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, D.C. Code § 16-2701, and its
Survival Act, D.C. Code § 12-101, as well as an underlying common-law negligence claim. Id.,
¶¶ 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 D.C. Code § 9-1107.10). 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., 477 U.S. 242, 248 (1986); Holcomb v. Powell, 433 F.3d 889,
895 (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, 550 U.S. 372, 380 (2007);
Holcomb, 433 F.3d at 895.
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, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 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, 477 U.S. 317, 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, 242 F.R.D. 151, 160 (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 D.C. Code
§ 9-1107.01(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, 798 F.3d 1108, 1114 (D.C. Cir. 2015) (quoting In re
Jarvis, 53 F.3d 416, 422 (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. Id. It may then provide its own
counterstatement of facts. Id. Applicable to both sides is a requirement that the statement
“include references to the parts of the record relied on to support [it].” Id.
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., 241 F. Supp. 3d 37, 53 (D.D.C.), aff’d, 709 F.
App’x 23, 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, 372 A.2d 1291, 1295 (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,” id., whereas the latter
permits recovery “of that which the deceased would have been able to recover had he lived.”
Burton v. United States, 668 F. Supp. 2d 86, 109 (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, 694 A.2d 882, 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, 297
F. Supp. 3d 69, 72 (D.D.C. 2018) (quoting Night & Day Mgmt., LLC v. Butler, 101 A.3d 1033,
1038 (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. Id. 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, 770 A.2d 82, 90 (D.C. 2001). As a general rule, she must
present expert testimony to do so. See Robinson v. WMATA, 941 F. Supp. 2d 61, 67 (D.D.C.
2013); Dist. of Columbia v. Peters, 527 A.2d 1269, 1273 (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, 481
F.3d 839, 845 (D.C. Cir. 2007) (quoting Hill v. Metro. African Methodist Episcopal Church, 779
A.2d 906, 908 (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.” Id. (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, 756 A.2d 427, 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, 588 A.2d
708, 712 (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, 718 A.2d
172, 175 (D.C. 1998). Of course, the answer to that question depends upon the circumstances —
here, the transportation of an elderly man with a walker. Id. (“[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, 941 F. Supp. 2d at 67 (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, 227 F.3d 433 (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, 227 F.3d at 445. 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, 101 F.3d 748, 757 (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,
425 A.2d 1299, 1303 (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., 209 F. Supp. 2d 55, 61 (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