holding that “when the owner or operator is put on guard as to the presence of the trespasser, the latter immediately acquires the right to proper protection under the circumstances”
How later courts described this case
- holding that “when the owner or operator is put on guard as to the presence of the trespasser, the latter immediately acquires the right to proper protection under the circumstances”
- holding that there was no “special duty” to “prospective passengers” injured while waiting for a bus
- “A landowner generally does not owe a duty of reasonable care to trespassers.”
- “Authorization to enter property can be express or implied.”
Written by the judges who cited it.
The opinion
Notice: This opinion is subject to formal revision before publication in the Atlantic
and Maryland Reporters. Users are requested to notify the Clerk of the Court of
any formal errors so that corrections may be made before the bound volumes go
to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 24-SP-0003
CAMEROON WHITERU, et al., APPELLANTS,
V.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, APPELLEE.
On Certified Question from the United States Court of Appeals
for the District of Columbia Circuit
(22-7154)
(Argued September 24, 2024 Decided November 20, 2025)
Andrew D. Levy for appellants.
Pratik A. Shah for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, SHANKER, Associate Judge and
EPSTEIN, * Senior Judge, Superior Court of the District of Columbia.
BLACKBURNE-RIGSBY, Chief Judge: This case is before the court on a
certified question from the United States Court of Appeals for the District of
Columbia Circuit (D.C. Circuit). The D.C. Circuit seeks clarification of District of
*
Sitting by designation pursuant to D.C. Code § 11-707(a).
2
Columbia law as it relates to a negligence and wrongful death action against the
Washington Metropolitan Area Transit Authority (WMATA), appellee here.
Appellants are the parents and the estate of Okiemute C. Whiteru, who suffered
severe injuries and death after he accidentally fell behind a parapet on the platform
at the Judiciary Square Metro Station.
I. Certified Question of Law and Short Answer
A. The Certified Question
Pursuant to D.C. Code § 11-723, the United States Court of Appeals for the
District of Columbia Circuit has certified the following question to this court:
Under District of Columbia law, and under the facts
described, may a plaintiff who, as a passenger located on
a common carrier’s station platform, involuntarily falls
backward from the station platform into a non-public area
immediately adjacent to the station platform, and from the
impact of such fall sustains immobilizing injuries, recover
for the exacerbation of those injuries attributable to the
common carrier’s failure to aid him, if the common carrier
knew or had reason to know of his injuries?
B. The Short Answer
As we explain more fully below, the answer to the question is yes, with an
explanation. In short, if a passenger accidentally or otherwise involuntarily falls
3
backwards into a non-public area, the passenger will generally become a trespasser.
If the common carrier knows or has reason to know of the trespasser’s presence and
injured, trapped, or otherwise imperiled status, the common carrier has both a duty
of ordinary care to not cause harm to the trespasser and a duty to provide reasonable
affirmative aid. The exact duties a common carrier has in this situation will be fact-
specific.
Generally, a passenger can become a trespasser by entering a non-public area,
even if the entry was accidental or unintentional. In such a situation, the special
affirmative duty to passengers outlined in Restatement (Second) of Torts § 314A
would not apply to the passenger-turned-trespasser. However, a “known” trespasser
is entitled to the exercise of care such that a common carrier or land possessor must
use ordinary care to avoid injuring the trespasser or exacerbating previously incurred
injuries. Additionally, a known trespasser in a trapped, injured, or otherwise
imperiled position is entitled to a reasonable affirmative duty to aid. The common
carrier or land possessor must know, or have reason to believe from facts within its
knowledge, that a trespasser is present. Otherwise, a common carrier generally owes
an undiscovered trespasser only a duty to refrain from willfully or wantonly injuring
him or her.
4
II. Background
We repeat the facts set forth in the D.C. Circuit opinion certifying the question
to us. See Whiteru v. Washington Metro. Area Transit Auth., 89 F.4th 166, 168 (D.C.
Cir. 2023) (Whiteru II). On October 19, 2013, at around 12:45 a.m., Mr. Whiteru
exited a metro train at the Judiciary Square station, “noticeably intoxicated.” 1 Id.
Around 1:07 a.m., he approached a kiosk on the station’s mezzanine level and spoke
with station manager Rhonda Brown, who helped him with his SmarTrip card. Id.
He then walked down an escalator, which was in “stair mode,” stumbling over the
last few steps before falling. Id. Mr. Whiteru then attempted to lean or sit on a
narrow parapet opposite the train tracks, the other side of which is an “uncovered
trough that houses electrical and lighting equipment.” Id. At around 1:15 a.m., Mr.
Whiteru fell over the ledge and landed at the bottom of the trough, causing a spinal
fracture, which “which immobilized him and compromised his breathing.” Id. Mr.
Whiteru ultimately and tragically died from asphyxiation, and his body was not
1
Video footage captured parts of Mr. Whiteru’s time in the metro station,
including his fall down the escalator steps and his fall behind the parapet wall. See
Whiteru II, 89 F.4th at 169.
5
discovered until four days later after a metro passenger alerted a station manager.
Id.
As relevant here, WMATA’s operating procedures required the station
manager to perform visual inspections of the platform at 1:30 a.m., 2:30 a.m., and
3:15 a.m. Id. at 168-69. Appellants’ experts opined that Mr. Whiteru would have
remained conscious and able to call for help for at least three to four hours after he
fell. Id. at 168. It is undisputed that Mr. Whiteru would have survived had he been
discovered timely, but it is disputed whether Ms. Brown, the on-duty station
manager, performed station inspections and whether those inspections included
looking behind the ledge and into the trough. Id. at 169.
Mr. Whiteru’s parents and his estate brought a negligence and wrongful death
action against WMATA in the District Court for the District of Columbia,
contending that WMATA negligently failed to discover Mr. Whiteru in time to
provide life-saving aid. See Whiteru v. Washington Metro. Area Transit Auth., 258
F. Supp. 3d 175, 177 (D.D.C. 2017). The district court denied WMATA’s motion
for summary judgment, concluding that WMATA was not entitled to sovereign
immunity given the conduct at issue and that appellants had demonstrated a genuine
dispute of material fact as to each element of a negligence claim. Id. at 193. The
trial court scheduled the matter for trial. Id. at 178.
6
The trial court then allowed WMATA to submit supplemental summary
judgment briefing. See Whiteru v. Washington Metro. Area Transit Auth., 2018 WL
6605427, at *1 (D.D.C. Dec. 17, 2018). In supplemental briefing, WMATA raised
a defense of contributory negligence, arguing that it is a complete bar to recovery
with respect to Mr. Whiteru’s claims. See Whiteru v. Washington Metro. Area
Transit Auth., 480 F. Supp. 3d 185, 188 (D.D.C. 2020). The district court agreed,
highlighting that it “is undisputed that Whiteru was heavily intoxicated” when he
entered the metro station and that “it was his own engagement with the station’s
parapet wall that caused him to fall ‘head over feet’ over the wall, and which
ultimately resulted in his untimely death.” Id. at 192. Thus, the district found that
Mr. Whiteru had been contributorily negligent “as a matter of law.” Id. The district
court also rejected the argument that Section 314A of the Restatement (Second) of
Torts, which states that a “common carrier” has a duty of reasonable care to its
passengers even if the passenger negligently contributes to his or her own injury,
bars a defense of contributory negligence. Id. at 195-96. The district court granted
WMATA’s supplemental motion for summary judgment. See id. at 198.
On appeal, the D.C. Circuit reversed and remanded. See Whiteru v.
Washington Metro. Area Transit Auth., 25 F.4th 1053, 1060 (D.C. Cir. 2022)
(Whiteru I). The D.C. Circuit highlighted that this court has explicitly adopted
Section 314A of the Restatement, which “recognizes the special relationship
7
between common carriers and passengers,” even if a passenger negligently
contributes to his or her own injury. See id. at 1058-59. The court explained: “The
common law of the District allows for some exceptions to the strict application of
contributory negligence. For instance, ‘[e]ven a contributorily negligent plaintiff
may recover if the defendant had the ‘last clear chance’ to avoid the injury.’” Id. at
1059 (quoting Asal v. Mina, 247 A.3d 260, 271 n.11 (D.C. 2021)). “Common carrier
liability pursuant to Section 314A of the Restatement is another such exception.”
Id.. The court explained that “[o]n the disputed facts, a reasonable jury could
conclude that [station manager] Rhonda Brown failed to perform the routine
inspections, or performed them unreasonably. Under those circumstances,
WMATA could be liable for failing to aid Mr. Whiteru because it knew or had reason
to know that he was injured.” Id. at 1059. Therefore, the court concluded that “the
District Court erred when it ruled that WMATA’s contributory negligence defense
was a complete bar to the Whiteru Estate’s negligence claim.” Id. The D.C. Circuit
concluded that the record reflected genuine disputes of material fact as to whether
WMATA breached its duty to render aid to Mr. Whiteru after his fall, whether the
alleged breach aggravated Mr. Whiteru’s injuries, and whether his conceded
contributory negligence bars a negligence claim. Id. at 1060.
On remand, the district court summarized the question before it:
8
This case turns on a close and nuanced question: was
Whiteru a passenger or a trespasser during his time behind
the parapet? Answering that question first determines the
applicable duty of care. If Whiteru was a passenger,
WMATA had a duty to aid him if it knew or should have
known of his injury; if he was a trespasser, Defendant had
no such duty. The answer also separately resolves whether
contributory negligence bars recovery. If Whiteru was a
passenger, Plaintiffs may still recover notwithstanding his
negligence under an exception to D.C.’s contributory-
negligence rule; if he was a trespasser, contributory
negligence blocks his path.
Whiteru v. Washington Metro. Area Transit Auth., 636 F. Supp. 3d 107, 111 (D.D.C.
2022). The court highlighted that “two very different standards govern common
carriers’ duties to passengers versus trespassers,” pursuant to Section 314A of the
Restatement (Second) of Torts, titled “Special Relations Giving Rise to Duty to Aid
or Protect,” and Section 329 of the Restatement, which defines “trespasser.” Id. at
112-13. The district court explained that, under the first standard, “common carriers
like WMATA have an affirmative duty to aid injured passengers,” and in the second
standard, “common carriers, like all property owners, do not have an affirmative
duty to aid trespassers.” Id. at 112.
The district court determined that Mr. Whiteru “lost his passenger status when
he fell over the parapet” and thus, “WMATA owed Whiteru only the duty of care it
owes to trespassers, which does not include a duty to aid.” Id. at 111. Additionally,
“the Court independently conclude[d] that the D.C. Circuit’s interpretation of the
9
common-carrier exception does not allow for recovery given his contributory
negligence.” Id.
On appeal, the D.C. Circuit held that a question would be certified to this
court: “We conclude that Whiteru’s status—passenger or trespasser—which in turn
determines WMATA’s duty of care is an uncertain question of District of Columbia
law for which there is no controlling precedent from the District of Columbia Court
of Appeals (D.C. Court of Appeals). We therefore certify the question to the D.C.
Court of Appeals.” Whiteru II, 89 F.4th at 168. The D.C. Circuit briefly surveyed
District case law regarding fare-paying customers who became trespassers; however,
the court noted: “In all of these cases, the plaintiff sought to recover for serious injury
or death that resulted from his having been struck by a train operating on the tracks
after he voluntarily entered the tracks. In none of them did the plaintiff seek to
recover for the exacerbation of initial injuries caused by his involuntary entry onto
the tracks; and none involved an area immediately adjacent to the portion of the
station platform opposite the tracks.” Id. at 169-71. The D.C. Circuit concluded:
“Faced with differing Restatement sections that are respectively silent as to each
other and no case law on point, we refer the question to the D.C. Court of Appeals
to define the boundary between trespasser and passenger status in this case.” Id. at
171.
10
Appellants argue that they assert a claim under Section 314A, which arises
from a failure “to render [Mr. Whiteru] aid after he became injured.” Appellants
argue that Mr. Whiteru’s “special relationship” with WMATA continued after his
inadvertent fall. They further argue that there is no controlling case on point; other
plaintiffs “forfeited their passenger status by intentionally walking into the train
tunnel or jumping onto the train tracks and . . . sought recovery for their initial
injuries[.]” Appellants also argue that there are public policy and safety interests to
support a rule that WMATA must render aid to passengers, even if they are in a
restricted area. To hold otherwise, appellants argue, would reward WMATA for a
failure to comply with its existing duty to perform reasonable station inspections.
Appellants highlight that had the station manager performed station inspections, she
would have timely discovered Mr. Whiteru.
Appellee contends that this case is controlled by the well-established D.C. tort
law principle that a common carrier owes no special duty to a trespasser, regardless
of how that person became a trespasser. Appellee highlights that trespassers can
trespass “involuntarily” due to “incapacity, illness, and/or intoxication,” but there is
“no exception” in the Restatement or case law to the general trespasser rule for
“accidental trespass.” Appellee argues that WMATA was required to only refrain
from “intentional, willful, or wanton conduct”—and did not have an affirmative duty
to aid. Appellee argues that even if a greater duty of care applies to “known”
11
trespassers than to “unknown” trespassers, a landowner or common carrier must
have actual knowledge that a trespasser is present. Here, appellee contends that
WMATA did not actually know of Mr. Whiteru’s presence in the trough. Therefore,
appellee argues that appellants’ negligence claim must fail.
III. Relevant Principles of Tort Law
The District of Columbia has adopted Section 314A of the Restatement
(Second) of Torts, which defines “Special Relations Giving Rise to Duty to Aid or
Protect.” See McKethean v. Washington Metro. Area Transit Auth., 588 A.2d 708,
712 (D.C. 1991). Generally, an actor does not have a duty to act even if the “actor
realizes or should realize that action on his part is necessary for another’s aid or
protection.” Restatement (Second) of Torts § 314. However, “[s]pecial relations
may exist between the actor and the other, as stated in § 314A, which impose upon
the actor the duty to take affirmative precautions for the aid or protection of the
other.” Id. cmt. a.
As relevant here, Section 314A states:
(1) A common carrier is under a duty to its passengers to
take reasonable action
(a) to protect them against unreasonable risk of
physical harm, and
(b) to give them first aid after it knows or has reason
to know that they are ill or injured, and to care for
them until they can be cared for by others.
12
“A possessor of land who holds it open to the public is under a similar duty to
members of the public who enter in response to his invitation.” Id. at § 314A(3). 2
Therefore, we have said that “WMATA, like any common carrier, owes a duty
of reasonable care to its passengers.” McKethean, 588 A.2d at 712. That reasonable
care includes a duty “to give [passengers] aid after it knows or has reason to know
that they are ill or injured[.]” Restatement (Second) of Torts § 314A(1)(b). But a
“common carrier has no special duty to non-passengers.” McKethean, 588 A.2d at
712 (citing Restatement (Second) of Torts § 314A, cmt. c; Standardized Civil Jury
Instructions, No. 8.2). “[U]ntil a person has placed himself in some substantial sense
in the custody or under the control of the carrier, he is not a passenger and no special
duty of care is owed him.” Baker v. D.C. Transit Sys., Inc., 248 A.2d 829, 831 (D.C.
1969). 3 Similarly, a “carrier is under no duty to one who has left the vehicle and
ceased to be a passenger[.]” Restatement (Second) of Torts § 314A cmt. c.
2
We refer to “common carriers” and “landowners” throughout this opinion,
as similar principles of tort law apply to common carriers and landowners. See, e.g.,
Restatement (Second) of Torts § 314A(1), (3); see also Whiteru II, 89 F.4th at 169
(analyzing common carrier and land possessor principles as applied to WMATA).
3
Decisions of the D.C. Circuit prior to February 1, 1971, are binding on this
court. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).
13
The District of Columbia has also adopted Section 329 of the Restatement,
which defines “trespasser.” See Firfer v. United States, 208 F.2d 524, 528 (D.C. Cir.
1953). “A trespasser is a person who enters or remains upon land in the possession
of another without a privilege to do so created by the possessor’s consent or
otherwise.” Restatement (Second) of Torts § 329; see also Lacy v. Sutton Place
Condo. Ass’n, Inc., 684 A.2d 390, 393 (D.C. 1996) (“A trespasser is one who enters
or remains upon property in the possession of another without the consent of the
possessor.”). Someone may become a trespasser, despite being originally invited on
the premises, when he or she “exceed[s] the scope” of an invitation. Firfer, 208 F.2d
at 529. 4
“Trespassers may only recover for ‘intentional, wanton or willful injury or
maintenance of a hidden engine of destruction.’” Holland v. Baltimore & O. R. Co.,
431 A.2d 597, 599 (D.C. 1981) (en banc) (quoting Firfer, 208 F.2d at 528); see also
Boyrie v. E & G Prop. Servs., 58 A.3d 475, 477 (D.C. 2013) (“A landowner generally
does not owe a duty of reasonable care to trespassers.”). However, “[o]nce the
presence of a trespasser is known, the [landowner] must exercise ordinary care not
4
“In Firfer, the court distinguished between the duties owed by a landowner
to licensees, invitees, and trespassers. The distinct standards of care for licensees
and invitees under the common law no longer exist in this jurisdiction. The standard
of care for persons lawfully upon the premises is reasonable care under the
circumstances.” Lacy, 684 A.2d at 393 n.2 (citations omitted) (emphasis in original).
14
to injure the trespasser.” Copeland v. Baltimore & O. R. Co., 416 A.2d 1, 3 (D.C.
1980).
IV. Discussion
The “duty owed and the degree of care required to be exercised by the
landowner in turn depend upon the status of the injured person at the time of the
accident[.]” Firfer, 208 F.2d at 527. We repeat here the undisputed facts from the
district court to aid in our analysis:
The parties do not dispute that Whiteru was a passenger
while on the station platform before his fall. They also do
not dispute that the area behind the parapet wall is not
typically held open to Metro passengers, the normal divide
for when a licensee becomes a trespasser. Finally, they
agree that the relevant injury here is the exacerbation of
the initial wounds Whiteru sustained when he fell behind
the parapet wall because Plaintiffs’ cause of action here
relates only to WMATA’s failure to aid him while he was
in that area.
Whiteru, 636 F. Supp. 3d at 112 (internal citations omitted). The current case
contains facts that distinguish it from our other reported cases. Mr. Whiteru was
undisputedly a passenger on WMATA’s premises when he was on the platform; he
had gone through the turnstile and paid for a trip. See McKethean, 588 A.2d at 712
(holding that there was no “special duty” to “prospective passengers” injured while
waiting for a bus).
15
To summarize the discussion that follows, our case law demands that we find
that a passenger becomes a trespasser after falling into a non-public area, despite the
“trespass” being accidental and unintentional. However, the exact duty owed to such
a trespasser is fact-dependent. If the trespasser was undiscovered or unknown, the
landowner or common carrier would only owe a duty to refrain from willfully or
wantonly injuring him or her. If the trespasser had been discovered or known, the
landowner or common carrier would owe a duty of ordinary care to avoid injuring
him or her. Similarly, we explain that as a corollary to that duty, if the landowner
or common carrier had knowledge of the trespasser’s injuries, trapped, or imperiled
status, it would be required to provide reasonable affirmative aid to the trespasser.
A. Status
The first question is whether Mr. Whiteru was a “passenger” or a “trespasser.”
Appellants argue that Mr. Whiteru remained a “paying customer, invited by
WMATA into its Metro Station and standing on the platform intended for waiting
passengers” and that “nothing severed Mr. Whiteru’s special relationship with
WMATA[.]” Appellee argues that a “passenger who enters an off-limits area in a
train station becomes a trespasser” because the person “exceeded the scope of his
license[.]” We agree that Mr. Whiteru became a trespasser when he fell over the
16
wall into the non-public area, despite previously being a passenger and despite the
trespass being unintentional.
A “trespasser is one ‘who enters or remains upon land in the possession of
another without a privilege to do so created by the possessor’s consent or
otherwise.’” Toomer v. William C. Smith & Co., 112 A.3d 324, 328 (D.C. 2015)
(quoting Boyrie, 58 A.3d at 477-78) (emphasis omitted). A person legally on the
premises may become a “trespasser” by exceeding the “scope and the chronological
and geographical limits of the invitation.” Firfer, 208 F.2d at 527. In Firfer, the
court explained that a plaintiff “became a trespasser,” though he was initially in an
area open to the public, because he “left that portion of the [] grounds which is set
aside for the public[.]” Id. at 529. The plaintiff could not recover for injuries
because “when the accident happened [he was] not in a place where the public
generally was invited and welcomed.” Id. at 528.
An accidental, unintentional, or involuntary trespasser is still a trespasser. See
Copeland, 416 A.2d at 3; see also Restatement (Second) of Torts § 329 cmt. c (“In
determining whether the person who enters or remains on land is a trespasser within
the meaning of this Section, the question whether his entry has been intentional,
negligent, or purely accidental is not material, except as it may bear upon the
existence of a privilege to enter.”). Our case law shows that even nonvolitional entry
17
can render a person a trespasser. In Copeland, 416 A.2d at 2, the plaintiff “had been
placed on the tracks by one or more unknown persons, who took him from his front
porch and while Copeland was semiconscious, transported him in an automobile to
the tracks.” We explained that Copeland was a trespasser because he “did not have
permission to be on the tracks,” even though he was not “there by any volitional act
on his part[.]” Id. We explained that the trespasser definition “applies regardless of
how the person entered the premises (accidentally, intentionally, or inadvertently),
or why the person remained on the property.” Id. at 3.
Similarly, someone may trespass even if there was no explicit warning they
were leaving a space to which they were invited. In Firfer, 208 F.2d at 528-29, the
court explained that the plaintiff had sufficient warning that he was leaving the area
to which he was invited, despite no warning signs being posted to cabin off the area
open to the public from the area prohibited to the public. The court explained that
the “fact that no warning signals were posted . . . is of no significance since the
natural and artificial obstacles to an entry onto the grassy plot area were warning
enough in themselves.” Similarly, in Lacy, 684 A.2d at 394, the court explained that
a “mistake of fact” that a person was invited to enter a prohibited space “does not
alter [their] status as a trespasser[.]”
18
Furthermore, we see no analytical distinction between one who was formerly
an invitee and one who was formerly a passenger; the trespasser definition applies
after a person enters an area without “the possessor’s consent or otherwise.” Boyrie,
58 A.3d at 477-78. Therefore, under our case law, a passenger may become a
trespasser by leaving the area held open to him or her, regardless of the manner of
how he or she left or his or her state of mind at the time.
Federal cases applying District of Columbia tort law align with the principle
that a passenger may involuntarily become a trespasser. See, e.g., Hines v.
Washington Metro. Area Transit Auth., 2022 WL 392306, at *1 (D.D.C. Feb. 9,
2022), on reconsideration in part, 2022 WL 2176924 (D.D.C. June 16, 2022)
(holding that an elderly passenger suffering from “brain atrophy with senile
changes” became a trespasser after she “passed through an unmarked gate and
walked onto the train tracks”); Coulston v. Washington Metro. Area Transit Auth.,
2020 WL 1236563, at *2 (D.D.C. Mar. 13, 2020) (holding that a passenger with a
history of mental illness and depression “became a trespasser when he left the station
platform and climbed down onto the tracks”). 5
5
Appellants point to Harris v. Washington Metro. Area Transit Auth., 490 F.
Supp. 3d 295 (D.D.C. 2020), as an example in their favor because the court there
determined a genuine dispute of material fact precluded summary judgment as to
whether the plaintiff was a passenger or a trespasser. In Harris, an injured plaintiff
entered a Metro station forty minutes after the station was closed. Id. at 315. The
19
Illustration 1 of Section 329 also illuminates the principle that a trespass may
be accidental and may occur even if a person was initially lawfully on the premises
as a passenger. The illustration states:
Without any negligence on his part A, standing on the
platform of a subway station of the X Company, slips and
falls onto the tracks. While there he is run over by the train
of X Company, and injured. A is a trespasser, and the
liability to him is determined by the rules stated in §§ 333
and 336, notwithstanding the accidental character of his
intrusion.
Illustration 1 is based on Frederick v. Philadelphia Rapid Transit Co., 10 A.2d 576,
578 (Pa. 1940), in which a passenger fell while walking along the subway platform
onto the track and into the path of the train. The court explained that because the
court determined that a “reasonable juror could conclude that [the plaintiff] was
lawfully present at the Metro station” because the escalators were still operating and
the station had no hours of operation posted outside. Id. at 316. The court explained
that WMATA may have had a “special duty” to the plaintiff, as both a common
carrier and land possessor, based on outward indications that the station was still
open to the public. Id. The court determined that the “issue of whether a person had
implied authorization to enter a place of business after closing time is typically an
appropriate question for the jury.” Id. at 315.
We do not think the Harris case supports the principle that Section 314A can
apply in an even “more attenuated special relationship” than here, as appellants
argue; instead, it stands for the principle that “implied authorization” to enter a
premises could render a person an invitee or a passenger who is owed a duty. See
id. at 315; see also Boyrie, 58 A.3d at 478 (“Authorization to enter property can be
express or implied.”). There is no argument here that Mr. Whiteru had implied
authorization to enter the trough or that his entry was in any way consented to by
WMATA.
20
plaintiff “was not invited, and his appearance was not to be anticipated, the extent
of defendant’s obligation toward him was no greater than if he were a trespasser.”
Id.
The Frederick case is illustrative of the principle that a passenger may become
a trespasser, even by accident or otherwise unintentionally. This example brings
together several long-held principles from our case law—that one becomes a
trespasser when one exceeds the scope of the license, see Firfer, 208 F.2d at 528-29,
even if accidentally or inadvertently or without volition, see Lacy, 684 A.2d at 394;
Copeland, 416 A.2d at 3, and even if, immediately prior, the person was lawfully on
the premises, see Firfer, 208 F.2d at 528.
Appellants rely on Illustration 1 of Section 314A, which says:
A, a passenger on the train of B Railroad, negligently falls
off of the train, and is injured. The train crew discover that
he has fallen off, but do nothing to send aid to him, or to
notify others to do so. A lies unconscious by the side of
the track in a cold rain for several hours, as a result of
which his original injuries are seriously aggravated. B
Railroad is subject to liability to A for the aggravation of
his injuries.
Appellants argue that this illustration “provides that common carrier ‘B’ owed
special relationship duties to passenger ‘A’ after he fell off a train and needed aid
while lying injured beside the tracks.” At first glance, the facts in this illustration
look similar to the illustration in Section 329 and the facts at hand. However, this
21
illustration, which the Restatement characterizes as a “passenger injured through his
own negligence,” does not deal with the issue of trespass; instead, its focus is on
whether a common carrier has a duty to aid a passenger “injured through his own
negligence”—not the line between passenger and trespasser. 6 See Restatement
(Second) of Torts § 314A Reporter’s Notes. This illustration is based on several
cases where trespass was not an issue; instead, the courts were deciding whether a
plaintiff could recover even if he or she was injured in part due to his or her own
negligence. 7
6
The district court came to this same conclusion in its analysis. See Whiteru,
636 F. Supp. 3d. at 114 (explaining that Ҥ 329 is squarely aimed at the line between
trespasser and passenger; by contrast, § 314A focuses instead on the nature of the
duties a common carrier owes its passengers when those duties apply. The § 314A
illustration does not mention anything about whether the passenger was a trespasser
in the area in which he landed. That makes sense, as the short illustration is simply
not focused on (and so does not consider) the issue of potential trespass.”) (emphasis
in original).
7
The facts in the illustration were directly based on Yazoo & M.V.R. Co. v.
Byrd, 42 So. 286, 287 (Miss. 1906), in which other passengers immediately spotted
that a passenger had been thrown from a train and informed the conductor, who
refused to stop. The issue of trespass was never raised; instead, the court focused on
whether the defendant railroad may have overcrowded its trains and forced its
passengers to obtain seating in unsafe places, which could lead to liability for
refusing to help the passenger, despite any contributory negligence. The court
explained: “Appellant cannot overcrowd its cars with passengers, making it
impossible to obtain seats in safe places, and excuse itself from liability by saying a
passenger under these circumstances was riding in a dangerous place.” Id.
The other cases cited in support of the illustration dealt with duty to aid
passengers, despite their own alleged negligence, when the common carrier is aware
22
Thus, we disagree with appellants that “nothing severed Mr. Whiteru’s special
relationship with WMATA” and that “Mr. Whiteru was still a passenger[.]” Mr.
Whiteru’s fall in a non-public area, while accidental and inadvertent, severed the
special passenger relationship that he undisputedly had with WMATA before his
fall, just like the passenger-turned-trespasser in Frederick.
We also disagree with appellants’ argument that this case is distinguishable
from other case law in which a passenger “forfeited” their status by entering the
tracks. In Copeland, 416 A.2d at 3, we explained that the trespasser definition
applies “regardless of how the person entered the premises” or “why the person
remained on the property.” Similarly, we reject the argument that these other cases
are distinguishable because the plaintiffs “were never passengers to begin with.”
Applying Firfer’s principle here, exceeding the scope of a license puts one in the
of the passenger’s plight. Two of these cited cases dealt with the duty to help
passengers with physical or mental disabilities alight from trains if the carrier was
alerted to them. See Layne v. Chicago & A.R. Co., 157 S.W. 850, 853 (Mo. 1913);
Yu v. New York, N. H. & H. R. Co., 144 A.2d 56, 57 (Conn. 1958). The other case
explained the “well-settled rule of the law of negligence” that a defendant may be
liable for failing to use ordinary care to avoid injuring a plaintiff that the defendant
knew was in danger, despite the plaintiff’s own negligence. See Cincinnati, H. & D.
R. Co. v. Kassen, 31 N.E. 282, 284 (1892), overruled by Cleveland Ry. Co. v.
Masterson, 183 N.E. 873 (1932). One case dealt with a plaintiff injured while on a
bus who notified the driver and requested medical attention, but the bus driver failed
to provide aid. See Cont’l S. Lines, Inc. v. Robertson, 133 So. 2d 543, 545 (Miss.
1961).
23
trespasser category, even if one was initially on the premises lawfully as a passenger.
See also Frederick, 10 A.2d at 578. Here, while Mr. Whiteru was initially
undisputedly a passenger, he left the area held open to him and became a trespasser
by his fall into the non-public area.
B. Duty
Concluding that Mr. Whiteru was a trespasser does not end the inquiry.
Appellants argue that a “technical” trespass should not resolve the analysis because
Mr. Whiteru’s “special relationship” with WMATA continued after his fall.
Appellants argue that we should adopt a rule that WMATA must “render aid to its
passengers even when their injury lands them in a restricted area” because of
“common-sense public-policy and safety interests.” Appellants argue that such a
rule would “incentivize WMATA to comply with its already existing duty to inspect
its stations, rather than rewarding WMATA for its failure to discover Mr. Whiteru.”
Appellee argues that common carriers owe trespassers only “a duty to refrain
from intentional, willful, or wanton conduct” as a general rule; any higher duty to a
trespasser applies only in narrow circumstances. Appellee also argues that, even
assuming arguendo a higher duty applies to “known” or “discovered” trespassers,
the landowner must “know or have reason to know” of the actual presence of the
24
trespasser. Appellee argues that there is “no duty to aid an unknown passenger-
turned-trespasser.”
We agree with appellee that Section 314A’s special duty to affirmatively aid
does not apply to a situation where a passenger has become a trespasser, even if that
act resulting in the passenger becoming a trespasser was inadvertent. See
Restatement (Second) of Torts § 314A cmt. c (The special duty does not apply to
one who has “ceased to be a passenger,” just as it does not apply to “one who has
ceased to be an invitee”). However, the general rule that landowners only owe a
duty to refrain from willfully or wantonly injuring trespassers has an exception for
known trespassers: a landowner owes a “discovered” trespasser, or a trespasser that
is known or seen by the landowner, a duty of ordinary care to avoid injuring them.
See Copeland, 416 A.2d at 3. Further, as we explain, a corollary to that rule is that
a landowner also owes to known trespassers a duty of reasonable affirmative action,
which may include aid.
1. The general rule
Generally, “[t]respassers may only recover for ‘intentional, wanton or willful
injury or maintenance of a hidden engine of destruction.’” Holland, 431 A.2d at 599
(quoting Firfer, 208 F.2d at 528); see also Restatement (Second) of Torts § 333 (The
general rule is that “a possessor of land is not liable to trespassers for physical harm
25
caused by his failure to exercise reasonable care (a) to put the land in a condition
reasonably safe for their reception, or (b) to carry on his activities so as not to
endanger them.”). “Willful” or “wanton” conduct is generally characterized as
reckless disregard for the rights of others. See Copeland, 416 A.2d at 3-4. An “entire
course of conduct” by a land possessor can show evidence “from which a jury could
find that the [possessor] willfully or wantonly injured” a trespasser. Id.
2. Known trespassers
Our case law, other jurisdictions, and the Restatement apply a different duty
if a trespasser is “known” or “discovered.” See Restatement (Second) of Torts § 336
cmt. d (“[A] possessor is under a duty to exercise care for the safety of trespassers
after he knows, or from facts within his knowledge should know or believe, that they
are or may be upon his land[.]”). In Copeland, 416 A.2d at 3, we explained that the
“generally accepted” standard is that “[o]nce the presence of a trespasser is known,
the railroad must exercise ordinary care not to injure the trespasser.” Id. We
explained: “If by the exercise of ordinary care injury can be avoided, the defendant
is liable for the failure to use such care[.]” Id. (quoting Bremer v. Lake Erie & W.
R. Co., 148 N.E. 862 (1925)); see also Frederick, 10 A.2d at 578 (holding that “when
the owner or operator is put on guard as to the presence of the trespasser, the latter
immediately acquires the right to proper protection under the circumstances”);
Gladon v. Greater Cleveland Reg’l Transit Auth., 662 N.E.2d 287, 293 (Ohio 1996)
26
(“When a trespasser or licensee is discovered in a position of peril, a landowner is
required to use ordinary care to avoid injuring him.”).
Other courts have clarified that, as part of this duty to use ordinary care to
prevent initial or further injury towards a known trespasser, there is a “duty to take
reasonable affirmative action[.]” See Pridgen v. Bos. Hous. Auth., 308 N.E.2d 467,
477 (Mass. 1974). In Pridgen, an 11-year-old trespasser became trapped in an
elevator shaft and suffered severe injuries after the elevator crushed him. Id. at 470.
A maintenance worker had been alerted to the child’s presence and had ignored
requests to turn off the electricity before the injury occurred. See id. at 478. The
court explained that a landowner may not only have a duty to avoid injuring a trapped
trespasser but also, in limited circumstances, owe a duty of affirmative action:
This is not a case of an intruder who is cut during the act
of pushing his fis[t] through the glass in a door which the
owner has no[] duty to open for him; rather, we are dealing
with one who is injured after his original trespass is
effectively frustrated by virtual physical entrapment in a
position of peril. We hold that as to the latter trespasser
the owner owes a duty to exercise reasonable care to
prevent injury or further injury to him, including, if
necessary, the duty to take reasonable affirmative action.
Id. at 477. The Pridgen court explained that it “reject[ed] any rule which would
exempt the owner from liability if he knowingly refrains from taking reasonable
action which he is in a position to take and which would prevent injury or further
27
injury to the trespasser.” Id. at 476. The court stressed that “[i]t should not be, it
cannot be, and surely it is not now the law . . . that the owner in such a situation is
rewarded with immunity from liability as long as he ignores the plight of the trapped
trespasser and takes no affirmative action to help him.” Id. 8
Based on these considerations, we think it makes good sense to clarify the rule
put forth in Copeland regarding known trespassers. Known trespassers are owed an
ordinary duty of care, which may include an affirmative duty to aid in circumstances
8
Comment c of Section 314 of the Restatement expresses similar unease with
such a rule:
The origin of the rule lay in the early common law
distinction between action and inaction, or “misfeasance”
and “non-feasance.” . . . . Hence, liability for non-
feasance was slow to receive any recognition in the law.
It appeared first in, and is still largely confined to,
situations in which there was some special relation
between the parties, on the basis of which the defendant
was found to have a duty to take action for the aid or
protection of the plaintiff.
The result of the rule has been a series of older decisions
to the effect that one human being, seeing a fellow man in
dire peril, is under no legal obligation to aid him, but may
sit on the dock, smoke his cigar, and watch the other
drown. Such decisions have been condemned by legal
writers as revolting to any moral sense, but thus far they
remain the law. It appears inevitable that, sooner or later
such extreme cases of morally outrageous and indefensible
conduct will arise that there will be further inroads upon
the older rule.
28
where the landowner has actual knowledge that the trespasser is injured, trapped, or
otherwise imperiled. This duty requires reasonable action, which the landowner is
in a position to take, and which may prevent injury or exacerbation of injury to the
known trespasser. Such a rule makes sense as a corollary to the duty to act with
ordinary care towards a known trespasser. Additionally, from a policy perspective,
it would make little sense to require a landowner to use ordinary care to avoid
injuring a discovered trespasser but to also allow the landowner to escape liability
when ignoring a known injured, trapped, or otherwise imperiled trespasser. See
Szymkowicz v. President & Directors of Coll. of Georgetown Univ., 336 A.3d 650,
655 (D.C. 2025) (existence of a duty is based on a variety of circumstances including
policy decisions made by the courts and the legislatures). Therefore, once a common
carrier or land possessor discovers or knows of the presence of a trespasser who is
trapped or injured and requires aid, it may not ignore the trespasser’s peril. 9
The “knowledge” standard requires either actual knowledge or “reason to
know of the presence” of a trespasser. See Restatement (Second) of Torts § 336.
There must be “facts within [a land possessor’s] knowledge” that there is a
9
For this reason, we disagree with the district court’s assertion that “common
carriers do not owe trespassers, known or unknown, an affirmative duty to aid.”
Whiteru, 636 F. Supp. 3d at 112 .
29
trespasser. See Restatement (Second) of Torts § 336 cmt. d. As the court in
Frederick, 10 A.2d at 578, explained:
What constitutes sufficient notice of a trespasser’s
exposure to a situation of peril necessarily depends upon
the facts in each instance. Most of the decided cases have
been concerned with the question whether the trespasser
was seen by the person sought to be charged with
negligence . . . . Notification may also come from an
apparently trustworthy person who is himself an eye-
witness. 10
Importantly, however, a landowner is not required to anticipate or search for
trespassers. See Restatement (Second) of Torts § 336, cmt. d. As the court in
Bremer, 148 N.E. at 864, explained, “the defendant is not bound to anticipate the
presence of trespassers on its property or to keep a lookout for them, and . . . its duty
to exercise care to avoid injury to trespassers begins only when their presence is
known.” See also Sabo v. Reading Co., 244 F.2d 692, 694 (3d Cir. 1957) (“To justify
recovery, it must appear that the engineer actually discovered the presence of the
10
Similarly, Section 336 of the Restatement explains that there could be facts
that give rise to a “cause to suspect” there is a trespasser. Illustration 1 explains:
“The engineer of the X & Y Railroad Company sees lying upon the track a pile of
clothing such as would give a reasonable man cause to suspect that it might contain
a human being. Under these circumstances the engineer is not entitled to assume
that it is not a human being but is required to keep the engine under control until he
is certain that it is not.”
30
trespasser, and thereafter failed to exercise due care to avoid strik[i]ng him. It is not
enough that the engineer simply failed to keep a lookout for the trespasser.”).
This analytical framework, in which a landowner or common carrier has a
duty of care to a known trespasser, fits with Illustration 1 of Section 314A. In that
illustration, a train company is subject to liability after a passenger is seen falling off
a train onto the side of the tracks and failing to send aid. Similarly, this framework
also fits with appellants’ example, in which they urge the court to hold that a guest
who “accidentally falls into a fountain in the hotel lobby, becoming injured and
requiring aid” is surely owed an affirmative duty to aid, despite the guest falling into
a “restricted” area. In both examples, the former passenger or guest is owed an
affirmative duty to aid, even if technically a “trespasser,” if the common carrier or
landowner has knowledge that the trespasser is injured, trapped, or otherwise in
danger, such as by employees directly seeing the fall or being directly informed of
the fall by other passengers or guests.
However, we disagree with appellants’ argument that a common carrier has a
duty to aid if it “should have known” of a trespasser’s presence or plight. We agree
with appellee that a “should have known” standard is not sufficient for the duty to
apply. As stated, the standard for “knowledge” or “reason to know” of a trespasser
is not a “should have known” standard; instead, the duty requires actual knowledge
31
of the trespasser, or knowledge of facts that would give rise to the knowledge or
belief that there is a trespasser. “Reason to know” means that there were facts within
the knowledge of the common carrier that provided the common carrier with a basis
for believing that a trespasser is present. In contrast, a “should have known”
standard would impose knowledge of a trespasser if the common carrier would have
discovered the trespasser through the exercise of reasonable care. Such a standard
would effectively transform the duty to known trespassers into an ordinary duty of
care towards all upon the premises, lawfully or not. This jurisdiction has explicitly
declined to adopt such a framework, and we still recognize distinctions between
those lawfully upon the premises and those not. See Holland, 431 A.2d at 601; see
also Lacy, 684 A.2d at 393 n.2.
Appellee contends that it is “undisputed here that Whiteru’s presence in an
off-limits trough below the platform was unknown.” Appellants contend that the
“district court found that there is a genuine factual dispute as to whether WMATA
should have known of Mr. Whiteru’s injuries[,]” citing a factual dispute over whether
the station manager performed reasonable inspections of the platform that could
have included looking into the trough. See Whiteru I, 25 F.4th at 1058-59; Whiteru
II, 89 F.4th at 169. While we do not decide whether the required knowledge standard
was met here, we emphasize that a landowner is not bound to inspect or keep a look
32
out for trespassers, unless the landowner has reason to know that a trespasser is in a
non-public part of its property. 11
Therefore, we answer the D.C. Circuit’s question in the affirmative. Overall,
a common carrier who knows or has reason to know of a trespasser’s presence,
injuries, or imperiled status may be subject to liability for physical harm caused by
the common carrier’s failure to act with reasonable care for the trespasser’s safety.
See Restatement (Second) of Torts § 336 cmt. d. 12
V. Conclusion
In summary, a passenger who accidentally or unintentionally falls into a non-
public area is a trespasser. However, if the common carrier knows, or has reason to
11
Illustration 4 of Section 336 of the Restatement (Second) of Torts explains
that a railroad’s liability to a trespasser struck on the tracks would not stem from the
railroad’s “failure to keep a lookout” for trespassers; instead, it would stem from
whether the trespasser had been actually seen by the railroad company. This
illustration is based on Chicago Terminal Transfer Co. v. Kotoski, 65 N.E. 350, 352
(Ill. 1902), in which the court explained: “We do not hold that it was the duty of the
trainmen to anticipate the presence of trespassers on the tracks or to keep a lookout
for them, but we do hold that when they knew that persons were there they had no
right to willfully run them down and inflict injury upon them.”
12
We express no opinion on whether the required “knowledge” standard was
met here and leave it to the federal court to apply the principles outlined in this
opinion. We also express no opinion on issues related to contributory negligence,
as they are outside the scope of the question certified.
33
know through facts in its knowledge, 13 that the trespasser is injured, trapped, or
otherwise imperiled, the common carrier has a duty to exercise ordinary care to
prevent initial or further injury to the trespasser, including the duty to take reasonable
affirmative action, which may include aid.
So ordered.
13
As we explained, supra pp. 30-31, the “reason to know” standard differs
from a “should have known” standard, which imputes knowledge that the landowner
or common carrier would have possessed had the common carrier or landowner
acted with reasonable care. “Reason to know” means that there were facts within
the knowledge of the common carrier that provided the common carrier with a basis
for believing that a trespasser is present.