governmental and one proprietary. First, Plaintiff is challenging the adequacy of WMATA's police protection. Plaintiff alleges that the absence of security personnel and inadequate monitoring of the lot were partial causes of her harm. This aspect of Plaintiff's claim goes to WMATA's governmental function of providing police protection throughout the METRO system. Since police protection is a governmental function, Plaintiff may not challenge inadequate police protection under the concept of sovereign immunity embodied in Section 80 of the WMATA Compact.
Plaintiff is also challenging the security procedures WMATA employed as operator of the Rhode Island Avenue Station parking lot. Plaintiff takes issue with the precautions taken by WMATA as parking lot owner for the safety of its patrons, citing inadequate lighting, poor placement of the exit gate and failure to eliminate hiding places. This is a challenge to WMATA's exercise of a proprietary function for which an action may lie Cf. Stringfield v. Hackensack, 68 N.J.Super 38, 171 A.2d 361 (1961) (governmental body subject to suit in case involving injury on parking lot). So while Plaintiff may not challenge the adequacy of WMATA police protection, Plaintiff has a cause of action against WMATA in its role as parking lot operator for failure to provide a safe place to park.
WMATA owed the Plaintiff the same duty any parking lot owner would owe any parking lot patron. See W. Prosser, Law of Torts § 57 at 351 (4th ed. 1971) (every landowner has some duty to someone legitimately on the premises). The dispositive question is the extent of the duty owed. Plaintiff would have this Court hold that a parking lot owner must protect its patrons against attackers, kidnappers and rapists even when, as here: (1) the assailant is not an employee of Defendant; (2) there has been no history of such criminals in the area; and (3) the parking lot owner had no control over the actions of the third-party assailant. The law of torts does not impose such a strict duty on landowners.
Under a duty analysis, it is clear that a possessor of land is not an insurer of a visitor's safety and his duty does not extend to protecting visitors from third persons until he knows or has reason to know that the acts of third persons are occurring or are about to occur. Restatement (Second) of Torts § 344 and § 344, comment f (1965). See also Id. § 318. Cf. Kline v. 1500 Massachusetts Avenue Apartment Corp., 141 U.S. App. D.C. 370, 439 F.2d 477 (D.C.Cir.1970) (landlord held liable where he had notice of repeated criminal assaults and robberies in the building). The facts are clear in this case: WMATA was not on notice of attacks on the Rhode Island Avenue Station Parking Lot.
An analysis employing the proximate cause concept would reach a similar conclusion.
The acts of a third person in committing an intentional tort or crime is a superceding cause of harm even though a defendant's negligence may have created a situation which afforded an opportunity to the third person to commit such a crime. Restatement (Second) of Torts § 448 (1965). An exception creating liability for a defendant exists where a defendant realized or should have realized the likelihood that a third person might avail himself of the opportunity to commit a crime. Again, in this case, Defendant was not aware of attacks. See Black v. Sheraton Corporation of America, 184 U.S. App. D.C. 46, 564 F.2d 531 (D.C.Cir. 1977) (defendant not liable where the harm results from an outside force, the risk of which was not a probable consequence of Defendant's conduct).
Under either Tort concept duty or proximate cause the Defendant is not liable as a matter of law for the independent criminal acts of the third party which occurred in this case. Defendant's motion for summary judgment must be granted.