UNPUBLISHED

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Affirmed by unpublished per curiam opinion.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 Appellee.

Unpublished opinions are not binding precedent in this circuit.

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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 United States

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 an interstate compact agency between the governments of 

Maryland, Virginia and the District of Columbia, which provides mass transit in the 

Washington, D.C. metropolitan area. See Martin v. WMATA, 667 F.2d 435, 436 (4th Cir. 

1981). On 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, the driver failed to pull up to the curb at the stop where she normally got off to 

go into 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 step of the bus.

According to Gholson, she was the first person to get off the bus. When 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 others nearby. She sustained a torn ACL requiring surgery.

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Gholson sued the WMATA for negligence in Prince George’s County Maryland, 

alleging the WMATA operated in a reckless or careless manner and failed 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 grants federal courts original jurisdiction over suits against the WMATA. Md. Code.

Ann., Transp. § 10-204(81).1 The parties consented to having the United States Magistrate 

Judge preside pursuant to 28 U.S.C. § 636(c).

Later, the WMATA moved for summary judgment. It first argued 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 breached 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), 1291.

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 action 

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).

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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 negligence caused 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 Gholson sued, follows 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 the “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 adjudication in this case. And Gholson concedes that District of Columbia 

substantive law is proper.

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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 for claims regarding the operation of a bus since that 

subject matter is outside the common knowledge 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 testimony, 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

District of Columbia law, it requires 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 involve 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.

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Gholson also argues that a reasonable jury could find that the WMATA was 

negligent in failing to provide Gholson a safe means to disembark. As the WMATA 

contends, Gholson raises this issue 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). In civil cases, exceptional circumstances 

require “fundamental error” or a “denial of fundamental 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, she 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. 1973) (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 argument because the facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the decisional process.

AFFIRMED

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