UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JACQUELINE M. SZADKOWSKI; JOSEPH
E. SZADKOWSKI,
Plaintiffs-Appellants,

v.                                                                    No. 96-2353

WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-93-4176-PJM)

Submitted: February 27, 1998

Decided: March 17, 1998

Before HAMILTON and WILLIAMS, Circuit Judges, and HALL,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Frederic W. Schwartz, Jr., Washington, D.C., for Appellants. Robert
L. Polk, Robert J. Kniaz, Gerard J. Stief, WASHINGTON METRO-
POLITAN AREA TRANSIT AUTHORITY, Washington, D.C., for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Jacqueline M. Szadkowski and Joseph E. Szadkowski appeal the
district court's entry of judgment as a matter of law in favor of the
Washington Metropolitan Area Transit Authority ("WMATA"). In
their complaint, Appellants asserted claims of negligence and loss of
consortium and sought to recover damages for injuries Jacqueline
Szadkowski sustained when she fell into a drainage ditch while en
route to a WMATA subway station. The district court found that as
a matter of law, WMATA was shielded by absolute immunity and
that Mrs. Szadkowski was contributorily negligent. Finding no revers-
ible error, we affirm.

While en route to WMATA's Twinbrook Metro station, Mrs. Szad-
kowski initially walked on the paved sidewalk that led directly to the
east entrance of the station. Instead of remaining on the sidewalk,
Mrs. Szadkowski crossed a church parking lot adjacent to the subway
station. Mrs. Szadkowski walked to the edge of the lot, expecting to
see a sidewalk or path leading to the station. She stepped onto the
grass and realized there was no paved sidewalk or worn path there.
When she tried to step back, she slid into a drainage ditch below, seri-
ously injuring her right leg and ankle. Mrs. Szadkowski testified that
she thought some sort of path led from the parking lot to the subway
station because she had seen other pedestrians who were also going
to the station walk across the same parking lot. There was, in fact, a
worn path from the parking lot to the subway station approximately
twenty feet from where Mrs. Szadkowski fell. Mrs. Szadkowski
asserted that WMATA was negligent because there was no fence or
sign warning pedestrians of the drainage ditch.

At the conclusion of Mrs. Szadkowski's testimony, WMATA
moved for judgment as a matter of law.1 In its motion, WMATA
_________________________________________________________________
1 See Fed. R. Civ. P. 50(a)(1).

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asserted that as an interstate compact agency and an instrumentality
of Virginia, Maryland, and the District of Columbia, which was cre-
ated to provide a regional system of transportation for the Washing-
ton, D.C., metropolitan area, it was immune from suit for claims
asserting design defects.2 WMATA also asserted that it was entitled
to judgment as a matter of law because Mrs. Szadkowski either was
contributorily negligent or assumed the risk of injury.

Finding that WMATA was immune from suit concerning design
defects of the station or access thereto, the district court stated that the
only viable theory of liability would be for Mrs. Szadkowski to estab-
lish that WMATA negligently maintained the pedestrian path that led
from the church's parking lot to the station. However, Mrs. Szad-
kowski was not on the path when she fell, and the court found that
WMATA's duty to properly maintain the path did not extend twenty
feet to the point where she fell. The district court also found that
although Mrs. Szadkowski did not actively, intentionally undertake a
known risk by stepping onto the grassy area, she was not sufficiently
careful in looking where she was going. Accordingly, though the dis-
trict court declined to find that Mrs. Szadkowski assumed the risk of
her injuries, it did conclude that she was contributorily negligent as
a matter of law.

If during a jury trial, a party has put on evidence and yet demon-
strated no legally sufficient evidentiary basis for a reasonable jury to
find in her favor, the court may grant a motion for judgment as a mat-
ter of law or direct the verdict against that party. 3 The question is not
whether there is no evidence, but whether there is sufficient evidence
upon which a jury properly can proceed to reach a verdict; a mere
scintilla of evidence is not enough to defeat a motion for judgment as
a matter of law.4 The plaintiff must present sufficient evidence to
establish a prima facie case. Unless there is substantial evidence to
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2 See Md. Code Ann., Transportation § 10-204(2), (4) (1993)
("Compact").
3 See Fed. R. Civ. P. 50(a).

4 See Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1285
(4th Cir. 1985).

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support the verdict asked of the jury, the district court must grant
judgment as a matter of law upon request.5

We review de novo those appeals challenging the district court's
ruling on a motion for judgment as a matter of law. The test is
whether, without weighing the evidence or considering the credibility
of the witnesses, "there can be but one conclusion as to the verdict
that reasonable jurors could have reached."6 On appeal, we must
resolve direct factual conflicts in favor of the nonmovant, assume as
true all facts supporting the nonmovant which the evidence tended to
prove, and give the nonmovant the benefit of all reasonable inferences.7

The Compact provides, in pertinent part: "[WMATA] shall be lia-
ble for its . . . torts . . . committed . . . in the conduct of any propri-
etary function . . . but shall not be liable for any torts occurring in the
performance of a governmental function."8 Appellants assert that
WMATA was negligent for its failure to place a fence in front of the
ditch or to warn pedestrians of the possibility of danger.9 The issue
of WMATA's immunity, therefore amounts to a question of whether
its alleged acts of negligence are discretionary, governmental deci-
sions, to which immunity attaches, or proprietary, ministerial execu-
tion of those decisions, for which the Compact waives immunity.10

Design is distinct from operation and maintenance. Whereas
WMATA is not shielded by sovereign immunity for such ministerial
functions as the operation and maintenance of its facilities, design
decisions of transportation systems, including negligent design deci-
sions, are entitled to immunity as involving a governmental function.11
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5 Id.
6 Id.
7 Henson v. Falls, 912 F.2d 977, 978-79 (8th Cir. 1990).
8 Md. Code Ann., Transportation, § 10-204(80).
9 Although disputed below, the district court assumed that the area
where Mrs. Szadkowski fell was on WMATA property.
10 See Souders v. Washington Metro. Area Transit Auth., 48 F.3d 546,
548-49 (D.C. Cir. 1995).
11 See Dant v. District of Columbia, 829 F.2d 69, 74-75 (D.C. Cir.
1987) (design of fare collection system).

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WMATA's decision whether to post a warning sign or a fence is a
design decision for which it is immune from suit. Further, because
Appellants failed to present sufficient evidence that the injuries
alleged were directly attributable to negligent maintenance and opera-
tion, rather than to negligent or faulty design, we conclude that the
district court properly entered judgment as a matter of law in favor
of WMATA.

The district court also found that Mrs. Szadkowski was contribu-
torily negligent as a matter of law because she did not use sufficient
caution in looking where she was going. Under Maryland law, con-
tributory negligence, which is a complete bar to a plaintiff's recovery,12
is "the doing of something that a person of ordinary prudence would
not do, or the failure to do something that a person of ordinary pru-
dence would do, under the circumstances."13 Ordinarily, contributory
negligence is a question for the jury.14 The Maryland Court of
Appeals has stated:

          In order to withdraw a case from the jury on the ground
          of contributory negligence, the evidence must show some
          prominent and decisive act which directly contributed to the
          accident and which was of such a character as to leave no
          room for difference of opinion thereon by reasonable minds.15

Assumption of the risk of injury occurs when one knows of and
appreciates a risk and voluntarily chooses to encounter it.16

Here, Mrs. Szadkowski testified that she saw the ditch as she
approached the edge of the parking lot and stepped onto the grassy
area. She further testified that she slipped and fell as she tried to avoid
_________________________________________________________________
12 See Harrison v. Montgomery County Bd. Of Educ., 456 A.2d 894,
898 (Md. 1983).

13 Potts v. Armour & Co., 39 A.2d 552, 556 (Md. 1944).
14 See Campbell v. Baltimore Gas & Elec. Co., 619 A.2d 213, 216 (Md.
App. 1993).
15 Rooney v. Statewide Plumbing & Heating--Gen. Contractors, Inc.,
290 A.2d 496, 499 (Md. 1972).
16 See Hooper v. Mougin, 284 A.2d 236, 238 (Md. 1971).

                    5
the ditch. The evidence, viewed in the light most favorable to Appel-
lants, demonstrates that although Mrs. Szadkowski was not on the
established pedestrian path when she fell, she did not voluntarily
encounter a known risk. However, the evidence also demonstrates
that the proximate cause of Mrs. Szadkowski's injuries was her fail-
ure to watch where she was going. Therefore, we find the district
court properly concluded that though Mrs. Szadkowski did not
assume the risk of her injuries, she was contributorily negligent as a
matter of law. Accordingly, we affirm the decision of the district
court. 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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