Washignton Metro. Area Transit Auth. v. Tinsley, 1089

Citation32 A.3d 75,202 Md.App. 115
Decision Date30 November 2011
Docket NumberNo. 1089,Sept. Term,2009.,1089
PartiesWASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY v. Veronica TINSLEY.
CourtCourt of Special Appeals of Maryland

OPINION TEXT STARTS HERE

Gerard J. Stief (Carol B. O'Keeffe, Mark F. Sullivan, Nicholas L. Phucas, on the brief), Washington, D.C., for appellant.

James W. Taglieri (Cadeaux, Taglieri & Notarius, PC, on the brief), Washington, D.C., for appellee.

Panel: KRAUSER, C.J., HOTTEN, JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.

KRAUSER, C.J.

After slipping and falling on a wet train platform at a Metrorail station, Veronica Tinsley, appellee, brought a negligence action, in the Circuit Court for Prince George's County, against the Washington Metropolitan Area Transit Authority (“WMATA”), appellant, for the injuries she sustained as a result of that fall. After a jury found in favor of Tinsley and awarded her damages, WMATA noted this appeal, presenting three issues, 1 one of which is whether Tinsley's suit was barred by governmental immunity. Because we hold that it was so barred, we reverse the judgment of the circuit court. As that decision, in effect, concludes this litigation, we do not reach either of the other two issues raised by WMATA.

BACKGROUND

At about 4:45 p.m. on December 19, 2007, Tinsley lost her footing on a train platform at the Metrorail stop in Cheverly, Maryland, and fractured her right ankle. At trial, Tinsley testified that, when she arrived by train at the station, the entire floor of the platform was wet. Upon leaving the train, she did not see any warning cones, but, nonetheless, walked carefully toward the elevator. As she neared the elevator, she saw a “wet floor sign that was tucked back by the side of the elevator.” Then, finding the elevator out of service, she walked towards the escalator. As she did, her left foot slipped out from under her and she fell.

Tinsley introduced into evidence the redacted videotaped deposition of Francis Mullen, an architect accepted by the court “as an expert in the area of architecture and safety.” Mullen deponed that, based on “deposition testimony”—whose testimony he did not specify—“the platforms are supposed to be cleaned after 7 o'clock when the peak period is over for the day.”

Then, relying on climatological records from the United States Department of Commerce for Dulles International Airport, Mullen noted that the weather on the day of the accident was cloudy, with a dewpoint around 23 degrees Fahrenheit, air temperature ranging from 30 to 40 degrees Fahrenheit, an average relative humidity of 70 per cent, and with no precipitation. The platform could not have therefore been wet, he opined, as the result of condensation.

Mullen then described a test he conducted at the train platform in Cheverly, using the cleaning agent “Super Shine–All,” a product WMATA used to clean its train platforms. He began by measuring the floor's slip resistance at three different locations in proximity to where Tinsley fell. At each location, he measured slip resistance on a part of the floor which was dry, on a part of the floor which was wet with water only, and on a part of the floor which was wet with a mixture of water and Super Shine–All. After explaining that the greater the coefficient of friction,2 the more slip-resistant the surface is, he said that the test revealed a coefficient of friction ranging from 0.25 to 0.3, where the floor “was wet with the solution of Super Shine–All diluted as the manufacturer says to dilute it”; to “close ... to .5,” where the floor was wet with only water; and to “slightly below. 8,” where the floor was dry. Mullen said that a coefficient of friction of 0.5 was a minimum safe standard for floors where people were expected to walk.

Before applying the Super Shine–All for that test, Mullen diluted it with water, as directed by the manufacturer. He then applied it to the floor with a damp mop so as to “create a thin film of liquid on the floor.” While the floor was still wet, he measured the floor's slip resistance.

Although he applied the mixture of Super Shine–All and water with a mop and not a cleaning machine, as WMATA routinely does, he maintained that it was “not necessary” to do so. When pressed with the fact that the cleaning machine applies suction to the floor to remove much or most of the water from the floor as it is being cleaned, Mullen countered that it “apparently doesn't vacuum all of the liquid off of the floor because all of the accounts say that it was entirely wet” when Tinsley fell.

In addition to Mullen, Tinsley called several WMATA employees to testify during the presentation of her case-in-chief; among them were Michael Myrick, Linwood Vaughn, and Barbara London. Michael Myrick, a custodian, testified that, while working the 3:00 to 11:30 p.m. shift, he would spot clean the floor, including the floor at Cheverly, using a mop and bucket. He said that there were no time restrictions on when he was allowed to mop the floor and that Super Shine–All is “one of the products that [he] use[s] in a mop and bucket.”

Linwood Vaughn, a cleaning machine operator, testified that, during his training, he was told that he was supposed to clean the platforms “after rush hour.” His practice was to clean the platform, including the one at Cheverly, using the machine and Super Shine–All. He used a mop and bucket only to “cut corners,” that is, to clean floor areas that are inaccessible to the cleaning machine. If, however, there was “a water problem or something, you could run [the machine] any time.”

Barbara London, the Station Manager, testified regarding periodic inspections she made to monitor for any safety problems. Her checklist for the day of the accident indicated that she had performed inspections at 1:30 p.m., 2:30 p.m., and 3:30 p.m. At no time did she observe any problems such as water leaks or broken pipes.

At the close of Tinsley's case, WMATA moved for judgment, contending, among other things, that “how it cleans its platforms and with what products or mechanisms it cleans its platforms, is something for which it's immune from suit.” The circuit court denied the motion.

After reading the deposition of its medical expert into the record, WMATA called two witnesses: Freddie Ross, Assistant Superintendent and Cleaning Manager for WMATA, who supervises the Blue and Orange Lines, which includes the line Tinsley was riding the day of her injury; and Barbara London, who had previously been called to testify by Tinsley.

Ross testified that machine operators and custodians, in using a mop and bucket, are not restricted only to certain areas, but, rather, may use a mop and bucket anywhere on a train platform. He further stated that there was no time limitation as to when they could run the cleaning machine. London testified that, on the day of the accident, the weather was “sort of misty” and that there was condensation on the platform but conceded that she did not know why the platform was wet. At the conclusion of her testimony, WMATA renewed its motion for judgment.

After denying that motion, too, the trial court permitted the case to go to the jury, which found in favor of Tinsley, awarding $64,213.78 in damages.

DISCUSSION

WMATA contends that Tinsley's claim was barred by sovereign immunity because the actions of its employees and agents, in maintaining its station, are shielded by that immunity.

We begin our analysis with the observation that, because the signatories to the WMATA Compact—Maryland, Virginia, and the District of Columbia—conferred their respective sovereign immunities upon WMATA, Morris v. WMATA, 781 F.2d 218, 219 (D.C.Cir.1986), this “inter-jurisdictional compact agenc[y] is cloaked in sovereign immunity. Proctor v. WMATA, 412 Md. 691, 708, 990 A.2d 1048 (2010). To determine the extent of that immunity, we look to section 80 of the WMATA Compact, a provision enacted to provide a “uniform treatment of WMATA” as “the signatories had differing rules on governmental immunity.” Martin v. WMATA, 667 F.2d 435, 436 (4th Cir.1981) (per curiam).

Section 80 of the WMATA Compact limns the extent to which WMATA has waived its sovereign immunity, Proctor, 412 Md. at 725, 990 A.2d 1048, by drawing a distinction between what it calls a “governmental function” and what it labels a “proprietary function.” Actions committed in the service of the former are protected by sovereign immunity, but those performed in the service of the latter are not.

Specifically, section 80 states:

The Authority shall be liable for its contracts and for its torts and those of its directors, officers, employees and agents committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function. The exclusive remedy for such breach of contracts and torts for which the Authority shall be liable, as herein provided, shall be by suit against the Authority. Nothing contained in this title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the zone of any immunity from suit.

(Emphasis added.)

Because Congress consented to the creation of WMATA by statutory enactment, Pub.L. No. 89–774, 80 Stat. 1324 (1966), and “congressional consent transforms an interstate compact within [the Compact] Clause into a law of the United States,” Cuyler v. Adams, 449 U.S. 433, 438, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981),3 interpretation of the WMATA Compact and, of course, this provision, is a question of federal law. Sanders v. WMATA, 819 F.2d 1151, 1154 (D.C.Cir.1987); accord Proctor, 412 Md. at 707, 990 A.2d 1048. That is, it is federal, not state, law which governs our determination of “whether the function in question is ‘governmental’ or ‘proprietary’ under” section 80. Sanders, 819 F.2d at 1154.

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