WASHINGTON – The Supreme Court on Tuesday refused to hear the appeal of a Rockville family whose son suffered a fatal heart attack after climbing a stopped 10-story Metro escalator on a hot summer day in 1998.
Richard Hadaway Smith’s parents sued Metro for wrongful death, claiming that the Washington-area transit agency caused Smith’s death by shutting down the only working escalator at the Bethesda station and not warning passengers about it.
Smith, a 37-year-old massage therapist, was on his way to an afternoon appointment on July 20, 1998, when he died after climbing approximately 160 steps. Two escalators were out of service that day and Metro shut down the third so passengers could use it to get both in and out of the station.
“You can’t bring people into a station that is 10 stories underground without an escalator working to bring them up,” said Jack Gold, an attorney for Smith’s family.
Since Metro is an interstate entity, its compact was approved by Congress and provides that Metro shall be immune from lawsuits resulting from its “government functions,” but not lawsuits based on its “proprietary functions.”
Gold said government functions include policing the Metro stations, while propriety functions generally mean functions that involve making a profit.
U.S. District Judge Alexander Williams Jr. last year rejected Metro’s argument that it was immune from the wrongful death suit. But the 4th U.S. Circuit Court of Appeals reversed that decision in May, saying Metro’s decisions about the escalators at the Bethesda station were government functions.
The high court let that ruling stand Tuesday when it declined to take up the Smiths’ case.
Family attorney Lawrence Lapidus said he was disappointed by the high court’s decision, but added that the case will still be heard in district court on a charge that Metro was negligent in its failure to maintain the other two escalators at the Bethesda station.
“I’m delighted the case is still alive,” Lapidus said. “But we would have preferred presenting it on the other issues.”
Of the three escalators at the Bethesda station, one had been closed for two weeks because it failed state safety inspections and a second was shut down the morning of Smith’s death after a problem was discovered and steps were removed to repair it.
The lawsuit claims that the second elevator should have been kept intact and used as a stationary stairway for passengers heading into the station, while the third one should have been kept running to carry passengers out of the station.
The escalators at the Bethesda station are among the longest in the country. The elevators at the station were working when Smith died, but they were not capable of handling the number of people leaving the station at rush hour, according to court documents.
The lawsuit also said Metro should have posted signs or made announcements warning passengers that there were no moving escalators at the Bethesda station.
Metro spokeswoman Cheryl Johnson said announcements are made about elevator outages, but the number of escalators in the subway system would make it difficult to announce every time one is shut down.
“Usually about 10 percent of escalators are out of service on a particular day,” Johnson said. “Primarily, announcements are made for elevators because they are disability community issues.”
Shortly after Smith’s death, Metro officials said they would have at least one upward-bound escalator working at every station, whenever possible.
Malfunctioning escalators and elevators have increasingly become a headache for Metro over the past few years. To address the problem, an 11-member panel was formed this summer to evaluate the performance of the system’s 572 escalators and 220 elevators.