Cameroon Whiteru v. WMATA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2021 Decided February 11, 2022

No. 20-7087

CAMEROON WHITERU, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF OKIEMUTE C. WHITERU

AND AGNES WHITERU,

APPELLANTS

v.

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-00844)

Abigail A. Graber argued the cause for appellants. With

her on the briefs were Kobie A. Flowers and Andrew D.

Freeman.

Nimalan Amirthalingam argued the cause for appellee.

With him on the brief was Andrew Butz.

Before: HENDERSON, TATEL, and WILKINS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

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WILKINS, Circuit Judge: Cameroon Whiteru, individually

and as personal representative of the Estate of Okiemute C.

Whiteru, and Agnes Whiteru (the “Whiteru Estate”), alleged

that Washington Metropolitan Transit Authority’s

(“WMATA”) negligence resulted in the death of their son,

Okiemute Whiteru (“Mr. Whiteru”), a WMATA passenger

who sustained grievous injuries after falling in the parapet area

of the Judiciary Square Metro Station in Washington, D.C. The

Whiteru Estate argued that under the common law of the

District of Columbia, WMATA, as a common carrier, breached

its duty to render aid to Mr. Whiteru, because WMATA had

reason to know that he was injured and needed assistance, but

failed to discover him. WMATA moved for summary

judgment on the Whiteru Estate’s claims based on the

affirmative defense of contributory negligence. The District

Court granted WMATA’s motion for summary judgment,

holding that Mr. Whiteru’s actions in the station were the

proximate cause of his injury, that he was contributorily

negligent as a matter of law, and as a result, the Whiteru

Estate’s negligence claim was completely barred under District

of Columbia law, despite WMATA’s common carrier duty to

render aid. We conclude that the record at summary judgment

fails to demonstrate that WMATA is entitled to judgment as a

matter of law on the Whiteru Estate’s negligence claim. Thus,

we reverse the grant of summary judgment to WMATA as to

whether Mr. Whiteru’s contributory negligence bars the

Whiteru Estate’s negligence claim, and remand this case to the

District Court for further proceedings consistent with this

opinion.

I.

The evidence at summary judgment, taken in the light

most favorable to the Whiteru Estate, showed the following.

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Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1267

(D.C. Cir. 2018).

At about 12:45 a.m. on October 19, 2013, Mr. Whiteru

disembarked a train operated by WMATA at the Judiciary

Square Metro Station. Mr. Whiteru, who was 35 years old at

the time, was heavily intoxicated. Upon exiting the train, he

walked up the escalator steps, and at about 12:48 a.m., he exited

the “paid area” through a turnstile. A surveillance camera

inside the station captured video footage of Mr. Whiteru’s

conduct up until this point, and he did not appear on camera

again until about twenty-two minutes later.

At 1:07 a.m., Mr. Whiteru approached the information

kiosk at the mezzanine level of the Judiciary Square station and

spoke to Rhonda Brown, the station manager on duty. She

helped Mr. Whiteru pass through the turnstile to re-enter the

paid area of the station.

At this point, video footage resumed capturing Mr.

Whiteru’s conduct. He walked down the escalator steps, which

were stationary, stumbled on the last few stairs, and fell. Mr.

Whiteru lay on his back at the base of the escalator for about

three-and-a-half minutes before he regained his footing. He

then reached for the parapet wall—which is about three feet

high and adjacent to the base of the escalator—and pulled

himself up to lean against it. About forty-five seconds later,

surveillance footage shows that he turned his body toward the

wall, perhaps to sit on it, although the parties disputed below

whether Mr. Whiteru was trying to sit on the wall. In any event,

at about 1:15 a.m., Mr. Whiteru, while interacting with the

parapet wall, lost his balance and fell headfirst over it and into

the gap between the parapet wall and the station wall. There is

no surveillance video footage of Mr. Whiteru after this point.

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Station manager Rhonda Brown, who was supposed to

perform a routine inspection of the station platform three times

after Mr. Whiteru’s fall—at 1:30 a.m., 2:30 a.m., and 3:15

a.m.—had no recollection of conducting those specific

inspections, but she signed the station-manager checklist that

night, indicating that she had performed the inspections, which

are required by WMATA’s Station Standard Operations

Procedure (“SSOP”) manual. The parties disputed below

whether station manager Brown actually performed those

inspections.

Four days later, on October 23, 2013, a Metro rider found

Mr. Whiteru’s body. Mr. Whiteru had succumbed to serious

injuries he suffered due to the fall, including a spinal fracture.

On summary judgment, the parties disputed how long Mr.

Whiteru remained alive after the fall, although they agreed that

he would have survived his injuries if he had been discovered

within fifteen minutes of the fall—at or before 1:30 a.m.

On May 1, 2015, the Whiteru Estate sued WMATA in the

Superior Court of the District of Columbia. On June 8, 2015,

the case was removed to the U.S. District Court for the District

of Columbia. In the amended complaint, the Whiteru Estate

alleged that WMATA was liable for negligence under District

of Columbia tort law because WMATA failed to investigate,

aid, or otherwise respond to Mr. Whiteru—following both his

initial fall from the escalator and his fall over the parapet wall.

The Whiteru Estate also contended that it was entitled to

survivor’s damages due to WMATA’s negligence under D.C.

Code § 12-101, and that WMATA’s negligence caused Mr.

Whiteru’s wrongful death, pursuant to D.C. Code § 16-2701.

On July 19, 2016, WMATA filed its first motion for

summary judgment, which the District Court denied. WMATA

later filed a supplemental motion for summary judgment to

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raise the defense of contributory negligence as a matter of law,

and to raise the argument that Mr. Whiteru was negligent per

se because he was intoxicated, in violation of D.C. Code §§ 25-

1001(c) and 25-1001(d). The District Court granted

WMATA’s supplemental motion for summary judgment,

ruling that Mr. Whiteru was contributorily negligent and that

this was a complete bar to the Whiteru Estate’s recovery on its

negligence claim. The Whiteru Estate appeals the District

Court’s decision.

II.

The District Court had jurisdiction under 28 U.S.C. § 1332

and we have jurisdiction under 28 U.S.C. § 1291. We review

a district court’s grant of summary judgment de novo, viewing

“the evidence in the light most favorable to the nonmoving

party and drawing all reasonable inferences in his or her favor.”

Oviedo v. Wash. Metro. Area Transit Auth., 948 F.3d 386, 392

(D.C. Cir. 2020) (internal quotation marks and citation

omitted). “Rule 56(a) requires a court to ‘grant summary

judgment if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

III.

The Whiteru Estate argues that the District Court erred in

granting summary judgment to WMATA on its negligence

claim. The Whiteru Estate contends that under District of

Columbia common law, which includes Section 314A of the

Restatement (Second) of Torts, there is a special relationship

between a common carrier and passenger that gives rise to the

common carrier’s duty to take reasonable steps to render aid to

a passenger if it knows or has reason to know that they are

injured, regardless of whether the passenger contributed to

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their own injury. Blue Br. 7–9. The Whiteru Estate argues that

WMATA is not entitled to summary judgment on the

negligence claim because there are genuine factual disputes

regarding whether WMATA breached its duty to aid Mr.

Whiteru after he negligently injured himself. We agree. As

explained below, the District of Columbia unambiguously

recognizes the special relationship between common carriers

and passengers: a common carrier cannot evade liability for

negligence if it knows or has reason to know that a passenger

is injured, breaches its duty to render aid to the injured

passenger, and the passenger’s original injuries are aggravated

as a result. Indeed, the law provides that a common carrier is

liable in this scenario even if the passenger’s own negligence

caused his initial injuries. We cannot uphold a summary

judgment order where a reasonable jury could conclude that

WMATA breached such a duty, so we reverse and remand with

respect to the Whiteru Estate’s negligence claim.

A.

Under District of Columbia common law, a plaintiff

alleging negligence must establish three elements: (1) the

defendant owed the plaintiff a duty of care; (2) the defendant

breached that duty; and (3) the defendant’s breach proximately

caused the plaintiff’s harm. Wash. Metro. Area Transit Auth.

v. Ferguson, 977 A.2d 375, 377 (D.C. 2009).

Importantly, even if a plaintiff establishes the defendant’s

negligence, “[t]he District of Columbia is one of the few

jurisdictions in which the claimant’s contributory negligence

can act as a complete defense to the defendant’s liability for

negligence.” Jarrett v. Woodward Bros., Inc., 751 A.2d 972,

985 (D.C. 2000). Hence, “[b]ecause this jurisdiction has not

adopted comparative negligence, the plaintiff is barred from

recovery if his negligence was a substantial factor in causing

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his injury, even if the defendant was also negligent, as long as

the plaintiff’s negligence contributed in some degree to his

injury.” Sinai v. Polinger Co., 498 A.2d 520, 528 (D.C. 1985)

(internal quotation marks omitted).

Contributory negligence is an affirmative defense, and

thus it is the defendant’s burden “to establish, by a

preponderance of the evidence, that the plaintiff failed to

exercise reasonable care.” Poyner v. Loftus, 694 A.2d 69, 71

(D.C. 1997). “Contributory negligence is conduct which falls

below the standard to which a plaintiff should conform for his

own protection.” Wash. Metro. Area Transit Auth. v. Cross,

849 A.2d 1021, 1024 (D.C. 2004) (internal quotation marks

and citation omitted); see also Stager v. Schneider, 494 A.2d

1307, 1311 (D.C. 1985) (“Contributory negligence is the

failure to act with the prudence demanded of an ordinary

reasonable person under like circumstances.”). “Ordinarily,

questions of negligence and contributory negligence must be

decided by the trier of fact.” Poyner, 694 A.2d at 71. The court

can determine the issue of contributory negligence as a matter

of law “[i]n certain cases . . . ‘where the facts are undisputed,

and conceding every legitimate inference, only one conclusion

may be drawn . . . .’” Blake v. Securitas Sec. Servs., Inc., 962

F. Supp. 2d 141, 146 (D.D.C. 2013) (quoting Wash. Metro.

Area Transit Auth. v. Jones, 443 A.2d 45, 50 (D.C. 1982)).

Notwithstanding contributory negligence, WMATA may

not evade liability in this case. District of Columbia law

recognizes the special relationship between common carriers

and passengers. Wash. Metro. Area Transit Auth. v. O’Neill,

633 A.2d 834, 840 (D.C. 1993) (“But where a special

relationship exists, such as between a common carrier and its

passengers, the carrier undeniably has a duty to protect its

passengers from foreseeable harm arising from criminal

conduct of others.”) (citing Restatement (Second) of Torts §

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314A(1)(a), cmts. d, e)). Indeed, the District of Columbia has

explicitly adopted Section 314A of the Restatement. O’Neill,

633 A.2d at 840; McKethean v. Wash. Metro. Area Transit

Auth., 588 A.2d 708, 712 (D.C. 1991); District of Columbia v.

Mitchell, 533 A.2d 629, 644 (D.C. 1987). During oral

argument, WMATA conceded that Section 314A of the

Restatement is the law of the District of Columbia. Oral Arg.

Tr. 10:17–22. In relevant part, Section 314A of the

Restatement provides:

A common carrier is under a duty to its

passengers to take reasonable action to protect

them against unreasonable risk of physical

harm, and 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.

Restatement (Second) of Torts § 314A(1)(a)–(b) (cleaned up).

Section 314A also provides a key illustration, which the

Whiteru Estate contends is applicable in this case:

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.

Restatement (Second) of Torts § 314A cmt. d, illus. 1.

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In its briefs, and during oral argument, the Whiteru Estate

pointed out that there are genuine disputes of material fact

regarding whether WMATA station manager, Rhonda Brown,

made her required inspections of the Judiciary Square Metro

Station, pursuant to WMATA’s SSOP manual. The District

Court even acknowledged this key factual dispute and hinted

at Section 314A’s applicability in its ruling on WMATA’s first

motion for summary judgment. As the District Court

explained:

Brown’s alleged breach of the duty to inspect

and thereby discover Whiteru is the linchpin of

Plaintiffs’ negligence claim—and the key

disputed fact—because there is no dispute that,

had Brown performed a reasonable inspection

(however defined) and discovered Whiteru in

his incapacitated state, she would have had a

duty to render some form of assistance.

Whiteru v. Wash. Metro. Area Transit Auth., 258 F. Supp. 3d

175, 192 n.11 (D.D.C. 2017) (citing Restatement (Second) of

Torts § 314A(1)(b), cmt. d). Hence, Section 314A

contemplated the very factual scenario the Whiteru Estate

contends exists here: (1) a passenger negligently injures

himself; (2) the common carrier knows or has reason to know

that the passenger is injured but fails to aid them; and (3) the

common carrier is liable to the passenger for the aggravation of

their initial injuries.

However, because the District of Columbia has not

adopted comparative negligence and is one of the few

remaining jurisdictions that retains a contributory negligence

defense, see Jarrett, 751 A.2d at 985 & n.20, the district court

ruled that Section 314A of the Restatement could not overcome

Mr. Whiteru’s contributory negligence. Whiteru v. Wash.

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Metro. Area Transit Auth., 480 F. Supp. 3d 185, 194–98

(D.D.C. 2020). This was error. 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.” Asal v. Mina, 247 A.3d 260,

271 n.11 (D.C. 2021) (citing District of Columbia v. Huysman,

650 A.2d 1323, 1326 (D.C. 1994)). Common carrier liability

pursuant to Section 314A of the Restatement is another such

exception. On the disputed facts, a reasonable jury could

conclude that 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. As such, we conclude 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.

We also reject WMATA’s reliance on the decisions in

Washington Metropolitan Transit Authority v. Cross, Andrews

v. Wilkins, and Fells v. Washington Metropolitan Transit

Authority because they are all inapposite to this case. See

Wash. Metro. Area Transit Auth. v. Cross, 849 A.2d 1021 (D.C.

2004); Andrews v. Wilkins, 934 F.2d 1267 (D.C. Cir. 1991),

abrogated on other grounds by Atchinson v. District of

Columbia, 73 F.3d 418 (D.C. Cir. 1996); Fells v. Wash. Metro.

Area Transit Auth., 357 A.2d 395 (D.C. 1976). In Fells and

Cross, bus passengers suffered injuries after they negligently

attempted to change seats while the bus was in motion. Fells,

357 A.2d at 395–96; Cross, 849 A.2d at 1023–25. There was

no evidence in either case that the common carrier neglected

its duty to render aid after the passenger’s fall, such that the

passenger’s initial injuries were aggravated. Fells, 357 A.2d at

395–36; Cross, 849 A.2d at 1023–25. Furthermore, the

Andrews case involved the death of an individual who drowned

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in the Washington Channel while fleeing the police to evade

arrest; it did not concern the duty of common carriers at all.

See Andrews, 934 F.2d at 1272. In sum, none of these rulings

implicate or address Section 314A of the Restatement because

none involved the common carrier’s duty to render aid after it

knew or had reason to know that a passenger negligently

injured himself.

B.

WMATA also argued on summary judgment that Mr.

Whiteru was contributorily negligent per se because he was

intoxicated, in violation of D.C. Code §§ 25-1001(c) and 25-

1001(d). Under the D.C. Code, a person violates subsection

25-1001(c) by being “intoxicated and endanger[ing] the safety

of himself.” D.C. Code § 25-1001(c). A violation of

subsection (c) is a misdemeanor. Id. § 25-1001(d). WMATA

argued that Mr. Whiteru’s negligence per se was the proximate

cause of his death but the District Court declined to address

WMATA’s negligence per se argument because it concluded

that Mr. Whiteru was contributorily negligent as a matter of

law. Whiteru, 480 F. Supp. 3d at 192–98. On appeal, WMATA

contends that Mr. Whiteru’s per se contributory negligence

provides alternative grounds for affirmance of the District

Court’s ruling. We disagree. Because, as described above,

contributory negligence cannot bar recovery here, neither can

contributory negligence per se.

IV.

In short, the summary judgment record reflects that there

were genuine disputes of material fact. A reasonable jury could

have concluded that WMATA breached its duty to render aid

to Mr. Whiteru after he fell over the parapet wall, that

WMATA’s breach aggravated his injuries, and that his

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conceded contributory negligence does not bar the Whiteru

Estate’s recovery on its negligence claim against WMATA.

For the foregoing reasons, the judgment of the District

Court is reversed and the case is hereby remanded for further

proceedings consistent with this opinion.

So ordered.