintessential governmental functions, where immunity depends on whether the activity is considered discretionary or ministerial. Dant, 829 F.2d at 74. Only discretionary activity is shielded by sovereign immunity.2 Id. at 75. Discretionary functions are governmental actions and decisions that are "based upon considerations of public policy" and 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 any "`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." United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). In the absence of a prescribed code of conduct, however, WMATA's decisions are discretionary if they involve "political, social, [or] economic" choices. See Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1216 (D.C.Cir.1997). A proprietary activity enjoys the protections of sovereign immunity only if it is a discretionary function. Id. at 1217.

In her Complaint, Ms. Barksdale-Showell makes two allegations regarding WMATA's conduct. She argues first that WMATA failed to maintain, repair, inspect, or operate the escalators at the Anacostia station such that they became wet and icy, and second, that WMATA failed to warn the public of the wet and icy escalators.3 We review the trial court's determinations regarding sovereign immunity de novo. Aguehounde v. District of Columbia, 666 A.2d 443, 447 (D.C.1995). Because WMATA concedes that its actions were not "quintessentially governmental activities," we focus our analysis on the issues of whether its functions were discretionary and, if so, whether they were grounded in economic, social, or political policy to immunize it from liability.4

B. Negligent maintenance, repair, inspection, and operation

With respect to her allegation regarding the maintenance, repair, inspection, and operation of the escalators, Ms. Barksdale-Showell relies upon WMATA's Severe Weather Plan Alert that was issued the evening prior to her accident. This Alert required custodians to arrive at their respective Metrorail stations by 5:00 a.m. on December 20, 2000, the day of her accident. She also relies upon WMATA's SSOPs, which directed station managers to ensure that hazardous areas were not accessible to passengers, and to frequently inspect station interiors for unsafe conditions which "MUST be rendered safe IMMEDIATELY by correcting the fault if possible, or by keeping ... passengers away from the affected area."

Even assuming, arguendo, that WMATA's custodian at the Anacostia station violated this...

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