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August 6, 1990

VIOLA C. JONES, Plaintiff,

The opinion of the court was delivered by: RICHEY


 The plaintiff is suing the Washington Metropolitan Area Transit Authority ("WMATA") for personal injuries sustained when the heel of her shoe became caught in the slot of an escalator tread at the L'Enfant Plaza Metro station, causing her to fall two steps. *fn1" The plaintiff alleges that: (a) WMATA breached its duty to design reasonably safe escalators; (b) WMATA breached its duty to adequately maintain, inspect, or repair its escalators; (c) WMATA breached its duty to warn passengers of the danger of the heels of their shoes getting caught in the escalator tread slots; (d) WMATA knew or should have known that the escalator did not comply with express or implied warranties that it was suitable for its intended and foreseeable purpose; (e) the plaintiff's catching the heel of her shoe necessarily occurred as a result of WMATA's negligence; and (f) WMATA should have provided passengers with alternative readily accessible modes of transport within the Metro station. WMATA has filed a summary judgment motion, which the Court will grant because there are no material facts in dispute.

 A. Negligent Design

 It is well-established that WMATA is a quasi-governmental entity created and governed by an "interstate compact" among Maryland, Virginia, and the District of Columbia. See, e.g., D.C. Code Ann. § 1-2431 (hereinafter "WMATA Compact"); Morris v. WMATA, 251 U.S. App. D.C. 42, 781 F.2d 218, 219 (D.C. Cir. 1986) (citing Washington Metropolitan Area Transit Authority Compact, Pub. L. No. 89-774, 80 Stat. 1324 (1966)). The WMATA Compact contains a limited waiver of WMATA's sovereign immunity, providing in pertinent part that WMATA "shall be liable for its . . . torts and those of its Directors, officers, employees, and agents committed in the conduct of any proprietary function. . . but shall not be liable for any torts occurring in the performance of a governmental function." WMATA Compact § 80, D.C. Code Ann. § 1-2431 (emphasis added).

 The case law is clear that WMATA's policy decisions and judgments regarding the design of the escalator and the width of the slots in the escalator treads are governmental functions. For example, this Court has held that "planning decisions regarding the design, location, and construction of [a] stairwell involved WMATA's governmental function" and has noted that "governmental functions are those functions which are for the benefit of the general public . . . including planning decisions or decisions involving governmental discretion." Nathan v. WMATA, 653 F. Supp. 247, 248-49 (D.D.C. 1986) (citations omitted). Other cases have invoked governmental function immunity to reject similar negligent design claims against WMATA. See, e.g., Dant v. District of Columbia, 264 U.S. App. D.C. 284, 829 F.2d 69, 75 (D.C. Cir. 1987) (approving dismissal on sovereign immunity grounds of plaintiff's claim alleging that WMATA negligently designed its automated farecard system); Simpson v. WMATA, 688 F. Supp. 765, 767 (D.D.C. 1988) ("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 function."). In light of the foregoing, the Court holds that WMATA's design decision is cloaked with sovereign immunity and that the plaintiff's negligent design theory therefore fails as a matter of law. *fn2"

 B. Failure to Maintain, Inspect, or Repair

 Even accepting arguendo the plaintiff's argument that escalator maintenance, inspection, and repair are proprietary functions not protected by sovereign immunity, the plaintiff's unsubstantiated allegations as to this claim are insufficient to overcome WMATA's evidence in support of summary judgment. WMATA has demonstrated: (1) that at the time of its design in 1968-69, the Metro system was "state of the art"; *fn3" (2) that the plaintiff was not aware of any slippery or foreign substance on, or any chips or gouges in, the escalator tread; *fn4" (3) that the width of the slots in the escalator tread was one quarter of an inch, in compliance with the industry safety standard applicable when the escalators were designed; *fn5" and (4) at two inspections (three days after and about four months before the plaintiff's accident), a D.C. elevator inspector found the escalator in question to be in full compliance with the D.C. Elevator Code. *fn6"

 By comparison, the plaintiff has produced no evidence to show that WMATA failed to adequately maintain, inspect, or repair the escalator on which her accident occurred. At this stage of these proceedings and especially in light of the substantial countervailing evidence discussed above, it is not enough for the plaintiff to rest on the allegations in her Complaint that the heel of her shoe became caught in an escalator tread slot and that this caused her to fall. It is clear that:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 Fed. R. Civ. P. 56(e) (emphasis added). Moreover, WMATA does not have a duty to design and build a subway system that is completely accident-proof, see Sledd v. WMATA, 439 A.2d 464, 469 (D.C. 1981), nor is WMATA required to constantly improve its subway system by incorporating every new safety device that may become available, see District of Columbia v. Pace, 498 A.2d 226, 229 (D.C. 1985). In sum, because "the mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient" and because "there [is no] evidence on which the jury could reasonably find for the plaintiff," Anderson v. Liberty Lobby, 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), the Court will grant summary judgment for WMATA on the plaintiff's inadequate maintenance, inspection, or repair claim.

 C. Duty to Warn

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