The opinion of the court was delivered by: Reggie B. Walton, United States District Judge
The plaintiff's complaint arises from injuries she sustained in the District of Columbia upon alighting from a bus, owned and operated by the Washington Metropolitan Area Transit Authority ("WMATA"),when her foot came into contact with an unpaved section of the sidewalk on parkland property owned by the United States, otherwise known as Union Station Plaza. Federal Defendants' Statement of Material Facts Not in Genuine Dispute ("Fed. St. of Facts") at ¶ 3; Plaintiff's Statement of Facts Not in Dispute ("Pl.'s St. of Facts") at ¶ 2. This matter is currently before the Court on the Federal Defendants' Motion to Dismiss or in the Alternative for Summary Judgment ("Fed. Mot."). The federal government asserts that it is not a proper defendant because WMATA is responsible for maintaining the sidewalk at the bus stop pursuant to a Cooperative Agreement that was entered into by the federal government and WMATA. This Cooperative Agreement provides that WMATA is "fully responsible for the management, maintenance, protection, use and safety of all transit facilities located over, under or on parkland." Fed. Mot., Exhibit ("Ex.") G (Cooperative Agreement Between the Secretary of the Interior by and through the National Park Service and the Washington Metropolitan Area Transit Authority ("Cooperative Agreement"), ¶ 16. According to the federal defendant, paragraph 16 of the Cooperative Agreement covers the sidewalk in front of the bus stop, and thus WMATA was solely responsible for the plaintiff's injuries. For the reasons set forth below, the Court will deny the federal defendant's motion because the federal defendant had a duty of care to the public to ensure that the sidewalk was safe.
On September 1, 1999, the plaintiff, a forty-five year-old woman, was exiting a WMATA bus at Columbus Circle, N.E., Washington, D.C., when her foot allegedly came into contact with an unpaved section of the sidewalk and she fell. Fed. St. of Facts at ¶¶ 1-2; Pl.'s St. of Facts at ¶¶ 1-2. It is undisputed that the location of the accident was on parkland owned by the United States. Fed. St. of Facts at ¶ 5; Pl.'s St. of Facts at ¶ 3. What is in dispute is who was responsible for the maintenance of this location and the effect of the paragraph 16 of Amendment Number 2 of the Cooperative Agreement on this question.
II. Standard of Review: Rule 56
The defendant has sought dismissal of the plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) or summary judgment pursuant to Federal Rule of Civil Procedure 56. The Court's consideration of whether the plaintiff's pleading stated a claim upon which relief could be granted under Rule 12(b)(6) has led it to consider matters outside of the pleadings. Federal Rule of Civil Procedure 12(b) states, in part, that:
If, on a motion asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim
upon which can be granted, matters outside the
pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and
all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion
by Rule 56.
Therefore, this Court will examine the plaintiff's claims under Rule 56.
Summary judgment is generally appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In assessing a summary judgment motion, the Supreme Court has explained that a trial court must look to the substantive law of the claims at issue to determine whether a fact is "material", Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a "genuine issue" of fact is "one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action." Sanders v. Veneman, 211 F. Supp.2d 10, 14 (D.D.C. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson, 477 U.S. at 248).
While it is generally understood that when considering a motion for summary judgment a court must "draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true," Greene v. Amritsar Auto Servs. Co., 206 F. Supp.2d 4, 7 (D.D.C. 2002) (citing Anderson, 477 U.S. at 255), the non-moving party must establish more than "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position", Anderson, 477 U.S. at 252. To prevail on a summary judgment motion, the moving party must demonstrate that the non-moving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. The District of Columbia Circuit has stated that the non-moving party may not rely solely on mere conclusory allegations. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Thus, "[i]f the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).
The crux of the federal defendant's position is that while it acknowledges that it owns the parkland at the site of the accident, Fed. St. of Facts at ¶ 5, it transferred any responsibility for maintaining the property to WMATA pursuant to the Cooperative Agreement. As this Court mentioned above, the Cooperative Agreement provides that WMATA "hereby agrees, except as otherwise modified by separate agreement(s), to be fully responsible for the management, maintenance, protection, use and safety of all transit facilities located over, under or on parkland." Fed. Mot., Ex. G. "Transit facilities" are defined in the Cooperative Agreement as follows:
`Transit facilities' means all real and personal
property located in the [WMATA] Zone,*fn1 necessary
or useful in rendering transit service between points
with the Zone, by means of rail, bus, water or air and
any other mode of travel, including without
limitation, tracks, rights of way, bridges, tunnels,
subways, rolling stock for rail, motor vehicle, marine
and air transportation, stations, terminals and
ports, areas for parking and all equipment, fixtures,
buildings and structures and services incidental to or
required in connection with the performance of transit
Public Law 89-774, 80 Stat. 1324. And, "transit services" constitute "the transportation of persons and their packages and baggage by means of transit facilities between points within the Zone . . ." Id. The federal defendant asserts that because `transit facilities' "include all areas made available to passengers disembarking from Metrobuses, and would specifically include the area of Columbus Circle, NE[,] Washington, D.C.[,]" which is the site of the plaintiff's accident, the United States has no duty of care and thus cannot be held liable for the plaintiff's injuries. Federal Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss ("Fed. Mem.") at 6-7.
The Court begins its analysis of the federal defendant's argument that it did not owe a duty of care to the plaintiff with respect to the injuries she sustained on its parkland, by looking at the property at issue and the interests of the United States, WMATA, and the District of Columbia in this property.
In Lovitt v. District of Columbia, 942 F. Supp. 618 (D.D.C. 1995), another member of this Court was presented with a similar factual scenario where the plaintiff was allegedly injured when she "slipped and fell on a sidewalk located in front of a bus stop at 50 Massachusetts Avenue, N.E., in the District of Columbia."*fn2 Id. at 618. The Lovitt Court concluded that, although the plaintiff asserted that the District of Columbia was primarily responsible for maintaining the sidewalks in a "reasonably safe condition[,]" id. at 619 (citing Conner v. United States, 309 F. Supp. 446 (D.D.C. 1970), aff'd, 461 F.2d 1259 (D.C. Cir. 1972); Leary v. District of Columbia, 166 F. Supp. 542 (D.D.C. 1958), because "the property on which the plaintiff fell was ceded to the United States for park purposes pursuant to a transfer of jurisdiction[,]" the District of Columbia could not be held liable, id. at 620.*fn3 Implicit in ...