The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
On April 16, 2008, plaintiff Darlene Robinson boarded a Metrobus operated by an employee of Washington Metropolitan Transit Authority ("WMATA"). (Compl. ¶ 4.) Before she reached her seat, she fell and injured her ankle. She has filed suit against WMATA for negligent operation of the bus. Before the Court is WMATA's Renewed Motion for Summary Judgment and Motion to Dismiss. ("Def.'s Renewed Mot.")
The facts here are largely undisputed. On April 16, 2008, near the intersection of 11th Street and Gallatin Street, NE, Robinson boarded Bus No. 2170, an E-2 Metrobus operated by WMATA employee Ronald Bumpass. (Compl. ¶ 4; Def.'s Mot. for Summ J. ("Def.'s First Mot."), Ex. 2 ("Accident Report Form") at 1-2.) *fn1 There were approximately seven passengers on the bus at that time. (Accident Report Form at 1.) After Robinson paid her fare, she walked down the bus aisle looking for a seat. (Def.'s First Mot., Ex. 3 ("Robinson Dep.") 43:9-43:16.) By the time eight to ten seconds had elapsed, she was standing about halfway down the bus aisle with her hand holding a handrail on the back of one of the seats. (Id. 39:22-44:9, 52:14-53:13.) At that point, she fell and injured her left ankle. (Id. 52:14-53:13.)
The bus was moving when Robinson fell. According to the plaintiff, it was going "faster than the normal bus trip" (id. 91:14-92:3) and moving with "sudden jerk speed." (Id. 102:9-102:11.) She testified that someone yelled "slow down" and the bus driver abruptly pressed the brakes. (Id. 44:3-45:13; 100:5-100:22.) As a result, her body twisted, her hand slipped off the handrail, and she fell with her leg twisted under her. (Id. 45:10-45:13; 102:5-102:22.)
During this time, Bumpass was sitting in the driver's seat, facing the windshield, and he did not see her walk down the aisle or fall. (Pl.'s Opp'n to First Mot., Ex. 3 ("Bumpass Dep.") 50:20-51:2.) At his deposition, Bumpass testified that he did not look behind him or check the interior mirrors before he pulled away from the bus stop. (Id. 50:20-51:2.) After plaintiff paid her fare, the next time that he was aware of her was when another passenger approached him and told him that Robinson had fallen. (Id. 52:4-53:4.) When Bumpass approached her, she told him that her ankle was hurt, but declined his offer of help and said that she was going home to call her doctor. (Accident Report Form at 2.)
Plaintiff filed suit against WMATA on April 14, 2011, alleging that WMATA was liable for the bus driver's negligence in operating the bus. (Compl. ¶ 4.) During discovery, WMATA moved for summary judgment on the basis that plaintiff lacked expert testimony necessary to establish her claims. (Def.'s First Mot. for Summ. J.) Subsequently, plaintiff filed a supplemental Rule 26(a)(2) statement disclosing Carl Berkowitz as its transportation engineering expert (Pl.'s Supp. Rule 26(a)(2) Statement ("Berkowitz Rep.")), and WMATA's motion was accordingly denied as moot. (See Minute Order of Jan. 10, 2010.) Following the close of discovery, WMATA has now filed a renewed motion for summary judgment and to dismiss, arguing that the Court lacks jurisdiction due to sovereign immunity and that it is entitled to summary judgment because plaintiff has failed to establish a prima facie case of negligence.
WMATA, which was created through the Washington Metropolitan Area Transit Authority Compact signed by Maryland, Virginia, and the District of Columbia, see Pub. L. No. 89-774, 80 Stat. 1324 (1966) (codified as amended at D.C. Code § 9-1107.01 et seq.) ("Compact"), is entitled to share in the sovereign immunity of the Compact's signatories. Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C. Cir. 1997). WMATA's sovereign immunity is therefore waived for "torts . . . committed in the conduct of any proprietary function," but preserved for "torts occurring in the performance of a governmental function." D.C. Code § 9-1107.01(80).
Courts interpreting the Compact's sovereign immunity provision apply a two-part test to determine whether an activity enjoys its protection. WMATA v. Barksdale-Showell, 965 A.2d 16, 20 (D.C. 2009). The first part of the test asks whether a particular act is governmental or proprietary. Id. Activity that is "quintessentially governmental" is shielded from suit by WMATA's sovereign immunity. Id. The second part addresses activities that are not quintessentially governmental functions; in those cases, immunity depends on whether the activity is discretionary or ministerial. Burkhart v. WMATA, 112 F.3d 1207, 1216 (D.C. Cir. 1997). Only discretionary activity is protected by sovereign immunity. Id.
Discretionary functions are governmental actions and decisions that are "based upon considerations of public policy" and which require "an element of judgment or choice."
Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). If a "'statute, regulation, or policy specifically prescribes a course of action'" for WMATA to follow, then no discretion is involved because WMATA had "no rightful option but to adhere to the directive." Barksdale-Showell, 965 A.2d at 21 (quoting United States v. Gaubert, 499 U.S. 315, 322-23 (1991)). If there is no prescribed code of conduct and the decision involves "political, social, [or] economic" choices, it is considered discretionary. See Burkhart, 112 F.3d at 1217. "For a court to find that an act is discretionary, thus entitling the municipality to immunity, the court must determine that ...