Mansaray v. Washington Metropolitan Area Transit Authority
Filing
30
MEMORANDUM OPINION. Signed by Magistrate Judge William Connelly on 05/19/2014. (nk, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
____________________________________
ISATU MANSARAY
)
)
Plaintiff,
)
)
v.
)
)
WASHINGTON METROPOLITAN
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AREA TRANSIT AUTHORITY
)
)
Defendant.
)
____________________________________)
Civil Action No. WGC-13-902
MEMORANDUM OPINION
Pending before the court and ready for resolution is Plaintiff’s Motion to Alter or Amend
Judgment (ECF No. 27). Defendant filed an Opposition (ECF No. 28) and Plaintiff filed a Reply
(ECF No. 29). No hearing is deemed necessary and the court now rules pursuant to Local Rule
105.6 (D. Md. 2011).
DISCUSSION
In the Memorandum Opinion of January 10, 2014 (ECF No. 25), this court found
Plaintiff Isatu Mansaray (“Ms. Mansaray”) was a passenger who fell shortly after she boarded a
bus operated by Defendant Washington Metropolitan Area Transit Authority (“WMATA”).
According to Ms. Mansaray the bus operator drove the bus in a rough or aggressive manner. The
court found Ms. Mansaray was fully onboard the bus before the alleged sudden, forceful
movements and thus Ms. Mansaray was in a place of safety. Relying primarily upon Retkowsky
v. Baltimore Transit Company, 222 Md. 433, 160 A.2d 791 (1960), this court held Ms. Mansaray
failed to present other evidence beyond her adjectival description of the movement of the bus.
Based on Maryland law, the court found no genuine material factual dispute as to whether the
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movement of the bus was unusual or extraordinary. ECF No. 25 at 10. In the accompanying
Order of January 10, 2014 (ECF No. 26), the court granted WMATA’s motion for summary
judgment and entered judgment in favor of WMATA and against Ms. Mansaray.
Ms. Mansaray moves to alter or amend the judgment entered in favor of WMATA on the
grounds that this court committed a clear error of law and/or a manifest injustice. Ms. Mansaray
contends this court improperly imposed a burden upon her inconsistent with her burden of proof,
namely, the failure to proffer any evidence to explain the conduct of the bus driver. “[T]he
Court’s decision imposes upon the Plaintiff the burden of going beyond proving the
extraordinary or unusual movements of the bus, but the added burden of explaining the bus
operator’s conduct. Therefore, to impose this burden on the Plaintiff is a clear error of law.”
ECF No. 27-1 at 3.
In its Opposition WMATA asserts Ms. Mansaray has misread the court’s ruling. “In its
ruling, the Court correctly discussed two ways Plaintiff could show that the movement of the bus
was unusual or extraordinary . . . An explanation of the bus operator’s conduct, if known, is not
an extra burden, but an articulated example of how a Plaintiff in sudden start/stop cases can show
that a ‘definitive factual incident’ existed, which would allow the Plaintiff to overcome
WMATA’s motion for summary judgment.” ECF No. 28 at 2.
In her Reply Ms. Mansaray cites, for the first time, the case of Kaufman v. Baltimore
Transit Company, quoting the following:
Ordinarily the only direct evidence of the cause of a jolt or
movement, and of negligence vel non, would be testimony of the
operator of the car. But plaintiffs are not required to prove their
cases out of the lips of their adversaries, and only occasionally are
able to do so. In the absence of such evidence, the results of the
movement, upon the passenger in question or other passengers or
both, may show the movement to have been unusually violent or
sudden as to justify an inference of negligence.
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197 Md. 141, 146, 78 A.2d 464, 467 (1951) (citation omitted); ECF No. 29 at 3.
However, the Kaufman court continues its discussion by stating,
When a seated passenger is injured by being hurled from his seat
against the seat in front of him, it may be inferred that a sudden
stop was due to negligence of the operator, in the absence of other
circumstances, not including such negligence, which necessitated
the stop. Such an inference must be drawn from facts, not from
adjectives or other words used by witnesses to characterize the
movement, e.g., in the instant case, “terrific jolt”, “very terrible – –
very severe jerk or jolt”, “unusually hard jerk.”
Id. (citation omitted) (emphasis added).
This court was not imposing an additional burden on Ms. Mansaray when it noted Ms.
Mansaray had not proffered any evidence to explain the behavior of the bus driver. ECF No. 25
at 9. In the January 10, 2014 memorandum option this court found the only evidence Ms.
Mansaray presented concerning the allegedly unusual movement of the bus was her adjectival
description. Even before commenting on the absence of evidence concerning the bus operator’s
behavior, this court noted Ms. Mansaray had not presented and deposed any corroborating
witness nor had offered any evidence that another passenger fell due to the sudden movement of
the bus or was similarly injured due to the unexpected and forceful movement of the bus. Id.
This court cited cases with different factual circumstances where there was evidence beyond the
injured party’s adjectival description about a sudden, unexpected or violent movement. This
court found Ms. Mansaray did not present evidence beyond her adjectival description. Under
Maryland law an adjectival description alone is not sufficient to establish negligence.
[T]here was no evidence offered by the appellee to show that the
start of the bus as it departed Queenstown was unusual, abnormal
or extraordinary. In this State, a passenger cannot make out a valid
case of negligence, based on the alleged sudden start or stop of a
bus, ‘merely by adjectival description of the nature of the sudden
start or stop, in the absence of some definite, factual incident
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thereof which makes it so abnormal and extraordinary that it can
legally be found to have constituted negligence in operation.’
Carolina Coach Co. v. Bradley, 17 Md. App. 51, 55, 299 A.2d 474, 477 (1973) (citations
omitted)(emphasis added).
Furthermore, in her motion to alter or amend judgment, Ms. Mansaray contends this court
committed a clear error of law by emphasizing the absence of any corroborating witness to
support Ms. Mansaray’s testimony that the bus operator was driving forcefully. “However, a
corroborating witness was not required; and the relevant inquiry is whether there is a genuine
factual dispute regarding the extraordinary or unusual movements of the bus.” ECF No. 27-1 at
4.
Ms. Mansaray then notes this court quoted from Retkowsky. See ECF No. 25 at 10. Ms.
Mansaray claims the examples given in Retkowsky are not exhaustive of ways an injured party
can show the movements of a bus were extraordinary or unusual. Thereafter Ms. Mansaray
identifies some cases where an injured party failed to hold onto a pole or bar and thus did
nothing to protect herself against the movements of an electric car or bus. Unlike those injured
parties, in this case, Ms. Mansaray did protect herself against the normal movements of a bus by
holding onto the pole. Ms. Mansaray argues she has presented evidence that the movement of
the bus was unusual or extraordinary because “the movement of the bus was such that it caused
her to go from side to side, it caused her to struggle to stay on her feet, it caused her handbag and
purse to fall, it caused the items to fall out of her purse, and it also caused her to fall.” ECF No.
27-1 at 6 (citation omitted). Ms. Mansaray proclaims her undisputed testimony about how she
was affected by the sudden and unusual movement of the bus, despite holding onto the pole, goes
beyond mere adjectival descriptors and therefore raises an inference of negligence. ECF No. 29
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at 2, 3-4. Because of this inference of negligence, the Order granting summary judgment in
favor of Defendant must be vacated.
This court has reviewed the Kaufman case, which neither side mentioned at the summary
judgment briefing, as well as cases citing Kaufman. In examining this line of cases, this court
notes, in some instances, the Maryland courts have found a plaintiff’s description of how an
allegedly sudden and forceful movement affected her constitutes some definite, factual incident.
For example in the case of Kaplan v. Solomon, Mrs. Solomon, a passenger in taxicab operated by
Kaplan, was injured when the taxicab became involved in a three-way collision. The Court of
Appeals of Maryland made the following observations:
The plaintiff testified that Kaplan made a sudden stop. This, in
itself, might be termed a mere characterization without probative
force. Cf. Kaufman v. Baltimore Transit Co., 197 Md. 141, 145,
78 A.2d 464, 467. But she testified that the nature of the stop was
such that she was thrown forward and then back; “* * * at the same
time something hit in the back and front and I went forward again
and the seat came up on me and I got a pain in my back, * * * I
went forward and backward and then I fell and I must have hit
some kind of steel * * *.” It is obvious that the injury was not due
to the stopping but to the blow in the rear. Nevertheless, her
testimony permits the inference that the brakes were not applied
gradually, and that the blow in the rear followed immediately.
203 Md. 131, 135, 99 A.2d 736, 738 (1953). The Maryland court held Kaplan, the taxicab
driver, owed his passenger, Mrs. Solomon, the highest degree of care consistent with his
undertaking. The court affirmed the jury’s verdict against Kaplan and in favor of Mrs. Solomon.
In another case however the Court of Appeals of Maryland affirmed a trial court’s
directed verdict in favor of the defendant. Ms. Sunthimer alleges, after boarding a bus and
depositing her fare in the box, the bus started to make a turn. The bus then started forward very
suddenly, which was unusual, and this motion caused her to fall to the floor. She was close to
the driver’s seat when she fell. Ms. Sunthimer attempted to grab a hold of the rod in front but
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fell and her body twisted. During cross-examination Ms. Sunthimer described the bus as starting
“very fast, very sudden.” The court observed, “[w]hile there were several passengers on the bus,
there was no evidence that any other passenger was affected by, or noticed, the alleged unusual
motion of the bus, [Ms. Sunthimer] being the only witness with reference to the claimed
negligence of the bus driver.” Sunthimer v. Baltimore Transit Co., 217 Md. 52, 53, 141 A.2d
527 (1958). The Maryland court found Ms. Sunthimer raised no novel question and proclaimed
her contentions are answered by other decisions of the court including Kaufman.
In a case predating Kaufman the plaintiff boarded a crowded commuter light rail car and
stood in the aisle while using due care. When an employee of the defendant started the rail car,
there was a sudden and unusual jerk which threw the plaintiff violently to the floor on her knees.
Consequently, the plaintiff’s left knee cap was broken. During trial, when asked to explain why
the movement was violent, she testified as follows:
“You know often when a car starts there is a little jerk, and you
have to be prepared for this, but this was such a violent jerk that it
caused the passengers to scream, Oh!, and it swayed me forward
and threw me down on my knees. * * * The conductor knew I fell,
the crash was terrific, and everybody in the car heard it. It was as
though you would tear a big piece of muslin, and he came to me
and said are you hurt, and I said, I don’t know, but I think there is
something the matter with my knee.”
United Rys. & Electric Co. v. Phillips, 129 Md. 328, 331, 99 A. 355, 356 (1916). The court
explained why the evidence raises the presumption of negligence.
[W]e think, both upon reason and authority, a sudden jerk of such
unusual severity that described in the evidence and manifested by
its results is sufficient to raise a presumption of negligence on the
part of the defendant . . . The jerk or lurch of the car as described
by the plaintiff in this case, judged by its results upon her and upon
the other passengers, and apart from the adjectives used by her in
describing it, shows it to have been of an unusual and
extraordinary character, and so out of the ordinary as to suggest
negligence in the management or control of the particular car.
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Id. at 332, 333, 99 A. at 356, 357.
In the Kaufman case the plaintiff was a passenger aboard defendant’s street car. The
plaintiff, who was seated, alleged she was injured when another passenger fell onto her lap. This
other passenger lost her balance due to the sudden and terrific jolt of the street car. The
passenger who fell had been holding onto the last seat of the car. When the street car gave a jerk,
she lost her hold of the seat and fell. At trial during cross-examination however, this passenger
acknowledged releasing her hold of the seat to allow someone to pass. She does not believe she
was holding the car seat when the street car started. This passenger, the only one directly
affected by the jolt, described the street car’s motion as “just like it always does when it starts
off.” The court below granted the defendant’s motion for a directed verdict after the close of the
plaintiff’s case. On appeal the plaintiff claimed negligence may be inferred from the fact that the
jolt was violent enough to shake the other passenger from her hold of the car seat. The Maryland
court observed it would depend on how tightly the other passenger was holding onto the seat.
That court further remarked there was no evidence however that the other passenger was holding
onto the car seat.
The plaintiff in Kaufman cited the Phillips case in asserting negligence may be inferred
from the terrific jolt. The Maryland court found the facts of Phillips distinguishable. “The
spontaneous scream of the other passengers is in striking contrast with the absence of evidence in
the instant case that any one else in the crowded car was affected by the jolt.” Kaufman, 197
Md. at 147, 78 A.2d at 468.
Turning to the facts of this case, Ms. Mansaray testified, on the date of her injury, an
unfamiliar bus operator was driving the bus. She described the sequence of events as follows:
Q:
Tell me what happened.
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A:
So we were sitting in the bus hut waiting and the bus came
to me. So everyone had gone in. I was the last one going in.
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 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 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. 13:19 - 14:22); ECF No. 24-2 at 4-5 (Mansaray Dep. 13:19
- 14:22).
In response to additional questions, Ms. Mansaray testified about her effort to find a place
to sit.
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:
Did you fall in the front of the bus, the middle of the bus or
the back of the bus?
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A:
As you’re coming into the bus you have seats on both sides
for the elderly and then immediately after those seats going in the
bus that’s where I fell, so it was towards the front. All front down.
Q:
Okay. So where you fell was where the elderly seats ended
and where the regular seats began?
A:
Yes. Yes, I went past the elderly seats. Immediately after
there are regular seats and I was going to try to sit there and that’s
where I fell.
ECF No. 21-1 at 6 (Mansaray Dep. 19:15 - 20:8); ECF No. 24-2 at 6 (Mansaray Dep. 19:15 20:8).
Ms. Mansaray claims the consequences of the bus operator’s rough driving upon her, i.e.,
her struggle to hold onto the bar, the contents of her purse falling onto the floor and her fall,
justify an inference of negligence. The court notes, unlike Phillips, there is no evidence that
other passengers were affected by the “rough driving.” Like Kaufman the “rough driving”
affected Ms. Mansaray only.
Ms. Mansaray argues she protected herself against the normal movements of a bus by
holding onto the pole. Per Ms. Mansaray’s own testimony, the movement of the bus was not
normal. She recognized, shortly after she boarded the bus, the operator was driving in an
aggressive manner, something she was not accustomed to experiencing.
In response Ms.
Mansaray held tightly onto the pole. At that moment, under the circumstances, Ms. Mansaray
took appropriate action to protect herself.
Ms. Mansaray’s fall did not occur as she remained standing, but occurred when she
attempted to sit. Ms. Mansaray testified “I tried to sit holding onto the bar” and “I was going to
try to sit there and that’s where I fell.” Despite knowing the bus operator was driving in an
aggressive manner, Ms. Mansaray, rather than remain standing, attempted to sit.
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Was Ms. Mansaray’s attempt to sit rather than remain standing reasonable under the
circumstances? In other words, did Ms. Mansaray voluntarily choose to leave a position of
safety, i.e., remain standing, holding tightly onto the pole until the bus stopped? Or was Ms.
Mansaray attempting to secure a position of safety, i.e., sitting down, while the bus operator was
allegedly driving in an aggressive manner? The court finds there is a genuine dispute as to a
material fact. The resolution of such a factual dispute is best left to a jury.
For the reason stated above, Plaintiff’s motion to alter or amend the judgment will be
granted. The court will vacate the Order of January 10, 2014 granting WMATA’s motion for
summary judgment and entering judgment in favor of WMATA and against Ms. Mansaray. The
court will further direct the Clerk to reopen this case. An Order will be entered separately.
May 19, 2014
Date
_________________/s/__________________
WILLIAM CONNELLY
UNITED STATES MAGISTRATE JUDGE
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