Nearly two years after the deadly smoke disaster at L’Enfant Plaza, Metro is taking legal action against the D.C. Fire and Emergency Medical Services Department — arguing that emergency responders were largely to blame for the tragic results of the Yellow Line incident.
On Monday, Metro’s lawyers sought for the case to be dismissed on technical grounds. But in a counterclaim filed simultaneously, the transit agency’s lawyers also argued that most of the casualties occurred because of a chaotic and ineffective response from firefighters and emergency responders.
Metro’s lawyers are arguing that if the transit agency is found responsible for Glover’s death or any of the injuries, the District of Columbia should also be found at fault — and should help pay the victims.
In the cross-claim, which was first reported by WTOP on Monday evening, Metro’s lawyers asserted that emergency response officials failed to follow proper protocol as the incident unfolded, sending a battalion commander to the scene who was unfamiliar with Metro’s underground tunnel network and lacked requisite training. That battalion commander, they continued, did not establish a unified command procedure to communicate with officials from Metro and the Transit Police Department — a step that, Metro’s lawyers say, would have allowed him to quickly realize the magnitude of the disaster unfolding.
Instead, the cross-claim says, D.C. fire and emergency officials did not immediately understand that there were people trapped inside the immobile subway car, and that the tunnel was quickly filling with smoke.
Emergency responders “delayed [their] response, resulting in a substantially longer exposure to smoke by passengers on Train 302, thereby exacerbating the nature and extent of each passenger’s injuries,” Metro alleged in the legal filing.
To add to the confusion, the District’s emergency radio system was not functioning inside the tunnel. (That, too, was the District’s fault, Metro argued: In the days before the smoke incident, “the District delayed providing access to this site for WMATA’s technicians because … it was not convenient,” Metro wrote.)
But, if the District’s battalion commander had coordinated with Metro officials, they would have been able to use the working Metro Transit Police radios to communicate with emergency responders inside the tunnel, Metro said. Instead, the commander sent messengers running in and out of the tunnel, which wasted precious time as passengers found it increasingly difficult to breathe.
D.C. Fire spokesman Douglas Buchanan said Tuesday morning that the agency is still reviewing the court documents.
“We will determine if it is appropriate for us to respond upon the completion of this process,” Buchanan said.
The communication gap also prolonged the process of shutting down the third-rail so that passengers could be evacuated, Metro argued.
The cross-claim alleges that the commander appeared to willfully ignore information coming from Metro about the fact that people were stuck inside the train in an increasingly perilous situation.
“The Metro Transit Police Deputy Chief tried to communicate this critical piece of information to the Incident Commander several times, and each time the Incident Commander rolled up his vehicle window and drove off instead of engaging a fellow agency senior official,” Metro’s lawyers wrote.
In an accident report released last May, the National Transportation Safety Board said that communications between D.C.’s incident commander and Metro officials were “delayed and inefficient.” And they said that D.C.’s Fire and Emergency Medical Services Department was “unprepared to respond to a mass casualty event on the WMATA underground system.”
In total, the cross-claim alleged 10 counts of indemnity and contribution to the incident based on negligence. Metro’s lawyers want D.C. to be held financially responsible for any damages that are awarded to the L’Enfant Plaza victims.
But Metro’s lawyers are also insisting that the lawsuit brought forth by Glover’s family and the surviving victims should be dismissed altogether. They argued that critical decisions made before, during and after the crisis — about tunnel fan ventilation systems, about the electrified third rail, and about radio equipment — were “difficult choices” that were “fraught with public policy considerations” that should grant Metro immunity from being held liable.
“These were governmental decisions of a discretionary variety that are entitled to immunity protection,” Metro said in the motion to dismiss.