24 April 2012

WMATA, sovereign immunity, and AEDs

Reminder: I am not a lawyer (yet), and this is not legal advice.

Under what conditions might a lawsuit against the Washington Metropolitan Area Transit Authority (WMATA) succeed in overcoming WMATA's sovereign immunity, for failing to properly maintain an installed automated external defibrillator (AED)?

To understand this, we need to review the concept of sovereign immunity and how it applies to WMATA; and more importantly, the associated waivers of sovereign immunity. Essentially, sovereign immunity is a principle that states are immune from being sued without their consent (or, by their own waiver).

See the following from Morris v. WMATA (781 F.2d 218), which is a nice summation of the history of WMATA's sovereign immunity:
On November 6, 1966, Congress consented to, and enacted for the District of Columbia, a compact whose signatories were Maryland, Virginia, and the District of Columbia....The Compact created WMATA to operate a mass transit system for the District of Columbia and the surrounding suburban areas of Maryland and Virginia.
WMATA's sovereign immunity exists because the signatories have successfully conferred their respective sovereign immunities upon it. Congress has power to legislate for the District of Columbia and to create an instrumentality that is immune from suit....
The relevant portion of the WMATA Compact is Section 80. The section in bold below is important because this identifies WMATA's partial waiver of immunity:
80. Liability for Contracts and Torts
The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any proprietary function, in accordance with the law of the applicable Signatory (including rules on 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. Nothing contained in this Title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the Zone of any immunity from suit.
So the distinction here is a matter of function: WMATA cannot be sued for "governmental" functions but it can be sued for "proprietary" functions. So, what is the difference? Let the courts answer (all citations omitted for clarity):
Federal courts...interpreting the WMATA Compact have adopted certain tests
to aid in their determination of which functions are “governmental” and thus immune from suit.
Activities that are “quintessentially governmental” fall within the scope of § 80's grant of
immunity. Such functions have been defined as those activities exclusively within the purview of the government by way of its legal and authoritative nature. The oftcited prototypical governmental function as pertains to WMATA is the act of maintaining a police force.
So, immunity applies to governmental functions but not proprietary ones. If a function is proprietary, a second test must be applied:
If it is not discretionary, as where a “statute, regulation, or policy specifically prescribes a course of action for an employee to follow,”  the activity is “ministerial” and not protected by governmental immunity. If, on the other hand, the activity is “discretionary,” the court must decide whether it falls within what the Supreme Court has termed the “exception for discretionary governmental functions,” commonly referred to, by the federal appellate courts, as the “discretionary function exception.” If the discretionary function exception applies to the challenged activity, then that activity, like activity falling within a quintessential governmental function, “constitute[s] [a] ‘governmental’ activit[y] within the meaning of the ‘governmental/proprietary’ test” of section 80 of the WMATA Compact, and is thus shielded from tort liability.
Got it? Good (yeah, it's a little confusing to say the least!).

Essentially, the function must be both proprietary and also ministerial or WMATA's sovereign immunity applies.

Here's an example. In this case, "WMATA failed to maintain, repair, inspect, or operate the escalators at the Anacostia station such that they became wet and icy, and second, that WMATA failed to warn the public of the wet and icy escalators...WMATA concedes that its actions were not 'quintessentially governmental activities.'" So the first part of the test is conceded; the function of maintaining, repairing, inspecting and operating of escalators is not a governmental function, but a proprietary one. However, the court found that "discretion exercised over the maintenance, repair, inspection, and operation of the escalators is 'subject to policy analysis' and thus discretionary." So escalator maintenance fails the second test because it is discretionary and not ministerial. Thus, WMATA's sovereign immunity applies.

Can we assume that AEDs are similar to escalators in that the function of maintaining, repairing, and inspecting of AEDs is not a governmental function, but a proprietary one? I don't see any reason why not. Absent a strong argument otherwise, the first test appears to be met.

WMATA has much less of an argument if they want to suggest that function of maintaining, repairing, and inspecting AEDs is subject to discretion. There may be differing methods of dealing with escalators in cold and wet weather, but the maintenance of AEDs seems pretty straight forward. In fact, to have AEDs installed without a specific maintenance procedure seems negligent, no?

To establish that the function of  maintaining, repairing, and inspecting of AEDs as a ministerial function rather than a discretionary one, an argument would be bolstered by specific instructions, or policies, to check AEDs on a regular basis. A further example would be the District of Columbia's AED law which states in part that:
The defibrillator is maintained and tested according to the manufacturer’s operational guidelines, and written records of the maintenance and testing are maintained...
(For the record, I know the action took place in the Pentagon Metro Station in Virginia, I am simply citing the DC law as an example of a positive duty to maintain the AED device. I haven't found related laws in Virginia or Maryland yet).

This DC law (whether or not it is truly applicable to WMATA remains to be seen) seems to suggest a positive duty to maintain the AED device; such would make it (in my opinion) a ministerial function. Even absent specific laws in MD or VA, some cases suggest that certain organizations may have a duty to maintain.

In such a case, the function of maintaining AEDs would be both proprietary and ministerial and thus not subject to WMATA's sovereign immunity; as such, WMATA could be sued for failing to maintain the AED (this post does not elaborate on whether or not such failure contributed to the death of the passenger, although common sense suggests it is probable).

I am curious to hear your thoughts and opinions.
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