                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

    EARL COATES,
         Plaintiff
         v.
                                                          Civil Action No. 15-2006 (CKK)
    WASHINGTON METROPOLITAN AREA
    TRANSIT AUTHORITY
         Defendant

                                  MEMORANDUM OPINION
                                      (March 8, 2018)

         This case stems from a violent incident that occurred on a Washington Metropolitan Area

Transit Authority (“WMATA”) bus on August 21, 2015. Plaintiff Earl Coates alleges that armed

gunmen approached the bus at a bus stop and turned off its power by accessing an unlocked

“shutoff panel” on the bus’s exterior. The gunmen then attacked the bus, firing multiple

gunshots before fleeing. Plaintiff, a passenger on the bus, was struck twice and injured. He

brings this lawsuit against WMATA asserting negligence-based causes of action.

         Before the Court is Defendant WMATA’s [22] Motion for Summary Judgment. WMATA

argues that it is entitled to summary judgment because Plaintiff has not established a standard of

care, nor a breach of a standard of care, and because the intervening criminal act that ultimately

injured Plaintiff was not foreseeable. Upon consideration of the pleadings, 1 the relevant legal

authorities, and the record as a whole, the Court DENIES Defendant’s Motion. Simply put, a




1
  The Court’s consideration has focused on the following documents:
    • Def.’s Mot. for Summary Judgment (“Def.’s Mot.”), ECF No. 22;
    • Pl.’s Opp’n to Mot. for Summary Judgment (“Pl.’s Opp’n”), ECF No. 23; and
    • Def.’s Reply to Pl.’s Opp’n to Summary Judgment (“Def.’s Reply”), ECF No. 24.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).

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jury could interpret the evidence in this negligence case—including a video that captured the

incident—in different ways. It is not a case that is susceptible to summary judgment.

                                        I. BACKGROUND

A. Procedural History

       Plaintiff originally filed this lawsuit in the Superior Court of the District of Columbia, but

Defendant timely removed it to this Court. See Def.’s Notice of Removal, ECF No.1. Defendant

then filed a motion to dismiss, which the Court granted-in-part and denied-in-part. See Coates v.

Washington Metro. Area Transit Auth., No. CV 15-2006 (CKK), 2016 WL 4543991 (D.D.C.

Aug. 31, 2016). The Court agreed with Defendant that Plaintiff’s claims were barred by the

doctrine of sovereign immunity to the extent that they were premised on WMATA’s use of

unlocked shutoff panels on its buses. Id. at *3. The Court also agreed with WMATA that

Plaintiff’s request for punitive damages was barred. Id. at *6. However, the Court held that

Plaintiff’s Complaint also contained allegations regarding allegedly negligent actions of

WMATA’s bus driver, Mr. Kenny Lee Jackson, that were separate and distinct from WMATA’s

decision to use unlocked shutoff panels and, to the extent Plaintiff’s claims were based on those

allegations, they were not barred by WMATA’s sovereign immunity. Id. at *4-5.

       Accordingly, after the Court’s Memorandum Opinion and Order on WMATA’s motion to

dismiss, all that remains in this case are Plaintiff’s claims that are factually based on actions or

inactions of the WMATA bus driver that are unrelated to WMATA’s decision to use unlocked

shutoff panels. Those include, for example, that the bus driver “left the bus leaving the door

open and all the passengers on board in the dark,” “made no attempt to turn on the power to the

bus leaving all the passengers in peril,” “was nowhere to be found at the time of shooting,” took

“no steps to turning back on the power to the bus that night after it was disabled, leaving the


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passengers stranded,” “facilitated someone to cause foreseeable harm to the passengers including

the Plaintiff,” “abandon[ed] the bus in an area that Defendant knew or should have known is a

high crime area,” and “took no steps to inform passengers of an emergency prior to leaving them

to fend for themselves.” Compl., ECF No. 1-3, ¶¶ 14, 15, 18, 30.

B. Evidence in the Record Relating to Actions and Inactions of WMATA Bus Driver

       Discovery in this case has now closed. The pertinent portions of the record, which

includes a video of the incident, can be summarized fairly briefly. Plaintiff was a passenger on a

WMATA bus on the evening of August 21, 2015. Several men converged on the bus while it was

stopped at a bus stop in Southeast, Washington D.C. One of those individuals cut the power to

the bus from an outside shutoff panel. Without power, various devices such as the bus’s silent

alarm and phone ceased to function. The bus driver exited the bus without speaking to the

passengers. On the video footage, he can be seen exiting and walking toward the rear of the bus

with his cell phone on and in his hand. The video shows, and the driver confirmed at his

deposition, that the driver never actually touched the bus’s shutoff panel or any other exterior

part of the bus after exiting. After pausing at the rear of the bus for a moment, and perhaps

interacting with the individuals who had converged around the bus, the driver then begins to

walk away from the bus while continuing to look down at his phone. After he has been walking

away from the bus for a period of time, the driver hears gun shots and begins to run. The bus

driver testified that he took shelter in nearby woods and called police. The driver eventually

returned to the scene once police had arrived, and later filed a report about the incident.

                                     II. LEGAL STANDARD

       Summary judgment is appropriate where “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.


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R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to

the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

       In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of its position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See

Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir.

2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly

address another party’s assertion of fact,” the district court may “consider the fact undisputed for

purposes of the motion.” Fed. R. Civ. P. 56(e).

       When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty

Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine



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“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477

U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted).

                                        III. DISCUSSION

       The parties dispute whether Plaintiff has presented sufficient evidence of Defendant’s

negligence to survive summary judgment. “To prevail on a claim of negligence, a plaintiff must

prove ‘(1) that the defendant owed a duty to the plaintiff, (2) breach of that duty, and (3) injury

to the plaintiff that was proximately caused by the breach.’” Night & Day Mgmt., LLC v. Butler,

101 A.3d 1033, 1038 (D.C. 2014) (quoting Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789,

793 (D.C. 2011) (en banc)). The Court will address each of Defendant’s arguments about

perceived evidentiary deficiencies in turn.

       Defendant’s first argument is that Plaintiff has not offered evidence of a duty or standard

of care to which the WMATA bus driver was required to adhere. See Def.’s Mot. at 5. The

Court disagrees. In support of this aspect of his case, Plaintiff has offered the testimony of

Benjamin Singleton, WMATA’s Federal Rule of Civil Procedure 30(b)(6) deponent who is a

safety and training instructor for WMATA buses. Mr. Singleton testified at his deposition that

WMATA bus drivers are instructed that, in an emergency when an unauthorized individual has

accessed a bus’s exterior shutoff panel and shut down the power to the bus, it is the driver’s duty

to exit the bus and turn the bus back on. See Depo. of Benjamin Singleton, ECF No. 23-2


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(“Singleton Depo.”), at 22:19-22 (Q: “Now, once, the power is shut off, since you’ve said its an

emergency, are the drivers instructed to turn the power back on?” A: “Yeah.”); id. at 23:13-17

(Q: “So once the power is turned off on the outside by an unauthorized person, the procedure that

Metro instructs the driver is to go back and turn the power back on; is that correct?” A:

“Correct.”). Plaintiff has also presented evidence that an official WMATA bus rule states that

“Operators are expected to attend to minor mechanical corrections to buses” including “returning

electrical master switches . . . to the on position following it being shut off by vandals.” See

Pl.’s Ex. 3, ECF No. 23-3.

       This evidence is enough to allow Plaintiff to survive summary judgment with respect to

the standard of care. As Defendant has not disputed in its briefing, WMATA rules governing the

conduct of its employees can be used as evidence to establish the standard of care in negligence

cases like the one before the Court. See Washington Metro. Area Transit Auth. v. Young, 731

A.2d 389, 398 (D.C. 1999) (holding that WMATA’s Standards of Procedure were “evidence of

the degree of care required under the circumstances”); Robinson v. Washington Metro. Area

Transit Auth., 676 A.2d 471, 473 (D.C. 1996) (“The parties agree that . . . the scope of

WMATA’s duty to a passenger is defined by its written directives to its employees”);

Washington Metro. Area Transit Auth. v. O’Neill, 633 A.2d 834, 841 (D.C. 1993) (in case where

“WMATA’s safety rules restrict[ed] its drivers’ discretion on what to do when a passenger is

being harassed or threatened by another rider,” holding that “the rules themselves provide

evidence of the standard of reasonable care.”).

       Defendant’s second argument is that Plaintiff has no evidence that the WMATA bus

driver breached any duty or standard of care. It is Defendant’s view that the driver acted

reasonably and was attempting to restore power to the bus when he was prevented from doing so



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by unruly third parties. Plaintiff disputes these assertions. It is Plaintiff’s view that the video of

the incident shows that—before the shooting—the bus driver had simply walked away from the

bus without making any attempt to turn its power back on, negligently abandoning the bus and

its riders.

        With respect to the breach element of Plaintiff’s claim, the key evidence is clearly the

video of the incident. The Court has carefully reviewed that video and has determined that it can

draw no conclusions about the appropriateness of the driver’s conduct as a matter of law. It is

sufficient for the purposes of this Memorandum Opinion to state that two jurors could view the

video and reach different conclusions. Summary judgment is not appropriate. Defendant argues

that WMATA bus drivers are not “law enforcement,” and therefore cannot be expected to

negotiate with, or otherwise “stand up to,” criminals. Def.’s Mot. at 4, 6. However, Plaintiff’s

case is not based on a claim that the WMATA bus driver had such a duty. Plaintiff alleges that

the driver acted negligently by exiting the bus and walking away instead of complying with his

duty to turn on the bus’s power from an outside switch. A jury could view the video in question

and find for Plaintiff without finding that the driver had a duty to act as law enforcement or

“stand up to” criminals.

        Finally, Defendant argues that summary judgment is warranted because the intervening

criminal act in this case was not foreseeable. Def.’s Mot. at 7. As the District of Columbia

Court of Appeals has explained in this particular context:

               “A common carrier is required to protect its passengers against
               assault or interference with the peaceful completion of their
               journey.” Matthews v. Southern Ry. Sys., 81 U.S. App. D.C. 263,
               264-65, 157 F.2d 609, 610-11 (1946). “If the danger of an
               intervening negligent or criminal act should have reasonably been
               anticipated and protected against, the defendant will be held
               responsible for the damages which result despite the entry of another
               act in the chain of causation.” St. Paul Fire & Marine Ins. Co. v.

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               James G. Davis Constr. Corp., 350 A.2d 751, 752 (D.C.1976). It is
               true that, when the intervening act involves criminal rather than
               negligent conduct by a third party, “[t]he question is not simply
               whether a criminal act is foreseeable, but whether a duty exists to
               take measures to guard against it.” Cook v. Safeway Stores,
               Inc., 354 A.2d 507, 509 (D.C.1976) (citation and internal quotation
               marks omitted; emphasis in original). But where a special
               relationship exists, such as between a common carrier and its
               passengers, the carrier undeniably has a duty to protect its
               passengers from foreseeable harm arising from criminal conduct of
               others. Restatement (Second) of Torts § 314A(1)(a) and comments
               d, e; § 302B (1965).

O’Neill, 633 A.2d at 840.

       There is evidence in the record that could support a jury finding that the intervening

criminal act in this case was foreseeable. WMATA’s Rule 30(b)(6) witness, Mr. Singleton,

testified that he was aware that unauthorized assailants were turning off the power to WMATA

buses as frequently as five to ten times per year. See Singleton Depo. at 22:3-18. In fact, these

attacks were apparently happening with sufficient frequency that an official WMATA rule was

crafted to respond to situations where “vandals” shut off the power to buses. See Pl.’s Ex. 3. In

addition, the WMATA bus driver involved in this case testified at his deposition that he heard

one of the individuals who had converged on the bus make a threatening remark to a passenger.

See Depo. of Kenny Lee Jackson, ECF No. 22-4, at 40:3-41:3.

       Considering all of this evidence in the light most favorable to Plaintiff, the Court

concludes that summary judgment on the basis of the foreseeability of the intervening criminal

act is not appropriate. Plaintiff claims that the WMATA bus driver acted negligently by failing

to return power to the bus and instead merely walking away, leaving the bus both immobile and

dark. Whether or not the bus driver could have foreseen––given what was known about this type

of attack in general, and this attack specifically—that this alleged negligence might make

possible, or even encourage, the criminal attack that harmed Plaintiff is a question for the jury.

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See Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 913-14 (D.C. Cir. 2006) (reversing

summary judgment for the defendant dance club in a case alleging negligent failure to protect

patrons from criminal attack by a third party outside the club, holding that the criminal act was

sufficiently foreseeable because defendant was aware that fights had occurred outside the club in

the past).

                                       IV. CONCLUSION

        For the foregoing reasons, the Court DENIES Defendant’s [22] Motion for Summary

Judgment. The evidence in this case is largely based on a video of the incident in question.

Whether or not the conduct captured in that video amounts to negligence is not a question that

this Court can answer as a matter of law. An appropriate Order accompanies this Memorandum

Opinion.

                                                        /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     United States District Judge




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