Smith v. Washington Metropolitan Area Transit Authority

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1053
RICHARD LEE SMITH; NANCY G. SMITH,
Individually and as Personal Representatives
of the Estate of Richard Hadaway Smith,
Deceased,
Plaintiffs - Appellants,
versus
WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-99-2187-AW)
Argued: March 15, 2006 Decided: June 2, 2006
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Jack Arthur Gold, KARP, FROSH, LAPIDUS, WIGODSKY & NORWIND,
P.A., Rockville, Maryland, for Appellants. Gerard J. Stief,
Associate General Counsel, WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY, Washington, D.C., for Appellee. ON BRIEF: Lawrence S.
Lapidus, KARP, FROSH, LAPIDUS, WIGODSKY & NORWIND, P.A., Rockville,
Maryland, for Appellants. Carol B. O’Keeffe, Acting General
Counsel, Mark F. Sullivan, Deputy General Counsel, Jay R. Goldman,
Associate General Counsel, WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Richard L. and Nancy G. Smith (together, the “Plaintiffs”)
appeal from the summary judgment awarded to the Washington
Metropolitan Area Transit Authority (the “Metro”) in their civil
action relating to the death of their son, Richard Hadaway Smith
(the “decedent”), at the Metro’s station in Bethesda, Maryland.
Their sole contention on appeal is that the district court, in
according immunity to the Metro, erroneously interpreted the
mandate from our earlier decision in this case. See Smith v. Wash.
Metro. Area Transit Auth. (Smith I), 290 F.3d 201 (4th Cir. 2002).
As explained below, we agree with the Plaintiffs and thus vacate
and remand.
I.
Public access to the Metro’s Bethesda station is normally
provided by three escalators and an elevator. On July 8, 1998,
Maryland safety inspectors shut down one of the escalators
(“Escalator Two”) because it had failed a safety inspection. On
the night of July 19, 1998, Metro mechanics, in conducting
maintenance of the escalators, discovered a problem in another
escalator (“Escalator Three”) and left it disassembled pending
repair. Because Escalators Two and Three were out of service, the
Metro decided to utilize its sole remaining escalator (“Escalator
One”) as a “stationary walker” so that customers could use it to
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both enter and exit the station. On the following day, July 20,
1998, the decedent, after arriving at the Bethesda station by
train, exited the station by climbing Escalator One. Unbeknownst
to the decedent, he suffered from severe coronary atherosclerosis,
and upon reaching the surface, he had a fatal heart attack.
On July 22, 1999, the Plaintiffs filed suit against the Metro
in the District of Maryland, alleging that the Metro’s negligence
rendered it liable for the decedent’s death. The Plaintiffs
asserted five distinct claims: (1) the Metro had negligently
braked Escalator One for use as a stationary walker; (2) the Metro
had negligently left Escalator Three disassembled pending repair;
(3) the Metro had negligently failed to warn customers of the
Bethesda station’s conditions; (4) the Metro’s signage and
illumination failed to comply with the requirements of the ANSI
Code;1 and (5) the Metro negligently failed to repair and maintain
Escalators Two and Three. The Metro moved for summary judgment,
asserting, inter alia, that the Metro Compact under which it
operated accorded it immunity against each of the Plaintiffs’
claims.2 Specifically, the Metro claimed immunity under section 80
1
Maryland law requires that all elevators and escalators
comply with the ANSI Code, a safety code for elevators and
escalators promulgated by The American National Standards Institute
(ANSI). See Md. Code Ann., Pub. Safety § 12-805.
2
The Metro Compact was executed in 1966 by Virginia, Maryland,
and the District of Columbia. Congress consented to the Compact,
and any legal issues concerning the Compact’s interpretation are
federal questions. See Cuyler v. Adams, 449 U.S. 433, 438 (1981).
4
of the Compact, which grants the Metro immunity for “torts
occurring in the performance of a governmental function.” The
district court awarded summary judgment to the Metro on the
Plaintiffs’ signage-and-illumination claim, but denied summary
judgment on the remaining four claims, ruling that the Metro was
not entitled to immunity thereon. See Smith v. Wash. Metro. Area
Transit Auth., 133 F. Supp. 2d 395, 405-07 (D. Md. 2001). The
Metro subsequently appealed from the court’s order to the extent
that it denied the Metro immunity. Our decision in Smith I
followed.
In Smith I, we concluded that the Metro Compact’s preservation
of immunity for “torts occurring in the performance of a
governmental function” was essentially coextensive with the
immunity accorded to the federal government under the
“discretionary functions” exception in the Federal Tort Claims Act
(“FTCA”). See 290 F.3d at 206-07. We therefore analyzed the
Metro’s claim for immunity in accordance with the legal principles
of the FTCA. We ultimately concluded that the Metro was immune
from liability on the Plaintiffs’ first four claims, in part
because there was no mandatory rule, policy, or procedure that
required the Metro to act (or refrain from acting) in the manner
that the Plaintiffs, in their first four claims, asserted that the
Metro should have acted (or refrained from acting). See id. at
208-11. We specifically withheld judgment, however, on whether the
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Metro was immune from liability on the Plaintiffs’ fifth claim —
that the Metro had negligently failed to properly maintain and
repair Escalators Two and Three (the “negligent maintenance
claim”). By way of example, we observed that, to the extent that
the Metro’s “repair and maintenance of Escalators Two and Three
contravened applicable requirements of the ANSI Code,” such repair
and maintenance would fall outside the scope of the Metro’s
immunity. Id. at 211. Accordingly, we remanded the case to the
district court with the following instructions:
On remand, the district court should first accord the
METRO the immunity to which it is entitled. Then, if
necessary, it can decide whether Smith can make a prima
facie showing of negligent repair and maintenance, and it
can also assess whether there is a sufficient proximate
cause nexus between such a showing and Smith's death. The
district court should then determine whether anything is
left of this case.
Id.On remand, the Plaintiffs’ escalator expert, John G. Gerk,
submitted a report describing and analyzing the Metro’s practices
in maintaining and repairing Escalators One and Three during the
years preceding the decedent’s death. According to Gerk’s report,
the Metro had adopted maintenance schedules for its escalators that
required the Metro to perform specific maintenance tasks on either
an annual, quarterly, monthly, or biweekly basis. Gerk reported
that the Metro had not performed the required annual tasks in 1996,
and in previous years had not performed those tasks adequately.
Moreover, the quarterly tasks had only been performed three times
6
in the preceding ten quarters and, in the preceding fourteen
months, the monthly tasks had been performed only three times on
Escalator Three and only once on Escalator Two. Finally, in the
six months preceding the decedent’s death, the Metro had performed
none of the mandated biweekly maintenance on the escalators. On
the basis of these findings, Gerk concluded that, had the Metro
followed its own maintenance schedules, Escalators Two and Three
would have been functioning properly on July 20, 1998, and that
therefore Escalator One would not have been in use as a stationary
walker on that day. Gerk’s report, however, failed to link the
problems with Escalators Two and Three to violations of the ANSI
Code.
On May 14, 2004, the Metro renewed its motion for summary
judgment, asserting that it was immune from liability on the
Plaintiffs’ negligent maintenance claim, and alternatively that the
Plaintiffs had failed to demonstrate that the Metro’s failure to
properly maintain and repair Escalators Two and Three was the
proximate cause of Smith’s death. By its opinion of December 16,
2004, the district court granted the Metro’s motion for summary
judgment, ruling that the Metro was entitled to immunity on the
negligent maintenance claim. See Smith v. Wash. Metro. Area
Transit Auth., CA-99-2187-AW, slip op. at 12 (D. Md. Dec. 16,
2004). In so doing, the court interpreted Smith I to preclude
consideration of anything except whether the Smiths had established
7
a claim of negligent maintenance based solely on violations of the
ANSI Code. In other words, the court read Smith I to conclude that
only violations of the ANSI Code fell outside the scope of the
immunity accorded to the Metro for “governmental functions” under
the Metro Compact. Because Gerk’s report only correlated the
escalator problems to the Metro’s failure to follow its internal
maintenance schedules, and not to violations of the ANSI Code, the
court concluded that the Metro was immune from liability on the
negligent maintenance claim and awarded the Metro summary judgment
on that basis. Because it determined Metro was entitled to
immunity, the court did not reach the issue of whether the Metro’s
failure to properly repair and maintain Escalators Two and Three
proximately caused the decedent’s death.
The Plaintiffs timely appealed, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
We “review de novo an award of summary judgment, viewing the
facts and inferences drawn therefrom in the light most favorable to
the non-moving party.” EEOC v. Navy Fed. Credit Union, 424 F.3d
397, 405 (4th Cir. 2005). We also review de novo a district
court’s interpretation of an appellate court’s mandate, S. Atlantic
Ltd. P’ship of Tenn. v. Riese, 356 F.3d 576, 583 (4th Cir. 2004),
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and questions of immunity, Franks v. Ross, 313 F.3d 184, 192 (4th
Cir. 2002).
III.
The Plaintiffs assert on appeal that the district court
erroneously interpreted the Smith I mandate to only permit
liability on the basis of ANSI Code violations. They further
contend that the Metro’s internal maintenance schedules set forth
mandatory standards that the Metro enjoys no discretion to disobey,
and that therefore the Metro’s failure to adhere to those schedules
does not fall within the scope of the Metro’s immunity. We assess
these contentions in turn.
As discussed above, we concluded in Smith I that the immunity
bestowed on “governmental functions” by the Metro Compact is
coextensive with that accorded “discretionary functions” by the
FTCA in 28 U.S.C. § 2680(a). Smith I, 290 F.3d at 206-07.3 The
Supreme Court has set forth a two-tiered analysis for determining
3
Section 2680(a) accords immunity to the federal government
against
[a]ny claim based upon an act or omission of an employee
of the Government, exercising due care, in the execution
of a statute or regulation, whether or not such statute
or regulation be valid, or based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not
the discretion involved be abused.
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whether official conduct is discretionary for purposes of §
2680(a). First, “a court must consider whether the action is a
matter of choice for the acting employee. . . . [C]onduct cannot be
discretionary unless it involves an element of judgment or choice.”
Berkovitz v. United States, 486 U.S. 531, 536 (1998). Thus, “when
a federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow,” the discretionary
function exception does not apply. Id. We have emphasized that
the inquiry focuses not so much on the source of the restriction as
on whether the restriction imposes mandatory duties. See Perkins
v. United States, 55 F.3d 910, 914 (4th Cir. 1995) (“[F]ailure to
perform a mandatory function is not a discretionary function.”).
Accordingly, where an agency official contravenes internal agency
guidelines that impose mandatory duties, the discretionary
functions exception poses no bar to the government’s liability.
See Blakely v. U.S.S. Iowa, 991 F.2d 148, 152-53 (4th Cir. 1993)
(examining internal JAG guidelines to determine whether conduct
involved discretion); see also Ignatiev v. United States, 238 F.3d
464, 467 (D.C. Cir. 2001) (“[I]nternal guidelines can be an
actionable source of a mandatory obligation under the FTCA.”).
Second, “even if 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, decisions grounded in social, economic, and
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political policy.” Smith I, 290 F.3d at 208 (internal quotation
marks omitted). Only those decisions “based on considerations of
public policy” are protected. United States v. Gaubert, 499 U.S.
315, 323 (1991) (internal quotation marks omitted).
In applying these principles to the Plaintiffs’ five claims in
Smith I, we determined that, with respect to the first four claims,
the Metro was under no mandatory obligation to act (or refrain from
acting) as the Plaintiffs asserted it should have acted (or
refrained from acting). See 290 F.3d at 208-11. Moreover, we
concluded that the Metro’s decisions, upon which the Plaintiffs’
first four claims centered, were based on public policy
considerations. See id. Thus, we ruled that the Metro was
entitled to immunity on each of the Plaintiffs’ first four claims.
See id.With respect to the Plaintiffs’ negligent maintenance claim,
however, we remanded for a determination, in light of our Smith I
opinion, of whether the Metro was entitled to immunity. Id. at
211. By way of example, we observed that, to the extent that the
Metro’s “repair and maintenance of Escalators Two and Three
contravened applicable requirements of the ANSI Code,” such repair
and maintenance would fall outside the scope of the Metro’s
immunity, because it “would not involve ‘an element of judgment or
choice.’” Id. (quoting Berkovitz, 486 U.S. at 536). On remand,
the district court interpreted this language to mean that the Metro
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was entitled to immunity unless its repair and maintenance violated
the ANSI Code. In so doing, the district court mistook an
illustrative application of the pertinent legal principle for the
legal principle itself. As we explained in Smith I, the Metro
Compact’s grant of immunity does not extend to any nondiscretionary
conduct. See 290 F.3d at 207-08. Thus, if the Metro’s repair and
maintenance of Escalators Two and Three was governed by any
mandatory source of obligation — including, but not limited to,
the ANSI Code — it is not entitled to immunity on the negligent
maintenance claim.
According to the Plaintiffs, the Metro’s maintenance
schedules, upon which Gerk relied in preparing his report,
constitute just such a mandatory source of obligation. The
district court, however, having erroneously determined that the
Metro’s potential liability was limited to conduct in violation of
the ANSI Code, failed to consider whether the maintenance schedules
impose mandatory obligations on the Metro.
The Metro contends that, despite any error in interpreting
Smith I, the court’s judgment can be affirmed on other grounds. It
first contends that, although relied upon and referenced in Gerk’s
report, the maintenance schedules were not included in the summary
judgment record and thus were not properly before the district
court. It also suggests that the maintenance schedules do not
impose mandatory obligations. Finally, the Metro asserts that,
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even if it is not entitled to immunity on the negligent maintenance
claim, the Plaintiffs have failed to establish a prima facie case
that its failure to properly repair and maintain Escalators Two and
Three proximately caused Smith’s death. Because the district court
addressed only the threshold issue of the Metro’s immunity,
however, it has not considered these assertions, and we think it
appropriate that the district court be accorded the opportunity to
pass on them in the first instance.4
IV.
Pursuant to the foregoing, we vacate the judgment of the
district court and remand for such further proceedings as may be
appropriate.
VACATED AND REMANDED
4
The parties have filed, pursuant to our post-argument order
of March 24, 2006, a supplemental joint appendix containing samples
of the maintenance schedules on which Gerk relied in preparing his
report. In light of our disposition of this appeal, however, we
have not considered the effect, if any, of those maintenance
schedules on the Plaintiffs’ suit against the Metro. We leave such
consideration for the district court.
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