Washington Metropolitan Area Transit Authority v. O'Neill

FARRELL, Before STEADMAN MACK, Judge. Senior Judges, and Associate FARRELL, Judge: Associate Tran- Metropolitan Area Washington (WMATA) appeals from a Authority sit per- in this plaintiff-appellee for the verdict beating arising from a injury sonal case on a WMATA appellee by other sovereign contends that 'WMATA bus. suit, its motion immunity hence that bars summary judgment should have for appellee It also contends granted. and, by prove proximate causation failed appro- testimony on the adducing expert thereof, care or a breach priate standard of well. proof on these issues as failed judge’s the trial Finally, contests 'WMATA against it attorney’s fees decision award filing for an unreasonable a sanction reject of documents. We disclosure belated affirm. each of these contentions

The Facts I. Battery

A. The Assault light most favorable to Viewed verdict, showed the evidence man, O’Neill, elderly boarded D. William evening Georgetown late Metrobus one of the and sat down of June door, facing Two forward. front seats as the bus the door pounded men young forward, stopped to allow and the bus started Mallory1 to board. and Willard Jones Alfred appear- Their of alcohol. The men reeked conduct, stumbling and including ance they boisterousness, suggested were also They began argu- high drugs.2 drunk driver, and the bus fare with about the the back walked toward Jones Counsel, Stief, Gen. J. Associate Gerard eventually paid Mallory paying. without Counsel, Polk, L. Gen. with whom Robert of the bus. in the rear down fare and sat own Melnick, Kniaz and Arnold I. and Robert J. demand, returned DC, Jones Counsel, Washington, At the driver’s Deputies Gen. fare after paid the bus and front of the brief, appellant. on the were absolutely Mallory "was testified pseudonyms 2. O'Neill apparent the two are These ” eyes glazed and red.... looking. His wild at trial. which were used men arguing began walking bending with the driver. He before over the woman and threat- rear, erratically grabbing up- toward the ening her once more. right poles to maintain his balance. After O’Neill, then sat down behind steps, several tripped leg over the nose, grabbed poked him and at his and said woman seated near the front. He accused repeatedly, you “kill, “[D]o want to die?” and him, her, tripping yelled her of obscenities kill.” The driver heard these threats and apology.3 Standing and an demanded over point finger saw Jones his in O’Neill’s face her, again apology he an demanded in a voice long thirty pointed for as as seconds.6 Jones enough everyone loud in the front of the yet another woman and to kill threatened Although eyewitness, bus to hear. Ruby- her too. get up, When O’Neilltried to Jones Walton, line testified up that the driver stood grabbed get him and struggled O’Neill to go and told Jones to to back of the bus away. brakes, The driver slammed on the down, eyewitness and sit another denied that causing to Jones and O’Neill fall backwards. anything the driver said to Jones at this Mallory jumped up began striking then and time. O’Neill in the face. The driver activated the minutes, For as much as several Jones silent alarm to summon up shouting walked and down obscenities at police assistance. An ambulance arrived al- passengers, then went to the back of the bus. immediately, most a minute followed later later, however, A short time he walked to- in, police. O’Neill’s face was caved he again ward the of the front bus and stood in jaw, suffered a broken nose and and he was woman, front of pushing this time his hospitalized eight days. He also suffered crotch yelling toward her face and lewd and spinal injuries brain and cord unable threatening Mallory, remarks.4 in the mean- to work for ten weeks. time, making menacing had been faces at Altogether, elapsed ten or more minutes

passengers in Frightened by the back. this entry between the of the bus Jones and behavior, a second woman went to the front Mallory beating and the of O’Neill. of the bus eject and asked to the driver men from the bus. When the driver re- B. Evidence of WMATA’s fused,5 got the woman stop. off the next Safety Procedures pace repeat continued his calling supervisory Besides em- obscene remarks. When he returned to the witnesses, ployees bus, as doc- introduced back of the O’Neill asked the driver to umentary evidence di- something do of WMATA’s about him. The driver re- fused, prescribed rectives to its job bus drivers and the saying his towas drive the bus and security “Sys- use emergency phone devices. WMATA’s working. was not Safety Program Hearing emphasizes “pre- tem Plan” exchange, Jones shouted to O’Neill, man,” ventive measures you, “What’s it to old over corrective measures.” plan returned to the front of the First he includes directives issued to bus bus. drivers, bent over the woman had as outlined in the he threatened ear- Handbook Rules repeated Regulations lier and the threat to kill and the Manual of Rules. her. 74(e) and, Then he stipulates sat down behind O’Neill in a Rule that a has driver voice, well, “preserve loud him protect passengers threatened to kill order and my you anything anyone by physical Jones stated: "If I stick dick out would not done ing-" cuss- apologize you, then?” and "Fuck bitch.” yelled: you 4. Jones "I know what 6.According want. You ato officer who debriefed the dick,” my my scene, want to suck “You want to suck agreed driver at the the driver that Jones " going you,” suppose man, dick and '[Wjhat I’m to make and "I you you had said: want old do you my your would like to suck dick in mouth. you going want die? want die? Do I'm killed, youDo you want to die? Do want to be you. you kill Do want to be killed?’ and at that going you.” I'm O'Neill], bitch? to kill screaming point [at he was was face noses, just touching poking to face he was about testified, 5. The driver "I fin- told her that I could not him in face or the head area with his eject they gers.” off the men the bus because ... insult, violence, injury during sequence while in the entire of Jones’s assaul- keep charge.” Specifically, the must tive behavior. driver eye disruptive passenger on a watchful Immunity II. WMATA’s Claim any offending stop him to conduct. instruct A. refuses, If must ask bus, may it, physically Compact creating By him leave the the terms eject physical subject him there is immediate for the unless WMATA is suit Pittman, danger. superin- employees only assistant of its the tort James pro- by deposition tendent of testified was “committed the conduct function_” § 1- require prietary D.C.Code the rules drivers order (1992). 2431(80) Conversely, is im- passenger stop the bus if he does not WMATA leave if passengers, although “oecurr[ed] stat- mune from suit harassing Pittman performance governmental of a func- if ed he would not do this that tion.” Id. WMATA asserts hostile. response driver’s behavior of Jones equipped All WMATA buses are with ex- Mallory beating leading to the of O’Neill consisting lights, ternal alarm police-type activity involved exercise lights along eight top of the bus. The function, barring governmental ap- of a thus lights visually signal police allow drivers to pellee’s disagree. suit. We assistance, officers that the driver needs that, general, in have held We meaning police all of the understand provision transportation proprie is a of mass flashing lights. require The rules drivers to meaning of the tary function within the lights activate these “when conditions exist WMATA, Qasim Compact, 455 WMATA require within the bus that the assistance of (en denied, 904, (D.C.) bane), A2d 906 cert. officers,” a passen- law enforcement as when 2090, 929, 300 103 77 L.Ed.2d 461 U.S. S.Ct. ger “smoking, eating, [engaged any in] (1983), any common and that like ‘WMATA Leroy Bai- violation conduct ordinances.” carrier, owes a of reasonable care ley, manager general assistant for bus ser- WMATA, passengers.” McKethean v. division, vice and head of the bus testified (D.C.1991). establishing But in A.2d deposition instructed to acti- that drivers are carrier, creating as a common lights evi- vate the there is clear expose it jurisdictions did not intend to dence harassment. Each bus also contains private a liability with that of coextensive alarm, triggered by a silent a on the button carrier; governmental-proprie otherwise radio, signal bus which sends WMATA’s Compact would have tary of the distinction controller, who in tran- station turn calls the Therefore, in we meaning. and, them, Metropoli- police through sit which to determine looked for standard Operators” tan Police. issued “Notice[s] or em which activities of WMATA’sofficers again require in 1986 and in 1990 drivers to “duty care ployees implicate its of reasonable emergencies, in- activate the silent alarm subject it to tort passengers” and hence to its cluding that involve threats of bod- situations Finding too liability; do not. and which ily acknowledged harm. Pittman that he applications a test of whether many broad when would have used the silent alarm good” activity for the “common was wom- made the first obscene remarks (rather narrowly “corpo than motivated passenger. agreed profit”), we pecuniary rate benefit or States Court of the United with decision Finally, presented O’Neill evidence Circuit of Columbia for the District Appeals responded could have Georgetown was quickly. or the silent alarm whether a inquiry is by police night appropriate patrolled the more

well legislative, ad- activity incident, arrived at the involves particular Brown Officer ministrative, policy decision regulatory receiving the within seconds after five merely implements such decision. George- patrolling call. Brown was radio action, policy type Only vicinity the former town and decision, “discretionary is a function” B. be should immune from second- (or inaction) The acts of the bus driv guessing by jury. alleged er this case cannot stretch “quasi-legislative reason be said to involve (citing Id. quoting at 713 Sanders v. policy discretionary decisions which are 359, 362-64, U.S.App.D.C. nature,” rather “implement[ing] than conduct (1987)). F.2d Relying 1154-55 such ... Nor decisionfs].” are we convinced Sanders previous federal decisions by appellant’s argument that because O’Neill reaching States, back to Dalehite v. United essentially claimed WMATA failed 346 U.S. 73 S.Ct. 97 L.Ed. 1427 him from attack a criminal third (1953) (construing Act),7 Federal Tort Claims persons, prin his suit fails under the settled we concluded that in most instances ciple operation “the of a is a force the issue of immunity comes governmental function.” Martin v. WMA question down to a alleged of whether its TA, (4th Cir.1981) (citation 667 F.2d of negligence acts are characterized as dis- omitted). cretionary decisions or ministerial execu- the bus driver was tion those decisions. negligent in following safety not WMATA’s (footnote omitted).8

Id. at 713 appropri- directives —rules which define the ate of in standard care this situation. O’Neill McKethean, In gist appellants’ “the of challenge adequacy does not of the rules complaint ... negli- [was] WMATA was themselves. Hence his suit does not inter- gent relocating stop in not [a] bus to a safer fere judgment ap- with WMATA’s as to the place” after widening a alleg- 1967 street propriate response, gradation respons- of edly existing made the stop hazard. While es, dealing to be followed its drivers in reiterating provision WMATA’s mass disruptive Indeed, transportation proprietary “is itself a activi- claim O’Neill’s that while in- was WMATA ty,” we held that array steps structed drivers design planning transportation aof responding conduct, to such the driver was system governmental are activities because negligent by reacting by doing not at all or they quasi-legislative policy involve deci- so points too late. judgment discretionary which sions are in nature and situations, its drivers must exercise in these second-guessed by jury. should not be safety but WMATA’s leave directives not Only negligent operation such a dealing drivers unbridled discretion system negligent implementation or the unruly passengers. While drivers are may such a design be characterized as expected unnecessary to avoid use of the proprietary. alarm, they silent are instructed activate added; Id. (emphasis at 713-14 passenger citations the external alarm when omitted). violates of the conduct ordinances or deciding 7. Our reliance tionaiy-ministerial on federal decisions was not sur- test in whether an prising: governmental activity proprietary "[w]hether an "gov- police, arrest WMATAtransit a classic question law federal be- yet a ernmental” function "ministerial” act when Compact cause WMATA is an Act of Con- officer, performed by police a District within was McKethean, gress.” at 588 A.2d scope sovereign immunity). the Still, of WMATA’s agreed we with the D.C. Circuit that "the sure, recognized, govern 8. We to be that "the 'discretionary function' standard is at least mental-proprietary test out as set in section 80 of " functions,’ McKethean, 'governmental subset of Compact necessarily the WMATA is not con Sanders, (quoting 588 at 4 A.2d 713 n. 260 gruent discretionary-ministerial with the test 9, 9), U.S.App.D.C.at n. 363 819 F.2d 1155 n. apply which we tort claims the District "appropriate speak so that it is acts McKethean, [of Columbia].” 588 A.2d at 713 n. 'ministerial,' 'discretionary' apply- even when alia, Columbia, (citing, 4 inter Wadev. District of governmental-proprietary (D.C. 1973) (en test." Id. On banc)). 310 A.2d 860 See WMATA, analysis (D.C.1983) "the both under also Hall v. A.2d id., same," (rejecting argument [was] tests and we reach the same that court should “abandon” governmental-proprietary test in favor discre- conclusion in this case. original). (emphasis in P.2d at 915 to acti- passenger, another and are harasses observing require “threats O’Neill’s suit did upon vate silent officer; minimum, as a bodily At a unless have acted harm.” situation, they in- means are he failed to summon would exacerbate disruptive he had been order to him and which structed to available instructed, steps they stop if such as the bus do not abusive or to take lesser leave short, the are not “di- stop conduct. In drivers them behavior or ordering the men carrying negligent” Supreme out rected to be leave the bus. What California rules, similarly Sanders to this applies Court has stated U.S.App.D.C. at F.2d at case: al- and it is that allege, nor do complaint Plaintiffs’ does leged. argue au- plaintiffs [the that RTD transit failing provide thority] negligent was this, Beyond the discretion WMATA’s guards on board police personnel or armed proper as to the means drivers retain Rather, plain- gravamen its buses. handling disruptive consid conduct cannot be driver, who complaint tiffs’ kind “discretionary function” of the ered pres- already was hired RTD was that, judgments at the because it involves and aware of the violent level, ent on the scene planning be immune policy and “should disturbance, absolutely nothing pro- did second-guessing by jury.” McKethe simply an, plaintiffs, continued fact that in a tect 713. “The wrong. nothing might alter drive the bus as particular case a bus driver native courses of action from which to choose at 914. Cal.Rptr. at 710 P.2d Id. 221 might a certain de and this choice involve sum, immunity sovereign did judgment, driv gree of does not elevate the alleged premised on the not bar this suit policy.’” decision to the level of ‘basic er’s carrying out ex- negligence of its driver in Transit, Rapid Lopez v. Southern California pro- for the safety intended press directives 840, 849, 780, Cal.Rptr. 221 710 40 Cal.3d passengers.10 its tection of (1985).9 907, P.2d 916 III. Proximate Cause that, analysis our as change

Nor does that, out, notwithstand points its rules are “an WMATA contends part, driver’s system ing any on its patron protection initial (em intervening of Jones ultimately police protection” criminal conduct results added), superseding cause Mallory being gov amounted phasis latter classic law, Hall, that, 8, chain of of broke the supra note 468 as a matter ernmental function. liability. 973; WMATA of causation and frees A.2d at see E. McQuillin, The Law of 53.29, is well established: of review here §§ & Our standard 53.30 Municipal Corporations, “[O (3d 1993). ]nly it is clear that ... where measures 53.31 ed. Just because con [people] could draw but one ordering reasonable passenger to leave the such ... alleged [does] clusion from the triggering an alarm “would have the effect or question[ of ] proximate [a] cause become protecting passengers criminal as of Columbia, 597 v. District ‘police law.” not transform them into Grant saults does (citation omitted). (D.C.1991) 366, Lopez, Cal.Rptr. 221 A.2d 370 protection services.’” States, chiefly U.S.App. relied 10. The two cases 199 9. See also Sami v. United 755, 18, 173, Transp. Pennsylvania v. Hus n. 18 Auth. D.C. (1979) 184 n. 617 F.2d 766 Southeastern States, 436, (1991), 229 (quoting v. United sey, Swanson A.2d 110 Pa.Cmwlth. 588 138 217, (N.D.Cal.1964)): Auth., F.Supp. Transp. 219-20 Metropolitan 55 and Weiner sense, government 141, every 175, of a In a strict action 433 124 N.E.2d 448 N.Y.S.2d N.Y.2d except employee, perhaps conditioned reflex Hussey (1982), inapposite. involved are both action, degree of involves the use of some regulations govern safely application express planning notion refers discretion. level transportation; the com in Weiner mass is, policy, involving questions decisions the inadequate police protection in the plaint financial, factors such as evaluation of subway. economic, giv- political, effects of a social plan policy. en or And we must view the favor rowdy evidence most intentional misconduct of the is O’Neill, ably crediting all evidence that superseding not a cause B’s harm. would establish causation. District Co Id., § 449 comment b. Davis, lumbia v. 386 A.2d 1200-01 The evidence here established (D.C.1978). paced apparently Jones the bus in an drunk required “A common carrier more, during en state for ten minutes protect passengers against or in assault permitted which he was make obscene peaceful completion terference with the increasingly threatening remarks to other journey.” Ry. their Matthews v. Southern enough This time 263, 264-65, Sys., U.S.App.D.C. 157 F.2d woman to ask the driver to inter (1946). danger “If 610-11 (and vene to leave the bus when he failed intervening negligent or criminal act should so) and for O’Neill to make a similar reasonably pro have anticipated witnessing after demand additional abusive against, tected will the defendant be held behavior. then sat behind down responsible damages for the which result de nearly O’Neillfor a minute and cursed at him spite entry another act the chain of pointed finger in his face. On these causation.” St. Fire Ins. Paul & Marine Co. facts, fairly could conclude that the Corp., v. James G. Davis Constr. 350 A.2d beating eventual O’Neill was some (D.C.1976). that, It is when the true thing reasonably the driver “could not intervening act involves criminal rather than anticipated.”12 District Columbia Transit negligent party, “[t]he conduct a third (D.C. Sys., Carney, A.2d Inc. question simply whether criminal act 1969). It find properly also could foreseeable, duty but whether a exists to driver should have switched on the guard against take measures to it.” Cook v. alarm, both, or the well silent before (D.C. Stores, Inc., Safeway O’Neill; minimum, Mallory or, beat at a 1976) (citation quotation and internal marks stopped he should have the bus and ordered omitted; emphasis original). But where a pair desist else leave bus. exists, special relationship such as between a (Jones, note, obeyed we the driver’s ear passengers, common carrier carri and its lier order return to the front undeniably pas er has a fare). Thus, pay and the of the chain causa sengers from from arising foreseeable harm leading battery tion to not the O’Neillwas criminal conduct of others. Restatement “highly extraordinary retrospect,” Lacy in 314A(1)(a) § (Second) and com of Torts Columbia, 424 A.2d 320-21 District of (1965).11 d, e; § ments 302B The Restate (D.C.1980), finding on jury’s and the this gives principle this an illustration of ment must be issue sustained. similar to the facts this case: of jury’s im also attacks the WMATA Railway Company permits

The A a num- plicit triggered finding if the had day ber of drunken ride in its rowdies to alarms, both, police the could either of by coach. effort made No conductor prevent in the assault. them, have arrived time to eject although or train crew to their first, assumes, argument negli This that the to insulting threatening conduct is gence by jury only of found consisted other One of the rowdies at- alarms; B, but, trigger tempts failure to as we have to take liberties with a female seen, jury reasonably passenger, and in the her. could find that scuffle harms "[V]irtually passenger while threatened the woman in all courts and all commentators Jones ignores have who considered issue concluded the front. But this fact that the two duty passengers state, that a common carrier's to together bus in a men boarded the drunken duty by includes a to them from assault passengers in the and that while Jones harassed passengers.” Lopez, Cal.Rptr. fellow front, Mallory did so in the back. It was thus not 710 P.2d at 910. Mallory would come to unforeseeable that passenger, Jones's aid in altercation with 12. WMATAasserts it was that Mal- unforeseeable progress nor that either them would lory would come to the front threatening attacking them. O'Neill, stayed in back attack since he juror average beyond in- ken of an anything, to do not was the driver’s failure asking cluding stop apply particular the men to or else leave conduct —to that standard bus, ordinary negligence. More- that amounted to the driver followed decide whether over, re- estimating responding in reasonable in in the circumstances care time, posits wrong time sponse fully WMATA jury in- disruptive The was conduct.13 isolating to min- frame “the 45 seconds guiding the rules the conduct formed of ute after turned his attention window pre- in the circumstances WMATA’s drivers punches [were] to Plaintiff and before sented; expert in- it needed additional ignores ten preceding thrown.” This applying struction in them the less) (or increasingly only slightly minutes case.14 up battery. menacing behavior that led There sufficient for the was evidence Discovery Sanctions V. Georgetown neighbor- find Finally, challenges the trial WMATA well within hood could have reached judge’s grant attorney’s to O’Neill as fees longer period. the ten minute or The pretrial for certain conduct. sanction Expert Testimony after judge IV. Absence of trial awarded O’Neillfees WMA- (or supplemental “reply”) TA filed a brief was “WMATAcontends that O’Neill summary judgment support of its motion for required present testimony expert upon previously un based outdated reasonably” the bus driver “acted whether safety procedures.15 disclosed notice exercising his discretion activate also of this notice caused belated disclosure alarms, with since that decision “not one reopen discovery at O’Neill’s judge everyday experiences in the realm of the of a discovery request, during this lay person.” Hughes v. District Colum produced bia, (D.C.1981). seventeen additional documents 425 A.2d This time, required pretrial further the first which argument fails least two reasons. First, discussed, preparation attorneys and result O’Neill’s already attorney’s ed in an additional award of fees. rules restrict its drivers’ discretion on what “grossly] judge found that WMATAwas being to do when a harassed discovery, negligent]” complying threatened another rider. To extent provide consequence had “been the rules themselves evidence of the Second, pressure in placed prepar- standard of reasonable care. it is under tremendous average person 13. We do hold WMATAto a "to use is unfamiliar matters control, management prisoner diligence” protecting prison Dis pas- care utmost Carmichael, trict Columbia sengers Lopez, from assaults other riders. Columbia, (D.C.1990); Hughes v. District su Cal.Rptr. (emphasis P.2d at 910 pra, proper procedures for with the adminis added). The standard reasonable care in the resuscitation, Toy tering cardiopulmonary Dis v. account, circumstances. This into the takes 1, Columbia, (D.C.1988), or trict 549 A.2d 7 hand, "passengers of one fact no the that of automobile collisions. with reconstruction and, if control over who is admitted on the bus Davis, 165, (D.C.1992). v. 606 A.2d 170 WMATA arises, dependent wholly upon trouble are the buses; to can be assumed to have ridden Jurors provide help a of summon means sympathize a with the fact that understand and 845, escape,” Cal.Rptr. id. 221 710 P.2d bus”; primary is to "drive driver's 912; and, hand, job the other that the of experience— yet have the common sense and bus, policeman. a driver is drive not act as knowledge di by WMATA’s own aided of safety "is of its WMATA not insurer an. a whether enable them decide rectives—to Sys., passengers.” District Columbia Transit prevent steps a driver has taken reasonable Carney, Inc. 254 A.2d foreseeable act of violence. authority suggesting 14. WMATA that its cites notice, judge that issued 15.The trial found testimony supervi directives and the 1978, superseded May had been to bus drivers in convey explaining sors them was insufficient to July issued March 1986 notices necessaiy "expertise” jury. cita The May that the silent alarm The 1978 notice stated out, provide inapt. point tions it does are To as only bodily harm was to be used for threats does, average juror weapons present; WMATA that has never later notices where engage "passenger dealing with appeared driven a bus or had to for use in call bodily acknowledging that "threats of harm.” control" on bus not like 842 attorney’s E.g., for trial and incurred attendant and tion of fees under Rule 37. [had] Abdemoulaie, 686,

unnecessary expenses.” Ungar Motors v. 463 A.2d (D.C.1983) (“The appellant, fact that possibly through negligence, its own failed judge WMATA contends that comply discovery request with suffi by awarding erred a threshold matter” “[a]s justify imposition cient to of some sanc attorney’s Super.Ct.Civ.R. 11 fees under (footnote omitted)). tion the trial court” agree rather than Rule 37. doWe not judge WMATA that the the mat “decid[ed] Affirmed. sure, portion ter under Rule 11.” beTo the fees awarded was for “costs associated MACK, Judge, dissenting: Senior filing opposition [O’Neill’s] summary judgment motion for [WMATA’s] Let me start with the obvious. basic which was based on outdated information.” issue not a one before us is criminal proper Rule was the basis for that sanc one, namely liability civil the financial Casualty tion. See Kleiman v. Aetna & Sur. federally-authorized trans- tri-state/district Co., (D.C.1990). 1263, injuries portation entity passen- to a bus awarded, however,

bulk of judge the fees the ger as a result of a criminal act committed plainly were for what she described as Moreover, parties. “simple third this is not a negligence performing its dis ease,” negligence appellee’s counsel would covery obligations. Although judge did Quite apart from have us believe. the tran- 37, cite not to Rule her citation to Weiner script, papers comprise an avalanche of Kneller, (D.C.1989), (motions, 557 A.2d 1306 leaves no responses, record this case statements, memoranda, doubt she exercised her discretion under oppositions, inter- argues may rule. exhibits, WMATA fees not rogatories, stipulations, depositions, etc.) against citing be awarded it under complexity Rule attests to the of the issues 37(f) (“Except permitted question Rule to the extent legal law and fact. There is a statute, expenses us, may governmental immunity and fees not be before as well as ... validity jury finding awarded the District of Columbia factual issue of a Rule”). may may of negligence. under this WMATA equating

be correct in itself with “the Dis rule, trict of Columbia” under the but we I. decline to reach the contention because it is petition raised for the first time in WMATA’s today, its decision court constricts rehearing rehearing en banc. holding of McKethean v. Cf. Murphy, District Columbia v. No. 92-CV- (D.C.1991). majority’s A.2d 708 While the (D.C. 1993); slip op. 5at December distressing narrow statement of Keating Energy Regulatory v. Federal Com verdict, may support it does not follow mission, 353-54, U.S.App.D.C. finding liability compels the verdict (1991). F.2d Nor did the trial part “imputa on the of WMATA. 625-26. Under judge otherwise abuse her discretion.16 The agent principal” tion of importance judge’s here, attaches to theory employs the facts must finding totality, that its late disclosure of the docu merely be in their viewed misplaced, espe light “willful” is Appel ments was not favorable to the most verdict. lee, cially given finding gross negligence. by focusing the his claim on the bus driver’s behavior, required support Willfulness is not sanc the court’s attention diverts from discovery “any only discovery 16. O'Neill asked to O’Neill after had in and furnished had fact, however, reopened. all documents ... which relate or refer to the been In WMATA’sat- by passen- torney specifically only asked measures used WMATA had him the procedures. judge’s gers.” supervisor Bailey The that 1978 notice of testified initially request finding put he had received worded in to considerable expense attorneys by the late this manner from WMATA’s this additional disclosure sev- case, liability provided all he would documents re- enteen documents relevant WMATA’s lating including by systems, supported to the bus alarm those the record. case, adequacy diately (causing the brakes both the slams on issue in this the threshold fall) directives, activates the men to both safety plan and of WMATA’s summoned lights and the silent which immunity from of WMATA’s tort scope the ensuing the nearby police. struggle, In the liability.1 light, proper in its this Viewed youth comes forward and administers second presented to a case should have never been causing injury to beating, a brutal serious jury- appellee. that culminated in a The chain events parties place third took criminal assault II. began period minute which with over ten at In McKethean undoubtedly quite fa- occurrence that is an careening case in which the automobile city’s public drivers —two miliar to this bus tragic the of a drunken motorist caused youths boarding a trouble-bound bus drunk injury pas death or severe nine would-be city this in the Georgetown area of late sengers stop, discussed the bus we evening night. In hours of a summer this (and, times, unique confusing) governmen instance, the one of them route to rear tal/proprietary legal status WMATA. bus, young He wom- the stumbles. accuses rejecting the had been claim having tripped an in front of the bus of the safety precautions failing to take negligent obscene, him, obnoxious, and then directs an design stop, respect we the threatening verbal tirade toward her. design held the function is within the driver, continuing The route while his (immunized) “discretionary” sphere of WMA keeping eye youth,2 a watchful on the hostile Id. at 713 n. 4.4 We noted TA’s actions. twice, (possibly turns around least once respect opera to the that actions taken with testimony according to his own and that of an of WMATA tion and maintenance functions youth eyewitness)3 requests go that the (non-immunized) implicitly are “ministerial” — (The the the back of bus sit down. sphere of an including within this the actions youth in the rear of second remains seated injury negligent employee who causes driver, bus, the outside the view of the “mak- a WMATA vehi operation or maintenance of faces.”) In response to the di- driver’s However, liability of cle. we limited rective, initially youth the first retreats to “the WMATA to those instances bus, back of but then returns neg directly injury alleged attributable to his woman he continue tirade operation, ligent and not maintenance and tripping accused of him. faulty design.” negligent or (quoting n. A.2d at 714 Dant District youth appellee When first overhears Columbia, U.S.App.D.C. 829 F.2d 69 request expel youths driver from added)). (1987) (emphasis bus, turns his hostile attentions during appellee. After 30 seconds which he colleagues the “discretion My state verbally range, proper threatens close WMATA’s drivers retain as disruptive youth appel- handling conduct cannot driver sees the touch means of ” ‘discretionary function’ finger. lee’s his driver imme- be considered nose with light difficulty appellee favorable to majority recognizes the evidence in the most very general would have had in the event that he structured tells jury’s verdict us verdict. The challenge safety procedures noted, his as to (which, claim so jury as I have what the little about themselves, stating: heard the case in first in- not have should stance) challenge adequacy O’Neill does respect to an order or concluded with his does not in- rules themselves. Hence suit instructed that request. The here was judgment ap- as to the terfere with WMATA’s is whether issue "in case responses, propriate response, gradation care and fol- law executed common dealing to disruptive passengers. be followed its drivers regulations promulgated lowed rules Washington Metropolitan Au- Area Transit year- plausible carrier"). the 47 (defined 2. This assertion since thority” aas "common years, old-driver had driven trucks for some including years, tractor trailers for 28 before speak appropriate to of acts “discretion 4. It being by hired WMATA. applying the ary” even when or "ministerial’’ governmental/proprietary test. See acknowledge eye- My colleagues conflict in the testimony suggest interpret supra that we witness liability. youth such that from back kept immunized of the bus. He under added.) abruptly stopped He observation. (Emphasis language speaks This physical touching the instant the choice, itself. I believe WMATA’s as an immediately occurred and activated the organization, design safety system to so system to police. summon necessarily as to afford its drivers reason- driver, I believe situation degree dealing able of discretion with un- case, presented by reasonably con- could ruly passengers does constitute a discretion- clude that an the verbal threats of unarmed (immunized) ary decision under the terms of apparently incapacitated youth, although And, McKethean. I find because obnoxious, not rise to the level of a real did sphere driver’s actions were within the of danger passenger safety until an actual discretion him allowed under safe- touching occurred. driver Indeed the testi- (see ty discussion, design my infra), I cannot fied that he considered himself control of injury conclude that here was touching. the situation until observed directly negligent attributable to the driver’s This conclusion was reasonable in view of the implementation of it. nearby fact that he knew were

and that he had been warned unnec- essary Appellee use of the alarm. concedes III. in his Georgetown brief that since the area is adopt If I my colleagues’ legal heavily patrolled, police so assistance would sovereign conclusion that WMATA’s immuni- necessary disrup- not have to abate ty instance, did not it in this I would tive behavior and adds that the driver all nevertheless find that the WMATA driver would tell have had do was to the first negligent. was not youth to sit down. distinguishable This case is on its facts duty regard The of a common carrier with Lopez Rapid Southern passenger safety is the exercise of “rea California Transit, Cal.Rptr. Cal.3d sonable care.” District Columbia Transit (1985), by P.2d ease the California cited System, Carney, Inc. There, majority.5 working a bus driver (D.C.1969); also (Second) see Restatement specifically route that the court noted was 314A(1) (1965). § The mere fact of Torts (violent particularly dangerous known to be that an assault occurred on bus is not daily weekly incidents occurred with fre- enough to establish a breach standard quency) absolutely as a nothing did verbal care, for a reasonable “common carrier is physical altercation escalated into a assault. passen an insurer of the of its Lopez, danger the threshold level of nec- gers.” System, District Columbia Transit essary find “unreasonable risk” neces- duty 254 A.2d at 403. The carrier’s common action, sitate lower than it on the facts only passen presented to act arises when the risk in the instant case. case is instructive, however, in to sur- its attention ger becomes “unreasonable” one. Re rounding determining circumstances when Torts, supra, (Second) com statement required. action is ment e. (as by appellee’s claim stated ma- IV. jority) duty is that driver breached his of My safety policy colleagues cite WMATA by reacting reasonable care “not at all or of care directives as evidence of the standard doing so too late.” But do not applicable here, and conclude that the driver support this claim. The did react. duty I failed to fulfill his account, By his own which was corroborated agree. Indeed WMATA’s directives to geared recognition witnesses, bus drivers one of are the bus driver re- public. its link to drivers are sponded youth’s to the verbal attack on the him, tripping woman he turn- accused recognize re- These directives that with maintenance, asking youth go spect operation around and to safe Lopez distinguishable legally, protecting 5. The case is also of “utmost care" interpret compact Lopez interpreting provi- in that we are court was from harm. Here Congress specifically sion of which does not con- the California Code which authorized tain placed upon heightened provision. specific common carriers a such a operators should use role. The plays significant driver a most cautioned emergency only is a REAL alarm when there “The who is driver is also Ambassador” defined as: public public link to the WMATA’s —the 1. Assault operator representa- an not as a views bodily harm 2. Threat of company Company.” “The tive of but as Robbery 3. expected well-groomed, He or she is to be illness/injury. 4. Acute courteous, attentive, well-man- patient, may from the Appellee take some solace ejection years has nered. Over forcible Ne- change wording in the of the directives. generally discouraged pro- one time —at vertheless, quickly developing in this respect to hibited —even with situation, it difficult to con- unforeseeable pay to a who were under who refused fare or responses clude were unrea- driver’s Passengers may the influence of alcohol. be light and over- sonable in those directives ejected forcibly dangerous, disorderly for or policies. all only offensive conduct but as a last resort agree, even I were to for Moreover following procedures after as such enlist- argument, purposes of the driver employee may An use witnesses. force care, I breached his would remain only repel to an attack himself or proved has unconvinced that respect activity, a herself. With to criminal proximate was cause of breach directly perform police bus driver not to a Here, intervening injuries. there was cooperate function but is to' with act. Such acts break the chain criminal insuring safety. procedures gov- heightened showing absent “more causation erning response disruptions bus driver foreseeability.” A.2d See and, the bus have been modified over time at 716. necessity, significant allow discretion to the here, presented I not find On the facts driver. foreseeability necessary to heightened through chain causation sustain the Operators” Thus an- “Notice to According to of the criminal act. commission system nounced that a silent alarm would accounts, young all man who adminis- operative enabling become drivers to sum- who beating tered was the one the brutal police. mon prohibited Its use for paced making verbal the aisle the bus than: occurrence other passengers; rather sat threats to operator An physical 1. actual assault range of the back of the bus outside vision, accounts, passenger(s). or me- making, by trial driver’s unruly fact nacing faces. The knives, bodily A2. threat of harm where youths and exhibited were inebriated guns, weapons are displayed or other- weakened, strength- weapons, rather than inwise evidence. ened, ability intent or their awareness Robbery where the use or threat And, un- seriously assault other apparent use force violence is and/or which individ- fortunately, frequency clearly indicated. verbally threaten others uals insult and city public spaces of our diminishes Physical passen- harassment necessarily expectation that such behavior (3 ger gang (s)/employee(s) more physical assault. precursor persons). 1986,6 year y. the same that the Metro, in this case was hired a “Notice to unfair “second Finally, I believe it is Operators” expressed rigid ab- concern about the construc- and after-the-fact guessing” driver, place upon a unarmed reports policy tion of normal of silent alarm number Operators” conduct ordinances desist. Violations 6. Meanwhile "Notice Passenger appropriate example informed drivers of “Metro Conduct cause as an were listed prohibiting Ordinance” ing, eating, refusing activities smok- such while for activation fare, littering. pay destination; lights were toward its continued report of these activi- Drivers were to incidents as a silent substitute be used offending prosecution if the ties passenger simultaneously it. polite request refused a to cease police procedures, and untrained in the brunt society’s in coping burgeoning burden

crime. asking This is too much even of a good-will “ambassador” system. of a transit

It is unreasonable to conclude that while armed Metro (functioning under the compact) are embraced the sta- (see, immunity tus of e.g., Hall v. (D.C.1983)), unarmed bus cooperating drivers to deter crim- activity inal are not so embraced. While the theory imputing liability agent principal might have the desired effect of

making whole, a victimized

must be balanced the undesired ef- limiting fect of agent discretion of the exposing thus pas- driver and other sengers greater to risks of escalating still violence, ultimately injury. Under the here,

circumstances the fact that the driver systems activated the alarm only when ver- bal physical threats turned to a touching did negligence. constitute

I would hold that McKethean dictates that compact the WMATA itself renders WMATA legally immune from this claim. FLEMING, Appellant,

Richard L. COLUMBIA, Appellee. DISTRICT OF No. 92-CV-322. Fleming, pro Richard L. se. District of Appeals. Columbia Court of Lattimore, III, Phillip Corp. A. Asst. Counsel, Payton, Argued Corp. with whom John June 1993. Counsel, Reischel, Deputy Corp. Charles L. Decided Nov. Counsel, Bixler, Sidney Corp. R. Asst.

Counsel, brief, appellee. ROGERS, Judge, Before Chief SCHWELB, Judge, Associate GALLAGHER, Judge. Senior SCHWELB, Judge: Associate Fleming appeals Richard L. from the trial judge’s February denial on 1992 of his motion for “reconsideration” of an order is- judge September sued

Case Details

Case Name: Washington Metropolitan Area Transit Authority v. O'Neill

Court Name: District of Columbia Court of Appeals

Date Published: Feb 8, 1994

Citation: 633 A.2d 834

Docket Number: 92-CV-507

Court Abbreviation: D.C.