Maxwell v. Washington Metropolitan Area Transit Authority

CATHELL, Judge. Sharon Bovy Maxwell and James Maxwell, appellants, appeal from the trial court’s granting of a “directed verdict” in their negligence suit, finding that Washington Metropolitan Area Transit Authority (WMATA), appellee, had immunity from liability. 1 Appellants present three questions supported by several numbered arguments. We consolidate and rephrase the issues as: 1. Whether the evidence offered by appellants below was directed at WMATA’s alleged negligent design. 2.

Whether WMATA has immunity from suit based upon negligent design. We shall affirm. We hereafter explain, but are first constrained to comment on appellees’ use of transcript references rather than extract references. Prior to the adoption of the 1993 amendment to Maryland Rule 8-501, the parties in a civil case were required to include the relevant portions of the record in the extract or risk dismissal.

This was to ensure that each appellate judge sitting on a case had the necessary reference material readily available. The requirement that relevant portions of the record be included in the extract still remains. The 1993 amendment merely reduces the risk of dismissal by adding to Maryland Rule 8-501 this language: “The fact that a part of ⁵⁰⁵ the record is not included in the record extract shall not preclude a party from relying on it or the appellate court from considering it.” Appellee has been quick to take advantage of the amendment. In its brief, it cites to the extract twice and to the record (transcripts) twenty-five times.

The writer for the panel thus must either circulate the record to the other two panel members or copy the non-extract material to give to the other panel members for their review. The record of these proceedings comprises four circuit court file folders, six transcripts, and two folders of exhibits. The transcripts are 117 pages, 263 pages, 307 pages, 219 pages, 174 pages, and 9 pages for a total of 1,090 pages. The record probably weighs 30 to 40 pounds.

Rather than referring to one extract available to each of us, we have had to jump from one transcript to another, sometimes to several on one issue. We fear that if this type of transcript reference becomes a trend, we will spend more and more time “finding things” and less and less time “resolving things.” It is inefficient not to have the relevant information in one extract available to all judges. To have numerous direct references to the record, which can be in the possession of only one judge at a time and needs to be circulated to two other judges is, moreover, inefficiency incarnate, especially where, as in this case, one judge is in Wicomico County, one in Baltimore County, and one in Annapolis. If the use of direct references to the record, as in this case, becomes an accepted practice by the appellate bar, we fear this Court’s hard-earned reputation for prompt resolution of the issues before it cannot be maintained.

We would urge those who practice before this Court to include all relevant matters in the extract. We shall be reluctant to delay the resolution of those cases where all relevant information is contained in the extract, while we search through voluminous transcripts and records in a case where counsel has not included all relevant information in an extract. ⁵⁰⁶ We further caution appellate counsel that the amendment’s language keeps in place the mandatory requirement of extract inclusion and merely clarifies that we are not precluded from considering non-extract matters. We have never been precluded from considering the record when we have deemed it necessary. As we perceive the amendment, it was not intended to permit parties to ignore the provisions requiring extract inclusion and reference and substitute wholesale transcript or record references in their briefs.

The Facts WMATA was created by Act of Congress as an interstate Compact agency of Virginia, Maryland, and the District of Columbia. Its purpose is to provide and regulate regional transportation services for the District of Columbia and the surrounding Maryland and Virginia metropolitan areas. As relevant to the case sub judice, part of its function is to review the planning and design of a new parking garage at the Shady Grove Metrorail Station on WMATA’s Red Line in Montgomery County, Maryland. The garage is to be operated by Montgomery County.

WMATA’s participation with Montgomery County in the parking facility’s construction was governed by a “construction and lease agreement” between it and Montgomery County, as well as by the applicable federal statutes. The agreement provided, in pertinent part: Section 1.01. The County [Montgomery County] shall ... plan, design, construct and operate a parking structure .... Section 4-.01.

The County shall prepare, at its sole cost and expense, all design and construction plans and specifications necessary for ... necessary modifications to the WMATA facilities to accommodate the garage, which plans shall be submitted to WMATA for review and approval pursuant to Section 4.02 herein____ ⁵⁰⁷ Section 4.02. WMATA shall have ... the right of review and approval of the following: (a) functional and aesthetic design of the garage structure ... (b) Required revisions to existing vehicular access and internal circulation system---- Section 4-06. During construction the County shall provide alternative interim parking....

Section 4-07. Construction of the garage shall include any required modifications or repairs to access roads and the parking lot ... and shall be financed solely by the County.... Section 5.01. The County shall be solely responsible for the physical operation of ... the garage....

The garage shall be clearly marked as property of the County. Section 5.04. WMATA shall have a permanent right to approve all signs erected by the County.... Section 5.06.

The County will operate the garage facility within parameters established by the WMATA Board in compliance with the WMATA Compact requirements. Pursuant to the agreement between it and WMATA, the County, through a contract with Dustin, began to construct the garage. During construction, and as a part of the project included within the terms of the agreement, it was necessary that certain access roads be modified to accommodate a ticket dispensing machine. Dustin, for the County, began to construct the island where the machine was to be situated.

The island was still under construction at the time of the accident, though no work was in progress when the accident occurred. Appellants ran over the partially completed island while operating their motor vehicle in dark conditions. This suit for both property damage and personal injury resulted. We shall ⁵⁰⁸ address other facts as necessary in our resolution of the issues.

I. Appellants, in their complaint below, alleged that under the contract between WMATA and Montgomery County, the County was required to “construct and maintain said parking area.” In their negligence averment following factual allegations as to the accident, appellants state only that “the entrance ... was under the control of the Defendants or either of them,” that “the Defendants ... had negligently ... redesigned [the entrance,] ... had negligently failed to mark the entrance,” and that it “was inherently dangerous....” No other substantive averments of negligence were made. The expert witness’s testimony, as contained in the extract, 2 indicates the following: THE WITNESS [MR. SPREIREGEN]: My opinion as to ... this particular place ... was that it was hazardous____ Later an objection to his testimony was made: [DEFENSE COUNSEL]: Objection. Move to strike. [OTHER DEFENSE COUNSEL]: Objection. [DEFENSE COUNSEL]: ...

He has expertise in — he has been offered as an expert to the design— THE COURT: Objection sustained. Motion to strike granted. THE WITNESS: The alignment of the roadway was hazardous to an approaching driver. ... The alignment of the parking lot entrance, I believe, was such that it constituted a hazard..;.

A second factor is the signs. ⁵⁰⁹ [ANOTHER DEFENSE COUNSEL]: Objection as to anything dealing with signs. He has not been offered as an expert in signs. [THE WITNESS]: ... [T]he alignment ... was hazardous .... [T]he signs ... were inadequate. I would continue with the third point.... The striped line was in a poor position....

On the concrete curb, it was not painted yellow---There was no warning rumbling surface.... The painted line ... should have flared to the width of the concrete curb.... All of these ... constitute ... a real hazard.... ... It should have flared.

It should have divided out. That concludes the portion of the expert’s testimony contained in the extract. We have carefully read the testimony of the plaintiffs other witnesses contained in the extract. We note first that the parties’ extracted testimony is exceedingly sparse.

Appellants testified: [B]efore I knew what it was, there was this island right in front of me. I struck it____ ... [T]here were no lights, no light poles of any type.... He stated that the nearest light was approximately 100 feet away, and that there were no traffic signs or warnings. Mrs. Noble testified, “I do not remember seeing any signs, nothing that warned me.” Appellee argues in its brief that appellants had tacitly acknowledged in their motion argument before the trial court that the only evidence provided related to the design, not operation and maintenance, of the divider.

Our review results in that same conclusion. We note that appellants’ expert was qualified to testify about “[t]he design of parking lots and entrance and egress.” The only evidence reproduced in the extract relates to design and poor planning. Our separate ⁵¹⁰ consideration of the transcripts also confirms that the evidence presented below primarily related to design and planning defects. We shall thus for the most part concentrate our consideration on the issue of whether WMATA has immunity in respect to the planning and design functions.

The Law WMATA was created by the legislative bodies of Maryland, the District of Columbia, and Virginia, as well as by Congress. Maryland created and approved the Compact by Chapter 869 of the laws of 1965, first codified as Article 41, section 317-1 et seq. of the Annotated Code, 1957 edition, 1965 Cumulative Supplement. The legislation, as amended from time to time, is now contained in Maryland Code (1977, 1993 Repl.Vol.) section 10-201 et seq. of the Transportation Article. As far as we have discovered, there are no prior Maryland cases discussing the character of WMATA as a state or federal entity or the respective immunities it may enjoy in Maryland courts. 3 The cases discussing these issues are federal cases applying the federal governmental/proprietary distinction.

The purpose of the Compact as adopted by Maryland statute was to “create a regional instrumentality, as a common agency of each signatory party____” Id., section 10-204, 2 (emphasis added). Thus, to the extent it can be argued that WMATA is not an instrumentality of the United States, it would, of necessity, be an agency of the respective states, and not an agency of any local government. WMATA is expressly authorized to contract for and lease any of its facilities for operation by others. Section 80 of Article XVI “General Provisions” (Trans.

Art. 10-204, 80) provides: The Authority shall be liable for its contracts and for its torts ... committed in the conduct of any proprietary ⁵¹¹ function, in accordance with the law of the applicable signatory[ 4 ] ... but shall not be liable for any torts occurring in the performance of a governmental function. The exclusive remedy ... shall be by suit against the Authority. Nothing contained in this title shall be construed as a waiver by ... Maryland ... of any immunity from suit. [Emphasis added.] Thus, as a result of this statute, WMATA, if a Maryland State agency, has specified immunity under the Compact as to torts arising out of a governmental function.

Additionally, when sued in the courts of Maryland, it may have a preexisting general immunity that is expressly preserved by the specific provisions of the Compact. Thus, unless its general immunity was waived independent of this Compact, WMATA, if a State agency, would have general immunity in Maryland courts in respect to its actions. Even if it had waived State law immunity, it would still have immunity for governmental functions by reason of the explicit statement in this statute, as approved by Congress. While WMATA, as a Maryland agency, may have a greater immunity from suit in Maryland courts than that granted by subsection 80, it can have no less in any court.

We have long recognized that the doctrine of sovereign or governmental immunity generally protects the State of Maryland from suit unless ... waived by the General Assembly.[ 5 ] State agencies have normally been treated as if they were the State ... for purposes of immunity.... Board of Education v. Mayor of Riverdale, 320 Md. 384, 388-89 , 578 A.2d 207 (1990) (citation omitted). The State’s immunity is not dependent upon the characterization of its conduct ⁵¹² as governmental or proprietary — it is absolute unless waived. “Neither this Court nor the General Assembly ... has ever utilized the governmental-proprietary distinction with respect to the tort immunity of a state agency.” Maryland-Nat’l Capital Park and Planning Comm’n v. Kranz, 308 Md. 618 , 626, 521 A.2d 729 (1987) (holding immunity waived under specified statute). See also Rucker v. Harford County, 316 Md. 275, 297 , 558 A.2d 399 (1989); Katz v. Washington Suburban Sanitary Comm’n, 284 Md. 503, 509 , 397 A.2d 1027 (1979) (commission a state agency for immunity purposes); O & B Inc. v. Maryland-Nat’l Capital Park and Planning Comm’n, 279 Md. 459, 465-66 , 369 A.2d 553 (1977) (commission a state agency).

In Katz , it was contended that the commission was a local entity and thus had no immunity for its proprietary actions. The commission argued that it was “a ‘sister agency 1 to the ... Park and Planning Commission, and that the reasons for our [the Court of Appeals] holding in O & B, 279 Md. 459 , 369 A.2d 553 , that the Commission is a State agency, which had not waived its immunity from suit applied].... ”