The opinion of the court was delivered by: LAMBERTH
Defendant Washington Metropolitan Area Transit Authority ("WMATA") has moved for summary judgment pursuant to Fed. R. Civ. P. 56. Upon consideration of the filings of counsel and the relevant law, WMATA's motion for summary judgment is granted in part and denied in part. The motion is granted with respect to count three (failure to warn), count six (strict liability for design defects), count seven (strict liability for failure to warn) and count eight (breach of implied warranty). The motion is denied with respect to count one (failure to maintain), count two (negligent supervision), and count four (property owner's breach of reasonable care). Finally, the court grants WMATA summary judgment dismissing claims against it for punitive damages.
This is a personal injury action brought by Plaintiff Wainwright, a California resident, against WMATA and Co-Defendants Schindler Elevator Company, Westinghouse Electric Corporation and Westinghouse Elevator Company (collectively "Schindler"). WMATA is a state and interstate agency created by the United States Congress and adopted by the governments of the District of Columbia, Maryland and Virginia. D.C. Code § 1-2431; Md. Code Ann. [Transp.] §§ 10-201, et seq.; Va. Code Ann. §§ 56-529 et seq. WMATA owns and operates a public transportation system for the Washington, D.C. metropolitan area, including the Metrorail subway system ("Metro"). Schindler designed, manufactured and installed escalators for use in Metro subway stations. Schindler also maintains the escalators under contract with WMATA. Westinghouse was Schindler's predecessor.
Wainwright states in his complaint that he was exiting the Dupont Circle Metrorail Station on July 2, 1991 when his right foot became trapped in an escalator between the step and the combplate. His efforts to free his foot were unavailing, as were his immediate attempts to elicit help in turning off the escalator. Wainwright seeks $ 15 million in compensatory damages and $ 15 million in punitive damages. WMATA has cross-claimed for indemnity or contribution against its co-defendants.
Eight counts are alleged by Wainwright: (1) Failure by WMATA to maintain; (2) Negligent supervision by WMATA; (3) Failure by WMATA to warn; (4) Breach by WMATA of its duty as a property owner to use reasonable care; (5) Failure by Schindler to maintain; (6) Strict liability against WMATA and Schindler for design defects; (7) Strict liability against WMATA and Schindler for failure to warn; and (8) Breach of implied warranty by WMATA and Schindler. Count five, against Schindler alone, is not addressed here; nor are the claims against Schindler in counts six, seven and eight.
In its motion for summary judgment, WMATA proffers four arguments for dismissal of all counts in which it is a named defendant. First, WMATA notes that Wainwright invoked his Fifth Amendment privilege against self-incrimination when asked in his deposition about alcohol and drug use on the day of his accident. Because WMATA is pleading an affirmative defense of contributory negligence, the invocation by the plaintiff of a testimonial privilege could deny WMATA the opportunity to develop its case.
Second, WMATA asks that any claims for punitive damages be dismissed as contrary to public policy; there can be no retributive or deterrent purpose served in exacting monetary penalties from subway riders or taxpayers. Third, WMATA asserts sovereign immunity for all governmental or discretionary functions, as contrasted with proprietary or ministerial functions. Among the functions WMATA places in the immune category are design decisions, supervisory decisions and whether to post warnings. Fourth, WMATA disclaims liability for breach implied warranties which, announces WMATA, can only be assessed against the manufacturer of the escalator.
Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). As this case arises under the District Court's diversity jurisdiction, 28 U.S.C. § 1332, the law of the District of Columbia governs. The Rules of Decision Act, and hence Erie Railroad v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), do not strictly apply with respect to D.C. law; nonetheless, we apply D.C.'s substantive law for reasons of uniformity, and respect for the D.C. Court of Appeals. Anchorage-Hynning & Co. v. Moringiello, 225 U.S. App. D.C. 114, 697 F.2d 356, 360-61 (D.C. Cir. 1983).
III. PLAINTIFF'S TESTIMONIAL PRIVILEGE
Wainwright invoked his Fifth Amendment privilege against self-incrimination when asked in his deposition about alcohol and drug use on the day of his accident. Without Wainwright's answers to these questions, WMATA contends it cannot adequately develop its contributory negligence defense. Because contributory negligence is an absolute bar to recovery under District of Columbia law, Andrews v. Wilkins, 290 U.S. App. D.C. 95, 934 F.2d 1267, 1272 (D.C. Cir. 1991), WMATA urges dismissal of all Wainwright claims grounded on negligence.
Other circuits have held that a plaintiff may not use a Fifth Amendment privilege both as a shield against self-incrimination and as a sword to frustrate defendant's discovery. See, e.g., Lyons v. Johnson, 415 F.2d 540, 542 (9th Cir. 1969). But in Black Panther Party v. Smith, 213 U.S. App. D.C. 67, 661 F.2d 1243 (D.C. Cir. 1981), the District of Columbia Circuit adopted a balancing test, weighing the plaintiff's Fifth Amendment privilege against the defendant's right to the information. 661 F.2d at 1266. Factors to be considered included the importance of the information and whether alternative, non privilege sources had been exhausted. Id. at 1268. Black Panther was ultimately vacated by the Supreme Court on mootness grounds. Moore v. Black Panther Party, 458 U.S. 1118, 73 L. Ed. 2d 1381, 102 S. Ct. 3505 (1982). Nonetheless, the rationale advanced by the D.C. Circuit remains a useful indicator of its views, even if not authoritative law.
In this case, plaintiff Wainwright refused to answer a number of inquiries specifically related to drug and alcohol use. His selective refusal does not equate to more general obstruction of discovery. Moreover, WMATA has not pursued other sources of information pertaining to plaintiff's possible impairment at the time of his accident. There is no indication that WMATA has sought to depose other witnesses, including the person who ultimately pressed the emergency stop button, the station attendant, rescuing firefighters and police, hospital personnel, nor the treating physician. Unless and until WMATA can convince the court that it has depleted alternative sources, Wainwright's invocation of the Fifth Amendment can not be cause for summary judgment. As the plaintiff properly noted, dismissal should be a remedy of last resort. Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1087 (5th Cir. 1979); see also Shepherd v. ABC, Inc., 314 U.S. App. D.C. 137, 62 F.3d 1469, 1476, 1995 U.S. App. LEXIS 24127, *13-*14 (D.C. Cir. 1995).
Indeed, even if WMATA could demonstrate that it had exhausted its options, summary judgment would likely be premature. More appropriately, the court would first grant a WMATA motion to compel discovery. Fed. R. Civ. P. 37. Only then, if Wainwright persisted in asserting his Fifth Amendment privilege, might a dismissal of the negligence-based counts be justified.
Section 80 of the WMATA compact provides that the Authority is "liable for its contracts and for its torts . . . committed in the conduct of any proprietary function . . . ." Since the Compact does not explicitly authorize punitive damages, ...