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GILLOT v. WASHINGTON METRO. AREA TRANSIT AUTH.

January 7, 1981

Mary Jayne GILLOT, Plaintiff,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant



The opinion of the court was delivered by: ROBINSON, JR.

MEMORANDUM OPINION

This case is before the Court on Defendant's Motion for Summary Judgment. Plaintiff alleges that Defendant, the Washington Metropolitan Area Transit Authority (WMATA), was negligent in failing to adequately protect her from abduction while she was on a parking lot owned and maintained by WMATA. Defendant maintains it is immune from suit by virtue of sovereign immunity and that, if subject to suit, it breached no duty to Plaintiff. The Court holds that Defendant is immune from suit insofar as its police protection function is concerned and the Court further holds that Defendant, in its role as parking lot operator, is not liable to Plaintiff as her damages were not proximately caused by Defendant's negligence.

 Plaintiff alleges that adequate safeguards were not taken by WMATA at the Rhode Island Avenue METRO Station Parking Lot which could have prevented or deterred her abduction or rape. Specifically, Plaintiff maintains that WMATA was negligent in failing to have adequate lighting (an allegation which is contradicted by the undisputed facts), in locating the exit gate at a secluded spot and in failing to minimize potential hiding places for attackers. Plaintiff further specifies the failure of WMATA to provide guards and to sufficiently monitor the premises as the basis of her claim. In essence, Plaintiff maintains that WMATA had a duty to protect her which it breached.

 A preliminary issue raised by this suit is whether WMATA can be sued at all. Section 80 of the WMATA Compact delineates when WMATA may be sued in tort. It states the standards of sovereign immunity:

 
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 conflicts of laws), but shall not be liable for any torts occurring in the performance on a governmental function.

 D.C. Code § 1-1431 (1973) (emphasis added). *fn2"

 Plaintiff characterizes WMATA's function as the operation of a parking lot for purposes of this case. She maintains that as operator of a parking lot, WMATA had a duty to its parking lot patrons. The operation of a parking lot by a public body is widely recognized as proprietary. See, e.g., Cutnaw v. City of Columbus, 107 Ohio App. 413, 157 N.E.2d 373 (Ohio 1958).

 Defendant WMATA characterized its function, for purposes of this case, as providing police protection. Defendant maintains that Plaintiff's claim is a challenge to the adequacy of WMATA's police protection. *fn3" Providing police protection is a governmental function for purposes of sovereign immunity. 18 McQuillen The Law of Municipal Corporations § 53.51 (3d ed. 1977).

 If Plaintiff's characterization is accepted, WMATA would be subject to suit as the function involved operating a parking lot is proprietary. If Defendant's view is adopted, WMATA would be immune from suit as the function involved providing police protection is governmental. As provided by Section 80 of the WMATA Compact, actions may lie for torts arising out of proprietary functions but not for torts arising out of governmental functions.

 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 ...


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