Bailey v. Prince George's County Maryland et al

Filing 40

MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 4/8/2016. (bus, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
NOEL BAILEY,
Plaintiff,
v.

WASHINGTON METROPOLITAN
AREA TRANSIT AUTHORITY, et al.
Defendants.

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Civil Action No.: CBD-15-1731

MEMORANDUM OPINION
Before this Court are Defendant Washington Metropolitan Area Transit Authority’s
(“WMATA”) Motion for Summary Judgment, (ECF No. 24) (“WMATA’s Motion”) and
Defendant Prince George’s County, Maryland’s (“Prince George’s County”) Motion for
Summary Judgment (ECF No. 26) (“Prince George’s County’s Motion”). The Court has
reviewed WMATA’s Motion, Prince George’s County’s Motion, related memoranda, and
applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the
reasons presented below, the Court GRANTS WMATA’s Motion and DENIES Prince George’s
County’s Motion.
I.

Factual Background
Noel G. Bailey (“Plaintiff”) alleges that at approximately 6:45 a.m. on January 22, 2014,

he slipped and fell on a snow-covered sidewalk along Ellin Road outside the New Carrollton
Metro Station. Amend. Compl. 2. As a result of the fall, Plaintiff alleges he suffered a very
serious injury to his left ankle. Id. Plaintiff alleges that as the owner of the sidewalk, Prince
George’s County had a duty to maintain the sidewalk along Ellin Road free from ice and snow.

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Id. Plaintiff further alleges that Prince George’s County breached the duty of reasonable care,
and therefore, was negligent, when it failed to clear the sidewalk or post warning signs after the
snowstorm the night before. Id. at 2-3.
In addition, Plaintiff asserts that WMATA had a duty to safely maintain the sidewalk
along Ellin Road, outside the New Carrollton Metro Station, free from snow and ice. Id. at 3.
Plaintiff claims that WMATA breached the duty of reasonable care and acted negligently when it
failed to clear the sidewalk or warn Plaintiff of the dangerous and unsafe conditions. Id. at 4.
II.

Standard of Review
Under the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment 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). A dispute is deemed genuine
only if the “evidence is such that a reasonable jury could return a verdict for the nonmoving
party,” and a fact is deemed material only if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Supreme Court
has explained that the burden of proof lies with the movant to identify “those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court reviewing a motion for summary
judgment must view the evidence in the light most favorable to the party opposing the motion.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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III.

Analysis
A. Prince George’s County owed Plaintiff a duty of care and whether Prince
George’s County had either actual or constructive notice of the dangerous
conditions on January 22, 2014 is a jury issue.
Prince George’s County argues it does not owe Plaintiff a duty of care because even if it

owns the sidewalk, it is not responsible for removing snow and ice from any sidewalk, and
instead WMATA is solely responsible for the snow and ice removal. Prince George’s County’s
Mot. 4. Prince George’s County further contends that even if it owed a duty to Plaintiff, it did
not breach it because Plaintiff walked on the snow covered sidewalk shortly after a significant
snowfall, and in such a short amount of time, the County could not have the opportunity to
remove the snow from all its sidewalks. Id. at 5.
In response, Plaintiff argues that Prince George’s County had notice, since January 20,
2014, of the impending snow storm, and even prepared a snow plan. Pl.’s Opp. 12. Therefore,
Prince George’s County had ample opportunity to prepare and then clear the snow and ice before
Plaintiff’s fall. Id. In its reply, Prince George’s County contends that Plaintiff failed to establish
that the County had notice of ice on the sidewalk where he fell because he did not see anyone
falling and he walked for fifteen minutes without falling. Prince George’s County’s Reply 2-3.
In a negligence claim, the plaintiff 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.” Moore v. Jimel, Inc., 147 Md. App. 336, 337-38 (Md. Ct. Spec.
App. 2002) (citing Valentine v. On Target, 353 Md. 544, 549 (1999)). A municipality owes a
duty to persons lawfully using the sidewalk under its control to make such sidewalk reasonably
safe for passage. See Weisner v. Mayor and Council of Rockville, 245 Md. 225, 228 (1967). In

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order to hold a county liable for injuries caused by its alleged negligence in failing to keep
sidewalks under its control free of dangerous conditions, the plaintiff must show that the county
had either actual or constructive notice of such condition. Id. As the owner of the sidewalk,
Prince George’s County owed a duty to Plaintiff to make the sidewalk he was using reasonably
safe for passage. Prince George’s County has not cited any authority supporting the proposition
that it did not have a duty to remove snow and ice from a sidewalk it owns. Furthermore,
Plaintiff has presented evidence from which a reasonable juror could conclude that Prince
George’s County had actual or constructive notice of the hazard caused by the accumulation of
snow and/or ice. According to Adam M. Jiroun, Prince George’s County designee, and Division
Chief for Road Maintenance and Construction Division, Prince George’s County prepared a
snow plan to deal with the snow storm that began on January 21, 2014. See Adam M. Jiroun
Dep. ECF No. 31-2, p. 37:13-22. The Court concludes that it is for a jury to decide whether
Prince George’s County had actual or constructive notice of the hazard after the snow storm.
B. The Court cannot conclude that Plaintiff assumed the risk as a matter of law.
Prince George’s County argues that Plaintiff assumed the risk of falling on the snow and
relies on ADM P’ship v. Martin, 348 Md. 84 (1997), Schroyer v. McNeal, 323 Md. 275 (1991)
and Morgan State Univ. v. Walker, 397 Md. 509 (2007). Prince George’s County Mot. 5-8.
Prince George’s County contends that the evidence in the case shows that Plaintiff fully knew
and understood the danger, and voluntarily chose to walk on the snow covered sidewalk. Id. at
7-8. Additionally, Prince George’s County asserts that there is no evidence that Plaintiff was
forced against his will to walk on the snow covered sidewalk. Id. at 8.
Plaintiff argues that the actual knowledge and voluntariness elements of the assumption
of risk defense are missing in this case. Id. at 18. Specifically, Plaintiff contends that he could
not have assumed the risk because he did not feel or see the ice before he slipped on it. Id. at 18.

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In support of this position, Plaintiff cites Poole v. Coakley E. Williams Const., Inc., 423 Md. 91
(2011) which requires Plaintiff to “actually” know about the risk. Additionally, Plaintiff argues
that his conduct that morning was involuntary because he had no choice but to go to work the
morning of January 22, 2014 since he was a recently hired “essential employee,” who was on a
six (6) month period of probation, and who could be terminated for any reason, including
attendance. Id. at 19. Plaintiff therefore argues that the jury should decide whether he had actual
knowledge of the ice under the snow-covered sidewalk, and whether he voluntarily assumed the
risk. Id. at 20.
In Maryland, assumption of risk is a bar to recovery. Prudential Securities Inc. v. E-Net,
Inc., 140 Md. App. 194, 226 (Md. Ct. Spec. App. 2001). The defendant must prove three
elements to establish the defense of assumption of the risk: (1) the plaintiff had knowledge of the
risk of the danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily
confronted the risk of danger. Thomas v. Panco Mgmt. of Maryland, LLC, 423 Md. 387, 395
(2011) (citing ADM P’ship v. Martin, 348 Md. 84, 90-91 (1997)).
To determine whether a plaintiff had knowledge of the risk, the Court applies a subjective
standard focused on what that particular plaintiff saw, knew, understood, and appreciated, which
is different from the objective standard that is applied to contributory negligence. Poole, 423
Md. at 112 (citing Prosser and Keeton § 68 at 487; American Law of Torts § 12:53, at 431-33).
Therefore, “in order for a plaintiff to have assumed the risk of his or her injuries as a matter of
law . . . [that] plaintiff ‘must’ have known that the risk was ‘actually present,’ not that he or she
‘would,’ ‘should,’ or ‘could’ have known that the risk ‘might well be present.’” Id. at 123.
However, an objective element enters the case because the plaintiff “will not be heard to say that
he did not comprehend a risk which must have been quiet clear and obvious to him.” Id. at 113
(quoting Prosser and Keeton § 68, at 487-88). In other words, the Court will not be “swayed by

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a plaintiff’s subjective denial that he or she did not comprehend the extent of a clearly obvious
danger.” Crews v. Hollenbach, 358 Md. 627, 644 (2000). There are “certain risks which anyone
of adult age must be taken to appreciate” and therefore, a plaintiff’s denial of his knowledge of
such risk will be insufficient. Poole, 423 Md. at 116.
“The question of whether the plaintiff had knowledge and appreciation of the particular
risk at issue is ordinarily a question for the jury, ‘unless the undisputed evidence and all
permissible inferences therefrom clearly establish that the risk of danger was fully known to and
understood by the plaintiff.’” Thomas, 423 Md. at 395 (quoting Schroyer v. McNeal, 323 Md.
275, 283 (1991)) (emphasis in original). “Where it is clear, however, ‘that a person of normal
intelligence in the position of the plaintiff must have understood the danger, the issue is for the
court.’” Id. (emphasis in original). “[F]or a court to impute knowledge as a matter of law, the
evidence and all permissible inferences must make clear that the plaintiff had full, actual, and
subjective knowledge of the risk or that ‘a person of normal intelligence in the position of the
plaintiff must have understood the danger.’” Poole, 423 Md. at 125.
To determine “whether a plaintiff . . . voluntarily exposed [himself] . . . to the risk of a
known danger, ‘there must be some manifestation of consent to relieve the defendant of the
obligation of reasonable conduct.’” ADM P’ship v, 348 Md. 84 at 92 (quoting Prosser and
Keeton § 68 at 490). For a plaintiff “to assume voluntarily a risk of danger, there must exist ‘the
willingness of the plaintiff to take an informed chance.’” Id. (quoting Schroyer, 323 Md. at 283).
In other words, “there can be no restriction on the plaintiff’s freedom of choice either by the
existing circumstances or by coercion emanating from the defendant.” Id. That is, “[w]here the
defendant puts him to a choice of evils, there is a species of duress, which destroys the idea of
freedom of election.” Id. at 93 (quoting Prosser and Keeton § § 68 at 490–91). However, where

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a plaintiff “is driven by his own necessities to accept a danger, the situation is not to be charged
against the defendant.” Id.
In this case, there is a dispute of material fact as to whether Plaintiff fell on the ice or
snow. In his deposition, Plaintiff claims that he fell on the snow. See Noel G. Bailey Dep., ECF
No. 24-1, p. 37:8-10, 19-20. Plaintiff also claims that he slipped on the ice under the snow. Id.,
ECF No. 31-2, p. 52:2-3. Whether Plaintiff fell on the ice or the snow is material. The snow
was visible and there is sufficient evidence to conclude that Plaintiff knew the risk of falling on
the snow. On the day of the incident, Plaintiff left his house earlier than usual to catch the bus
because it was snowing and he did not want to rush. See Noel G. Bailey Dep., ECF No. 24-1,
19:21, 20:1-2. Plaintiff knew that the night before the incident, it had snowed significantly: “a
blizzard . . . like 22 inches.” Id. at 26:12-13. Plaintiff was at least certain that “there was more
than 15 inches of snow on the ground.” Id. at 27:11-12. Plaintiff also acknowledged that there
was “so much snow” that on his way to the bus stop he alternated between walking on the street
and on the sidewalk. Id. at 49:20-22. On the day of the incident, Plaintiff wore snow boots as he
made his way to the bus stop. Id. at 29:3. The area where Plaintiff fell was “heavily covered in
snow.” Id. at 32:8-9. However, there is insufficient evidence before the Court to conclude that
Plaintiff had actual knowledge that there was ice under the snow. Therefore, the Court cannot
conclude that Plaintiff knew the risk of slipping and falling on ice.
Even if the Court concluded that Plaintiff knew and appreciated the risk of slipping and
falling on the snow and/or ice, the Court cannot rule as a matter of law that Plaintiff assumed the
risk because the Court cannot conclude that Plaintiff voluntarily confronted the risk of slipping
and falling on snow and/or ice. This case is different from ADM P’ship v. Martin, 348 Md. 84
(1997) and Burke v. Williams, 244 Md. 154 (1996). In ADM P’ship, the plaintiff, employed as a
delivery person for a reproduction company, fell on an icy walkway as she delivered blueprints

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to a business owned by the defendants. ADM P’ship, 348 Md. at 88. The plaintiff testified that
although her employer never communicated she could lose her job if she did not make the
delivery, she believed that she had no choice but to deliver the blueprints. Id. at 89. The court
held that the plaintiff assumed the risk of her own injuries. Id. at 97. As to the voluntariness
element, the court concluded that neither the plaintiff’s employer nor the defendant “ever
demanded” that Plaintiff walk over the ice and snow covered walkway against her will. Id. at 99.
The court also noted that there was no evidence to suggest that the plaintiff’s employment would
have been adversely affected if she did not make the deliveries. Id. at 98.
In Burke, the plaintiff slipped and fell into an excavation at a construction site as he was
delivering kitchen sink tops, and carrying them over a walkway made by fastening two ten or
twelve foot boards at both ends. Burke, 244 Md. at 156-57. At trial, the plaintiff testified that
the boards were slippery due to mud and slush from melting snow. Id. at 157. The plaintiff
argued that he did not assume the risk voluntarily, in part because of the economic necessity of
keeping his job and not being discharged for failure to deliver the sink tops. Id. at 158. The
court rejected this argument, concluded that the plaintiff assumed the risk, and reasoned that
there was no evidence that the plaintiff’s job “would have been in jeopardy had he left the sink
tops on the construction site instead of taking them into the house.” Id.
In contrast to ADM P’ship and Burke, there is evidence before this Court to conclude that
Plaintiff’s employment could have been adversely affected if he had decided not to go to work
because of the snowstorm. According to Melissa Amick, the Assistant Director of Financial
Services for the Department of Residential Facilities at the University of Maryland, College
Park, on January 13, 2014, Plaintiff was hired by the University of Maryland as a full-time
housekeeper, and was an “essential employee” who was required to come to work as usual on
January 22, 2014. See Affidavit of Melissa Amick, ECF No. 24, p. 1. According to Ms. Amick,

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Plaintiff was on probation for six (6) months from the date of hire and subject to being fired for
any reason. Id. at 2. Plaintiff’s employer was going to consider his attendance record when
determining whether to extend his employment after the probation period. Unlike in ADM
P’ship and Burke, Plaintiff did not have a purely “subjective belief” that his refusal to assume the
risk would result in negative employment consequences. There is evidence from which a jury
could find that as an essential employee, Plaintiff was expected to be at work on a snow day.
This case is also unlike other cases where the Court of Appeals of Maryland and the
Court of Special Appeals of Maryland have concluded that the plaintiffs assumed the risk when
they slipped and fell on ice or snow by not taking advantage of other alternatives. See, e.g.,
Warsham v. James Muscatello, Inc., 189 Md. App. 620, 653 (2009) (where the court held that
the plaintiff assumed the risk of falling as he was salting an icy area because he had other
alternatives such as throwing salt on the ice from the safety of the grass, contacting maintenance
employees, posting a sign, blocking access to the icy area, etc); Walker, 397 Md. at 520 (2007)
(where the court held that the plaintiff assumed the risk of falling on ice in a school parking lot
because she had other alternatives, such as arranging a different plan to deliver the money to her
daughter, “instead of voluntarily proceeding in the face of danger”); Schroyer, 323 Md. at 288
(1991) (where the court held that the plaintiff assumed the risk of falling after she voluntarily
chose to traverse an ice and snow covered parking lot and sidewalk for the convenience of
unloading her belongings). In this case, a reasonable jury could find that unlike in Warsham,
Walker, and Schroyer, Plaintiff did not have an option, as an essential employee, but to walk to
the bus stop on snow covered sidewalks and streets, to get on the bus that would take him to
work. Accordingly, the Court cannot conclude that Plaintiff assumed the risk as a matter of law.

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C. WMATA’s decision to remove snow and/or ice is discretionary and therefore it
is entitled to immunity protection.
WMATA relies on Tinsley v. WMATA, 429 Md. 217 (2012), and argues that it enjoys
immunity from lawsuits challenging the manner in which it carries out discretionary maintenance
functions such as removing snow after a blizzard. WMATA’s Mot. 7-12. In response, Plaintiff
argues, relying on Md. Transp. Code. Ann. § 10-204(80) and Higgins v. City of Rockville, 86
Md. App. 670 (1991), that under Maryland law, maintenance of the condition of sidewalks is a
proprietary function for which immunity is not available. Pl.’s Opp. 20-23. In its reply,
WMATA contends that whether an activity is governmental or proprietary is a matter of federal
law because the WMATA Compact is an act of Congress. WMATA’s Reply 1. WMATA
further suggests that Smith v. WMATA, 290 F.3d 201 (4th Cir. 2002) is controlling authority
which held that WMATA’s operational and maintenance decisions are entitled to immunity. Id.
at 2-3.
WMATA is a mass transit system that was created in 1966 by an interstate compact (“the
Compact”), enacted and consented to by Congress, and adopted by the state of Maryland, the
District of Columbia, and the Commonwealth of Virginia. See Tinsley, 429 Md. at 222-23. The
Compact provides that WMATA is an interstate agency and instrumentality of each of the
signatories to the Compact. Delon Hampton & Assocs. v. WMATA, 943 F.2d 355, 359 (4th Cir.
1991). Questions regarding the interpretation of the Compact are questions of federal law.1
Tinsley, 429 Md. at 223 (citing Cuyler v. Adams, 449 U.S. 433, 438 (1981)).
WMATA enjoys the same rights and privileges as a state, including sovereign immunity.
Delon Hampton & Assocs., 943 F.2d at 359. WMATA’s immunity, however, is not all

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The Court agrees with WMATA’s contention that it is incorrect for Plaintiff to argue that WMATA’s
claim of immunity is controlled by Maryland law. See WMATA’s Reply 1.

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encompassing since it is waived for torts committed in the exercise of its proprietary functions,
but not for the commission of any torts resulting from its governmental function.2 Tinsley, 429
Md. at 224. To determine whether a function is proprietary or governmental, there is a two-part
approach. First, the Court looks at whether WMATA was engaged in a quintessential
governmental function. Smith v. WMATA, 290 F.3d 201, 207 (4th Cir. 2002). If it is such a
function, it is within WMATA’s sovereign immunity. Id. If WMATA was not engaged in a
quintessential government function, the Court must determine “whether the challenged activity is
discretionary or ministerial.” Id. If the activity is discretionary, it is within WMATA’s
sovereign immunity. Id. If the activity is ministerial, it does not fall within WMATA’s
sovereign immunity. Id. at 208.
To determine whether WMATA’s decision was discretionary, the Court inquires first,
whether “any statute, regulation, or policy ‘specifically prescribes a course of action for an
employee to follow.’” Pierce v. WMATA, DKC 09–1917, 2010 WL 4485826, at *4 (D. Md.
Nov. 9, 2010) (citing Kiska Const. Corp. v. WMATA, 321 F.3d 1151, 1159 (D.C. 2003)). If the
course is prescribed, the activity is not discretionary. Id. Second, the Court must determine
“whether the exercise of discretion is grounded in ‘social, economic, or political goals.’” Id. If
it is, sovereign immunity applies. Id.
WMATA’s snow and/or ice removal is not a quintessential government function such as
police activity, prosecutorial decisions, or firefighting. Pierce, 2010 WL 4485826, at *4

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Section 80 of the Compact provides:

The Authority shall be liable for its contracts and for its torts and those of its directors, officers, employees,
and agents committed in the conduct of any proprietary function, in accordance with the applicable
signatory (including rules of conflict of laws), but shall not be liable for any torts occurring in the
performance of a governmental function. The exclusive remedy for such breach of contracts and torts for
which the Authority shall be liable, as herein provided, shall be by suit against the Authority.
Md. Code Ann., Transp. § 10–204(80).

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(citations omitted). Accordingly, the Court must determine whether WMATA’s snow and/or ice
removal decision is a discretionary or ministerial activity. There is no evidence before the Court
indicating that a particular statute, regulation, or policy specifically prescribed how WMATA
employees were to remove the snow and/or ice. However, WMATA’s snow and/or ice removal
decisions are based on economic and policy goals, and therefore are immune from suit. See
Tinsley, 429 Md. at 239-40 (where the Court determined that WMATA’s decision to clean the
station floor, and to allow water to evaporate in the station as opposed to mopping it, were based
on economic and policy considerations, and therefore immune from suit). As in Tinsley, in this
case, WMATA employees, when determining the best time to remove the snow and/or ice, are
balancing safety concerns against not impeding pedestrian traffic. Id. at 239. WMATA
employees are also considering how often to clean against WMATA’s budget. Id. at 240.
Because WMATA’s snow and/or ice removal decisions are proper maintenance procedures
grounded in concerns of economic and public policy considerations, WMATA has immunity
from suit. See Smith, 290 F.3d at 208 (“. . . discretionary acts deserving of immunity are not
limited to policymaking or planning decisions; day-to-day management can also involve
discretionary choices grounded in regulatory policy.”)
IV.

Conclusion
For the foregoing reasons, the Court GRANTS WMATA’s Motion and DENIES Prince

George’s County’s Motion.

April 8, 2016

/s/
Charles B. Day
United States Magistrate Judge

CBD/yv

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