The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Ronnie Andrews filed suit against Washington Metropolitan Area Transit Authority ("WMATA") and MV Transportation, Inc. ("MV") on behalf of himself and similarly situated parties claiming that a MetroAccess*fn1 driver who was infected with tuberculosis ("TB") exposed MetroAccess passengers to this disease. Before this Court is defendant WMATA's motion to dismiss on the ground that it cannot be held liable for the acts of the driver or the driver's employer, co-defendant MV, because MV is an independent contractor. For the reasons explained herein, this Court agrees and grants WMATA's motion.
On April 20, 2011, Plaintiff Andrews filed suit against WMATA and MV in the District of Columbia Superior Court on behalf of himself and "all other persons similarly situated"*fn2 because a MetroAccess driver drove passengers while infected with TB and placed those passenger at risk of infection. Plaintiffs sue for negligence, intentional infliction of emotional distress, and a private right of action for public nuisance, and they seek damages, costs, and attorneys' fees. On June 14, 2011, defendants WMATA and MV removed the action to federal court pursuant to 28 U.S.C. § 1441. (Joint Notice of Removal.)
Count II alleges that WMATA was negligent based on the acts of the driver who was employed by MV. (Compl. ¶¶ 8-9.) Plaintiffs claim that the driver was negligent in continuing to drive a MetroAccess van when he knew or should have known that he had TB. (Id. ¶¶ 23, 65.)*fn3 Count III seeks to hold WMATA liable for intentional infliction of emotional distress and Count IV alleges a private action for public nuisance. (Compl. ¶¶ 70-97.) In support of these two claims, plaintiffs claim that WMATA was at fault for knowingly and intentionally disregarding the public safety by allowing the driver to continue driving while knowing that he had TB. (Compl. ¶¶ 76, 77, 79, 90-94, 97.)
WMATA filed a motion to dismiss all counts on the ground of sovereign immunity and sought dismissal of Count III and Count IV for failure to state a claim. (See generally Mot. to Dismiss; see also WMATA's Reply to MV Transportation, Inc.'s Opp'n to WMATA's Mot. to Dismiss ("Reply") at 2 n.1.) Plaintiffs responded that they seek to hold WMATA vicariously- not directly- liable for the negligence of the driver and that, therefore, sovereign immunity did not apply. (Opp'n at 6 ("Plaintiffs' claim is simply that Defendants, among other things, negligently exposed them to TB through their driver.") WMATA responded that the driver was an employee of MV, who is an independent contractor, and therefore, WMATA cannot be held vicariously liable for the torts of an independent contractor. (Reply at 1, 3-5). In support of this argument, WMATA submitted an affidavit to support its contention that is cannot be vicariously liable because MV is an independent contractor. (Id., Ex. 1).
This Court held a telephone conference on September 27, 2011, to clarify plaintiffs' theory of liability and to inform the parties that, due to WMATA's submission of an affidavit, WMATA's motion to dismiss would be converted into a motion for summary judgment. See Marshall Co. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). During the telephone conference, plaintiffs stated that they sought to hold WMATA vicariously liable on all counts for the negligence of MV, an independent contractor. The Court therefore ordered briefing on the question that would control the summary judgment decision: whether WMATA could be vicariously liable for the acts of an independent contractor and its employees. (Minute Order of Sept. 27, 2011.) In response, plaintiffs did not dispute the facts set forth in WMATA's affidavit, but instead, they argue that certain exceptions to the general rule against holding a company liable for the acts of the employees of an independent contractor should apply.
I. INDEPENDENT CONTRACTOR LIABILITY
It is undisputed that MV is an independent contractor, (see generally Reply; Pl.'s Sur-Reply to WMATA's Reply to Pl.'s Opp'n to WMATA's Mot. to Dismiss the Compl. ("Sur-Reply")), and under "[t]he general rule in the District of Columbia[,] ... an employer of an independent contractor is not liable for physical harm caused by the acts or omissions of the contractor." Wilson v. Good Humor Corp. 757 F. 2d 1293, 1301 (D.C. Cir. 1985) (internal footnote omitted). However, there are certain exceptions for "special situations where the employer is in the best position to identify, minimize and administer the risks involved in the contractor's activities." Id. at 1301. Therefore, WMATA will not be liable unless one of the exceptions to this rule applies. Opposing summary judgment, plaintiffs invoke two of the established exceptions to the general non-liability rule.
A. INHERENTLY DANGEROUS ACTIVITY EXCEPTION
First, plaintiffs contend that WMATA is not protected by the general rule shielding parties from liability for the acts of independent contractors because the "inherently dangerous "or "peculiar risk" exception applies. (Sur-Reply at 5-6.) WMATA responds that plaintiffs have failed to prove the existence of an inherent danger and, in addition, they have not shown that the risk was recognizable in advance. (WMATA's Response to Pls.'s Sur-Reply ("Opp'n to Sur-Reply") at 1-6.) This Court agrees.
It is established that activities involving "inherent dangers" or "peculiar risks" are "special situations" justifying an exception to the general non-liability rule. Id. at 1303 ("The District of Columbia unmistakably recognizes an exception to the general rule of non-liability when an employer engages an independent contractor to perform 'inherently dangerous' work."). A party may show that an activity falls within the "inherently dangerous" exception in one of two ways. First, the activity may be "inherently dangerous" if it is "generically hazardous" such "that, regardless of the skill with which it is undertaken, [it] poses a danger to others." Id. at 1303-04. Second, this exception may apply "when an employer has reason to know that his independent contractor is likely, under particular circumstances, to endanger others absent reasonable precautions." Id.; see also id. at 1305 (explaining that the related "peculiar risk" exception similarly "depends on the fact that the employer knew or had special reason to know that, absent special precautions, an independent contractor's activities were likely to create a particular risk to others in the specific circumstances under which the work is normally done"). In Good Humor, for example, this exception applied because Good Humor had long been aware of the special risks to children that were likely to arise from selling ice cream in the street. Id. at 1306-07.
Based on a review of the materials before this Court, it is clear that plaintiffs have not met their burden to demonstrate that the "inherently dangerous" exception is applicable. In their Sur-Reply, plaintiffs invoke this exception, but not only do they fail to explain how it applies to their claims, they do not even identify the activity thought to be inherently dangerous. Furthermore, plaintiffs have offered no proof that WMATA "knew or had special reason to know that, absent special precautions," the activities with which MV was charged "were likely to create a particular risk" to its passengers. Good Humor, 757 F.2d at 1305; see also Levy v. Currier, 587 A.2d 205, 209 (D.C. 1991) ("Crucial to a contractee's liability, therefore, is whether the contractee knows or has reason to know of the ...