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November 24, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Trial Judge)

Before Steadman and Farrell, Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge Farrell. Dissenting opinion by Senior Judge Mack.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: The Washington Metropolitan Area Transit Authority (WMATA) appeals from a jury verdict for the plaintiff-appellee in this personal injury case arising from a beating of appellee by other passengers on a WMATA bus. WMATA contends that its sovereign immunity bars this suit, hence that its motion for summary judgment should have been granted. It also contends that appellee failed to prove proximate causation and, by adducing no expert testimony on the appropriate standard of care or a breach thereof, failed in its proof on these issues as well. Finally, WMATA contests the trial Judge's decision to award attorney's fees against it as a sanction for an unreasonable filing and the belated disclosure of documents. We reject each of these contentions and affirm.

I. The Facts

A. The Assault and Battery

Viewed in the light most favorable to the verdict, the evidence showed that appellee William D. O'Neill, an elderly man, boarded a Metrobus in Georgetown late in the evening of June 30, 1988, and sat down in one of the front seats by the door, facing forward. Two young men pounded on the door as the bus started forward, and the bus stopped to allow Alfred Jones and Willard Mallory *fn1 to board. The men reeked of alcohol. Their appearance and conduct, including stumbling and boisterousness, also suggested they were drunk or high on drugs. *fn2 They began arguing about the fare with the bus driver, and Jones walked toward the back of the bus without paying. Mallory eventually paid his own fare and sat down in the rear of the bus.

At the driver's demand, Jones returned to the front of the bus and paid the fare after arguing with the driver. He began walking erratically toward the rear, grabbing the upright poles to maintain his balance. After several steps, he tripped over the leg of a woman seated near the front. He accused her of tripping him, yelled obscenities at her, and demanded an apology. *fn3 Standing over her, he again demanded an apology in a voice loud enough for everyone in the front of the bus to hear. Although an eyewitness, Rubyline Walton, testified that the driver stood up and told Jones to go to the back of the his and sit down, another eyewitness denied that the driver said anything to Jones at this time.

For as much as several minutes, Jones walked up and down shouting obscenities at passengers, then went to the back of the bus. A short time later, however, he walked toward the front of the bus and again stood in front of the woman, this time pushing his crotch toward her face and yelling lewd and threatening remarks. *fn4 Mallory, in the meantime, had been making menacing faces at passengers in the back. Frightened by this behavior, a second woman went to the front of the bus and asked the driver to eject the men from the bus. When the driver refused, *fn5 the woman got off at the next stop.

Jones continued to pace and repeat his obscene remarks. When he returned to the back of the bus, O'Neill asked the driver to do something about him. The driver refused, saying his job was to drive the bus and that the emergency phone was not working. Hearing this exchange, Jones shouted to O'Neill, "What's it to you, old man," and returned to the front of the bus. First he bent over the woman he had threatened earlier and repeated the threat to kill her. Then he sat down behind O'Neill and, in a loud voice, threatened to kill him as well, before bending over the woman and threatening her once more.

Jones then sat down behind O'Neill, grabbed him and poked at his nose, and said repeatedly, "Do you want to die?" and "kill, kill." The driver heard these threats and saw Jones point his finger in O'Neill's face for as long as thirty seconds. *fn6 Jones pointed at yet another woman and threatened to kill her too. When O'Neill tried to get up, Jones grabbed him and O'Neill struggled to get away. The driver slammed on the brakes, causing Jones and O'Neill to fall backwards. Mallory then jumped up and began striking O'Neill in the face. The driver activated the silent alarm and flashing lights to summon police assistance. An ambulance arrived almost immediately, followed a minute later by the police. O'Neill's face was caved in, he suffered a broken nose and jaw, and he was hospitalized for eight days. He also suffered brain and spinal cord injuries and was unable to work for ten weeks.

Altogether, ten minutes or more elapsed between the entry of the bus by Jones and Mallory and the beating of O'Neill.

B. Evidence of WMATA's Safety Procedures

Besides calling WMATA supervisory employees as witnesses, O'Neill introduced documentary evidence of WMATA's safety directives to its bus drivers and the prescribed use of bus security devices. WMATA's "System Safety Program Plan" emphasizes "preventive measures over corrective measures." The plan includes directives issued to bus drivers, as outlined in the Handbook of Rules and Regulations and the Manual of Rules. Rule 74 (e) stipulates that a driver has a duty to "preserve order and protect passengers from insult, violence, or injury while in his charge." Specifically, the driver must keep a watchful eye on a disruptive passenger and instruct him to stop any offending conduct. If the passenger refuses, the driver must ask him to leave the bus, but may not physically eject him unless there is immediate physical danger. James Pittman, assistant superintendent of WMATA, testified by deposition that the rules require drivers to order a passenger to leave the bus if he does not stop harassing passengers, although Pittman stated he would not do this if the passenger were hostile.

All WMATA buses are equipped with external flashing alarm lights, consisting of eight lights along the top of the bus. The lights allow drivers to visually signal police officers that the driver needs assistance, and all police understand the meaning of the flashing lights. The rules require drivers to activate these lights "when conditions exist within the bus that require the assistance of law enforcement officers," as when a passenger is "smoking, eating, or [engaged in] any violation of conduct ordinances." Leroy Bailey, assistant general manager for bus service and head of the bus division, testified by deposition that drivers are instructed to activate the alarm lights if there is clear evidence of harassment. Each bus also contains a silent alarm, triggered by a button on the bus radio, which sends a signal to WMATA's station controller, who in turn calls the transit police and, through them, the Metropolitan Police. "Notice to Operators" issued in 1986 and again in 1990 require drivers to activate the silent alarm in emergencies, including situations that involve threats of bodily harm. Pittman acknowledged that he would have used the silent alarm when Jones made the first obscene remarks to the woman passenger.

Finally, O'Neill presented evidence that the police could have responded to the lights or the silent alarm quickly. Georgetown was well patrolled by police on the night of the incident, and Officer Brown arrived at the bus within five seconds after receiving the radio call. Brown was patrolling Georgetown and was in the vicinity of the bus during the entire sequence of Jones's assaultive behavior.

II. WMATA's Claim of Immunity


By the terms of the Compact creating it, WMATA is subject to suit for the alleged negligence of its employees only if the tort was "committed in the conduct of any proprietary function . . . ." D.C. Code § 1-2431 (80) (1992). Conversely, WMATA is immune from suit if the negligence "occurred in the performance of a governmental function." Id. WMATA asserts that the bus driver's response to the behavior of Jones and Mallory leading to the beating of O'Neill involved police-type activity and the exercise of a governmental function, thus barring appellee's suit. We disagree.

We have held that, in general, the provision of mass transportation is a proprietary function within the meaning of the WMATA Compact, Qasim v. WMATA, 455 A.2d 904, 906 (D.C.) (en banc), cert. denied, 461 U.S. 929, 103 S. Ct. 2090, 77 L. Ed. 2d 300 (1983), and that "WMATA, like any common carrier, owes a duty of reasonable care to its passengers." McKethean v. WMATA, 588 A.2d 708, 712 (D.C. 1991). But in establishing WMATA as a common carrier, the creating jurisdictions did not intend to expose it to liability coextensive with that of a private carrier; otherwise the governmental-proprietary distinction of the Compact would have no meaning. Therefore, in McKethean, we looked for a standard by which to determine which activities of WMATA's officers or employees implicate its "duty of reasonable care to its passengers" and hence subject it to tort liability; and which do not. Finding too broad in many applications a test of whether the activity was for the "common good" (rather than motivated narrowly for "corporate benefit or pecuniary profit"), we agreed with a decision of the United States Court of Appeals for the District of Columbia Circuit that

the more appropriate inquiry is whether a particular activity involves a legislative, administrative, or regulatory policy decision or merely implements such a decision. Only the former type of action, a policy decision, is a "discretionary function" which should be immune from second-guessing by a jury.

Id. at 713 (citing and quoting Sanders v. WMATA, 260 U.S. App. D.C. 359, 362-64, 819 F.2d 1151, 1154-55 (1987)). Relying on Sanders and previous federal decisions reaching back to Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953) (construing Federal Tort Claims Act), *fn7 we concluded that in most instances

the issue of WMATA's immunity comes down to a question of whether its alleged acts of negligence are characterized as discretionary decisions or ministerial execution of those decisions.

Id. at 713 (footnote omitted). *fn8

In McKethean, "the gist of appellants' complaint . . . that WMATA was negligent in not relocating bus stop to a safer place" after a 1967 street widening had allegedly made the existing stop a hazard. While reiterating that WMATA's provision of mass ...

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