performance of proprietary, but not governmental, functions."
Plaintiff attempts to explain away Morris ' footnote 3 by stating that it actually supports his position. "Judge Bork noted only that the sue-and-be-sued clause could not act as a waiver of Eleventh Amendment immunity, he specifically did not address the question now before the Court -- that of WMATA's sovereign immunity." Pl.'s Supp. Reply in Sup. of Pl.'s Mot. to Reinst. Pun. Dam., February 26, 1997 at 6. Wainwright never explains what he thinks any possible difference between sovereign immunity and Eleventh Amendment immunity would be in this case -- probably because, like the court, he can't think of any. In fact, in the very first paragraph of Morris, the court stated it was affirming the dismissal of plaintiff's complaint "because, as the district court held, WMATA's limited sovereign immunity prevents liability from attaching in this case." Id. at 219. On the very same page, Morris states, "WMATA's sovereign immunity exists because the signatories have successfully conferred their respective sovereign immunities upon it." Id. On the next page, the court says that it is clear that each of the three signatories [to WMATA] attempted to confer its sovereign immunity upon WMATA." Id. at 220. On the next page, Morris discusses how Eleventh Amendment immunity is waived as a general matter, and then, on the same page, states that "the last sentence of Section 80 was meant to relate to sovereign immunity...." Why doesn't the plaintiff think Morris dealt with sovereign immunity? Judges Bork, Scalia, and J. Skelly Wright obviously thought it did. This court could continue line by line with Morris ' references to "sovereign immunity" and how at least for our purposes, this is interchangeable with Eleventh Amendment immunity.
The only possible difference plaintiff raises is where, in footnote 3 of Morris, the court cited to Trotman v. Palisades Interstate Park Commission, 557 F.2d 35, 39-40 (2d Cir. 1977) noting that "although 'sue-and-be-sued' clause in interstate compact may waive compacting states' immunity in their own courts, it does not waive eleventh amendment immunity in federal courts." Though the District of Columbia Superior Court is just across the street -- this case is in federal court, and immunity principles apply. This court does not need to rule on whether WMATA would be immune from suit in Virginia, District of Columbia, or Maryland state courts, but in federal court, it certainly entertains immunity, at least for governmental functions, for the reasons clearly laid down in Morris and again addressed in Sanders.
It appears that the sue-and-be-sued clause, though generally read broadly, cannot, as a matter of law -- or even common sense -- be so read in this case.
There is one more issue to deal with, however. The operation of an escalator is a proprietary function. Plaintiff's injuries arose from his ride on an escalator. WMATA does not enjoy immunity from torts arising out of WMATA's engagement in proprietary functions. That much is clear. Perhaps punitive damages are simply an outgrowth of tort damages, and therefore should be allowed in this case?
Though this argument does have some attraction, the court believes punitive damages are different than simple tort damages arising from proprietary acts.
In City of Newport v. Fact Concerts, 453 U.S. 247, 267, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981), the United States Supreme Court stated that punitive damages result in a windfall to a fully compensated plaintiff, and that an increase in taxes or a reduction in public services would likely follow -- meaning that a blameless public would foot the bill. As the court remarked, "damages awarded for punitive purposes, therefore, are not sensibly assessed against the governmental entity itself." Id.
Though plaintiff strenuously attempts to draw distinctions between WMATA and a government or municipality, there can be no serious doubt that WMATA is a governmental agency, and given the structure of WMATA, punishing it would simply mean punishing its innocent riders or the citizens of the signatory governments which pay taxes to support Metro.
In addition, other courts addressing this issue have reached the conclusion that even when operating in a proprietary function, punitive damages are not available against governmental units. In Bolden v. Southeastern Pennsylvania Transportation Authority, the United States Court of Appeals for the Third Circuit rejected such a claim against SEPTA, a WMATA-like entity, stating that "even when performing 'proprietary' functions," municipalities and counties historically have enjoyed immunity from punitive damages. 953 F.2d 807, 830 (3d Cir. 1991). The court concluded that SEPTA, "though not a governmental unit in the traditional sense ... may be analogized to a government entity for purposes of determining whether SEPTA should be liable for punitive damages." Id. The same idea is true in Ferguson v. Joliet Mass Transit Dist., 526 F. Supp. 222, 225 (N.D. Ill. 1981) decided shortly after City of Newport, where that court stated, "we conclude that immunity from punitive damages as distinguished from sovereign immunity as to all damages should apply regardless of the particular function of the municipal corporation which is involved in the suit."
Thus, it seems clear, as a matter of law, logic, and public policy, that punitive damages are unavailable against WMATA, even for torts arising out of its proprietary functions.
For the reasons stated above, Wainwright's motion to reinstate punitive damages against WMATA is denied.
Royce C. Lamberth
United States District Judge