dissenting:
Let me start with the obvious. The basic issue before us is not a criminal one but a civil one, namely the financial liability of a federally-authorized tri-state/district transportation entity for injuries to a bus passenger as a result of a criminal act committed by third parties. Moreover, this is not a “simple negligence ease,” as appellee’s counsel would have us believe. Quite apart from the transcript, an avalanche of papers that comprise the record in this case (motions, responses, oppositions, statements, memoranda, interrogatories, exhibits, stipulations, depositions, etc.) attests to the complexity of the issues of law and fact. There is a legal question of governmental immunity before us, as well as a factual issue of the validity of a jury finding of negligence.
I.
In its decision today, the court constricts the holding of McKethean v. WMATA, 588 A.2d 708 (D.C.1991). While the majority’s narrow statement of the distressing facts may support a jury verdict, it does not follow that the verdict compels a finding of liability on the part of WMATA. Under the “imputation of negligence from agent to principal” theory appellee employs here, the facts must be viewed in their totality, not merely in the light most favorable to the verdict. Appellee, by focusing his claim on the bus driver’s behavior, diverts the court’s attention from *843the threshold issue in this case, the adequacy of WMATA’s safety plan and directives, and the scope of WMATA’s immunity from tort liability.1 Viewed in its proper light, this case should have never been presented to a jury-
The chain of events that culminated in a criminal assault by third parties took place over a ten minute period which began with an occurrence that is undoubtedly quite familiar to this city’s public bus drivers — two drunk trouble-bound youths boarding a bus in the Georgetown area of this city in the late evening hours of a summer night. In this instance, one of them in route to the rear of the bus, stumbles. He accuses a young woman in the front of the bus of having tripped him, and then directs an obnoxious, obscene, and threatening verbal tirade toward her.
The driver, continuing his route while keeping a watchful eye on the hostile youth,2 turns around at least once (possibly twice, according to his own testimony and that of an eyewitness)3 and requests that the youth go to the back of the bus and sit down. (The second youth remains seated in the rear of the bus, outside the view of the driver, “making faces.”) In response to the driver’s directive, the first youth initially retreats to the back of the bus, but then returns to continue his tirade against the woman he accused of tripping him.
When the first youth overhears appellee request that the driver expel the youths from the bus, he turns his hostile attentions to appellee. After 30 seconds during which he verbally threatens appellee from close range, the bus driver sees the youth touch appel-lee’s nose with his finger. The driver immediately slams on the brakes (causing both men to fall) and activates both the flashing lights and the silent alarm which summoned nearby police. In the ensuing struggle, the second youth comes forward and administers a brutal beating, causing serious injury to appellee.
II.
In McKethean v. WMATA, 588 A.2d at 708, a case in which the careening automobile of a drunken motorist caused the tragic death or severe injury of nine would-be passengers at a bus stop, we discussed the unique (and, at times, confusing) governmental/proprietary legal status of WMATA. In rejecting the claim that WMATA had been negligent in failing to take safety precautions with respect to the design of the bus stop, we held that the design function is within the “discretionary” (immunized) sphere of WMATA’s actions. Id. at 713 n. 4.4 We noted that actions taken with respect to the operation and maintenance functions of WMATA are “ministerial” (non-immunized) — implicitly including within this sphere the actions of an employee who causes an injury by negligent operation or maintenance of a WMATA vehicle. However, we limited the liability of WMATA to those instances in which “the injury alleged is directly attributable to negligent maintenance and operation, and not to negligent or faulty design.” McKethean, 588 A.2d at 714 n. 6 (quoting Dant v. District of Columbia, 264 U.S.App.D.C. 284, 829 F.2d 69 (1987) (emphasis added)).
My colleagues state that the “discretion WMATA’s drivers retain as to the proper means of handling disruptive conduct cannot be considered a ‘discretionary function’ ” *844such that it is immunized from liability. (Emphasis added.) This language speaks for itself. I believe that WMATA’s choice, as an organization, to design its safety system so as to necessarily afford its drivers a reasonable degree of discretion in dealing with unruly passengers does constitute a discretionary (immunized) decision under the terms of McKethean. And, because I find that the bus driver’s actions were within the sphere of discretion allowed him under WMATA’s safety design (see my discussion, infra), I cannot conclude that the injury alleged here was directly attributable to the driver’s negligent implementation of it.
III.
If I were to adopt my colleagues’ legal conclusion that WMATA’s sovereign immunity did not protect it in this instance, I would nevertheless find that the WMATA driver was not negligent.
The duty of a common carrier with regard to passenger safety is the exercise of “reasonable care.” District of Columbia Transit System, Inc. v. Carney, 254 A.2d 402, 403 (D.C.1969); see also Restatement (Second) of Torts § 314A(1) (1965). The mere fact that an assault occurred on a bus is not enough to establish a breach of the standard of reasonable care, for a “common carrier is not an insurer of the safety of its passengers.” District of Columbia Transit System, 254 A.2d at 403. The common carrier’s duty to act arises only when the risk to a passenger becomes an “unreasonable” one. Restatement (Second) of Torts, supra, comment e.
The appellee’s claim (as stated by the majority) is that the driver breached his duty of reasonable care by “not reacting at all or by doing so too late.” But the facts do not support this claim. The driver did react. By his own account, which was corroborated by one of the witnesses, the bus driver responded to the youth’s verbal attack on the woman he accused of tripping him, by turning around and asking the youth to go to the back of the bus. He kept the youth under observation. He abruptly stopped the bus the instant the physical touching of appellee occurred and immediately activated the alarm system to summon police.
I believe that a bus driver, in the situation presented by this case, could reasonably conclude that the verbal threats of an unarmed and apparently incapacitated youth, although obnoxious, did not rise to the level of a real danger to passenger safety until an actual touching occurred. Indeed the driver testified that he considered himself in control of the situation until he observed the touching. This conclusion was reasonable in view of the fact that he knew that police were nearby and that he had been warned against unnecessary use of the alarm. Appellee concedes in his brief that since the Georgetown area is so heavily patrolled, police assistance would not have been necessary to abate the disruptive behavior and adds that all the driver would have had to do was to tell the first youth to sit down.
This case is distinguishable on its facts from Lopez v. Southern California Rapid Transit, 40 Cal.3d 780, 221 Cal.Rptr. 840, 710 P.2d 907 (1985), the California ease cited by the majority.5 There, a bus driver working a route that the court specifically noted was known to be particularly dangerous (violent incidents occurred with daily or weekly frequency) did absolutely nothing as a verbal altercation escalated into a physical assault. In Lopez, the threshold level of danger necessary to find “unreasonable risk” and necessitate action, was lower than it is on the facts presented in the instant case. The case is instructive, however, in its attention to surrounding circumstances in determining when action is required.
IV.
My colleagues cite WMATA safety policy directives as evidence of the standard of care applicable here, and conclude that the driver failed to fulfill his duty to passengers. I do not agree. Indeed WMATA’s directives to bus drivers are geared to the recognition that drivers are its link to the public.
These directives recognize that with respect to safe operation and maintenance, the *845bus driver plays a most significant role. The driver is also “The Ambassador” who is WMATA’s link to the public — the public which views an operator not as a representative of the company but as “The Company.” He or she is expected to be well-groomed, courteous, patient, attentive, and well-mannered. Over the years forcible ejection has been generally discouraged — at one time prohibited — even with respect to passengers who refused to pay a fare or who were under the influence of alcohol. Passengers may be forcibly ejected for dangerous, disorderly or offensive conduct but only as a last resort and after following procedures such as enlisting witnesses. An employee may use force only to repel an attack against himself or herself. With respect to criminal activity, a bus driver is not to directly perform a police function but is to' cooperate with police in insuring safety. WMATA’s procedures governing bus driver response to disruptions on the bus have been modified over time and, of necessity, allow significant discretion to the driver.
Thus in 1978, a “Notice to Operators” announced that a silent alarm system would become operative enabling drivers to summon police. Its use was prohibited for any occurrence other than:
1. An actual physical assault on operator or passenger(s).
2. A threat of bodily harm where knives, guns, or weapons are displayed or otherwise in evidence.
3. Robbery where the use or threat to use force and/or violence is apparent or clearly indicated.
4. Physical harassment of passenger (s)/employee(s) by a gang (3 or more persons).
In 1986,6 the same year that the bus driver in this case was hired by Metro, a “Notice to Operators” expressed concern about the abnormal number of silent alarm reports and cautioned that operators should use the alarm only when there is a REAL emergency defined as:
1. Assault
2. Threat of bodily harm
3. Robbery
4. Acute illness/injury.
Appellee may take some solace from the change in the wording of the directives. Nevertheless, in this quickly developing and unforeseeable situation, it is difficult to conclude that the driver’s responses were unreasonable in light of those directives and overall policies.
Moreover even if I were to agree, for the purposes of argument, that the driver breached his duty of care, I would remain unconvinced that appellee has proved that the breach was the proximate cause of his injuries. Here, there was an intervening criminal act. Such acts break the chain of causation absent a “more heightened showing of foreseeability.” See McKethean, 588 A.2d at 716.
On the facts presented here, I do not find the heightened foreseeability necessary to sustain the chain of causation through the commission of the criminal act. According to all accounts, the young man who administered the brutal beating was not the one who paced the aisle of the bus making verbal threats to passengers; rather he sat in the back of the bus outside the range of the driver’s vision, making, by trial accounts, menacing faces. The fact that the unruly youths were inebriated and exhibited no weapons, weakened, rather than strengthened, awareness of their intent or ability to seriously assault other passengers. And, unfortunately, the frequency with which individuals verbally insult and threaten others in the public spaces of our city diminishes the expectation that such behavior is necessarily a precursor to physical assault.
y.
Finally, I believe it is unfair by “second guessing” and after-the-fact rigid construction of policy to place upon a driver, unarmed *846and untrained in police procedures, the brunt of society’s burden in coping with burgeoning crime. This is asking too much even of a good-will “ambassador” of a transit system. It is unreasonable to conclude that while armed Metro police (functioning under the WMATA compact) are embraced by the status of immunity (see, e.g., Hall v. WMATA, 468 A.2d 970, 973 (D.C.1983)), unarmed bus drivers cooperating with police to deter criminal activity are not so embraced. While the theory of imputing liability from agent to principal might have the desired effect of making a victimized bus passenger whole, it must be balanced against the undesired effect of limiting the discretion of the agent and thus exposing the driver and other passengers to risks of still greater escalating violence, and ultimately injury. Under the circumstances here, the fact that the driver activated the alarm systems only when verbal threats turned to a physical touching did not constitute negligence.
I would hold that McKethean dictates that the WMATA compact itself renders WMATA legally immune from this claim.
. The majority recognizes the difficulty appellee would have had in the event that he structured his claim so as to challenge the safety procedures themselves, stating:
O’Neill does not challenge the adequacy of the rules themselves. Hence his suit does not interfere with WMATA’s judgment as to the appropriate response, or gradation of responses, to be followed by its drivers in dealing with disruptive passengers.
. This assertion is plausible since the 47 year-old-driver had driven trucks for some 32 years, including tractor trailers for 28 years, before being hired by WMATA.
. My colleagues acknowledge the conflict in eyewitness testimony but suggest that we interpret the evidence in the light most favorable to the jury’s verdict. The general verdict tells us very little about what the jury (which, as I have noted, should not have heard the case in the first instance) concluded with respect to an order or request. The jury here was instructed that the issue "in this case is whether the bus driver executed his common law duty of care and followed the rules and regulations promulgated by the Washington Metropolitan Area Transit Authority” (defined as a "common carrier").
. It is appropriate to speak of acts as “discretionary” or "ministerial’’ even when applying the governmental/proprietary test. See McKethean, supra at 713.
. The Lopez case is also distinguishable legally, in that the Lopez court was interpreting a provision of the California Code which specifically placed upon common carriers a heightened duty of “utmost care" in protecting its passengers from harm. Here we are interpret a compact authorized by the Congress which does not contain such a specific provision.
. Meanwhile in 1981, a "Notice to Operators” informed drivers of a “Metro Passenger Conduct Ordinance” prohibiting such activities as smoking, eating, refusing to pay a fare, and littering. Drivers were to report incidents of these activities to the police for prosecution if the offending passenger refused a polite request to cease and desist. Violations of the conduct ordinances were listed as an example of appropriate cause for activation of flashing lights while the bus continued toward its destination; the lights were to be used not as a substitute for the silent alarm but simultaneously with it.