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10/21/93 WASHINGTON METROPOLITAN AREA TRANSIT

October 21, 1993

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, APPELLANT
v.
YVONNE BELLE, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Rufus G. King, III)

Before Rogers, Chief Judge, and Schwelb and King, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge: Washington Metropolitan Area Transit Authority (WMATA), defendant in the trial court, appeals an adverse judgment claiming the trial court erred in denying its motion for a directed verdict. We conclude, applying Maryland law, that the evidence at trial was legally insufficient to establish negligence, and thus the case should not have been submitted to the jury. Accordingly, we reverse.

I.

On the morning of July 31, 1989, appellee, plaintiff in the trial court, boarded a metrobus in New Carrollton, Maryland, traveling to Fairmont Heights, Maryland. She sat down in a seat on the right-hand side of the bus, sitting next to the window, and began to read. Approximately eight other passengers were on the bus, but none were sitting on the seat with appellee. Appellee testified that shortly after she sat down, the bus driver "made a real sharp turn and when he made the turn I was sitting on my right side facing the window and some way or another when he made the turn I ended up on my left side, on the left side of the bus." Her pocketbook that had been on her lap fell to the floor when the bus made the sharp turn. Appellee had ridden on a bus "hundreds of times," and in particular had ridden a bus on this route for a couple of weeks, but had never before experienced "the kind of force which pushed out of seat" that day. She also testified that no other bus passengers were hurt. There was medical testimony that there were no broken bones; however, appellee complained of injuries to her back, neck, right shoulder, and right hand and wrist.

Only one other passenger appeared as a witness. Ms. Vanessa McDonald, who was called by the plaintiff, testified that she was sitting on the left-hand side of the bus and that appellee was sitting in a seat in front of her on the right-hand side of the bus. McDonald testified that when the bus made the turn: "I just might have heard a squeak or something and I might have jumped, jerked or something and that was it." After that occurred, McDonald observed appellee sitting in her seat on the right-hand side of the bus, leaning over and complaining that she was in pain. McDonald was looking straight ahead when the bus made the turn, and appellee was in her line of sight. McDonald did not, however, see appellee fall. McDonald helped appellee pick up her purse and some items that had fallen out of it.

When asked if she remembered "being pushed up against the side of the bus from the turn," McDonald responded "not really." She did not recall that anyone else fell and did not hear anyone mention to the bus driver that he or she had fallen.

The driver of the bus testified that the corner in question was "somewhat of a sharp turn." He had driven that particular bus route over a hundred times. He remembered making the turn at which appellee allegedly fell, and did not observe anyone fall, nor did he receive complaints from any other passengers that they had been injured or affected by the turn.

At the close of the plaintiff's case, WMATA moved for a directed verdict. WMATA argued that the only testimony regarding alleged negligence of the defendant was given by the plaintiff: "She said the bus made a sharp turn period. That's the only testimony of anything that the bus driver supposedly did wrong." Pointing to appellee's testimony that in all her experience she had never encountered a force greater than that which she experienced on the day of her alleged injury, the trial court denied the motion. After the defense rested, WMATA renewed its motion for a directed verdict. The court again denied the motion and the jury returned a verdict in favor of appellee in the amount of $60,000. *fn1

II.

In reviewing the grant or denial of a motion for directed verdict, this court, like the trial court, must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party. District of Columbia v. Cassidy, 465 A.2d 395, 397 (D.C. 1983); Papanicolas v. Group Hospitalization, Inc., 434 A.2d 403, 404 (D.C. 1981). *fn2 "While normally the jury is the trier of fact, a trial court may 'remove from jury consideration those cases in which the facts, viewed most favorably to the nonmoving party, permit but one reasonable Conclusion as to the proper judgment."' Cassidy, supra, 465 A.2d at 397 (citations omitted). We conclude, applying Maryland law, that the evidence was not sufficient to support a cause of action in negligence and, therefore, the motion for directed verdict should have been granted.

Although the parties agreed at trial that Maryland substantive law applied, WMATA did not cite in the trial court, when it made its motions for directed verdict, any of the Maryland cases that it relies upon in this appeal. Thus, WMATA did not present to the trial Judge, as it has to this court, the applicable case authority necessary to determine the legal issue presented. Instead WMATA relied upon two District of Columbia cases, which it now concedes are not binding. *fn3 At oral argument before this court, counsel for WMATA acknowledged that under District law pursuant to Boyko v. WMATA, 468 A.2d 582 (D.C. 1983), it would probably not prevail on a motion for directed verdict on the facts presented here. We take no position on the question whether the result reached in this case would be different under District law, and emphasize that our decision is based upon our interpretation of the applicable Maryland law.

To establish negligence, under Maryland law, a plaintiff must prove: "(1) a duty or obligation which the defendant is under to protect the plaintiff from injury; (2) breach of that duty; and (3) actual loss or injury to the plaintiff proximately resulting from the breach." Willow Tree Learning Ctr., Inc. v. Prince George's County, 85 Md. App. 508, 584 A.2d 157, 159 (Md. 1991) (citations omitted). Here, appellee failed to show any act or omission on the part of the bus driver amounting to a breach of the duty to exercise due care to protect appellee from harm.

The Maryland courts have repeatedly held that "a passenger on a bus or other common carrier who bases a negligence action on the sudden stop *fn4 of the carrier cannot establish a case 'merely by adjectival descriptions of the nature of the stop,' but rather must show in addition some 'definite, factual incident' created by the stop which shows it to be so abnormal and extraordinary that it can be legally found to have constituted negligence in operation." Comm'r of Motor Vehicles v. Baltimore & A.R.R., 257 Md. 529, 263 A.2d 592, 594 (Md. 1970) (citing Retkowsky v. Baltimore Transit Co., 222 Md. 433, 160 A.2d 791 (Md. 1960)); see also Baltimore Transit Co. v. Pue, 243 Md. 256, 220 A.2d 551, 554 (Md. 1966) ("Recovery is denied usually in cases where the testimony has been no more than characterizations by witnesses that the motion of the vehicle was extraordinary or violent, with no fact or inference of fact to support the characterization."). In this case, appellee's evidence consisted of nothing more than "adjectival description" of the manner in which the bus turned and the injuries she sustained as a result of the turn. Her evidence consisted entirely of her own testimony that the bus made a sharp turn causing her to slide across the seat, and that she had never experienced the type of force she felt that day, and another passenger's testimony that she "might have heard a squeak or something and [that she] might have jumped, jerked or something and that was it." No one observed appellee falling or colliding with ...


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