Cameroon Whiteru v. WMATA ( 2022 )

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. § 1332and 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 §
8
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 at395–36; 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.