United States District Court, E.D. Virginia, Alexandria Division
T.S. ELLIS, III, District Judge.
In this removed, diversity personal injury action, the parties have filed cross-motions for summary judgment, raising the following questions:
(1) Whether Fairfax City's operation of its subsidized municipal bus system for the benefit of its citizens is a governmental function, entitling the City to sovereign immunity from tort claims arising from the City's operation of its bus system.
(2) If Fairfax City is entitled to sovereign immunity for tort claims, whether a Fairfax City bus driver is also entitled to immunity from claims of ordinary negligence (but not gross negligence) arising from the performance of his duties as a bus driver in transporting passengers on his assigned bus route.
(3) Whether the plaintiff has adduced admissible evidence in the summary judgment record that would permit a reasonable jury to find that the bus driver was liable, not for ordinary negligence, but for gross negligence.
For the reasons that follow, these questions must be answered in the affirmative.
This case arises out of an incident that occurred on August 31, 2012 in Fairfax City, Virginia. Plaintiff, Fatima Ali, visited the Fairfax County courthouse on August 31, and after concluding her visit, sought public transportation to find her way to Alexandria. To this end, plaintiff boarded City-University Energysaver ("CUE") Bus # 829 in order to reach a bus stop on Main Street so that she could then transfer to a different bus that would transport plaintiff to her desired destination. The CUE Bus System provides regularly scheduled, low-cost transportation services within Fairfax City to and from the George Mason University ("GMU") Fairfax campus and to and from the Vienna/Fairfax-GMU Metrorail Station, with buses running seven days a week. Fairfax City owns and operates the Bus System, which was implemented to create affordable public transportation as part of a region-wide transportation plan. The Bus System derives its funding, in part, from the Commonwealth of Virginia and GMU, a state institution. Defendant Robert Cowden was the bus driver of the CUE Bus # 829, which was traversing Green Route 1 on August 31. Green Route 1 operates in a clockwise pattern starting from the GMU Campus.
Once on board the CUE Bus # 829, plaintiff sat down and then realized that the bus was proceeding in the wrong direction for her to reach the Main Street bus stop. Plaintiff then stood up and approached Cowden to query how she could reach her destination. In response, Cowden asked plaintiff to be seated until the bus ceased moving. When the bus stopped at a traffic light, Cowden then inquired into the nature of plaintiff's problem. Plaintiff told Cowden that she needed to reach the Main Street bus stop so that she could ultimately find her way to Alexandria. In response, Cowden informed plaintiff that she had two options: (i) she could either stay on the bus for another 45 minutes, during which time the bus would reach the endpoint of the route and turn back around before dropping plaintiff off at the Main Street bus stop, or (ii) alternatively, plaintiff could exit the bus at the next scheduled stop. Plaintiff elected the latter, and returned to her seat before pulling the bus cord to remind Cowden to stop. Cowden complied with plaintiff's request and stopped the bus in order to allow plaintiff to disembark. When plaintiff moved to the front of the bus to exit, Cowden showed plaintiff that the Main Street bus stop was across the street. Plaintiff then attempted to exit the bus holding her purse on her left side. As she took her first step off the bus, the bus door closed on her left arm. Plaintiff attempted to catch Cowden's attention so that he could release plaintiff's arm, but Cowden had already turned away from plaintiff at this point and was looking in the left-hand mirror for a break in traffic. Accordingly, he did not check and see whether plaintiff successfully exited the bus. Plaintiff's initial attempts to extricate herself from the door were therefore unsuccessful. After seeing a break in traffic, Cowden turned the bus wheel and the CUE Bus #829 began moving with plaintiff's arm still caught in the bus door. A passenger then noticed that plaintiff's arm was caught in the bus door and called out for Cowden to stop the bus, which he did promptly and caused the bus door to release plaintiff's arm.
It is undisputed in this case that on August 31, Cowden was negligent, and his negligence was a proximate cause of the incident involving plaintiff, when he took his eyes off plaintiff before she had completed alighting the bus in order to look in his side mirror for oncoming traffic and prematurely closed the bus door. The parties apparently dispute, however, both how fast and how far the bus traveled before Cowden stopped the bus and released plaintiff's arm. Yet, the summary judgment record, carefully parsed, discloses no definitive answer to this question. To be sure, in her complaint, plaintiff initially claimed that her arm was trapped in the bus for two-tenths of a mile while she was forced to run alongside the bus, but this assertion was not repeated in the summary judgment record and is not supported by any record evidence. Plaintiff's counsel also initially contended that plaintiff was dragged the full distance from one bus stop to the next with her arm caught in the bus door. Yet, no competent summary judgment record evidence supports these assertions. Indeed, plaintiff concedes that she does not know how far the bus traveled while her arm was trapped in the bus door. See Ali Tr. Vol. II at 45:11-13 ("Q. How far do you claim - how far do you claim the bus moved? A. I don't know.").
Defendants, by contrast, have proffered record evidence on this issue. Their evidence consists chiefly of a report prepared by their expert witness Thomas Noyes, Director of Sales and Marketing at NextBus, Inc., who was retained to research and review the Automatic Vehicle Location ("AVL") data generated by CUE Bus #829 operating on Green Route 1 between 2:35 p.m. and 3:15 p.m. on August 31. The AVL Hardware on the bus utilized a GPS module to track the bus's movements during the relevant time period. Based on the AVL data, Mr. Noyes concluded that: (i) the CUE Bus #829 did not stop at bus stop #34, the bus stop where plaintiff claimed she boarded the bus; (ii) the CUE Bus #829 stopped at bus stop #129, the bus stop where Cowden stated plaintiff boarded the bus; (iii) the CUE Bus #829 did not stop at bus stop #130, the bus stop at which plaintiff stated she attempted to exit the bus when her arm became caught in the bus door; (iv) the CUE Bus #829 stopped at bus stop #131, the bus stop at which Cowden stated that plaintiff was exiting the bus when her left arm became caught in the front door of the bus; and (v) the CUE Bus #829 remained in the vicinity of bus stop #131 between 2:53 p.m. and 3:08 p.m. before the AVL system next noted movement of the bus along Green Route 1. Based on this data, Mr. Noyes's report concluded that during this 15-minute period, which includes the shorter time in which the incident took place, it was possible that all of the position reports were made without the bus moving, or, with the bus moving, at most, only a "short distance." See Part V, infra. But Mr. Noyes's report does not include an estimate of this short distance.
Defendants also presented the eyewitness testimony of Jordan Dickerson, a passenger on CUE Bus #829 when the incident took place. Dickerson estimated that the bus traveled "about ten feet" while plaintiff's arm was caught in the bus door for "[b]etween eight to twelve seconds." Dickerson Tr. at 12:10-13. And Dickerson agreed that the bus was "moving slowly" while plaintiff's arm was caught in the bus door, testifying that the maximum speed the bus reached while plaintiff's arm was caught in the bus door was "around ten" miles per hour. Id. at 24:3-8.
After plaintiff's arm was released from the bus door, paramedics were dispatched to bus stop # 131 to attend to plaintiff's injuries at the scene and to transport plaintiff to the INOVA Emergency Care Center by ambulance. The emergency room physician examined plaintiff and found a limited range of motion in plaintiff's left shoulder and left elbow, bruising on plaintiff's left forearm and contusions on plaintiff's arm and forearm. Finding it unnecessary to admit plaintiff, the physician discharged plaintiff to go home.
Plaintiff filed this action on August 11, 2014 in the Circuit Court of Fairfax County, Virginia against the City of Fairfax, the CUE Bus Driver - Cowden - the CUE Bus Supervisor, the City of Fairfax Transportation Director, and the City of Fairfax Director of Public Works. Defendants then properly removed this matter to this federal forum on September 5 pursuant to 28 U.S.C. § 1332(a)(1) based on diversity jurisdiction. Defendants then filed a motion to dismiss with respect to the CUE Bus Supervisor, the City of Fairfax Transportation Director, and the City of Fairfax Director of Public Works. Plaintiff did not oppose this motion and defendants' motion to dismiss was thus granted with respect to these defendants, leaving the City of Fairfax and Cowden ...