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WARREN v. WASHINGTON METRO. AREA TRANSIT AUTH.

February 28, 1995

JEFFREY WARREN, SR., Plaintiff,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.



The opinion of the court was delivered by: PAUL L. FRIEDMAN

 Jeffrey Warren, Sr., was a passenger on a bus operated by the Washington Metropolitan Area Transit Authority ("WMATA") when the window beside him shattered and he was injured by flying glass. The window was damaged by the impact of an unknown object from outside of the bus. Mr. Warren filed this personal injury action against WMATA in the Superior Court of the District of Columbia, alleging that the glass that shattered did not meet safety regulations applicable to WMATA vehicles and that defendant's negligence and recklessness in "allowing the operation of [the bus] without properly glazed or safety glass in the passenger windows" was a cause for Mr. Warren's injuries. Complaint PP 6, 7, 8. WMATA removed the case to this Court, which has original jurisdiction under the WMATA Compact.

 Defendant moved for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P. Plaintiff opposed this motion. After hearing argument the Court determined that defendant's motion should be treated as a motion for summary judgment because defendant relies on matters outside the pleadings. At plaintiff's request, the Court extended the period for discovery and permitted counsel for both parties to submit additional affidavits and documentary evidence pertinent to the converted summary judgment motion. Plaintiff supplemented his opposition.

 I. SUMMARY JUDGMENT STANDARD

 Under Rule 56, Fed. R. Civ. P., summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. U.S. Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50.

 Defendant asserts that WMATA is shielded by sovereign immunity from liability for governmental acts, such as those alleged by plaintiff. Plaintiff counters that there is a genuine dispute of material fact as to whether WMATA installed glass that failed to meet mandatory safety standards and that WMATA does not have the discretion to choose to disregard those standards in making its design decisions.

 II. SOVEREIGN IMMUNITY

 WMATA contends that it is entitled to summary judgment because choosing glass to be used in bus windows is a governmental function and, by the terms of the interstate compact creating it, WMATA may not be held liable for "any torts occurring in the performance of governmental functions." D.C. Code § 1-2431(80); see Hess v. Port Authority Trans-Hudson Corp., 130 L. Ed. 2d 245, 115 S. Ct. 394, 405 (1994) (citing Morris v. Washington Metro. Area Transit Authority, 251 U.S. App. D.C. 42, 781 F.2d 218 (D.C. Cir. 1986)). Sovereign immunity for torts occurring in the performance of governmental functions protects WMATA from "judicial 'second guessing' via tort suits 'of legislative and administrative decisions grounded in social, economic and political policy.' Sanders v. Washington Metro. Area Transit Authority, 819 F.2d 1151, 1155, 260 U.S. App. D.C. 359 (D.C. Cir. 1987) (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984)). WMATA concedes that it does not have immunity for torts arising from "the conduct of any proprietary function, in accordance with the law of the applicable signatory. . . ." D.C. Code § 1-2431(80). *fn1"

 The distinction between protected and unprotected conduct turns on whether it involves governmental or discretionary activity, on the one hand, or proprietary or ministerial activity, on the other. "Only the former type of action, a policy decision, is a 'discretionary function' which should be immune from second guessing. . . ." McKethean v. Washington Metro. Area Transit Authority, 588 A.2d 708, 713 (D.C. 1991). As the District of Columbia Circuit recently explained, "what matters is not what the decisionmaker was thinking, but whether the type of decision being challenged is grounded in social, economic, or political policy." Cope v. Scott, et al., 45 F.3d 445, slip. op. at 8 (D.C. Cir. 1995). Daily management decisions may be protected if they are grounded in social, economic or political goals, while the exercise of poor judgment in the conduct of ordinary tasks may not be. See Cope v. Scott et al., slip. op. at 6-7.

 Although WMATA's provision of mass transit is generally considered a proprietary function that would not be protected by sovereign immunity, Qasim v. Washington Metro. Area Transit Authority, 455 A.2d 904, 906 (D.C.), cert. denied, 461 U.S. 929, 77 L. Ed. 2d 300, 103 S. Ct. 2090 (1983), WMATA contends that plaintiff is challenging a design and planning choice and that such a policy choice is a protected governmental or discretionary function. Defendant asserts that the design of a WMATA bus, including the choice of glass to be installed on the bus, involves evaluating various types of glass with distinct qualities that are responsive to different safety and design concerns and choosing among many glazing options. In selecting glass for its buses, WMATA says it must also consider current and projected bus purchase budgets in conjunction with the demand for bus services and the impact of cost on future revenue needs. Def. Reply, Cowger Aff. PP 5, 6. WMATA maintains, therefore, that such decisions involve political, economic and social policy determinations that are cloaked by the protective mantle of sovereign immunity.

 Plaintiff argues that while a policy decision respecting design may be cloaked by sovereign immunity, the negligent implementation of such a policy decision is subject to challenge. He cites Gillot v. Washington Metro. Area Transit Authority, 507 F. Supp. 454 (D.D.C. 1981) (challenge to security procedures employed by WMATA as operator of parking lot are not barred by governmental immunity), Dant v. District of Columbia et al., 829 F.2d at 75 (claim can be maintained for faulty operation and maintenance of farecard system), and Washington Metro. Area Transit Authority v. O'Neill, 633 A.2d 834, 838-39 (D.C. 1993) (driver's failure to follow WMATA safety directives is actionable negligence). Plaintiff contends that WMATA negligently failed to install glass that conformed with District of Columbia Municipal Regulations or American National Standard Institute (ANSI) requirements for safety glass for installation on buses. He maintains that such negligent failure is not protected by sovereign immunity.

 Defendant acknowledges that "governmental immunity . . . does not shield a governmental entity that makes decisions in violation of a statute, law, or regulation . . .," Def. Reply at 1, and that if a statute or regulation prescribes a particular course of action, then WMATA has no discretion and the sole question is whether WMATA did or did not follow the directive. See Berkovitz v. United States, 486 U.S. 531, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988) (discretionary exception does not apply when suit charges agency with failing to act in accord with specific mandatory directives); Chvala v. D.C. Transit System Inc., 113 U.S. App. D.C. 171, 306 F.2d 778 (D.C. Cir. 1962) (streetcar company would be liable for negligence in failing to comply with statutory duty to maintain, mark and light streetcar loading platforms). WMATA argues, however, ...


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