The opinion of the court was delivered by: HOGAN
THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE
Presently before the Court is defendant's motion for summary judgment. In consideration of defendant's motion, the opposition thereto, the entire record of this case, and for the following reasons, the Court shall grant defendant's motion.
On February 24, 1984, plaintiff stepped off a subway train operated by defendant, the Washington Metropolitan Area Transit Authority ("WMATA"), and fell through the gap between the subway car and the platform of the Judiciary Square Station. Plaintiff alleges that defendant was negligent in "permitting [the gap] to remain for a long time." Complaint para. 5. Furthermore, plaintiff alleges that defendant failed to properly inspect and maintain the train alignment and platform position in a safe condition. Plaintiff demands $ 1 million in damages for injuries including "acute lubosacral [sic] strain, contusion, hematoma, left knee, thigh and leg and other physical injuries." Complaint para. 11.
Given the sparseness of the allegations in the complaint, at the hearing considering the summary judgment motion, the Court specifically questioned plaintiff's counsel concerning the theories under which plaintiff was pursuing her case. Counsel indicated that plaintiff alleged negligent design, failure on the part of defendant to adequately control the crowds, and the driver inattention to plaintiff's plight. The Court will address plaintiff's allegations of negligent design. In her complaint, plaintiff alleges that defendant failed to maintain the platform and train's alignment. Complaint paras. 7, 8. The Court specifically questioned plaintiff's counsel regarding exactly in what manner plaintiff alleges that WMATA failed in operating and maintaining the subway system allegedly causing plaintiff's injuries. Counsel replied that WMATA failed to maintain and operate the system by permitting the subway car to become overcrowded. As such, the Court will liberally construe paragraphs 7 and 8 of the complaint as alleging failure on the part of defendant to control the crowd which allegedly resulted in plaintiff's inability to discern the gap. Finally, plaintiff never properly pled the allegation of driver inattention to her plight. As such, the allegation is not truly before the Court. However, in fairness to plaintiff, the Court will address the issue.
A. Standards for Summary Judgment
Under Federal Rule of Civil Procedure 56(c) a court shall render summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." The United States Supreme Court recently provided significant guidance as to those circumstances in which summary judgment is appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corporation v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The Court stated that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issues of material fact." Anderson, 106 S. Ct. at 2510 (emphasis in the original). The party moving for summary judgment has the burden of demonstrating that there is no genuine issue of fact. Id. at 2514. The party opposing the summary judgment motion, however, must present "affirmative evidence" in order to defeat a properly supported summary judgment motion. Id. The Court shall grant a properly supported summary judgment motion if the moving party demonstrates a lack of genuine triable issues of material fact. Celotex, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548.
B. Scope of WMATA's immunity.
WMATA claims immunity from certain allegations in this suit pursuant to section 80 of the WMATA Compact (the "Compact") which sets forth the circumstances under which an individual can maintain a suit in tort and provides in pertinent part that WMATA
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 of a governmental function.
In this jurisdiction, courts have interpreted this section to mean that the signatories to the Compact - Maryland, Virginia, and the District of Columbia - have "conferred their respective sovereign immunities . . . on WMATA, and those entities had then partially waived those immunities in Section 80 of the Compact . . . [and] the question whether the function in question is 'governmental' or 'proprietary' under Section 80 is one of federal law." Sanders v. WMATA, 260 U.S. App. D.C. 359, 819 F.2d 1151, 1154 (D.C. Cir. 1987) (WMATA immune from suit when performing the "government function" of adopting a general policy of testing for drugs or alcohol immediately after an on-the-job accident); see Dant v. District of Columbia, 264 U.S. App. D.C. 284, 829 F.2d 69, 73-74 (D.C. Cir. 1987) (holding that WMATA is immune from suit regarding its police functions and design of metrorail's fare collection system); Morris v. WMATA, 251 U.S. App. D.C. 42, 781 F.2d 218, 220 (D.C. Cir. 1986) (WMATA's police activities are an exercise of governmental function and are immune from suit; issue of WMATA's immunity is question of federal law). Discretionary decisions or planning decisions constitute governmental functions for which WMATA is immune from suit. See Nathan v. WMATA, 653 F. Supp. 247, 248 (D.D.C. 1986) (planning decisions regarding the design, location and construction of the stairwell constitute performance of governmental functions and are immune from suit).
C. WMATA is immune from allegations of negligently designing the distance between the subway car and the platform.
It is clear that WMATA's design decision concerning the distance of the gap between the platform and the subway train constitutes a discretionary decision and falls squarely within the parameters of WMATA's governmental functions. See Dant, 829 F.2d at 74-75 (WMATA immune from suit concerning design of farecard system); Nathan, 653 F. Supp. at 248 (WMATA immune from claims concerning stairwell design). As such, ...