Washington Metropolitan Area Transit Authority v. Tinsley

KRAUSER, C.J. After slipping and falling on a wet train platform at a Metrorail station, Veronica Tinsley, appellee, brought a negligence action, in the Circuit Court for Prince George’s County, against the Washington Metropolitan Area Transit Authority (“WMATA”), appellant, for the injuries she sustained as a result of that fall. After a jury found in favor of Tinsley and awarded her damages, WMATA noted this appeal, presenting ¹¹⁸ three issues, 1 one of which is whether Tinsley’s suit was barred by governmental immunity. Because we hold that it was so barred, we reverse the judgment of the circuit court. As that decision, in effect, concludes this litigation, we do not reach either of the other two issues raised by WMATA.

BACKGROUND At about 4:45 p.m. on December 19, 2007, Tinsley lost her footing on a train platform at the Metrorail stop in Cheverly, Maryland, and fractured her right ankle. At trial, Tinsley testified that, when she arrived by train at the station, the entire floor of the platform was wet. Upon leaving the train, she did not see any warning cones, but, nonetheless, walked carefully toward the elevator. As she neared the elevator, she saw a “wet floor sign that was tucked back by the side of the elevator.” Then, finding the elevator out of service, she walked towards the escalator.

As she did, her left foot slipped out from under her and she fell. Tinsley introduced into evidence the redacted videotaped deposition of Francis Mullen, an architect accepted by the court “as an expert in the area of architecture and safety.” Mullen deponed that, based on “deposition testimony”—whose testimony he did not specify—“the platforms are supposed to be cleaned after 7 o’clock when the peak period is over for the day.” Then, relying on climatological records from the United States Department of Commerce for Dulles International Airport, Mullen noted that the weather on the day of the accident was cloudy, with a dewpoint around 23 degrees Fahrenheit, air temperature ranging from 30 to 40 degrees Fahrenheit, an average relative humidity of 70 per cent, and with no precip ¹¹⁹ itation. The platform could not have therefore been wet, he opined, as the result of condensation. Mullen then described a test he conducted at the train platform in Cheverly, using the cleaning agent “Super Shine-All,” a product WMATA used to clean its train platforms.

He began by measuring the floor’s slip resistance at three different locations in proximity to where Tinsley fell. At each location, he measured slip resistance on a part of the floor which was dry, on a part of the floor which was wet with water only, and on a part of the floor which was wet with a mixture of water and Super Shine-All. After explaining that the greater the coefficient of friction, 2 the more slip-resistant the surface is, he said that the test revealed a coefficient of friction ranging from 0.25 to 0.3, where the floor “was wet with the solution of Super Shine-All diluted as the manufacturer says to dilute it”; to “close ... to .5,” where the floor was wet with only water; and to “slightly below. 8,” where the floor was dry. Mullen said that a coefficient of friction of 0.5 was a minimum safe standard for floors where people were expected to walk.

Before applying the Super Shine-All for that test, Mullen diluted it with water, as directed by the manufacturer. He then applied it to the floor with a damp mop so as to “create a thin film of liquid on the floor.” While the floor was still wet, he measured the floor’s slip resistance. Although he applied the mixture of Super Shine-All and water with a mop and not a cleaning machine, as WMATA routinely does, he maintained that it was “not necessary” to do so. When pressed with the fact that the cleaning machine applies suction to the floor to remove much or most of the ¹²⁰ water from the floor as it is being cleaned, Mullen countered that it “apparently doesn’t vacuum all of the liquid off of the floor because all of the accounts say that it was entirely wet” when Tinsley fell.

In addition to Mullen, Tinsley called several WMATA employees to testify during the presentation of her case-in-chief; among them were Michael Myrick, Linwood Vaughn, and Barbara London. Michael Myrick, a custodian, testified that, while working the 3:00 to 11:30 p.m. shift, he would spot clean the floor, including the floor at Cheverly, using a mop and bucket. He said that there were no time restrictions on when he was allowed to mop the floor and that Super Shine-All is “one of the products that [he] use[s] in a mop and bucket.” Linwood Vaughn, a cleaning machine operator, testified that, during his training, he was told that he was supposed to clean the platforms “after rush hour.” His practice was to clean the platform, including the one at Cheverly, using the machine and Super Shine-All. He used a mop and bucket only to “cut corners,” that is, to clean floor areas that are inaccessible to the cleaning machine.

If, however, there was “a water problem or something, you could run [the machine] any time.” Barbara London, the Station Manager, testified regarding periodic inspections she made to monitor for any safety problems. Her checklist for the day of the accident indicated that she had performed inspections at 1:30 p.m., 2:30 p.m., and 3:30 p.m. At no time did she observe any problems such as water leaks or broken pipes. At the close of Tinsley’s case, WMATA moved for judgment, contending, among other things, that “how it cleans its platforms and with what products or mechanisms it cleans its platforms, is something for which it’s immune from suit.” The circuit court denied the motion.

After reading the deposition of its medical expert into the record, WMATA called two witnesses: Freddie Ross, Assistant Superintendent and Cleaning Manager for WMATA, who supervises the Blue and Orange Lines, which includes the line ¹²¹ Tinsley was riding the day of her injury; and Barbara London, who had previously been called to testify by Tinsley. Ross testified that machine operators and custodians, in using a mop and bucket, are not restricted only to certain areas, but, rather, may use a mop and bucket anywhere on a train platform. He further stated that there was no time limitation as to when they could run the cleaning machine. London testified that, on the day of the accident, the weather was “sort of misty” and that there was condensation on the platform but conceded that she did not know why the platform was wet.

At the conclusion of her testimony, WMATA renewed its motion for judgment. After denying that motion, too, the trial court permitted the case to go to the jury, which found in favor of Tinsley, awarding $64,213.78 in damages. DISCUSSION WMATA contends that Tinsley’s claim was barred by sovereign immunity because the actions of its employees and agents, in maintaining its station, are shielded by that immunity. We begin our analysis with the observation that, because the signatories to the WMATA Compact—Maryland, Virginia, and the District of Columbia—conferred their respective sovereign immunities upon WMATA, Morris v. WMATA 781 F.2d 218, 219 (D.C.Cir.1986), this “inter-jurisdictional compact agenc[y]” is cloaked in sovereign immunity.

Proctor v. WMATA 412 Md. 691, 708 , 990 A.2d 1048 (2010). To determine the extent of that immunity, we look to section 80 of the WMATA Compact, a provision enacted to provide a “uniform treatment of WMATA” as “the signatories had differing rules on governmental immunity.” Martin v. WMATA 667 F.2d 435, 436 (4th Cir.1981) (per curiam). Section 80 of the WMATA Compact limns the extent to which WMATA has waived its sovereign immunity, Proctor; 412 Md. at 725 , 990 A.2d 1048 , by drawing a distinction ¹²² between what it calls a “governmental function” and what it labels a “proprietary function.” Actions committed in the service of the former are protected by sovereign immunity, but those performed in the service of the latter are not. Specifically, section 80 states: The Authority shall be liable for its contracts and for its torts and those of its directors, officers, employees and agents committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental junction.

The exclusive remedy for such breach of contracts and torts for which the Authority shall be liable, as herein provided, shall be by suit against the Authority. Nothing contained in this title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the zone of any immunity from suit. (Emphasis added.) Because Congress consented to the creation of WMA-TA by statutory enactment, Pub.L. No. 89-774, 80 Stat. 1324 (1966), and “congressional consent transforms an interstate compact within [the Compact] Clause into a law of the United States,” Cuyler v. Adams, 449 U.S. 433, 438 , 101 S.Ct. 703 , 66 L.Ed.2d 641 (1981), 3 interpretation of the WMATA Compact and, of course, this provision, is a question of federal law. Sanders v. WMATA 819 F.2d 1151, 1154 (D.C.Cir.1987); accord Proctor, 412 Md. at 707 , 990 A.2d 1048 .

That is, it is federal, not state, law which governs our determination of “whether the function in question is ‘governmental’ or ‘proprietary’ under” section 80. Sanders, 819 F.2d at 1154 . As there are no Supreme Court decisions interpreting either section 80 or, for that matter, any other provision of the ¹²³ WMATA Compact, for guidance, we look to decisions of the “federal circuits most likely to hear cases in which WMATA is a party,” that is, the United States Court of Appeals for the District of Columbia Circuit and the United States Court of Appeals for the Fourth Circuit. Lizzi v. Alexander, 255 F.3d 128, 134 (4th Cir.2001), abrogated on other grounds, Nev.

Dep't of Human Res. v. Hibbs, 538 U.S. 721 , 123 S.Ct. 1972 , 155 L.Ed.2d 953 (2003). To deal with the difficulty in determining whether a particular act occurs in the performance of a governmental or proprietary function, a difficulty which the Supreme Court has characterized as a “quagmire,” Indian Towing Co. v. United States, 350 U.S. 61, 65 , 76 S.Ct. 122 , 100 L.Ed. 48 (1955), those federal circuits have sidestepped the problem by crafting a two-part test. Smith v. WMATA 290 F.3d 201 , 206 (4th Cir.2002); Dant v. District of Columbia, 829 F.2d 69, 74 (D.C.Cir.1987). Under this judicially created test, which is not to be found in any federal or state statute, a court first determines whether the challenged activity occurs in the performance of a “quintessential governmental function,” in other words, functions that involve “obviously public activities,” Beebe v. WMATA 129 F.3d 1283, 1287 (D.C.Cir.1997), such as law enforcement, Dant, 829 F.2d at 74 ; Morris, 781 F.2d at 220 , or the creation of a public transportation system.

McKethean v. WMATA 588 A.2d 708, 714 (D.C.1991). If so, then governmental immunity applies; if not, the court must decide whether the governmental activity at issue is discretionary. If it is not discretionary, as where a “statute, regulation, or policy specifically prescribes a course of action for an employee to follow,” Berkovitz v. United States, 486 U.S. 531, 536 , 108 S.Ct. 1954 , 100 L.Ed.2d 531 (1988), the activity is “ministerial” and not protected by governmental immunity. If, on the other hand, the activity is “discretionary,” the court must decide whether it falls within what the Supreme Court has termed the “exception for discretionary governmental functions,” United States v. Varig Airlines, 467 U.S. 797, 814 , 104 S.Ct. 2755 , 81 L.Ed.2d 660 (1984), commonly ¹²⁴ referred to, by the federal appellate courts, as the “discretionary function exception.” 4 If the discretionary function exception applies to the challenged activity, then that activity, like activity falling within a quintessential governmental function, “constitute^ [a] ‘governmental’ activity] within the meaning of the ‘governmental/proprietary’ test” of section 80 of the WMATA Compact, Smith, 290 F.3d at 207, and is thus shielded from tort liability.

The term “discretionary function exception” may prove puzzling as it quite naturally invokes the question: “Exception to what?” To answer that question, we need to explain that this category of immunity was first articulated, by federal courts, in an entirely different statutory context, that is, in the setting of the Federal Tort Claims Act (“FTCA”). While, under section 1346(b) of the FTCA, the federal government waives its sovereign immunity as to “civil actions ... for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant,” it retains its sovereign immunity for what it designates as “Exceptions” under section 2680(a) of that Act. Those “Exceptions” are, among other things, “acts of discretion in the performance of governmental functions or duty ‘whether or not the discretion involved be abused.’ ” Dalehite v. United States, 346 U.S. 15, 33 , 73 S.Ct. 956 , 97 L.Ed. 1427 (1953) (quoting 28 U.S.C. § 2680 (a) of the FTCA) (emphasis added). 5 ¹²⁵ Because section 2680(a) is entitled “Exceptions,” that is, instances not affected by the general waiver of tort liability set forth in section 1346(b) of the FTCA, the federal courts, limning the boundaries of sovereign immunity under the FTCA, have universally used the term “discretionary function exception,” a reference to section 2680(a), when a governmental function is immune from tort liability under the FTCA. Later, the federal courts adopted the same term in defining the contours of immunity under the WMATA Compact, even though it has no comparable section labeled “Exceptions.” In other words, the federal appellate courts have incorporated the discretionary function exception of the FTCA into section 80 of the WMATA Compact for purposes of defining the boundaries of governmental immunity.

Dant, 829 F.2d at 74 ; accord Smith, 290 F.3d at 207. Because they use this term, so shall we to avoid inconsistent language in federal and state caselaw, which would no doubt create more confusion than the phrase itself already has. See, e.g., Smith, 290 F.3d at 207 & n. 10. A governmental act falls within the discretionary function exception if it “regularly requires judgment as to which of a range of permissible courses is the wisest.” United States v. Gaubert, 499 U.S. 315, 325 , 111 S.Ct. 1267 , 113 L.Ed.2d 335 (1991).

As to such acts, WMATA “is immune from any claim, ‘however negligently caused, that affect[s] the governmental functions.’ ” Smith, 290 F.3d at 207 (quoting Dalehite, 346 U.S. at 32 , 73 S.Ct. 956 ). In further determining the contours of the discretionary function exception, the Supreme Court has said that “it is the ¹²⁶ nature of the conduct, rather than the status of the actor, that governs ... in a given case.” Varig Airlines, 467 U.S. at 813 , 104 S.Ct. 2755 . And, “[i]n examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee,” as “conduct cannot be discretionary unless it involves an element of judgment or choice.” Berkovitz, 486 U.S. at 536 , 108 S.Ct. 1954 . Indeed, if a “federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,” then that conduct is not discretionary, because “the employee has no rightful option but to adhere to the directive.” Id.

If, on the other hand, “the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield,” that is, “governmental actions and decisions based on considerations of public policy.” Id. at 536-37 , 108 S.Ct. 1954 . But the discretionary function exception, as expounded by the Supreme Court, encompasses “more than the initiation of programs and activities.” Dalehite, 346 U.S. at 35 , 73 S.Ct. 956 . “It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations,” as well as the “acts of subordinates in carrying out the operations of government in accordance with official directions” because, otherwise, “the protection of § 2680(a) [of the FTCA] would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superior, exercising, perhaps abusing, discretion.” Id. at 35-36, 73 S.Ct. 956 . 6 ¹²⁷ There are, however, “discretionary acts performed by a Government agent that are within the scope of his employment but not within the discretionary function exception.... ” Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267 . Those acts are not immune to tort liability because, as the Supreme Court explained, they “cannot be said to be based on the purposes that the regulatory regime seeks to accomplish.” Id. To illustrate that point, the Supreme Court later gave the following example of such a discretionary act: If one of the officials involved in this case drove an automobile on a mission connected with his official duties and negligently collided with another car, the [discretionary function] exception would not apply.

Although driving requires the constant exercise of discretion, the official’s decisions in exercising that discretion can hardly be said to be grounded in regulatory policy. Id. See also Dalehite, 346 U.S. at 28 , 73 S.Ct. 956 . Thus, not all discretionary acts performed by governmental actors fall within the discretionary function exception and are thereby shielded from tort liability.

Berkovitz, 486 U.S. at 537 , 108 S.Ct. 1954 . Although, as previously noted, there are no Supreme Court decisions interpreting the WMATA Compact, several of its decisions interpreting the FTCA are relevant to our analysis, given that federal case law has engrafted the discretionary function exception of the FTCA onto the WMATA Compact. Two such cases are United States v. Gaubert, supra, 499 U.S. 315 , 111 S.Ct. 1267 , 113 L.Ed.2d 335 , which discusses where the discretionary function exception applies, and Berkovitz v. ¹²⁸ United States, supra, 486 U.S. 531 , 108 S.Ct. 1954 , 100 L.Ed.2d 531 , which discusses where it does not. In Gaubert , the Supreme Court held that Federal Home Loan Bank regulators, accused of negligently supervising a savings and loan association that subsequently became insolvent, enjoyed governmental immunity.

In so holding, the Supreme Court examined the governing federal regulatory scheme and determined that the “agencies ... were not bound to act in a particular way.” 499 U.S. at 329 , 111 S.Ct. 1267 . Rather, “the exercise of their authority,” observed the Court, “involved a great ‘element of judgment or choice.’ ” Id. (quoting Berkovitz, 486 U.S. at 536 , 108 S.Ct. 1954 .). In fact, because “there [was] no statutory or regulatory mandate which compelled the regulators to act in a particular way,” nor was there any “prohibition against the use of supervisory mechanisms not specifically set forth in statute or regulation,” Gaubert, 499 U.S. at 330 , 111 S.Ct. 1267 , the Court was “convinced that each of the regulatory actions in question involved the kind of policy judgment that the discretionary function exception was designed to shield,” id. at 332 , 111 S.Ct. 1267 , that is, “the exercise of discretion in furtherance of public policy goals.” Id. at 334 , 111 S.Ct. 1267 .

On the other hand, in Berkovitz , the Supreme Court reached a contrary conclusion, though one not inconsistent with Gaubert . In that case, a two-month-old child contracted a severe case of polio, after ingesting an oral vaccine that had been approved by Federal agencies. The child and his parents brought suit, under the FTC A, alleging that the National Institutes of Health’s Division of Biologic Standards had wrongfully licensed the vaccine manufacturer to produce the vaccine at issue and that the Bureau of Biologies of the Food and Drug Administration had acted wrongfully in approving for release to the public the particular lot of vaccine from which the defective dose had been obtained. Both agencies, the plaintiffs claimed, “violated federal law ... regarding the inspection and approval of polio vaccines.” 486 U.S. at 533 , 108 S.Ct. 1954 . ¹²⁹ In rejecting the Government’s claim that the suit should be dismissed because the actions taken by the two agencies fell within the discretionary function exception, the Supreme Court first noted: “The discretionary function exception applies only to conduct that involves the permissible exercise of policy judgment.” Id. at 539 , 108 S.Ct. 1954 .

As a result, “[w'jhen a suit,” as in that case, “charges an agency with failing to act in accord with a specific mandatory directive, the discretionary function exception does not apply.” Id. at 544 , 108 S.Ct. 1954 . As for the claim alleging wrongdoing in releasing the vaccine lots, the Supreme Court examined the regulatory scheme and determined that it may have left “no room for implementing officials to exercise independent policy judgment.” Id. at 547 , 108 S.Ct. 1954 . If that characterization of the regulatory scheme were true, the claim would not be barred by the discretionary function exception, the Court pointed out, because it was “directed at a governmental action that allegedly involved no policy discretion.” Id. Although the