concurring:
I concur in the result reached in this case. Under either a “narrow” or “broader” duty of care owed to Ms. Robinson by WMATA, the breach of that duty was not the proximate cause of her injuries. In short, her injuries arising from criminal conduct were not foreseeable, even assuming a broader duty of care than simply notifying the police that criminal activity is in progress.
I disagree with my colleagues’ holding regarding the duty WMATA owed to Ms. Robinson. Notwithstanding footnote 3 of the opinion, they conclude that “the duty owed to Ms. Robinson was neither more nor less than prompt notification of the police as called for by WMATA’s procedures.” To reach this conclusion, they give what I believe to be a strained reading to SOP 3.6, 3.7 and 4 (4.2— 4.5), as contained in WMATA’s DEPARTMENT of Rail Seevices OpeRAtions Manual (SOP). The topic heading covering both SOP 3.6 and 3.7 is “Reports of Electrical Shock, Hazardous Conditions Or Criminal Acts.” A separate section, SOP 4 (4.2-4.5) is headed “Emergency,” without any qualification. My colleagues read “criminal acts” out of the “emergency” section. I see no basis for such a reading. WMATA has not so interpreted its own regulations in any formal issuance.1 Had WMA-TA intended to exclude criminal acts from any definition of emergency, logically it would either have incorporated the emergency section into SOP 3.6, or would have cross-referenced SOP 3.6 in SOP 4 (4.2 — L5). It did neither. I would prefer to await WMA-TA’s interpretation of its own regulations, rather than to give them a strained reading which is unnecessary to the resolution of this case.
Furthermore, in their interpretation of WMATA’s regulations, my colleagues skirt what I believe to be a rather complex issue as to whether SOP 4.2 relating to a station manager’s responsibility, and involving some exercise of discretion, may contain a duty which could result in WMATA’s liability. In glossing over the “strong presumption” language in United States v. Gaubert, 499 U.S. 315, 324, 111 S.Ct. 1267, 1274-75, 113 L.Ed.2d 335 (1991), the majority fails to take stock of other language which reveals the complexity of the duty of care issue as it concerns WMATA The Supreme Court stated in Gaubert:
The requirement of judgment or choice is not satisfied if a “federal statute, regulation or policy specifically prescribes a course of action for an employee to follow,” because “the employee has no rightful option but to adhere to the directive.” Berkovitz, et al. v. United States, 486 U.S. 531, 536 [108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531] (1988).
Furthermore, even “assuming the challenged conduct involves an element of judgment,” it remains to be decided “whether that judgment is of the kind that the discretionary function exception was designed to shield.” Ibid.
Gaubert, 499 U.S. at 322-23, 111 S.Ct. at 1273; see also Scalia, J. concurring in part and concurring in the judgment, id. at 334-36, 111 S.Ct. at 1279-81.
In my view, one should not assume (as I believe one could after reading my colleagues’ opinion) that the exercise of employee discretion, by any WMATA employee, automatically will lead to a finding of “no duty for which WMATA is liable.” However, I concur in the result reached in this case since there was no evidence introduced to show that the criminal act against Ms. Robinson was so foreseeable that a duty arose to guard *477against it. Cook v. Safeway Stores, Inc., 354 A.2d 507, 509-10 (D.C.1976).
. Indeed, when Hugo Barlow, the station manager of the Deanwood Metro station at the time Ms. Robinson was injured, was asked at trial about the emergency regulations, he did not discount them on the ground that they were inapplicable to criminal acts, and WMATA's attorney did not raise any relevancy objection. Mr. Barlow testified that he had attended classes regarding responsibilities to passengers.