holding that where “WMATA employees made determinations as to how best to complete a necessary maintenance task, determinations based on economic and policy considerations for which WMATA has immunity”
How later courts described this case
- holding that where “WMATA employees made determinations as to how best to complete a necessary maintenance task, determinations based on economic and policy considerations for which WMATA has immunity”
- finding WMATA entitled to sovereign immunity where decision to clean station floor and allow water to evaporate in station instead of mopping it, was based on economic and policy considerations
Written by the judges who cited it.
The opinion
HARRELL, J.,
concurring, in which McDONALD, J., joins.
I join the Court’s opinion and disposition in Tinsley v. WMATA. I join also the opinion’s analysis in Hodge v. WMATA of Hodge’s contentions that mirror Tinsley’s contentions; however, I am unable to join the Majority’s reasoning in Hodge as to its rejection of her contention that § 75 of the WMATA Compact, in conjunction with certain provisions of the Prince George’s County Code placing a duty of maintenance on the owners of “[a]ll improved ... property ... [to be kept] in a clean, safe, secure ... condition ... so as not to create a public nuisance or adversely affect the public health, safety, or welfare,” overcomes WMATA’s immunity in § 80 of the Compact. Although I agree that Hodge, on this record, should not prevail, it is for reasons that differ from the Majority opinion’s explication. See Tinsley and Hodge v. WMATA 429 Md. 217, 239-41 , 55 A.3d 663, 676-77 (2012).
Section 75 of the WMATA Compact 1 provides, as noted in the Majority opinion:
75. Compliance with laws, regulations, and ordinances.
The board shall comply with all laws, ordinances and regulations of the signatories and political subdivisions and agencies thereof with respect to use of streets, highways and all other vehicular facilities, traffic control and regulation, zoning, signs, and buildings.
Tinsley and Hodge v. WMATA 429 Md. 217 , 221 n. 2, 55 A.3d 663 , 666 n. 2 (2012) (emphasis added). As Hodge’s argument goes, she points to several provisions in the Prince George’s County Code which, she maintains, have the effect of placing an obligation on WMATA to clean and maintain the platforms *243 and floors of its stations in the County according to some generalized standards, thus answering in her favor the immunity conundrum of whether proprietary versus governmental functions are implicated. Those local ordinance provisions are, in relevant part:
Prince George’s County Code, Property Standards and Maintenance, § 13-230. Scope.
The provisions of this Division provide the minimum standards and the responsibilities for maintenance of structures, equipment, and exterior property for all property and structures used or zoned for commercial and industrial purposes in Prince George’s County and for residentially zoned property where the use is other than residential.
Prince George’s County Code, Property Standards and Maintenance, § 13-231. Definitions.
(a) The following words and phrases shall have the meanings indicated:
(3) Maintenance shall mean acts of repair or other acts to prevent a decline in the conditions of grounds, structures, and equipment such that the condition does not fall below the standards established by this Division and other applicable statutes, codes, and ordinances.
(4) Owner shall mean any person as defined in Section 1-102 of this Code who owns, leases, occupies, or controls the property and any agent of such person.
(5) Property shall mean any land utilized or zoned for commercial or industrial purposes, or residentially zoned where the use is other than residential, and any improvement thereon.
(6) Public nuisance shall mean and include the following:
(A) the physical condition or use of any premises regarded as public nuisance at law; or
*244 (D) Any physical condition or use which would constitute an unsafe condition or structure under Subtitle 4, Building, or Subtitle 11, Fire Safety, Prince George’s County Code;
Prince George’s County Code, Property Standards and Maintenance, § 13-233.
All improved and unimproved property shall be maintained in a clean, safe, secure, and sanitary condition, free of graffiti, and in conformance with this Division so as not to create a public nuisance or adversely affect the public health, safety, or welfare.
Prince George’s County Code, Property Standards and Maintenance, § 11-254. Exits and means of egress in buildings, generally.
(a) Exits shall be provided and maintained as required by this Division and the applicable sections of the Prince George’s County Building Code.
(i) No person shall block, impede, or obstruct any aisle, passageway, hallway, lobby, foyer, or stairway, leading to or from an entrance or exit required by law, which will prevent, delay, hinder, or interfere with the free use of such passageway by any person.
The Majority opinion disposes of Hodge’s argument by offering its “plain meaning” view of the language of § 75 of the Compact:
The statute at issue requires WMATA to comply with the laws regulating the use of streets, highways, and all other vehicular facilities, as well as the laws regulating traffic control, zoning, signs, and buildings. It does not require WMATA to comply with laws governing the use of buildings, the use of signs, or the use of zoning laws. Under Section 75, WMATA must comply with the laws governing the use of “streets, highways and other vehicular traffic” *245 and the laws generally governing “traffic control and regulation, zoning, signs, and buildings.”
Tinsley and Hodge v. WMATA, 429 Md. 217, 241 , 55 A.3d 663, 677 (2012) (emphasis in original). I am unable to subscribe to this de-constructive and overly facile reading. Examining the language of § 75, I conclude that its plain meaning embraces, for present purposes, local laws that regulate the “use” of “buildings.” As such, Hodge’s argument may not be dismissed so neatly as the Majority does. Rather, Hodge’s argument rises or falls on whether she proved, on the record before the trial court, that the local laws upon which she relies applied (or were applicable) to WMATA’s stations. In my estimation, she failed to do so.
According to my review of the record extract in Hodge’s case, she failed to adduce support that, under the cited County Code provisions, WMATA’s stations were: “structures” for purposes of § 13-230 of the Property Standards & Maintenance Division of the County Code; “used or zoned for commercial and industrial purposes” or “residentially zoned,” for the purposes of § 13-230; 2 in a condition as of the time of her slip-and-fall such as would constitute a common law nuisance, for purposes of § 13-233 of the same Division; or had been regulated historically or contemporaneously by the County, under the cited County Code provisions. In short, I am unpersuaded by this record that the cited County Code provisions applied (or were applicable) to WMATA’s station or its operations at issue here or that the County deemed them to be applicable. For those reasons, I join the judgment of the Majority opinion. Were it established otherwise, I might have been persuaded, based on the reasons stated in Smith v. WMATA, 290 F.3d 201 , 211 (4th Cir.2002), as to its remand to determine whether federal standards for escalator repair may have been applicable to create a non-discretionary obligation *246 on WMATA, that a limited remand or outright reversal would have been appropriate in Hodge’s case.
Judge MCDONALD authorizes me to state that he joins in the views expressed in this concurring opinion.
. Codified in Maryland at Maryland Code (2001, 2008 Repl.Vol.), Transportation Article, § 10-204.
. Many federal and state governmental buildings and uses are not so zoned and, in many cases, are not governed at all by local zoning ordinances and zoning maps. See, e.g., § 27-121 of the Prince George’s County Zoning Ordinance.