The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff brought this action on behalf of her minor child against District of Columbia (the "District"), the District of Columbia Department of Transportation ("DOT"),*fn1 the Washington Metropolitan Area Transit Authority ("WMATA"), and Clear Channel Outdoor Inc.*fn2 Before the Court are defendants' motions to dismiss. For the reasons stated herein, WMATA's motion to dismiss will be granted and the District's motion to dismiss will be granted in part and denied in part.
Plaintiff, Tesha Lamon Plater, is the mother of M.D.P., a five-year-old minor. (Compl. at ¶ 2.) On April 26, 2005, M.D.P. slipped and fell on broken glass and sustained injuries to his head, while waiting for a bus on the 2400 block of Alabama Avenue and Hartford Street, S.E., in Washington D.C. (Id. at ¶ 6.) M.D.P. was transported to the hospital for medical treatment as a result of the fall and plaintiff claims that he suffered "shock, pain, nervousness, anxiety, lacerations to his head, and excruciating headaches, which necessitated the insertion of staples to his head." (Id. at ¶ 19.) According to plaintiff, M.D.P. continues to suffer from headaches. (Id.)
A police report was filed on the date of the incident by an officer of the 7th District Metropolitan Police Department. (District's Ex. 3). On June 25, 2005, plaintiff sent a letter to the General Counsel of the District of Columbia Department of Transportation notifying him of the incident. (District's Ex. 1.) On May 30, 2006, plaintiff sent a second notification letter to the Mayor of the District of Columbia. (District's Ex. 2.)
On October 4, 2007, plaintiff filed her initial complaint with this Court, which was amended on December 7, 2007. Plaintiff's amended complaint alleges four counts -- (1) that defendants violated their duty to maintain their premises in a safe condition; (2) that defendants negligently designed and constructed the bus stand shelter; (3) that defendants violated their duty of care to M.D.P. as a business invitee; and (4) that defendants violated plaintiff's civil rights under the Fifth and Eighth Amendment to the United States Constitution. The District and WMATA have each filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
A complaint must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted if it fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). At this stage, all reasonable factual inferences must be construed in plaintiff's favor, and all allegations in the complaint are presumed true. Maljack Prods., Inc., v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1985). "However, the court need not accept inferences drawn by plaintiff if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Comm'cns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). To survive a motion to dismiss, the factual allegations of the plaintiff "must be enough to raise a right to relief above the speculative level." Bell Atl., 127 S.Ct. at 1965.
II. WMATA's Motion to Dismiss
WMATA has moved to dismiss Counts 2 and 4 of plaintiff's amended complaint for failure to state a claim upon which relief can be granted. WMATA argues that Count 2, which alleges negligent design and construction, fails because WMATA has immunity from suit for government functions. (WMATA's Mot. at 2-3.) WMATA further argues that Count 4, which alleges violations of the Fifth and Eighth Amendments, fails because WMATA has immunity from suits brought pursuant to 42 U.S.C. § 1983 and because WMATA is not a "person" subject to liability under that statute. (Id. at 3-4.) The Court will address each of these arguments in turn.
A. Negligent Design and Construction
Plaintiff's complaint alleges that WMATA negligently designed and constructed the bus shelter with "an unsafe material 'glass,' and another material" and that WMATA "had knowledge that this 'glass' was a dangerous and hazardous material for use in the Bus Stand/Shelter, but continued to use this dangerous and hazardous material on public sidewalk prior to and for a number of days after M.D.P. suffered injuries." (Compl. at ¶ 12.) WMATA maintains that it is immune from this type of claim. (WMATA's Mot. at 2-3.)
"It is well-established that WMATA is a quasi-governmental entity created and governed by an 'interstate compact' among Maryland, Virginia, and the District of Columbia," Jones v. WMATA, 742 F.Supp. 24, 25 (D.D.C. 1990), which "enjoys the Eleventh Amendment immunity of the two signatory states." Barbour v. WMATA, 374 F.3d 1161, 1163 (D.C. Cir. 2004) (citing Morris v. WMATA, 781 F.2d 218, 219-20 (D.C. Cir. 1986)). While the WMATA Compact does contain a limited waiver of WMATA's sovereign immunity for certain torts, immunity is "preserved for 'torts occurring in the performance of a governmental function.'" Abdulwali v. WMATA, 315 F.3d 302, 304 (D.C. Cir. 2003) (quoting D.C. Code. Ann. § 9-1107.01(80)). "Governmental functions are those functions which are ...