WMATA v. Nash-Flegler ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 20-CV-455
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, APPELLANT,
V.
ALBERT NASH-FLEGLER, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2018-CAB-007644)
(Hon. Kelly A. Higashi, Trial Judge)
(Submitted September 24, 2021 Decided April 14, 2022)
Nimalan Amirthalingam, Andrew Butz, and Neal M. Janey, Jr. were on the
brief for appellant.
Justin Beall was on the brief for appellee.
Before BECKWITH and DEAHL, Associate Judges, and WASHINGTON, Senior
Judge.
DEAHL, Associate Judge: Albert Nash-Flegler was deboarding a Metro train
in the District when he slipped and fell on the platform. He sued the Washington
Metro Transit Authority (WMATA) alleging that he was injured due to its negligent
maintenance of its platform and its failure to properly warn passengers of the
2
platform’s icy and slippery condition. WMATA moved for summary judgment
arguing, among other things, that sovereign immunity insulated it from suit. The
trial court granted summary judgment on the negligent maintenance claim, but
denied summary judgment on the failure-to-warn claim, concluding that sovereign
immunity did not bar that claim from proceeding to trial.
WMATA now challenges the trial court’s denial of its sovereign immunity
defense to Nash-Flegler’s failure-to-warn claim in this interlocutory appeal.
WMATA first argues that the denial of sovereign immunity is an immediately
appealable order under the collateral order doctrine. That is an issue of first
impression for this court, and we agree with WMATA that the rejection of its
sovereign immunity defense is an appealable interlocutory order. See Abdulwali v.
WMATA, 315 F.3d 302, 305 (D.C. Cir. 2003); KiSKA Constr. Corp. v. WMATA, 167
F.3d 608, 610-11 (D.C. Cir. 1999). WMATA next argues that sovereign immunity
precluded Nash-Flegler’s suit from proceeding, because his failure-to-warn claim
challenged a discretionary decision that was “susceptible to policy judgment,”
bringing it within sovereign immunity’s protections. We disagree and affirm the
trial court’s denial of summary judgment on the failure-to-warn claim.
3
I.
Albert Nash-Flegler exited a train at WMATA’s Deanwood station late one
December night. He immediately slipped and fell on ice that had accumulated on
the platform. Although WMATA had placed one yellow warning cone on the
platform near the escalator, Nash-Flegler did not see it prior to his fall. Nash-Flegler
sued WMATA, claiming he was injured due to WMATA’s negligent failure to: (1)
maintain the platform by keeping it free of ice, and (2) properly warn passengers of
slippery conditions on the platform. WMATA moved for summary judgment on
both claims, which the trial court granted as to the negligent maintenance claim, a
ruling that is not challenged on appeal. The trial court denied summary judgment
on the failure-to-warn claim, and WMATA appeals that ruling.
The trial court rejected WMATA’s argument that it was entitled to sovereign
immunity from the failure-to-warn claim. The court reasoned that WMATA had a
duty to warn Nash-Flegler of slippery conditions on its platforms when those
conditions were “not as open and obvious” to him as they were to WMATA. It
rejected WMATA’s argument that it was insulated from the suit challenging its
employee’s decision to place a solitary yellow cone in the midst of a long Metro
platform. In the court’s view, although sovereign immunity might protect WMATA
4
from a suit challenging the adequacy of warnings that are actually provided, this suit
alleged an outright failure to provide any warnings because it was unclear whether
passengers could even “see the yellow warning cone on the station platform when
they exited the train.” For that reason, the court likened this case to one in which we
held that sovereign immunity did not insulate WMATA from a failure-to-warn suit
where WMATA provided no warnings and “did not provide a policy rationale for
its decision not to warn.” WMATA v. Barksdale-Showell, 965 A.2d 16, 22 n.4 (D.C.
2009). On the same grounds, the court found this case unlike Abdulwali, in which
the D.C. Circuit held that WMATA had sovereign immunity from a suit that
challenged not an outright failure to warn but “the design of [warning] signs” and
“the adequacy of the signs’ warning.” 315 F.3d at 305.
WMATA moved for reconsideration, asserting several potential policy
rationales that might have conceivably informed its agent’s decision to place a single
cone on the Metro platform, including a desire to avoid tripping hazards and
passenger bottlenecks. WMATA did not assert that those rationales in fact informed
its agent’s decision to place a single cone on the platform, but instead argued that
the decision about where to place the cone was “the type of decision that implicates
economic and policy judgment,” which in its view is sufficient to trigger sovereign
immunity’s protections. The trial court disagreed, reasoning “that an issue of fact
5
remains over whether [Nash-Flegler] could see the warning cone before he fell” and
that, if he could not, WMATA was not immunized from the failure-to-warn claim.
The court further noted that “WMATA’s policy arguments regarding the placement
of cones were raised only in its Motion to Reconsider and are not supported
anywhere in the record.”
WMATA appealed the trial court’s denial of summary judgment and its denial
of the motion for reconsideration. After WMATA noted its appeal, this court sua
sponte ordered the parties to address whether the trial court’s denial of sovereign
immunity was an appealable order under the collateral order doctrine.
II.
We first must address the threshold question of whether we have jurisdiction
to entertain this appeal from an interlocutory order denying WMATA’s claim to
immunity. Because we conclude that the order is appealable, we then address
WMATA’s challenge to the trial court’s denial of sovereign immunity.
6
A.
This court’s jurisdiction typically derives from its authority to review “all final
orders and judgments of the Superior Court.” See D.C. Code § 11-721(a)(1) (2012
Repl.); see also § 11-721(a)(2) (conferring jurisdiction over certain “interlocutory
orders” not at issue here). A final order is one “that resolves the case on its merits”
and leaves nothing for the court to do but “execute the judgment.” McNair Builders,
Inc. v. Taylor, 3 A.3d 1132, 1135 (D.C. 2010). A denial of a motion for summary
judgment, like the one now before us, is not a final order because it contemplates a
continuation of proceedings. Id. Such an order may nonetheless be immediately
appealable under the collateral order doctrine if it has “a final and irreparable effect
on important rights of the parties.” Id. (quoting Finkelstein, Thompson & Loughran
v. Hemispherx Biopharma, Inc., 774 A.2d 332, 339 (D.C. 2001)) (internal quotation
marks omitted).
WMATA argues that the trial court’s denial of sovereign immunity is
appealable under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 545-57 (1949). This threshold issue appears to be one of first
impression for this court. For the collateral order doctrine to apply, so that a non-
final order is nonetheless appealable, the order being challenged must satisfy three
7
requirements: “(1) it must conclusively determine a disputed question of law, (2) it
must resolve an important issue that is separate from the merits of the case, and (3)
it must be effectively unreviewable on appeal from a final judgment.” McNair
Builders, 3 A.3d at 1135.
WMATA argues, and Nash-Flegler does not dispute, that the first two criteria
are satisfied here. That is, it is undisputed that the denial of sovereign immunity
conclusively determined a disputed question of law, and that legal issue is important
and separate from the merits of the case. We agree on both points. As to the first
criterion, whether sovereign immunity applies is a question of law. Princz v. Fed.
Republic of Germany, 26 F.3d 1166, 1168 (D.C. Cir. 1994) (“entitlement to
sovereign immunity” raises “matters of law”); D.C. Hous. Auth. v. Pinkney, 970
A.2d 854, 860 (D.C. 2009) (“We review a trial court's determination regarding the
applicability of sovereign immunity de novo.”). The trial court conclusively
resolved the question both in its initial order denying summary judgment and in its
denial of the motion for reconsideration.1 As to the second criterion, sovereign
1
While the trial court suggested WMATA might ultimately have immunity
from liability if the evidence at trial demonstrated the warning cone was visible to
deboarding passengers—and so in that sense its ruling might be seen as inconclusive
or non-legal—that does not affect the analysis. The trial court conclusively resolved
the legal question of whether sovereign immunity protected WMATA from
proceeding to trial at all. That itself is an important question. Sovereign immunity,
8
immunity is an important question separate from the merits of the case. In Mitchell
v. Forsyth, the Supreme Court explained that “immunity is in part an entitlement not
to be forced to litigate the consequences of official conduct,” so that “a claim of
immunity is conceptually distinct from the merits of the plaintiff’s claim that his
rights have been violated.” 472 U.S. 511, 527-28 (1985). While Mitchell concerned
a qualified immunity defense, its reasoning applies just as readily to a sovereign
immunity defense.
The parties confine their disagreement on this threshold question to the third
criterion: whether the trial court’s denial of sovereign immunity would be
“effectively unreviewable if review is to be left until later.” McNair Builders, 3 A.3d
at 1136 (quoting Will v. Hallock, 546 U.S. 345, 353 (2006)). We agree with
WMATA that a denial of sovereign immunity is effectively unreviewable if it cannot
be reviewed until after trial. To understand why that is, we first note that WMATA’s
immunity stems from the compact in which Maryland, Virginia, and the District of
Columbia created WMATA and conferred their own sovereign immunity upon it.
in substantial part, “is an immunity from trial and the attendant burdens of litigation,
and not just a defense to liability on the merits.” Rush-Presbyterian-St. Luke’s Med.
Ctr. v. Hellenic Republic, 877 F.2d 574, 576 n.2 (7th Cir. 1989). Moreover, as we
explain infra n.5, we disagree with the trial court that WMATA’s entitlement to
sovereign immunity hinges on the visibility of the cone to deboarding passengers.
9
See Barksdale-Showell, 965 A.2d at 20; Pub. L. No. 89-774, 80 Stat. 1324 (1966)
(codified as amended at D.C. Code §§ 9-1107.01 to -1107.12 (2001)). That
immunity is essentially a statutorily conferred and circumscribed version of Eleventh
Amendment immunity that states themselves enjoy. Like the sovereign immunity
of states, WMATA’s entitlement to sovereign immunity “is an immunity from suit
rather than a mere defense to liability” and “is effectively lost if a case is erroneously
permitted to go to trial.” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144 (1993) (quoting Mitchell, 472 U.S. at 526)). A trial court’s
denial of a sovereign immunity defense therefore satisfies this third and final prong
of the collateral order doctrine.
The United States Court of Appeals for the District of Columbia Circuit has
reached the same conclusion. In KiSKA, for instance, the D.C. Circuit held that
WMATA’s entitlement to immunity was immediately appealable under the
collateral order doctrine. 167 F.3d at 610-11 (quoting Rendall–Speranza v. Nassim,
107 F.3d 913, 916 (D.C. Cir. 1997)). Similarly, in Abdulwali, the D.C. Circuit
concluded that the trial court’s denial of WMATA’s sovereign immunity defense to
a failure-to-warn claim—the very type of claim we confront here—was immediately
appealable. 315 F.3d at 304; cf. Hornstein v. Barry, 560 A.2d 530, 536 n.15 (D.C.
1989) (en banc) (D.C. Circuit’s precedents are particularly persuasive authority
10
where there is an interest in “harmony between court systems and uniformity of
result in the same geographical area”).
Nash-Flegler counters that in Will v. Hallock, which postdates those D.C.
Circuit opinions, the Supreme Court altered the calculus in a manner suggesting this
is not an appealable order. See generally 546 U.S. 345 (2006). We disagree. In
Will, the Court explained that “when asking whether an order is ‘effectively’
unreviewable if review is to be left until later” under the third prong of the collateral
order doctrine, “it is not mere avoidance of a trial, but avoidance of a trial that would
imperil a substantial public interest, that counts.” 546 U.S. at 353 (emphasis added).
In applying that test, the Court held that the trial court’s rejection of a defense under
the judgment bar of the Federal Tort Claims Act (FTCA)—which, had it applied,
would have barred plaintiff’s suit against government agents from proceeding to
trial—was not an immediately appealable collateral order. 2 Id. at 347. In reaching
that conclusion, the court detailed why FTCA’s judgment bar is not like a claim to
2
The judgment bar at issue in Will protects federal employees from suit where
the claimant has brought an action against the United States under FTCA, that action
has gone to judgment, and the suit against the employee concerns the same subject
matter. 28 U.S.C. § 2676 (“The judgment in an action under section 1346(b) of this
title shall constitute a complete bar to any action by the claimant, by reason of the
same subject matter, against the employee of the government whose act or omission
gave rise to the claim.”).
11
sovereign immunity, but is more akin to “the defense of claim preclusion, or res
judicata.” Id. at 354. That is because the judgment bar does not protect anybody
from suit absent its “essential procedural element,” namely, that it “can be raised
only after a case under [FTCA] has been resolved in the government’s favor.” Id. at
354. In short, the judgment bar at issue in Will is not designed to, and does not in
fact, protect anybody from the burdens of going to trial generally. It protects them
only from duplicative litigation where the United States has already succeeded in a
prior action about the same subject matter. For that reason, it could not be said to
advance “a substantial public interest” in avoiding trial altogether. Id. at 353-55.
Nash-Flegler also relies on this court’s opinion in McNair Builders, in which
we held that the trial court’s rejection of a private party’s claim to the judicial
proceedings privilege was not immediately appealable. 3 A.3d at 1142. The judicial
proceedings privilege protects litigants and their attorneys from “actions in
defamation for communications” made in the course of “judicial proceedings.”
Arneja v. Gildar, 541 A.2d 621, 623 (D.C. 1989). But just as the Supreme Court
did in Will, our court took pains to explain why the judicial proceedings privilege
“does not protect a substantial public interest of [a] ‘high order,’” McNair Builders,
3 A.3d at 1138, and we further highlighted sovereign immunity as a doctrine that
does protect such high-order public interests. Id. at 1139 (explaining that the judicial
12
proceedings privilege does “not compare with the public interests” of “preserving
the ability of officials to carry out their public duties” and “ensuring the sovereign
rights of states”); id. at 1141 & n.11. McNair Builders thus lends support to
WMATA’s view that this is an appealable collateral order, not to Nash-Flegler’s
contrary view.
Finally, Nash-Flegler argues that it is the limited nature of WMATA’s
sovereign immunity that renders its interests in avoiding litigation insubstantial for
purposes of the collateral order doctrine’s third prong. He stresses that WMATA’s
sovereign immunity is not an absolute bar to suit, but applies only when WMATA’s
actions are in the performance of a governmental function. See D.C. Code
§ 9-1107.01(80) (conferring immunity “for any torts occurring in the performance
of a governmental function”); see also infra Part II.B. It is true enough that there
are limitations on WMATA’s sovereign immunity, but the same is true of the
sovereign immunity enjoyed by the District itself. See Wade v. District of Columbia,
310 A.2d 857, 860 (D.C. 1973) (en banc) (“[T]he District is immune from suit only
if the act complained of was committed in the exercise of a discretionary function;
if committed in the exercise of a ministerial function the District must respond.”);
see also WMATA v. O’Neill, 633 A.2d 834, 838 & n.8 (D.C. 1993). Those limits on
the reach of sovereign immunity do not render the interests protected by it any less
13
substantial in cases to which it does extend. Because those interests can only be
effectively vindicated via interlocutory appeal, prior to any trial, we hold the denial
of WMATA’s sovereign immunity defense is an immediately appealable order.
B.
We now turn to the question of whether the trial court erred in denying
WMATA’s sovereign immunity defense. That is a legal question we review de
novo, Aguehounde v. District of Columbia, 666 A.2d 443, 447 (D.C. 1995), though
it “may turn on factual determinations that are made by the trial court,” to which we
owe deference, J.C. v. District of Columbia, 199 A.3d 192, 206 (D.C. 2018)
(remanding grant of sovereign immunity for further factual findings regarding “the
extent to which each specific action alleged was or was not driven by a District
policy”).
Under section 80 of the compact establishing WMATA and conferring
immunity upon it, WMATA’s immunity extends to acts “occurring in the
performance of a governmental function,” but does not protect it from suits for “torts
. . . committed in the conduct of any proprietary function.” D.C. Code
§ 9-1107.01(80). Our precedents have since interpreted that statutory test to be the
same “two-part test” that federal courts apply when interpreting the “discretionary
14
function” exception to the Federal Tort Claims Act. Barksdale-Showell, 965 A.2d
at 20 (citing McKethean v. WMATA, 588 A.2d 708, 713 (D.C. 1991)). In applying
that test, we first ask whether the lawsuit targets a “quintessentially governmental
activity”; if it does, immunity applies. Id. We need not dwell on this first question
as WMATA does not contend that it was performing a quintessential governmental
function here, nor do we think that it was. Our analysis instead focuses on the second
part of the test.
Under this second part, we ask whether WMATA was engaged in a
“discretionary function” that “involve[d] balancing various economic, political, and
social considerations.” 3 Aguehounde, 666 A.2d at 448. Immunity extends to those
discretionary acts to “prevent judicial ‘second-guessing’ of legislative and
administrative decisions grounded in social, economic, and political policy through
the medium of an action in tort.” United States v. Varig Airlines, 467 U.S. 797, 814
(1984); see also Wade, 310 A.2d at 860 (explaining distinction between
3
We often contrast discretionary functions with “ministerial” acts in which a
“statute, regulation, or policy specifically prescribes a course of action” so that there
is “‘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)). But,
importantly, not every non-ministerial act is a discretionary act protected by
sovereign immunity. “Only discretionary actions ‘grounded in social, economic,
and political policy’” are protected. Usoyan v. Republic of Turkey, 6 F.4th 31, 45
(D.C. Cir. 2021) (quoting Gaubert, 499 U.S. at 323)).
15
discretionary and ministerial acts). Discretionary activity “is not confined to the
policy or planning level,” and can include day-to-day operational activities, provided
the decisions at issue “involved an exercise of ‘political, social, or economic
judgment.’” Burkhart v. WMATA, 112 F.3d 1207, 1216-17 (D.C. Cir. 1997) (quoting
Gaubert, 499 U.S. at 323).
In this case, the trial court correctly observed that the record is devoid of any
political, social, or economic judgments that informed the WMATA employee’s
decision to place only a single cone on the Metro platform. WMATA contends that
is immaterial, so long as it can articulate some plausible policy considerations that
might have informed the decision about how or whether to warn deboarding
passengers about the platform’s conditions. WMATA manages to do that, as it
asserts that it may have chosen to limit the number of warnings to increase their
impact, and therefore efficacy; or that its decision to place but a single cone on the
Metro platform could have been animated by concerns about passenger panic and
bottlenecking had the warnings been more prevalent. What matters, in WMATA’s
view, is whether its actions were “susceptible to policy judgment,” KiSKA, 321 F.3d
at 1159, not whether there was an actual policy judgment made.
16
That paints with too broad a brush. “[N]early every government action is, at
least to some extent, subject to ‘policy analysis,’” and a decision is not protected by
sovereign immunity simply because it involves “the faintest hint of policy concerns.”
Cope v. Scott, 45 F.3d 445, 448-49 (D.C. Cir. 1995); Usoyan v. Republic of Turk., 6
F.4th 31, 45 (D.C. Cir. 2021) (same). When there is no evidence that a decision was
in fact animated by policy concerns, at least, sovereign immunity will apply only if
the “nature” of the decision itself is “fraught . . . with public policy considerations.”
Cope, 45 F.3d at 450; Usoyan, 6 F.4th at 47. “The mere presence of choice . . . does
not trigger” sovereign immunity. Cope, 45 F.3d at 449. Immunity extends only
“where the question is not negligence but social wisdom, not due care but political
practicability, not reasonableness but economic expediency.” Id. at 450 (internal
quotation marks omitted); Usoyan, 6 F.4th at 45.
The decision to place a single warning cone on the Metro platform—as
opposed to, say, many cones, or broadcasting a warning message to deboarding
passengers—is not a decision that by its nature is so fraught with policy
considerations as to bring it within sovereign immunity’s protections. This case is
in stark contrast to Abdulwali, on which WMATA places considerable reliance, in
that respect. In Abdulwali, the plaintiff alleged that WMATA had not provided
adequate warnings about the dangers of passing between Metro cars when it posted
17
“on each bulkhead door” signs “that read ‘No Passage—Except in Emergency.’”
315 F.3d at 303. The D.C. Circuit held that WMATA was protected by sovereign
immunity because the plaintiff’s suit was “aimed at the design of the signs as
specified in the Transit Car Contract” that WMATA had entered into when providing
the technical specifications of those signs. Id. at 305. The court reasoned that the
design of those warning signs “required judgments that were by their nature
susceptible to policy analysis” and that WMATA “makes discretionary choices
when establishing plans, specifications or schedules regarding the Metro system.”
Id. (internal quotation marks omitted).
The same is not true of a single WMATA employee’s seemingly random
decision (for all the evidence reveals) about whether and where to place warning
cones. It is a strain to conceive of that decision as an example of system planning.
Each failure-to-warn case on which WMATA relies involves relatively high-level,
policy-laden decisions that bear little resemblance to the challenged decision about
cone placement. See Dant v. District of Columbia, 829 F.2d 69, 74-75 (D.C. Cir.
1987) (holding that the complex design of its system-wide fare collection apparatus
is “approved by WMATA in the exercise of its policy discretion.”); Wainwright v.
WMATA, 903 F. Supp. 133, 138 (D.D.C. 1995) (noting that “[a]nalogous matters,
like whether to install traffic lights or roadway markings, have been deemed
18
discretionary as well” and finding that WMATA was immune from suit for its failure
to post presumably permanent warnings about the dangers of escalator comb plates);
Minns v. United States, 155 F.3d 445, 452 (4th Cir. 1998) (holding that “the decision
whether to warn soldiers and their families of the potential effects of inoculations
and pesticides” was a “judgment call” that implicates other military considerations
like cohesion, and therefore “falls . . . at the core of the discretionary function
exception.”); Shuman v. United States, 765 F.2d 283, 291 (1st Cir. 1985) (finding
that a decision not to warn contractors of asbestos hazards fell within the
discretionary function exception); Ford v. Am. Motors Corp., 770 F.2d 465, 467 (5th
Cir. 1985) (finding that the Postal Service’s decision to sell used jeeps without
warning of their rollover risks was a discretionary act). 4
This case presents a far weaker claim to immunity than other cases in which
immunity has been denied. Consider Cope, in which the D.C. Circuit held that “the
discretion regarding where and what type of signs to post [along a slippery stretch
of road in Rock Creek Park] is not the kind of discretion[ary]” decision entitled to
immunity. 45 F.3d at 451. Cope held that the location of those traffic signs was
4
The challenged decision here is similarly distinguishable from the hiring,
supervision, and training decisions immunized in Burkhart, 112 F.3d at 1217.
Personnel decisions are inherently more likely to require economic and policy
considerations than the placement of temporary warning cones.
19
fundamentally rooted in “engineering and aesthetic considerations” and therefore
was insufficiently “fraught with public policy considerations” to be immunized. Id.
at 451-52. Cope makes clear that decisions about where to post warnings—even
those that are permanently in place (unlike the cone here)—are not necessarily
immune from tort suits.
This court relied on Cope in Barksdale-Showell, a case concerning
WMATA’s failure to provide any warning about a wet and icy escalator. The
conceivable policy rationales that WMATA now articulates would have been
applicable there as well—concerns about diluting the efficacy of warnings,
passenger bottlenecking, tripping hazards, etc. We nonetheless held that
“WMATA’s lack of a policy underlying its decision not to warn . . . is certainly not
the kind of ‘social, economic, or political’ decision that Congress intended to
immunize from suit.” 965 A.2d at 22 n.4. The same is true here. WMATA persists
that we should not rely on Barksdale-Showell because the sovereign immunity
analysis in that case was conducted sua sponte after WMATA failed to raise a
sovereign immunity defense at trial or on appeal. Id. We disagree. Because
sovereign immunity presents a jurisdictional question, we were obliged to address it
in Barksdale-Showell, it was necessary to our disposition, and our analysis on the
point is therefore binding precedent. Parker v. K & L Gates, LLP, 76 A.3d 859, 873
20
(D.C. 2013) (Ferren, J., concurring for a majority of the court) (“binding precedent”
includes “legal steps or conclusions” that “are ‘necessary’ to explain the outcome”).
Just as in Barksdale-Showell, the record here is devoid of any evidence of policy
considerations underlying the decision about whether and where to place warning
cones, and that decision is not so inherently fraught with policy considerations that
by its very nature it is immunized. See 965 A.2d at 21 n.4. 5
III.
The judgment of the Superior Court is affirmed.
So ordered.
5
Contrary to the trial court’s reasoning, the sovereign immunity analysis does
not turn on the single cone’s visibility to Nash-Flegler or other passengers.
Sovereign immunity can shield (and fail to shield) WMATA both from claims that
it failed to provide any warnings, and claims that it provided some ultimately
inadequate warnings. See, e.g., Wainwright v. WMATA, 903 F. Supp. 133, 135
(D.D.C. 1995) (granting WMATA’s motion for summary judgment on sovereign
immunity grounds as to an outright failure to warn). In either case, one critical
question is whether the decision about how to warn, if at all, involved the exercise
of “political, social, [or] economic judgment.” Gaubert, 499 U.S. at 325.