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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION RICHARD LEE SMITH, et al., Plaintiffs, vs. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant. Civil Action No. AW-99-2187

MEMORANDUM OPINION Plaintiffs, Richard and Nancy Smith, bring this wrongful death and survival action based upon the fatal heart attack their son suffered while he was climbing an escalator temporarily used as a stairway at a metro station operated by Defendant, the Washington Metropolitan Area Transit Authority ("WMATA"). Plaintiffs claim two million dollars in damages for the Defendant's alleged negligence in having only no ascending escalator available on the day of their son's death. Currently pending before the Court is Defendant's Motion for Summary Judgment [24-1]. The motion has been fully briefed by all parties. On January 30, 2001, the Court held a hearing on the pending motion. Upon consideration of the arguments made in support of, and opposition to, the Defendant's motion, the Court makes the following determinations. I. FACTUAL BACKGROUND On July 20, 1998, Plaintiffs' son, Richard Smith, was a metro passenger at the Defendant's Bethesda Metro Station. On that summer day, temperatures rose to over ninety degrees. At the time Mr. Smith attempted to exit the station, two of three station escalators were not in service. On July 8, 1998, the Maryland inspector took one escalator ("escalator number 2") out of service for various safety violations as unfit for public use. On the morning of July 20, 1998, WMATA took the other escalator out of service for repairs ("escalator number 3"). As a result, only one escalator was available for ingress and egress during the rush hour period ("escalator number 1"). With only one

properly functioning escalator, Defendant shut down that escalator for use as a stairway for passengers known as a "walker." Described as one of the tallest in the country, the escalator was very steep with a vertical height of approximately 107 feet. One elevator with limited capacity was also available to exiting passengers. At around 3:00 p.m., Mr. Smith arrived at the Bethesda Metro Station. The station manager claims that he observed Mr. Smith by the crowd awaiting to board the elevator. He, then, observed Mr. Smith going through the line to the escalator. Mr. Smith attempted to exit by climbing the stationary escalator. The station manager stated that, besides Mr. Smith, he observed a few other people attempting to climb the stairs. The station manager noted that, given Mr. Smith's size at 6'1" and 220 pounds, people noticed his attempt to climb the stairs. The station manager testified that other passengers commented that "he kind of heavy to be doing that. I wouldn't do it" At the top of the stairs, Mr. Smith collapsed and suffered a fatal heart attack. Mr. Smith's autopsy revealed that, at age 37, he suffered from arteriosclerosis, a severe hardening of the arteries. Mr. Smith's heart disease made him susceptible to a heart attack upon a certain level of overexertion. Apparently, Mr. Smith knew his cholesterol level was high, but was unaware of his heart disease. II. DISCUSSION A. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment will be granted when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211, 214 (4th Cir. 1993); Etefia v. East Baltimore Comm. Corp., 2 F. Supp.2d 751, 756 (D. Md. 1998). For the purposes of summary judgment, a genuine dispute exists if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Rule 56 of the Federal Rules of Civil Procedure

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provides that the entry of summary judgment is proper, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390, 393 (4th Cir. 1994). In reviewing a motion for summary judgment, the court must "draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded to particular evidence." Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419 (1991) (citations omitted). While the evidence of the non-movant is to be believed and all justifiable inferences drawn in his or her favor, a party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences. See Deans v. CSX Transportation, Inc., 152 F.3d 326, 330-31 (4th Cir. 1998). The party opposing summary judgment must present evidence of specific facts from which the finder of fact could reasonably find for him or her. Anderson, 477 U.S. at 252. Nevertheless, the moving party ultimately bears the burden of demonstrating the absence of all genuine issues of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). B. Negligence

Plaintiffs appear to assert a number of theories of negligence. As a case brought before the federal court under its diversity jurisdiction, the substantive laws of the forum state, Maryland, apply. See, e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Maryland recognizes the traditional elements for establishing a claim for negligence: (1) the existence of a duty owed to the plaintiff by the defendant; (2) the defendant's breach of that duty, (3) the breach was the proximate cause of the harm suffered by the plaintiff; and (4) actual damages suffered by the plaintiff. See Jacques v. First Nat'l Bank, 307 Md. 527, 531, 515 A.2d 756 (1986). "[A] party who has the burden of proving another party guilty of negligence cannot sustain this burden by offer a mere scintilla of evidence,

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amounting to no more that surmise, possibility, or conjecture . . . ." Fowler v. Smith, 240 Md. 240, 247, 213 A.2d 549 (1965). Thus, the first question is whether WMATA owed a duty to the Plaintiffs' son as a metro passenger. In Jacques v. First Nat'l Bank, the Maryland Court of Appeals stated that "[i]n determining whether a tort duty should be recognized in a particular context, two major considerations are: the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties." 307 Md. at 534-35. In Village of Cross Keys, Inc. v. U.S. Gypsum Co., 315 Md. 741, 752, 556 A.2d 1126, 1131 (1989) (quoting Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 342 (1976)), the court added that among the variables to be considered in determining whether a tort duty should be recognized are: [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved. "[A] duty is readily found if it appears highly likely that the conduct in question should have brought about the harm." B.N. v. K.K., 312 Md. 135, 142, 538 A.2d 1175 (1988). A duty will be imposed if "the actual harm fell within a general field of danger which should have been anticipated." Segermand v. Jones, 256 Md. 109, 132, 259 A.2d 794 (1969) (quoting McLeod v. Grant County Sch. Dist., 255 P.2d 360, 363 (Wash. 1953)). However, where the occurrence of the injury is highly extraordinary, the law will not impose liability. Id. at 141. Before imposing a duty to prevent a particular consequence, the court must also consider the burdens to both the defendant and the community of imposing the duty against the social benefits flowing from charging the defendant with the duty. See Valentine v. On Target, Inc., 112 Md. App. 679, 686 A.2d 636 (1996).

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It is well recognized that a common carrier owes a duty to its passengers to provide a safe means of ingress and egress from its station premises. Washington Metropolitan Area Transit Authority v. Reading, 109 Md.App. 89, 674 A.2d 44 (1996); Kaplan v. Baltimore & O. R. Co., 207 Md. 56, 113 A.2d 415 (1955); Ortiz v. Greyhound Corp., 275 F.2d 770 (4th Cir.1960). "[A] common carrier, such as WMATA, is obligated to use the highest degree of care that is consistent with its mode of transport to ensure the safety of its passengers." Reading, 109 Md. App. at 100, 674 A.2d at 49. "When a carrier has reason to anticipate the gathering of a large crowd at a station, it is bound to take such reasonable precautions as the condition to be anticipated may dictate to avert injury to a passenger by the rushing or crowding of the persons thus assembled." Dilley v. Baltimore Transit Co., 183 Md. 557, 562, 39 A.2d 469, 471 (1944). Here, it is undisputed that, by design, the escalators were the primary means for metro passengers to exit the station, "so that no alternative easily accessible steps were provided." (Def. Mot. Summ. J. at 24) The Bethesda Metro Station was regularly subject to heavy foot traffic during the evening rush hour. Therefore, WMATA had reason to anticipate a large crowd at the time in which no escalator was operating. WMATA owed a duty to its passengers to take reasonable measures to facilitate the exiting of passengers by keeping the primary avenue for egress (the escalators) in good repair and functioning or providing an alternative outlet that could reasonably accommodate the crowd of exiting passengers. In the instant case, on a hot day with temperatures exceeding ninety degrees during the evening rush hour, Defendant provided its passengers two means to exit the station, the escalator used as a ten-story stairway and an elevator with limited capacity. The "walker" escalator was used for both entering and exiting traffic. The elevator could only carry nine passengers every 2.5 minutes or an average of 216 persons per hour. Defendant acknowledges the use of the elevator as the primary means of ingress and egress as creating "a potentially hazardous situation as patrons squeeze forward to use an elevator not designed for continuing use by large crowds . . . ." (Def. Mot. Summ.

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J.at 24.). It is undisputed that, at the time Plaintiffs' son attempted to exit from the Bethesda station, the station was servicing a large number of passengers. William Ford, the station manager, described the conditions as "hectic" and "crowded." Plaintiffs' expert, Jake Pauls estimates that an average of 628 people per hour attempted to exit the Bethesda Metro Station during the evening rush hour. (Pl.'s Opp'n Mot. Summ. J., Ex. A at 11). Defendant contends that, due to circumstances beyond its control, it could not avoid shutting down all of the escalators. Defendant argues that escalator 2 could not have been returned to active service for any purpose until the state escalator inspector approved its return. Plaintiffs counter that, if Defendant had performed adequate inspections and repairs, there would have been no need for the escalator to be taken out of service in the first place. According to WMATA, the state inspector made an abrupt change in position and ordered that the escalator be barricaded. WMATA maintains that it was customary for the state inspector to allow escalators taken out of service for safety violations to be used as "walkers" until certification. WMATA urges that it could not have anticipated that the state inspector would not allow the escalator to be used as a "walker." However, the Maryland Code specifically gives the state inspector the authority to prevent the continued operation of escalators that are safety hazards. See Md. Code Ann. 1957, Art. 89, s 49B(h); Labor and Employment,

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