UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PATRICIA BUSH, Representative of the Estate of Charles Bush,

Plaintiff, v. Civil Action No. 19-930 (JEB) WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

Defendant.

MEMORANDUM OPINION

One evening in November of 2016 here in Washington, 83-year-old Charles Bush was on

his way home, traveling on a Washington Metropolitan Area Transit Authority paratransit van,

which transports disabled passengers. Upon arriving at his Southwest D.C. residence, Bush

exited the vehicle with a walker and proceeded toward his driveway. Unfortunately, he tripped,

fell to the ground, and fractured his hip. He died three months later. His daughter, Plaintiff

Patricia Bush, as representative of his estate, sued the Authority, asserting three negligence-

based claims. In response, WMATA has now moved for summary judgment across the board,

maintaining that Plaintiff cannot prove a case of negligence. Specifically, Defendant argues that

Bush has not established a jury question on what standard of care it was obligated to follow, how

it deviated from that standard, and that such deviation caused her father’s broken hip. Agreeing

with Defendant on at least the first two, the Court will grant its Motion.

I. Background

For reasons explained more fully below, the Court draws its facts largely from

WMATA’s submissions. On November 30, 2016, Charles Bush went to the Washington

1 Hospital Center for a routine dialysis treatment. See ECF No. 19 (Def. MSJ), Statement of

Material Facts, ¶ 2; id., Exh. D (Deposition of Patricia Bush) at 23:18–22. At the end of the

session, a WMATA MetroAccess van picked him up and drove him home. See Def. SMF, ¶¶ 1–

3. For those unfamiliar with this service, MetroAccess offers door-to-door transportation to

disabled passengers like Bush, who relies on a walker to get around. Id., ¶ 2; ECF No. 6 (Def.

Answer), ¶ 12.

Upon arriving at Bush’s residence, WMATA operator Jenein Smith opened the van door

and lowered the ramp to allow him to exit. Id., ¶ 3 (citing Exh. C (Road Supervisor Incident

Report) at WMATA_33; Exh. B (Jenein Smith Incident Report) at WMATA_31). When he

stepped out, Smith asked him to wait for her to secure the vehicle. Id. (citing Smith Rep. at

WMATA_31; Supervisor Rep. at WMATA_33). Bush disregarded that instruction and

proceeded up the driveway unescorted. Id. (citing Smith Rep. at WMATA_31; Supervisor Rep.

at WMATA_33). By the time Smith realized that Bush was gone, he had already entered a patch

of grass adjacent to the pavement. Id., ¶ 4 (citing Smith Rep. at WMATA_31; Supervisor Rep.

at WMATA_33). In her telling, he then tripped on the walker and fell on the left side of his

body. Id. (citing Smith Rep. at WMATA_31; Supervisor Rep. at WMATA_33).

While on the ground, Bush told Smith that he felt a pain creeping into his legs. See

Smith Rep. at WMATA_31. Moments later, a bystander approached, but his efforts to help Bush

up were in vain. Id. Emergency personnel then arrived at the scene and transported him to a

nearby hospital, where he received further treatment. See Supervisor Rep. at WMATA_33–34.

A medical evaluation there revealed a hip fracture. See Def. MSJ, Exh. E (Dr. Keith Lawhorn

Expert Report) at 1.

2 Two days later, Bush underwent surgery to repair his broken hip, but his condition only

spiraled downward. Id. Following the procedure, he faced a number of other medical

complications and found himself in and out of the hospital. Id. at 1–2. He never fully recovered.

On February 20, 2017, nearly three months after the incident, he passed away. See Dr. Lawhorn

Rep. at 2; ECF No. 21 (Pl. Opposition), Exh. 8 (Charles Bush Certificate of Death). According

to his death certificate, he died of heart and kidney complications. See Bush Certificate.

The decedent’s daughter, Patricia Bush, contends that WMATA is at fault. Her father

told her as much when they discussed the incident prior to his death. See, e.g., Bush Depo. at

43:21–44:3, 100:11-19, 101:3–7. Acting as the personal representative of his estate, she

therefore sued the Authority and Jane Doe — an unnamed WMATA employee who may be

Smith — in D.C. Superior Court in February 2019. See Def. MSJ, Exh. A (Sup. Ct. Compl.).

She pursued claims under the District’s Wrongful Death Act,

, and its

Survival Act,

, as well as an underlying common-law negligence claim.

¶¶ 32–51 (Counts I–III). Not long after, the Authority removed the case here under D.C. law,

which permits actions brought against it to be removed to federal court. See ECF No. 1 (Notice

of Removal), ¶ 4 (citing

). It has now moved for summary judgment on

all counts.

II. Legal Standard

Summary judgment must be granted “if the movant shows that there is no dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A fact is “material” if it can affect the substantive outcome of the litigation. See

Anderson v. Liberty Lobby, Inc.,

(1986); Holcomb v. Powell,

(D.C. Cir. 2006). A dispute is “genuine” if the evidence is such that a reasonable jury could

3 return a verdict for the non-moving party. See Scott v. Harris,

(2007);

Holcomb,

.

When a motion for summary judgment is under consideration, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty

Lobby,

(citing Adickes v. S.H. Kress & Co.,

, 158–59 (1970)). The

nonmoving party’s opposition, however, must consist of more than mere unsupported

allegations. See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett,

, 323–24 (1986).

“A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by

“citing to particular parts of materials in the record,” such as affidavits, declarations, or other

evidence. See Fed. R. Civ. P. 56(c)(1). If the non-movant’s evidence is “merely colorable” or

“not significantly probative,” summary judgment may be granted. Liberty Lobby, 477 U.S. at

249–50.

III. Analysis

The first order of business is to determine whether Jane Doe is properly before this Court.

According to WMATA, Plaintiff never properly served Doe. See ECF No. 22 (Def. Reply) at 8

n.1. If true, that alone would be grounds for dismissal. See Fed. R. Civ. P. 4(m); Candido v.

Dist. of Columbia,

(D.D.C. 2007). Even if she had effected service,

however, Bush faces a statutory hurdle. To wit, D.C. law provides that WMATA is liable for the

torts of its employees, and the exclusive remedy is suit against the Authority. See

(80). Because WMATA’s employee is immune from suit, the Court will dismiss the

Complaint against her, rendering WMATA the only Defendant in this case. Before turning to

the merits of Bush’s claims against the Authority, the Court will address a procedural defect

Defendant points out.

4 A. Procedural Challenge

Litigants before this Court are not only expected to follow its Local Rules, they are “duty

bound” to do so. Texas v. United States,

(D.C. Cir. 2015) (quoting In re

Jarvis,

(1st Cir. 1995)). Defendant argues that Bush has failed to comply with

this injunction. Specifically, WMATA charges Bush with flouting Local Rule 7(h), which

governs litigants’ conduct in summary-judgment pleadings. That rule has two components. A

party that moves for summary judgment must, along with its motion, submit a “statement of

material facts” as to which it contends there is no genuine issue. See LCvR 7(h)(1). In similar

fashion, the opposing party must submit a “separate concise statement of genuine issues” that

sets forth “all material facts” that it believes remain in dispute.

It may then provide its own

counterstatement of facts.

Applicable to both sides is a requirement that the statement

“include references to the parts of the record relied on to support [it].”

WMATA argues that Plaintiff has fallen short of her obligation — namely, by not

backing her purported disputed facts with any record citations. See Def. Reply at 2–7; see also

Fed. R. Civ. P. 56(c) (requiring support for assertions with citations to record materials). A

quick glance at Bush’s Statement of Genuine Issues confirms that Defendant is right on this

score. At the outset, it bears noting that Plaintiff concedes the truth of all but one of Defendant’s

enumerated Material Facts. See Pl. Opp. at 10–11. In addition, Bush offers four factual

statements of her own that she believes are genuinely in dispute. Id. at 11. Yet, she does not

include a single record cite in her Statement. Id. at 10–11. Such a deficiency is ordinarily cause

for sanction, and under Local Rule 7(h), this Court may treat Defendant’s facts as established by

concession. See LCvR 7(h) (movant’s material facts are admitted unless disputed in opposing

party’s statement of genuine issues and supported by record evidence).

5 Even if the Court turned a blind eye to its Rules, it would still find Bush’s factual

statements wanting. Indeed, a thorough combing of the parties’ submissions reveals a

compendium of infirmities with her five purportedly disputed facts. To begin with, two of them

present questions of law, not fact. See Pl. Opp. at 11, ¶ 1 (“Defendant [WMATA] owed a duty

to Mr. Bush.”); id., ¶ 2 (“Mr. Bush enjoyed a special relationship with the Defendant.”). The

third statement is not actually in dispute. To be specific, she maintains that WMATA “was

required to provide door-to-door service to its Metro Access [sic] customers.” Id., ¶ 3.

Defendant, for its part, has already admitted this responsibility at several junctures. See, e.g.,

Def. Ans., ¶ 12; Def. SMF, ¶¶ 2–3; Def. Reply at 6.

As to the fourth, Plaintiff makes an unsupported assertion. In her statement, she alleges

that driver Smith “failed to give the time and attention to [her father] as he exited the . . . [b]us as

her back was to [him].” Pl. Opp. at 11, ¶ 4. She presses a similar contention in her Opposition

brief and cites Smith’s incident report as evidence. Id. at 1 (citing Smith Rep.). To be sure,

Smith acknowledged that her back was turned to Bush the moment that he began to fall. See

Smith Rep. at WMATA_31; Def. Reply at 7. Missing from her account, however, are any facts

that could create an inference that she did not give him “time and attention.” Nothing in the

report — or in any of the other materials in the record for that matter — backs this allegation.

As to the fifth issue, Bush points to no evidence to support her characterization of the

following WMATA statement as “disputed”: “By the time the MetroAccess driver noticed Mr.

Bush had not obeyed her instruction, Mr. Bush had entered a grassy area adjacent to the

pavement and fell, fracturing his hip.” Def. SMF, ¶ 4; see Pl. Opp. at 10, ¶ 4. Nowhere in her

Opposition does she challenge this statement directly. Nor does she question any of Defendant’s

supporting evidence — i.e., the driver- and supervisor-incident reports — for it.

6 As a result, the Court will treat as admitted all of WMATA’s facts. This approach is

especially proper here, given that the only support for Plaintiff’s account of the facts is derived

from remarks that her father made to her before he died. See, e.g., Bush Depo. at 44:2–3 (“Only

thing I know is what my father told me.”); 100:11–19 (“[M]y father didn’t get fair treatment

getting off that bus. He wasn’t assisted getting off that bus like he should have been. He

shouldn’t have never fell . . . .”); 101:5–7 (“Because he was always complain how they — you

know, they — when you get old, how people treat you . . . .”). Bush wisely does not dispute that

her father’s statements are inadmissible hearsay. See Fed. R. Evid. 802. Because they are

inadmissible, it follows that Plaintiff cannot rely on them to create a dispute of material fact. See

United States ex rel. Barko v. Halliburton Co.,

(D.D.C.), aff’d,

, 24–25 (D.C. Cir. 2017) (explaining that no genuine dispute of material fact was

created where none of proffered evidence was admissible). With that in mind, the Court can now

move on to the merits of Bush’s claims.

B. Merits

Under D.C. law, negligence resulting in death may give rise to two separate claims: one

under the Wrongful Death Act and another under the Survival Act. See Strother v. Dist. of

Columbia,

(D.C. 1977). The former “allows recovery for pecuniary loss to

the decedent’s next of kin (e.g., loss of support) occasioned by death,”

whereas the latter

permits recovery “of that which the deceased would have been able to recover had he lived.”

Burton v. United States,

(D.D.C. 2009). Here, Plaintiff advances both

types of actions, as well as a stand-alone common-law negligence claim. See Compl., ¶¶ 32–51.

To recover under any of these theories, she must establish a prima facie case of

negligence. Dist. of Columbia v. Perez,

, 884–86 (D.C. 1997). To do so, she must

7 prove: “(1) that the defendant was owed a duty to the plaintiff, (2) breach of that duty, and

(3) injury to the plaintiff that was proximately caused by the breach.” Coates v. WMATA,

(D.D.C. 2018) (quoting Night & Day Mgmt., LLC v. Butler,

(D.C. 2014)).

In moving for summary judgment, Defendant argues that Bush has not created a jury

question as to any of these elements. For one thing, WMATA maintains, Plaintiff has not set out

the applicable standard of care governing the duty that the Authority owes its MetroAccess

passengers. See Def. MSJ at 7–10. Without that standard, the argument goes, Bush cannot

prove that WMATA breached that duty.

As Defendant is correct, the Court need not look at

causation.

In negligence cases, a plaintiff bears the burden of establishing the applicable standard of

care. See Dist. of Columbia v. Harris,

(D.C. 2001). As a general rule, she must

present expert testimony to do so. See Robinson v. WMATA,

(D.D.C.

2013); Dist. of Columbia v. Peters,

(D.C. 1987). D.C. courts, however,

recognize a partial exception to that rule: no such testimony is necessary if “the subject matter is

within the realm of common knowledge and everyday experience.” Briggs v. WMATA,

(D.C. Cir. 2007) (quoting Hill v. Metro. African Methodist Episcopal Church,

(D.C. 2001)). That said, this exception “is recognized only in cases in which

everyday experience makes it clear that jurors could not reasonably disagree over the care

required.”

(canvassing D.C. caselaw).

The question then becomes whether the subject matter at issue here — to wit, WMATA’s

public-paratransit operations — is outside the realm of common knowledge, thereby requiring

the aid of an expert. Defendant correctly answers that question in the affirmative. To support its

8 position, WMATA points to instructive caselaw within our Circuit. The district court in

Robinson, for example, considered a case involving a WMATA Metrobus passenger who alleged

an ankle injury suffered as a result of the driver’s negligent operation of the vehicle. See 941 F.

Supp. 2d at 65–66. The court determined that expert testimony was required “to establish

standards regarding the specific procedures that public transit bus operators should follow.” Id.

at 67. In its view, the standards governing such operations were far “beyond the ken of the

average layperson.” Id. (quoting Dist. of Columbia v. Arnold & Porter,

, 433–34

(D.C. 2000)).

Although not binding, Robinson provides a helpful point of comparison. If expert

testimony is necessary to establish the standard of care for standard Metrobus operations, then it

is especially significant here. Unlike Metrobus operators, MetroAccess drivers assist passengers

with disabilities or special needs. This added responsibility takes such operations even further

outside the realm of common knowledge and necessitates the testimony of a competent expert to

articulate the governing standard of care.

Plaintiff has not presented any such testimony. See Pl. Opp. at 6–7. Instead, she notes

merely that because WMATA is a common carrier, it owed a “higher duty of care to [her

father].” Id. at 5. Her observation does not move the needle. True, like any common carrier, the

Authority “owes a duty of reasonable care to its passengers.” McKethan v. WMATA,

(D.C. 1991). That WMATA is so obligated, however, does not also tell us what kind of

duty it owes to its passengers, particularly its disabled ones. See WMATA v. Jeanty,

(D.C. 1998). Of course, the answer to that question depends upon the circumstances —

here, the transportation of an elderly man with a walker.

(“[A]ll of the decisions recognize

that the standard [of care] is always contextual, and that the carrier’s relation to, and duties

9 toward, its passengers constitute the critical context in which the carrier’s conduct is

evaluated.”); see also Robinson,

(requiring expert testimony in case

involving Metrobus operations). For example, to what degree and in what manner should drivers

assist each disembarking disabled passenger? What are their responsibilities vis-à-vis the other

passengers remaining on the van? In short, merely pointing out that Defendant is a common

carrier does not relieve Bush of her burden to produce expert testimony.

In rejoinder, Plaintiff cites Daskalea v. District of Columbia,

(D.C. Cir.

2000), for the proposition that no expert is required to establish negligence when the conduct at

issue is “continuing, persistent, or pervasive.” Pl. Opp. at 6. Bush’s reliance on Daskalea,

however, does her little good. In that case, the court found “a continuing series of evening

stripteases, accompanied by blaring music and guard-on-inmate violence [in the D.C. Jail]” to

have been so “persistent, open and notorious” that a layperson could “reasonably conclude that

the District had been negligent (at best) when it failed to notice, let alone stop” the behavior.

Daskalea,

. Plainly, our case is a conceptual world apart from Daskalea. Nothing

that happened here is obviously unlawful, and Plaintiff does not point to any evidence that

WMATA engaged in a pattern of offensive or improper conduct.

The Court, consequently, concludes that Bush was required to provide expert testimony

to articulate the applicable standard of care. Her failure to do so is “fatal to [her] negligence

claim.” Scott v. Dist. of Columbia,

(D.C. Cir. 1996). That is because without

the applicable standard of care, Bush cannot raise a jury question as to whether Defendant

deviated from that standard — i.e., breached its duty of care. See Hughes v. Dist. of Columbia,

(D.C. 1981) (“Absent such testimony, the jury will be forced to engage in

idle speculation which is prohibited.”).

10 Further, regardless of the appropriate standard, all indications in the record are that driver

Smith acted appropriately. The evidence shows that when Plaintiff’s father exited the bus, Smith

instructed him to stop and wait for her to secure the vehicle. See Smith Rep. at WMATA_31;

Supervisor Rep. at WMATA_33. Unfortunately, he did not follow her instructions and

proceeded toward his front door unescorted. See Smith Rep. at WMATA_31; Supervisor Rep. at

WMATA_33. When he stepped on the grass adjacent to the driveway, he tripped and fell. See

Smith Rep. at WMATA_31. Aside from generalized conclusions that WMATA somehow

breached its duty, Plaintiff never explains how, under the aforementioned facts, this could be the

case.

Given the deficiencies chronicled above, summary judgment is warranted. Allison v.

Howard Univ.,

(D.D.C. 2002) (granting summary judgment on

negligence claim, in part because plaintiff failed to articulate standard of care or how defendants

deviated therefrom).

IV. Conclusion

The Court, as a result, will grant Defendant’s Motion for Summary Judgment. A separate

Order consistent with this Opinion will be issued this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: February 26, 2020

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