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Plaintiff’s testimony that bus was driving “fast” was insufficient to prove negligence

Robinson v. Washington Metropolitan Area Transit Authority
-- F.3d -- (2014)

by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (

Available at:

On April 16, 2008, the Plaintiff, Darlene Robinson, was a passenger on a bus being operated by the Washington Metropolitan Area Transit Authority (“WMATA”). Plaintiff had boarded the bus, paid her fare, and proceeded past the bus operator, Ronald Bumpass. Plaintiff headed toward the seats near the rear of the bus, passing a number of open seats in the front of the bus. She proceeded down the bus aisle and gripped the seat-back handrails as she walked. At the same time, the bus operator began to drive away from the bus stop. Shortly thereafter, however, the bus approached an intersection and stopped in a manner that Plaintiff described as a “jerk.” As the bus decelerated Plaintiff lost her grip on the handrail and fell, breaking her leg.

Plaintiff sued WMATA, Bumpass’ employer, in the Federal District Court for the District of Columbia arguing that the driver was negligent in the operation of the bus and caused her injury. At trial, Miss Robinson argued that the operator was negligent when he violated WMATA's own standard operating procedures and was negligent when the bus "jerked" as the operator stopped the bus.

During the trial, Plaintiff presented the testimony of Dr. Carl Berkowitz, a public transportation safety engineer. Dr. Berkowitz testified that various federal government agencies had conducted research studies to address transportation safety issues and the results of those studies created national safety protocols that had trickled down to all the major transit agencies, including WMATA. Specifically, Dr. Berkowitz testified that it was a nationally agreed upon safety standard that the bus operator was required to check his rearview mirror before departing from a stop to confirm that all passengers are “secure” and “prepared for vehicle movement.” He also testified that the bus driver should have started the bus “gradually” and stopped the bus “smoothly.” When counsel for WMATA inquired as to the development of these national safety standards, Dr. Berkowitz replied that they were “developed from research, which actually dates back to Hammurabi – the Hammurabi code – I guess [that] would be 3,500 years ago” and the “first major research in this area [ ] was in the book of Deuteronomy.” The bus operator testified that he did not check his mirror before leaving the bus stop that morning. The Plaintiff also testified that the bus took off “fast, faster than normal buses” and that it was "jerking and then there was an abrupt stop.” She alleged that this stop caused her to lose her grip on the handrail and fall.

Plaintiff also called Dr. Jamie Williams, a biomedical engineer, to explain how the bus’ movements caused Plaintiff to lose her grip on the handrail and fall down. While Dr. Williams was able to estimate the grip strength of a woman of a similar age and weight, she was unable to testify as to Miss Robinson's actual grip strength on the date in question.

WMATA moved for judgment under Federal Rules of Procedure 50(a) at the close of Plaintiff’s case in chief and again at the close of evidence. The District Court judge reserved ruling on the motion and submitted the case to the jury, who returned a verdict in the Plaintiff’s favor in the amount of $404,713.28. The court then granted WMATA's renewed Motion for Judgment. The court held that the applicable standard of care had not been adequately demonstrated by Dr. Berkowitz, and further there had been no evidence that violation of the standard operating procedures to which he testified were causally connected to the Plaintiff’s injuries. The court further rejected the Plaintiff’s argument that negligence could be inferred from the bus’ jerk, concluding that the evidence was insufficient to show that the jerk was of an “extraordinary” nature. Plaintiff appealed the trial Court’s decision.

The Fourth Circuit reviewed the grant of the Rule 50(b) motion. The court noted that there were two theories upon which a Plaintiff may be entitled to recovery in a bus-passenger negligence case. First, a Plaintiff may present direct evidence of negligence. Alternatively, a Plaintiff may offer circumstantial evidence of negligence by showing that the driver caused a jerk “so violent or extraordinary that it could not have been consistent with the safe operation of the bus.” Robinson, --F.3d, at 3. The court noted that the question on appeal was whether the Plaintiff had presented sufficient evidence that the jury could find negligence under either theory.

In affirming the trial court's holding, the Fourth Circuit noted that a Plaintiff must prove three elements of negligence: “(1) the applicable standard of care; (2) a deviation from the standard by the defendant; and (3) the causal relationship ‘between the deviation and the injury she suffered.’” Id., citing Varner v. District of Columbia, 891 A.2d 260, 265 (D.C.2006), the Court held that the Plaintiff had failed to meet her burden of proof.

Turning to the testimony of Dr. Berkowitz, the Court avoided the necessity of exploring his questionable testimony on the history of the standard operating procedures and instead held that his testimony failed to causally connect the driver’s failure to check the mirror to see if the Plaintiff was “secure” with the Plaintiff’s injuries from the fall. The Court noted that if the bus operator had looked into the mirror, as Dr. Berkowitz indicated was the standard of care, the bus operator would have only observed Plaintiff gripping the seat-back handrail – i.e., a secure position. The Court also rejected Plaintiff’s attempt to rectify this short coming by arguing that she was not secure unless she was holding onto vertical pole, since that position was contrary to the controlling District of Columbia law. As to the bus operator’s alleged failure to stop the bus smoothly, the Court first observed that it did not believe expert testimony was necessary in this circumstance, but Plaintiff had waived that issue on appeal by failing to object to the jury instruction that required expert testimony on the standard of care.

Further, the Court observed that WMATA was only liable if the alleged jerk was of “extraordinary” force. The Plaintiff’s testimony was not sufficient to show that the bus operator violated the standard of care in his stop. The Court noted that “descriptive adjectives and conclusions alone” were insufficient to demonstrate that there was an unusual and extraordinary force applied when the bus stopped. Plaintiff’s testimony that the bus was moving “fast, faster than normal buses” did not demonstrate that the operation of the bus was inconsistent with the safe or proper operation of the bus, or that there was a sudden “extraordinary” stop. The Court wholly rejected the testimony of Dr. Williams, stating that her testimony was not based on any actual knowledge about the Plaintiff but on assumptions regarding the Plaintiff’s grip strength, and inappropriately required the jury to speculate as to the actual force of the stop.

The court affirmed the judgment of the District Court.