1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DIANE FALCO , Plaintiff,

v. Civil Action No. 18
- 2766 (JEB) WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY , Defendant.

MEMORANDUM OPINION Commuting from work, Plaintiff Diane Falco slipped and fell in the Pentagon City Metro station. She has sued the Washington Metropolitan Area Transit Authority for negligently failing
to clean up water on the station platform . Defendant now moves for sum mary judgment, arguing both that it is entitled to discretionary immunity and that it lacked actual or constructive notice of the wet conditions at the station. Disagreeing as to both contentions , the Court will deny the
M otion.
I. Background Looking at the facts in the light most favorable to Falco, on January 12, 2018, she was traveling home via the Pentagon City Metro station in Virginia. See Compl ., ¶ 5. While exiting the train at the station, she noticed that the platform tiling was “ver y slippery.” ECF No. 14

- 1 ( Exhibit s to Pl. Opp. to MSJ) , Exh. 1 ( Deposition of Diane Falco) at 33 . She started to make her way across the platform toward the escalator. Id. After walk ing two train

- car lengths down the platform, she slipped, lost her ba lance, and fell to the ground. Id. at 33

– 34. She saw no wet

floor signs or cones warning of the slippery condition. Id. at 30.2

Six months before her fall, Falco had had a partial right

- knee replacement

. Id. at 12 ; see ECF No. 7

- 2 (Dr. Thomas Fleeter Le tter) at 1

– 2 . When she fell , she “hit hard on [her] right side” and “rolled towards the left.” Falco Depo. at 35

. As a result, she suffered a fracture of her right knee. Id. She could not put any weight or pressure on her leg and could not return to w ork for four weeks. Id. Since the fall, Falco limps and “fatigues easily,” as her right leg remains
weaker. See Fleeter Letter at 1

. On t he same day of the incident, coincidentally, WMATA was conducting a routine inspection of the station. See Pl. Opp., Exh. 2 (WMATA Inspection Report) at 3 . The inspector examined the station for structural issues, including the joints, walls, and drainage. Id. at 3

– 5. That morning , he observed that the floor and walls of the station’s passageway

— the area outside of the fare gates and above the platform

— were wet. Id. at 3

. He also noticed that the ceiling “had moisture throughout.” Id. According to the report, the station manager claimed that the condition “happen[ed] a few times a year when ther e [was] high humidity.” Id. While Defendant does not deny that the passageway was wet, it disputes whether the station platform, where Plaintiff claims she slipped, was. See ECF No. 14

- 2 (Pl. Statement of Material Facts) at 2. The Court, however, must at this stage credit Falco’s testimony and conclude that there was water on the platform. Plaintiff initially brought a negligence claim against WMATA in the Superior Court of the District of Columbia. See ECF No. 1 (Notice of Removal)

. Defendant then re moved the

case here under D.C. la w, which permits actions brought against the A uthority to be removed to federal court. See Notice of Removal at 2 (citing D.C. Code § 9

- 1107.01(81)). Defendant now seeks summary judgment , claiming its failure to clean up the water should be afforded discretionary immunity from liability

. See ECF No. 13 (Def. MSJ). In reply ing to Plaintiff’s3

O pposition to the M otion, Defendant also argued that it was not liable for Falco ’s injuries
because it lacked actual or constructive notice of the wet conditions at the station. See ECF No. 15 ( Def . Reply ) at 3

– 4

. The Court then permitted Plaintiff to then file a S urreply on the notice issue. See ECF No. 17 (Pl. Surreply). As all issues are now briefed, the M otion is ripe for resolution.
II. Legal Standard
Summar y judgment may be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. ” Fed. R. Civ . P. 56(a); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247

– 48 (1986); Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby , 477 U.S. at 248 ; Holcomb , 433 F.3d at 895 . A dispute is “genuine” if the evidence is such that a reaso nable jury could return a verdict for the nonmoving party. See Scott v. Harris , 550 U.S. 372, 380 (2007 ). 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 t o be drawn in his favor.” Liberty Lobby , 477 U.S. at 255; see also Mastro v. PEPCO , 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 1288 (D.C. Cir. 1998) ( en banc ). On a motion for summary judgment, the court must “eschew maki ng credibility determinations or weighing the evidence.”
Czekalski v. Peters , 475 F.3d 360, 363 (D.C. Cir. 2007). The non

- moving party ’ s opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e) ; Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986). The non

- movant,4

in other words, is required to provide evidence that would permit a reasonable jury to find in her favor. See Laningham v. U.S. Navy , 813 F.2d 123 6, 1241

– 42 (D.C. Cir. 1987).
III. Analysis WMATA stakes out two positions in its Motion . First, it c ontends that it is entitled to discretionary immunity for its decision to let water evaporate, rather than to clean it up. Second, it asserts that i t had no actual or constructive notice of the wet conditions o n the platform and is therefore not liable under a t heory of negligence. Discretionary immunity is jurisdictional ; “unless WMATA’s sovereign immunity has been waived , ” c ourt s “lack [] jurisdiction to enter a judgment against [ it ].” Watters v. WMATA , 295 F.3d 36, 40

– 41 (D.C. Cir. 2002). As a result , th e Co urt will consider this question first and then examine whether Defendant had actual or constructive notice of the wet conditions.
A. Discretionary Immunity WMATA was created through congressional approval of the Washington Metropolitan Area Transit Authority Compact. See Pub. L. No. 89

- 774, 80 Stat. 1324 (1966) (codified as amended at D.C. Code § 9

- 1107.01 et seq .). The compact’s signatories

— Maryland, Virginia, and the District of Columbia

— have conferred limited sovereign immunity on WMATA

. See Beebe v. WMATA , 129 F.3d 1283, 1286

– 87 (D.C. Cir 1997). Specifically , the Authority has waived sovereign immunity for “its torts . . . committed in the conduct of any proprietary function,” but not “ for any torts occurring in the performance of a governme ntal function.” D.C.
Code § 9

- 1107.01 (80)

. Where the activity is not a quintessential governmental function, as WMATA concedes here , “immunity will depend on whether the activity is ‘discretionary’ or ‘ministerial.’” Hopps v. WMATA , 480 F. Supp. 2d 243, 245 (D.D.C. 2007). Only activities that are “discretionary” are granted immunity. Id.5

A discretionary activity “is one that involves choice or judgment” and is exercised based on considerations of public policy. United States v. Gaubert , 499 U.S. 315, 325 (1991). It can include “day

- to

- day management” and is “not confined to the policy or planning level.” Id. When determining whether an activity is a discretionary one, a court must first determine whether “a ‘federal statute, regulation, or policy s pecifically prescribes a course of action for an employee to follow.’” Burkhart , 112 F.3d at 1217 (quoting Cope v. Scott , 45 F.3d 445, 448 ( D.C. Cir. 1995)). If a specific course is mandated, sovereign immunity does not prevent suits based on a failure t o follow that course. Id. On the other hand, where the statute, regulation, or policy leaves the government room for choice, “an exercise of such choice is exempt from suit.”
Id.
WMATA contends here that it chose not to mop up the water, thus entitling it to discretionary immunity

. It cites WMATA v. Barksdale

- Showell , 965 A.2d 16 (D.C. 2009) , in
assert ing that “WMATA’s policy of allowing wet surfaces to dry by evaporation . . . [is] precisely the type of social, economic and policy based judgment [] that ha [s] been held to be immunized from liability.” Def. MSJ at 9. Yet i n Barksdale

- Showell , WMATA identified a specific policy governing evaporation , and the case concerned a specific instance where the Authority h ad to decide between attempting to dry the inside of the station and its escalators, or clearing the snow and ice from the outside of the station. See 965 A.2d at 23. As WMATA has identified no such competing interest here nor cited any policy regarding evaporation (or anything else) , it is not entitled to discretionary immunity

. I d

. (granting WMATA discretionary immunity for “commit[ t ing] to clearing or treating snow and ice from exterior sidewalks and parking lots . . . rather than to the hopeless task s of drying floors, platforms, and escalators which are continuously in use and operation”); see also Smith v. WMATA , 290 F.3d 201, 208

– 09 ( 4th6

Cir. 2002) ( WMATA entitled to discretionary immunity for choosing to turn off the one functioning escalator , converting it to stairs temporarily, rather than forc ing all exiting patrons to use elevator while repairing escalator ).
WMATA rejoins that it did make a choi ce in deciding not to mop up the water ; more specifically , it chose not to spend the money to dry the platform

. See Def. MSJ at 9 (stating that “attempting to remove moisture” would be “costly and ineffective”). But Defendant has offered no evidence of w hat it would cost to clean up the station or whether any actual decision on this front occurred

. And “ [t] he mere presence of choice

— even if that choice involves whether money should be spent

— does not trigger” discretionary immunity. Cope , 45 F.3d at 450; see also KiSKA Constr. Corp., U.S.A. v. WMATA , 321 F.3d 1151, 1161 (D.C. Cir. 2003). Virtually all government actions involve some economic calculus. See Cope , 45 F.3d at 499 (explaining that budgetary constraints underlie almost all government activity). Letting WMATA off simply because any action involves choice and money would negate the waiver of immunity in the Compact. Id. at 449. While day

- to

- day decisions may qualify for the purposes of discretionary immunity, Gaubert , 499 U.S. at 325, “exempt decisions” must be those “‘fraught with . . . public policy considerations,’” not just those that involve money and choice. KiSKA , 321 F.3d at 1161 (quoting Cope , 45 F.3d at 449) ; Cope , 45 F.3d at 448, 451 (discretionary function not appropriate for “garden variety choices” and “routine questions of maintenance”) . WMATA is therefore not entitled to discretionary immunity.
B. Negligence Defendant alternatively posits that it is entitled to summary judgment on the question of notice. Under District of Columbia law, plaintiffs bringing negligence claims m ust show that : “(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and7

(3) the breach of duty proximately caused damage to the plaintiff.” Bradley v. NCAA , 249 F. Supp. 3d 149, 167 (D.D.C. 2017) (quoting Hayneswo rth v. D.H. Stevens Co. , 645 A.2d 1095, 1098 (D.C. 1994)). “To avoid summary judgment, [ a p laintiff] ‘must produce evidence from which a reasonable juror may conclude that a certain hazard caused the injury and that the defendant had actual or constructiv e notice of that hazard.’” Mixon v. WMATA , 959 A.2d 55, 58 (D.C. 2008) (quoting Marinopolski v. Irish , 445 A.2d 339, 340 (D.C. 1982)). Constructive notice exists when the dangerous condition has “existed for such length of time that, in the
exercise of r easonable care, its existence should have become known and corrected.” Sullivan v. AboveNet Commc’ns, Inc. , 112 A.3d 347, 356 (D.C. 2015) (quoting Anderson v. Woodward & Lothrop , 244 A.2d 918, 918

– 19 (D.C. 1968))

. WMATA here contends that it lacked both actual and constructive notice of the slippery condition that Plaintiff alleged caused her injury. See Def . Reply at 4. Falco attacks this on both fronts, claiming that Defendant had actual and constructive notice of the con ditions. See Pl. Surreply at 2, 4. The Court looks at each separately.

1. Actual N

otice There is no doubt that WMATA was aware that the floor of the passageway was wet ; indeed, it set up wet

- floor signs. See ECF No. 17

- 1 ( Exhibit s to Pl

. Surreply ) , Exh. 3 ( Deposition of Brian Miller) at 20

– 21 . The station manager agreed that, when he opened the station in the morning, the water was “edge to edge.” Id. , Exh. 1 ( Deposition of Station Manager Johnson) at 14

– 15

. In fact, WMATA’s inspector asked the managers about the water while conducting his routine inspection, and one station manager acknowledged it and responded that the water accumulates “a few times a year when there is high humidity.” WMATA Report at 6

. As to the platform itself, a fter Plaintiff fell, she spoke with a station manager , who said that8

“people have been complaining all day.” Falco Depo. at 3 7

. Construing these facts in favor of Plaintiff , a reasonable jury could find that Defendant had actual notice of the slippery conditi ons on the platform

. 2. Constructive N otice Even assuming that Defendant did not have actual notice , it had constructive notice. “[D]uration of the alleged hazard is important in establishing constructive notice.” Wilson v.
WMATA , 912 A.2d 1186, 1190 (D.C. 2006) (citing Hines v. Safeway Stores, Inc. , 379 A.2d 1174, 1175 (D.C. 1978)) . Here, Plaintiff testified that she saw the wet conditions when she was in the station in the morning. See Falco Depo. at 3 5

– 3 6 . As mentioned, station staff also testified abo ut seeing water in the passageway in the morning. See Johnson Depo. at 14

– 15

. The station’s inspector reported observing the water and discussing it with the station manager.
See WMATA Report at 4 . Plaintiff testified that when she told the station manager about her injury, she was informed that “ people ha [ d ] been complaining all day

. ” Falco Depo. at 33 (emphasis added). All this points to the conclusion that water existed from the beginning of the day until around 4 p.m. , when Plaintiff sustained her injury. “[ I ] n the exercise of reasonable care, [ dangerous condition’s ] existence should have become known and corrected.” Sullivan , 112 A.3d at 356

. Defendant responds that, despite the testimony that the wet condition s in the station persisted throughout the day, there was nothing that a jury could use to draw an inference that WMATA should have known that there was condensation on the platform. See Def

. Reply at 5

– 6. WMATA cites testimony from its staff that there w ould not be water on the platform itself

. Id. at 5. But, as Plaintiff points out, only one of the three staff members testified that they actually went down to the platform that day. See Pl. Surreply at 7

– 8. That staff member ,9

moreover, testified that his latest visit to the platform was at 12:30 p.m. , more than three full hours before the incident. See Johnson Depo. at 10

– 12

. A jury could thus find that WMATA had constructive notice of water on the platform.
IV. Conclusion For these reasons, the Court will deny Defendant ’ s Motion for Summary Judgment . A separate Order so stating will issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: January 29, 2020