United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____

No. 20-7104 September Term, 2021

FILED ON: September 21, 2021

POTOMAC ELECTRIC POWER COMPANY,

APPELLANT

v.

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

APPELLEE

_____

Appeal from the United States District Court 

for the District of Columbia

(No. 1:19-cv-02709)

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Before: SRINIVASAN, Chief Judge, MILLETT, Circuit Judge, and GINSBURG, Senior 

Circuit Judge.

J U DGMEN T

This appeal was considered on the record from the United States District Court for the 

District of Columbia and on the briefs of the parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. R.

34(j). The panel has accorded the issues full consideration and has determined that they do not 

warrant a published opinion. See D.C. Cir. R. 36(d). It is hereby

ORDERED AND ADJUDGED that the judgment of the district court be affirmed. 

Potomac Electric Power Company (Pepco) alleged Washington Metropolitan Area 

Transit Authority’s (WMATA) negligence resulted in a switchgear at WMATA’s worksite 

exploding, damaging Pepco’s property. In its amended complaint, Pepco relied upon the 

doctrine of res ipsa loquitur to state its negligence claim. The district court granted WMATA’s 

motion to dismiss because Pepco’s complaint did not plausibly allege the third element of a 

negligence claim under the doctrine of res ipsa loquitur, to wit: 

“(1) The event must be of the kind which ordinarily does not occur in the absence of 

someone’s negligence; (2) it must be caused by an agency or instrumentality within the 

exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action 

or contribution on the part of plaintiff.” 
2

Bell v. May Dep’t Stores Co., 866 F.2d 452, 455 (D.C. Cir. 1989) (quoting Rassoulpour v. 

Washington Metro. Area Transit Auth., 826 F.2d 98, 100 (D.C. Cir. 1987)). 

Pepco provided the electricity running through the switchgear that exploded, but it 

pleaded no facts allowing the inference that its electrical system did not cause the explosion. 

Pepco’s sole sentence on the subject in its amended complaint was conclusory: “While Pepco 

provided electricity as it does to all of its customers, it took no voluntary action that contributed 

to the explosion of Defendant’s switchgear.” Such “[t]hreadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009). The allegation that the flow of Pepco’s electricity was equivalent to the 

flow provided to “all of its customers” does not plausibly allow the inference that the flow of 

electricity contained no surges or other defects that could have contributed to the explosion. 

Although Pepco need not prove at this stage that its negligence did not contribute to the 

explosion, it must plead facts allowing a plausible inference that it did not contribute to the 

explosion; this it did not do. Therefore, the district court properly dismissed Pepco’s complaint.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The clerk is 

directed to withhold issuance of the mandate herein until seven days after disposition of any 

timely petition for rehearing. See D.C. Cir. R. 41.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk