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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREGORY R. LYONS, et al., Plaintiffs : : : v. : : WASHINGTON METROPOLITAN : AREA TRANSIT AUTHORITY, : Defendant : ...o0o...

CIVIL NO. AMD 03-1066

MEMORANDUM OPINION A bus operator employed by defendant Washington Metropolitan Area Transit Authority ("WMATA") struck an 80-year-old pedestrian, Helen Lyons, on a roadway curve at the Silver Spring, Maryland, metro station. Ms. Lyons died from her injuries. Plaintiffs, Ms. Lyons's sons, one of whom is the personal representative of her estate, instituted this wrongful death and survival action. Discovery has concluded and the parties have filed cross-motions for summary judgment. All issues are ripe for determination and no hearing is needed.* Plaintiffs seek summary judgment as to liability; their motion shall be granted. The evidence in the summary judgment record demonstrating that, at the time of the accident, the decedent, Ms. Lyons, was lawfully crossing the roadway within a marked crosswalk, that the bus operator failed to bring the bus to a stop before he entered the crosswalk, that he failed to see Ms. Lyons although she was directly in front of him in the crosswalk, and that he violated both Maryland law and WMATA's internal policy in causing the accident, is simply overwhelming. This evidence includes, but is not limited to: (1) the bus operator's
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Plaintiffs concede that their claim for "negligent entrustment" must be dismissed.

own contemporaneous statements to police and to his employer; (2) the testimony of an eyewitness at the scene of the accident; and (3) the record of the criminal trial of the bus operator in the Circuit Court for Montgomery County, a trial which resulted in guilty verdicts against the bus operator for negligent driving and failing to keep a proper look-out. The evidence on which WMATA relies in opposing the plaintiffs' motion, namely, (1) a tortured interpretation of a photograph taken shortly after the accident of the scene; (2) a dispute over the speed of the bus at the time of the accident; and (3) the self-serving testimony of the bus operator at his union grievance hearing (during which he contradicted his earlier statements), does not even rise to the level of a scintilla of evidence of the bus operator's lack of negligence or of contributory negligence on the part of Ms. Lyons. To the contrary, plaintiffs correctly argue that no reasonable fact finder could reach any conclusion based on this record other than the conclusion that Ms. Lyons's death was proximately caused by the failure of the bus operator to exercise reasonable care, without any act or omission of Ms. Lyons contributing to the happening of the accident. Accordingly, plaintiffs' motion for summary judgment on the issues of breach of duty and proximate cause shall be granted. For its part, WMATA contends that plaintiffs' potential recovery is limited by two damages caps appearing in the Maryland Annotated Code, i.e., the $200,000 cap applicable to the state when it is sued in state court under the State Tort Claims Act, and, in the alternative, the nonpecuniary damages cap generally applicable to personal injury and wrongful death claims brought under Maryland law (which, according to WMATA, will

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yield a maximum recovery in this case of $1,579,409.66). As to the former, I agree with plaintiffs that, although WMATA shares in the state's sovereign immunity as a general matter, see, e.g., Lizzi v. Washington Metropolitan Area Transit Authority, 2003 WL 22996916 (Md. Ct. Sp. Apps., December 22, 2003), the Maryland Tort Claims Act is not incorporated into WMATA's blanket waiver of sovereign immunity for harm caused by its employees' negligence in their performance of non-governmental functions. See Washington Metropolitan Area Transit Authority v. Briggs, 255 Va. 309, 497 S.E.2d 139 (1998) (refusing to give WMATA the benefit of the damages cap applicable to the state under the Virginia tort claims act in connection with a personal injury claim arising from a collision between a motorcycle and a WMATA bus). Finally, as to the latter, although WMATA asks that I render what amounts to an advisory opinion by determining presently whether the general state damages cap applies and if so, how the maximum permissible damages award should be calculated, and to "strike the ad damnun" contained in the complaint, I decline this invitation. If the case is tried to a jury and if the jury renders a verdict in excess of the amount WMATA contends is permissible, there will be time enough to consider a post verdict motion raising these issues. For the reasons stated herein, plaintiffs' motion for summary judgment shall be granted and defendant's motion for summary judgment shall be granted in part and denied in part. See supra n.*. An order follows. Filed: December 26, 2003 /s/ ANDR

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