Mansaray v. Washington Metropolitan Area Transit Authority

Filing 25

MEMORANDUM OPINION. Signed by Magistrate Judge William Connelly on 1/10/2014. (nk, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
____________________________________
ISATU MANSARAY
)
)
Plaintiff,
)
)
v.
)
)
WASHINGTON METROPOLITAN
)
AREA TRANSIT AUTHORITY
)
)
Defendant.
)
____________________________________)

Civil Action No. WGC-13-902

MEMORANDUM OPINION
Plaintiff Isatu Mansaray (“Ms. Mansaray”) brought this action against the Washington
Metropolitan Area Transit Authority (“WMATA”) alleging negligence and seeking $20,000.00
in damages. The parties consented to proceed before a United States Magistrate Judge for all
further proceedings in the case and the entry of a final judgment. See ECF No. 11. The case
thereafter was referred to the undersigned. See ECF No. 13. Pending before the court and ready
for resolution is WMATA’s motion for summary judgment (ECF No. 21). Ms. Mansaray filed
an opposition (ECF No. 24). The deadline for WMATA to file a reply elapsed on December 5,
2013. No hearing is deemed necessary and the court now rules pursuant to Local Rule 105.6 (D.
Md. 2011).
BACKGROUND1
On May 24, 2011 Ms. Mansaray stood at a bus stop on Cherry Hill Lane in Laurel,
Maryland, along with at least two other individuals, waiting for the bus. Between 11:25 - 11:30
a.m., a WMATA bus, Route 89M, traveling to Greenbelt, arrived at the bus stop. Ms. Mansaray
1

In determining whether the moving party has shown there are no genuine issues of any material fact, this court
must assess the factual evidence and all inferences to be drawn therefrom in the light most favorable to the
nonmoving party. Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 438 (4th Cir. 1998).

1

was the last individual at the stop to board the bus. Ms. Mansaray described the sequence of
events.
A:
When I got in, we have a [SmarTrip] card that we slot in
the bus. So as soon as I pressed my [SmarTrip] card I was going in
to look for a seat. I was looking onto the bus looking for a seat.
The driver took off like in an aggressive way. He made a solid
turn right. So he moved quickly and the turn was – – he didn’t
wait for me to sit. The turn was sudden. Even though I was
holding onto the bar, I struggled and I tried to sit holding onto the
bar.
Q:

Okay.

A:

So I fell down. I fell down.

Q:

Okay.

A:
When I fell, the passengers in the bus was [sic] yelling that
somebody had fallen. He continued to move. People on the bus
were yelling and saying, Don’t you see that somebody has fallen
down, don’t you see that somebody has fallen down before he
stopped.
Q:

Okay.

A:
So he continued for a while before he stopped. When he
stopped, the people on the bus, passengers, came to help me up.
When they were trying to pick me up, I was shouting because I
was hurting because I hit myself, so I started crying.
ECF No. 21-1 at 4-5 (Mansaray Dep. 13:22 - 14:22); ECF No. 24-2 at 4-5 (Mansaray Dep. 13:22
- 14:22).
Ms. Mansaray had entered the bus and walked past the designated seating for the elderly
and disabled.

As she approached the area where regular seating began, the bus operator

suddenly drove forcefully. Ms. Mansaray attempted to sit in an available seat but fell as the bus
operator drove in a rough manner. ECF No. 21-1 at 6 (Mansaray Dep. 19:15 - 20:19); ECF No.
24-2 at 6 (Mansaray Dep. 19:5 - 20:19).

2

JURISDICTION AND VENUE
This Court has original jurisdiction over this civil action based on Federal Question, 28
U.S.C. § 1331, specifically, pursuant to Section 81 of the WMATA Compact, Section 80 Stat.
1350, Pub. L. 89-774 (November 6, 1996), as outlined in Md. Code Ann., Transp. § 10-204(81),
which states:
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 the Authority 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 25, 1948, as amended (28 U.S.C. 1446).
Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2). The court
notes WMATA removed this case from state court to federal court. See ECF No. 1.
STANDARD OF REVIEW
A motion for summary judgment will be granted only if there exists no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues “that properly can
be resolved only by a finder of fact because they may reasonably be resolved in favor of either
party,” then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam
Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor
Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394
(4th Cir. 1950). The moving party bears the burden of showing no genuine issue as to any
material fact exists.

Fed. R. Civ. P. 56(a); Pulliam Inv. Co., 810 F.2d at 1286 (citing

Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).

3

When ruling on a motion for summary judgment, the court must construe the facts
alleged in the light most favorable to the party opposing the motion. United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.
1985). A party who bears the burden of proof on a particular claim must factually support each
element of his or her claim. “[A] complete failure of proof concerning an essential element . . .
necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323.
On those issues where the nonmoving party will have the burden of proof, it is that
party’s responsibility to confront the motion for summary judgment with an affidavit or other
similar evidence. Anderson, 477 U.S. at 256. However, “’[a] mere scintilla of evidence is not
enough to create a fact issue.’” Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984)
(quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627, 632 (E.D.N.C. 1966), aff’d, 388
F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959 (1968)). There must be “sufficient evidence
favoring the non-moving party for a jury to return a verdict for that party. If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (citations omitted).
DISCUSSION
WMATA contends no genuine issues of material fact exist and therefore it is entitled to
summary judgment. Specifically, WMATA argues Ms. Mansaray bears the burden of proving
negligence. She must demonstrate the movement was not normal, usual or incidental to the
normal operation of a bus, but instead was unusual or extraordinary. Ms. Mansaray fails to
present such evidence and thus cannot establish WMATA’s negligence.
In her opposition Ms. Mansaray claims there is a genuine material factual dispute
concerning whether the movement of the bus was unusual or extraordinary. Ms. Mansaray

4

further asserts there is a genuine material factual dispute regarding whether she was completely
onboard the bus and at a place of safety. These genuine material factual disputes preclude the
entry of summary judgment in favor of WMATA.
To establish a prima facie case of negligence under Maryland law, Ms. Mansaray must
prove “’(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the
defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the
loss or injury proximately resulted from the defendant’s breach of the duty.’” Valentine v. On
Target, 353 Md. 544, 549, 727 A.2d 947, 949 (1999) (citations omitted). As a common carrier,
WMATA owes the highest degree of care for the safety of its passengers. See Smith v. Baltimore
Transit Co., 211 Md. 529, 537, 128 A.2d 413, 417 (1957). “’It is not the utmost and highest,
absolutely, but the highest which is consistent with the nature of [its] business, and there must be
a due regard to its necessary requirements.’” Id. (quoting Smith v. Blue Ridge Transp. Co., 172
Md. 42, 49, 191 A. 66, 69 (1937) (internal citation omitted)). WMATA however is not an
insurer of the absolute safety of its passengers. Carolina Coach Co. v. Bradley, 17 Md. App. 51,
57, 299 A.2d 474, 478 (1973).
When a passenger such as Ms. Mansaray suffers an injury while onboard a common
carrier such as a WMATA bus, and the passenger subsequently sues the common carrier alleging
negligence, “the pivotal question to determine is whether the act of the common carrier that led
to the injury [in this case, the forceful and rough driving], under the circumstances, was a
negligent act under the heightened duty of care applicable to common carriers in [the] State [of
Maryland].” WMATA v. Seymour, 387 Md. 217, 224, 874 A.2d 973, 977 (2005). Maryland law
recognizes normal motions or movements incidental to public transportation.

“[I]n cases

involving injuries caused by the motions or movements of conveyances carrying passengers,

5

recoveries have been permitted or denied, depending upon whether such motions or movements
were unusual or extraordinary, or usual and incident to normal operation.”

Retkowsky v.

Baltimore Transit Co., 222 Md. 433, 440, 160 A.2d 791, 795 (1960).
Before addressing the issue of the motions or movements of the WMATA bus, Ms.
Mansaray alleges in her opposition that a genuine material factual dispute exists regarding
whether she was completely onboard the WMATA bus and at a place of safety. During her
deposition Ms. Mansaray testified that she walked onto the bus, paid the fare with her SmarTrip
card, walked past the designated seating for elderly and disabled and as she walked in the area of
regular seating, that is when the bus operator drove in a forceful and rough manner causing her to
fall. It is undisputed Ms. Mansaray was completely and fully onboard before the alleged sudden,
forceful movements. Regarding the assertion that Ms. Mansaray was not at a place of safety2
when the bus moved suddenly and forcefully, Maryland law addresses this issue. “In Maryland,
a bus driver is not required to wait until his passengers are seated before starting the bus in
operation, unless the passenger labors under some apparent infirmity or disability.” Bradley, 17
Md. App. at 55, 299 A.2d at 477. Since Ms. Mansaray was well within the interior of the bus
when she fell, no evidence supports Ms. Mansaray’s assertion that she was not in a place of
safety.
It is undisputed, on the date of the incident, Ms. Mansaray was neither infirmed nor
disabled.

2

The phrase “place of safety” is used in the case of Mass Transit Administration v. Miller, 271 Md. 256, 315 A.2d
772 (1974). In that case the passenger claimed she had a bag in her left hand and a shopping bag in her right hand,
along with her purse and bus fare. When the bus arrived and stopped, the passenger placed her left foot on the
bottom step. As she placed her right foot on the second step, the passenger claimed the bus took off which caused
her to fall. “The pivotal question which emerges then is whether [the passenger] had reached a place of safety, as a
matter of law, when the bus began its motion.” Id. at 262, 315 A.2d at 775. The Court of Appeals of Maryland
found , whether the passenger had reached a place of safety was a question of fact, not one of law, and the issue was
properly submitted to a jury.

6

Q:
On that day before getting on the bus did you need a cane
to walk to the bus?
A:

No, I don’t need it. I didn’t need a cane.

Q:
Did you have any problems with your legs before getting
on that bus that morning?
A:
Nothing was wrong with me. I walked from home as I
normally do to the bus stop.
Q:
And I know this seems like a silly question. I’m just
asking. Did you need a wheelchair to board or were you using a
wheelchair on the morning that you attempted to board the bus?
A:

I have never used it and I don’t need it.

Q:
On the day that you boarded this bus were you able to
board the bus without assistance?
A:
So since I started that job I’ve been walking to the bus stop
and I didn’t need any assistance that day.
ECF No. 21-1 at 4 (Mansaray Dep. 12:13 - 13:7); ECF No. 24-2 at 4 (Mansaray Dep. 12:13 13:7).
An able-bodied passenger such as Ms. Mansaray has a duty to protect herself upon
boarding a bus.
[A]fter a passenger is fairly aboard, an operator may resume his
ordinary duties as to the vehicle without further concern with the
movements of passengers within the car. Conversely, it is the duty
of passengers, once on board, to protect themselves against the
normal motions of the vehicle incident to public transportation.
Przyborowski v. Baltimore Transit Co., 191 Md. 63, 67, 59 A.2d 687, 689 (1948).
Ms. Mansaray rides the bus daily. She knew she had to protect herself from abrupt movements
while riding on a WMATA bus.
Q:

You said you held onto a metal pole; is that right?

A:
It’s metal. The bus is when you’re going in, you have to
hold onto the metal, the bars, before you can find somewhere to sit.
7

Q:
Okay. And the reason why you do that is because the bus
sometimes would move before you sit down?
A:
As soon as you go inside, sometimes they don’t wait for
you to sit. They start moving, so automatically you grab.
ECF No. 21-1 at 6 (Mansaray Dep. 18:13 - 19:1); ECF No. 24-2 at 6 (Mansaray Dep. 18:13 19:1).
Q:
The pole that you were holding onto, did you have to reach
up to grab it or was it – – or, you know, was it near your waist?
A:
When I was going in, I reached for the one that’s up and
that’s what I was holding.
ECF No. 21-1 at 7 (Mansaray Dep. 26:21 - 27:3); ECF No. 24-2 at 7 (Mansaray Dep. 26:21 27:3).
Based on the above, the court finds there is not a genuine material factual dispute as to
whether Ms. Mansaray was fully onboard and at a place of safety when the WMATA bus
allegedly moved suddenly and forcefully.
The court now turns its attention to the remaining issue, i.e., whether the movement of
the bus was unusual or extraordinary. Ms. Mansaray recounted what happened.
Q:

When the bus moved, were you near a seat?

A:
When the bus started moving, I grabbed onto the pole
stronger because he moved suddenly. And I tried to secure a place
as quickly as I can to sit, but he was rough driving.
*

*

*

Q:
Ms. Mansaray, you indicated that the movement of the bus
forward caused you to fall. Could you describe in detail the
movement of the bus?
A:
Like I was going in. I wasn’t seated. I was still standing.
He moved forcefully and I was swinging and struggling to hold
onto the bar. He move[d] like suddenly. I was holding. I was
trying to hold on to still my feet, but he moved forcefully. He
moved suddenly and he kept moving.
8

Q:

And did the bus make any turn?

A:
Normally we go straight, but he was going, he was driving
so rough that I was focused on trying to stay on my feet. But he
was driving forcefully and I struggled before I fell because I was
trying to grab onto the bar. He was moving, like I was moving
from side to side and I struggled to hold onto the bar.
ECF No. 21-1 at 6, 7 (Mansaray Dep. 19:15-19, 27:9 - 28:3); ECF No. 24-2 at 6, 7 (Mansaray
Dep. 19:15-19, 27:9 - 28:3).
The only evidence presented by Ms. Mansaray about the bus operator’s allegedly forceful
driving is her own testimony. See, e.g., Retkowsky, 222 Md. at 436, 160 A.2d at 793; Bradley,
17 Md. App. at 54, 299 A.2d at 477. No corroborating witness has been presented and deposed.
See, e.g., Washington Ry. & Elec. Co. v. Anderson, 168 Md. 224, 177 A. 282, 284 (1935) (“Her
testimony was corroborated by the witness Shoemaker, who was emphatic in saying, that as the
plaintiff was coming up into the car, it moved forward very suddenly with more force than
usual.”). No evidence has been presented that any other passenger on the bus fell and/or was
injured besides Ms. Mansaray as a result of the alleged sudden and forceful movement of the
bus. See, e.g., Seymour, 387 Md. at 222, 874 A.2d at 976 (“At least one other passenger on the
bus that day was also injured because of this incident. . .”). In short, Ms. Mansaray “made no
attempt to show any unusual or extraordinary effect upon any other passenger, that there were
any spontaneous exclamations of excitement by anyone . . . or that she was thrown or propelled
any unusual distance when she fell.” Retkowsky, 222 Md. at 438, 160 A.2d at 793-94.
Moreover, Ms. Mansaray has not proffered any evidence to explain the behavior of the
bus operator. Whether the alleged sudden and forceful movement by the bus operator was due to
the bus operator attempting to avoid a collision with another vehicle violating rules of the road,
see, e.g., Smith, 211 Md. at 533-36, 128 A.2d at 415-17, or was due to the inattentiveness of the

9

bus operator regarding hazards on the road, see, e.g., Seymour, 387 Md. at 235, 874 A.2d at 984,
cannot be ascertained.3

The only evidence supporting Ms. Mansaray’s allegation that the

movement of the bus was unusual or extraordinary is her description of the movement as
“sudden,” “forceful” and “rough driving.”
“Proof of the negligence of a carrier by the characterization of the
manner of stopping or starting a car or bus by strong adjectives or
expletives will not generally suffice as descriptions of an act of
negligence. This rule has been adopted generally by the courts as a
matter of public policy, to avoid having liability based upon a mere
expression of feeling on the part of the injured, which the
experience of the courts has shown to be oftentimes the
exaggeration of self-interest in anticipation of a judgment against a
responsible defendant. The courts require that the description or
characterization of the negligent cause of harm shall be
accompanied by other proof.”
Retkowsky, 222 Md. at 441, 160 A.2d at 795 (quoting 2 Harvey George Stevenson, Negligence in
the Atlantic States 1198 (1954)).
Ms. Mansaray has failed to present other proof to accompany her characterization of the
movement of the bus. Based on Maryland law, the court finds there is no genuine material
factual dispute as to whether the movement of the bus was unusual or extraordinary.
CONCLUSION
For the foregoing reasons, the court finds there are no genuine issues as to any material
fact and WMATA is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An Order
will be entered separately.

January 10, 2014
Date

_________________/s/__________________
WILLIAM CONNELLY
UNITED STATES MAGISTRATE JUDGE

3

“[I]f exigent circumstances require that a common carrier, being operated normally and safely, suddenly stops in
an attempt to avoid a collision with an unanticipated and dangerous obstacle on the roadway (be it another
automobile, a person, substantial debris, etc.), generally the common carrier will not be liable if one of its passengers
is injured as a result of the sudden stop that was made to avoid the advent of a possibly more dangerous situation.”
WMATA v. Seymour, 387 Md. 217, 226, 874 A.2d 973, 978 (2005).

10