UN PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21
- 2047

WANDA GHOLSON , Plaintiff

– Appellant ,

v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY , Defendant

– Appellee

.

Appeal from the United States District Court for the District of Maryland , at Greenbelt. Timothy J. Sullivan , Magistrate Judge. ( 8:20

– cv

– 00226

– TJS )

Submitted : January 13 , 2023 Decided: July 6, 2023

Before QUATTLEBAUM , RUSHING , and HEYTENS, Circuit Judges.

Affirmed by un published per curiam opinion

.

ON BRIEF: Erik D. Frye, ERIK D. FRYE, P.A., Upper Marlboro, Maryland, for Appellant. Neal M. Janey, Jr., Senior Counsel, J. Douglas Cuthbertson, Senior Counsel, OFFICE OF GENERAL COUNSEL FOR WMATA, Washington, D.C., for App ellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-2047 Doc: 28 Filed: 07/06/2023 Pg: 1 of 62 PER CURIAM : Wanda Gholson sued the Washington Metropolitan Area Transit Authority ( the

“ WMATA ” ) for injuries she sustained when she fell as she was stepping off a bus on her way to work. Ultimately, the WMATA moved for summary judgment. The U nited S tates Magistrate Judge

— hearing the case by consent

— granted the motion on the ground that Gholson failed to establish the standard of care required to show liability in a negligence action. We affirm

.

I. The WMATA is a n interstate compact agency between the governments of Maryland, Virginia and the District of Columbia , which provide s mass transit in the Washington, D.C. metropolitan area. See Martin v. WMATA , 667 F.2d 435 , 436 (4th Cir. 1981). O n the morning of February 10, 2017, Gholson took a WMATA bus to work in Washington, D.C., like she had done every day for the previous 38 years. According to Gholson, th e driver failed to pull up to the curb at the stop where she no rmally got off to
go in to work . Rather, the driver stopped the bus in the street away from the curb. The driver also did not “ kneel ” the bus

— meaning he did not lower the bus to account for the difference in height between the ground and the last st e p of the bus

. According to Gholson , she was the first person to get off the bus. W hen she descended from the last step , the drop was further than she had anticipated, causing her right knee to buckle when her foot touched the ground. She then fell and could not get back up without assistance from other s nearby

. She sustained a torn ACL requiring surgery. USCA4 Appeal: 21-2047 Doc: 28 Filed: 07/06/2023 Pg: 2 of 63 Gholson sued the WMATA for negligence in Prince George’s County Maryland, alleging the WMATA operat ed in a reckless or careless manner and f ailed to control and “kneel” the bus. The WMATA timely removed the case to the federal district court of Maryland based on the WMATA compact documents and corresponding federal law , which grant s federal courts original jurisdiction over suits against the WMATA. Md. Code.
Ann. , Transp. § 10

- 204(81). 1 The part ies consented to having the U nited S tates Magistrate Judge preside pursuant to 28 U.S.C. § 636(c). Later, t he WMATA moved for summary judgment

. It first argu ed that District of Columbia substantive law applied under Maryland’s choice of law rules

. It then argued that Gholson failed to establish that the WMATA breach ed its duty of care because she did not name an expert witness , as District of Columbia law requires, to establish a national standard of care. The district court granted the motion and dismissed the case based on the lack of expert testimony required to establish the requisite duty of care . Gholson then appealed arguing expert testimony was not required under her theories of liability

. We have jurisdiction under 28 U.S.C. § § 636(c)(3), 129 1

.

1 “The United States District Courts shall have original jurisdiction, concurrent with the courts of Maryland, Virginia, and the District of Columbia, of all actions brought by or against [WMATA] and to enforce subpoenas issued under this title. Any such act ion initiated in a State or District of Columbia court shall be removable to the appropriate United States District Court in the manner provided by Act of June 1948, as amended (28 U.S.C. § 1446).” Md. Code. Ann. Transp. § 10

– 204(81). USCA4 Appeal: 21-2047 Doc: 28 Filed: 07/06/2023 Pg: 3 of 64 II. “We review de novo a district court’s grant or denial of a motion for summary judgment, construing all facts and reasonable inferences therefrom in favor of the nonmoving party.” Gen. Ins. Co. of Am. v. U.S. Fire Ins. Co. , 886 F.3d 346, 353 (4th Cir. 2018). Summary judgment is appropriate “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).

III. Since Gholson alleged the WMATA’s negligen ce cause d her injuries, we begin with the elements of a negligence claim. To do so, we look to District of Columbia substantive law

. 2 Under District of Columbia law, “a claim for negligence

. . . has four elements: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached its duty, (3) and that breach was the proximate cause of (4) damages sustained by the plaintiff.” Busby v. Cap

. One, N.A. , 772 F. Supp. 2d 268, 283 (D.D.C. 2011) (citing Powell ex rel Ricks v. District of Columbia , 634 A.2d 403, 406 (D.C. 1993)

. In addition, a plaintiff must show that the

2 Maryland, where Gho lson sued, follow s the doctrine of lex loci delecti for tort actions under which the “substantive tort law of the state where the [alleged] wrong occurs governs. ” Hauch v. Connor , 453 A.2d 1207, 1209 (Md. 1983). And the state where the wrong occurred is th e “State where the injury

— the last event required to constitute the tort

— occurred.” Lab Corp. of Am. v. Hood , 911 A.2d 841, 845 (Md. 2006). Gholson stepped off the WMATA bus in the District of Columbia. Therefore, District of Columbia law governs the adjud ication in this case. And Gholson concedes that District of Columbia substantive law is proper. USCA4 Appeal: 21-2047 Doc: 28 Filed: 07/06/2023 Pg: 4 of 65 defendant violated a national standard of care, which must be a “ specific standard that has been accepted in the industry. ” Casey v. McDonald’s Corp. , 880 F.3d 564 , 569 ( D.C. Cir. 2018) (internal quotation marks and citations omitted). And it also requires the standard be established by expert testimony f or claims regarding the operation of a bus since that subject matter is outside the common knowledg e of the average layperson. Robinson v.
WMATA , 941 F. Supp. 2d 61, 67 (D.D.C. 2013) (“ [W] here a plaintiff seeks to establish standards regarding the specific procedures that public transit bus operators should follow

. . . a plaintiff must present expert t estimony, as the standards governing the operation of city buses are distinctly related to an occupation that is ‘beyond the ken of the average layperson

. ’ ” (citations omitted) )

. Here, Gholson ’s claim that the bus driver breached his duty of care “by failing to control the bus ” in not lowering the steps “ to the appropriate height for the passenger to safely exit the bus” involves the operation of a bus. J.A. 7 (emphasis added). Thus , under Distri ct of Columbia law, it requir es expert testimony. But Gholson never identified an expert witness , which is fatal to this claim

. Undeterred, Gholson argues that she has two other theories for which expert testimony is not required because they do not invol ve matters outside the common knowledge of the average layperson

. According to Gholson, without expert testimony, a reasonable jury could determine that the WMATA was negligent when its driver failed to warn her about the height difference from the bus to the pavement. But there is nothing in Gholson’s complaint alleging that the bus driver had or breached a duty to warn. So, this argument does not defeat the WMATA’s motion for summary judgment

. USCA4 Appeal: 21-2047 Doc: 28 Filed: 07/06/2023 Pg: 5 of 66 Gholson also argues that a reasonable jury could find that the WMATA was negligent in failing to provide Gholson a safe means to disembark. A s the WMATA contends, Gholson raise s this iss ue for the first time on appeal. “ [We] do not consider issues raised for the first time on appeal, absent exceptional circumstances.” Hicks v. Ferreyra , 965 F.3d 302, 310 (4th Cir. 2020) (cleaned up)

. I n civil cases , exception al circumstances require “fundamental error” or a “denial of fundamenta l justice.” Id. (quoting In re Under Seal , 749 F.3d 276, 285 (4th Cir. 2014) ) . And the burden is on the party that failed to preserve an argument to show that the standard is met. Gholson does not attempt to meet the exceptional circumstances requirement. Instead, s he contends waiver is not implicated where a theory on appeal is “ plainly encompassed by the pleadings and clearly a ‘discernible circumstance’ from the record before the court.” Maynard v. General Elec. Co. , 486 F.2d 538 (4th Cir. 1 973) ( cleaned
up ). But even assuming, without deciding, Gholson’s argument was not waived, it is just another way of phrasing the negligent operation of a bus claim which , under District of Columbia law , requires expert testimony. So , it also fails for lack of expert testimony. Thus, neither of Gholson’s arguments indicate any error by the district court. We affirm the district court’s order granting summary judgment to the WMATA. We dispense with oral a rgument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED USCA4 Appeal: 21-2047 Doc: 28 Filed: 07/06/2023 Pg: 6 of 6