Cameroon Whiteru v. WMATA

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 20, 2023           Decided December 29, 2023

                        No. 22-7154

  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)



     Andrew D. Levy argued the cause for appellants. With him
on the briefs were Andrew D. Freeman, Kobie A. Flowers,
Lauren A. DiMartino, Michael R. Abrams, and Louis G. Close,
III.

    Pratik A. Shah argued the cause for appellee. With him on
the brief were Michael Weisbuch, Anthony T. Pierce, and
Caroline L. Wolverton.

    Before: HENDERSON and GARCIA, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
                               2
    Opinion for the Court filed by Circuit Judge HENDERSON.

     KAREN LECRAFT HENDERSON, Circuit Judge: This is the
second time this case has been before our court. See Whiteru
v. Washington Metro. Area Transit Auth. (Whiteru I), 

 (D.C. Cir. 2022). Appellants are the parents and the estate
of Okiemute C. Whiteru, who suffered severe and ultimately
fatal injuries after falling from the passenger platform at the
Judiciary Square metro station into a narrow trough that houses
lighting and electrical equipment.         Appellants brought
negligence and wrongful death claims against the Washington
Metropolitan Area Transit Authority (WMATA), which
operates the Judiciary Square station, alleging that WMATA
breached its common carrier duty to render aid to Whiteru. At
issue in Whiteru I was whether Whiteru’s conceded
contributory negligence prevented his estate from recovering
from WMATA. We held that contributory negligence did not
preclude common carrier liability for failure-to-aid. Whiteru I,
25 F.4th at 1059. After remand, WMATA again moved for
summary judgment, arguing for the first time that the Whiterus
could not recover because Whiteru became a trespasser when
he fell backward from the platform over a retaining ledge he
was apparently sitting on. If Whiteru was a trespasser,
WMATA owed him only the duty to refrain from intentional,
willful or wanton injurious conduct. Moreover, absent the
special relationship between common carrier and passenger,
contributory negligence would again come into play. Relying
on Section 329 of the Restatement (Second) of Torts (regarding
trespassers), the district court again granted WMATA
summary judgment. The Whiterus appealed.

     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
                                3
Court of Appeals (D.C. Court of Appeals). We therefore
certify the question to the D.C. Court of Appeals.

             I.   Facts Relevant to Certification

     Our earlier opinion recites some of the facts underlying
this case. See Whiteru I, 25 F.4th at 1055–56. To facilitate the
D.C. Court of Appeals’ review, we recount them here in more
detail.

     Around 12:45 a.m. on October 19, 2013, Whiteru
disembarked a train operated by WMATA at the Judiciary
Square metro station. He was noticeably intoxicated. At 1:07
a.m., he approached the kiosk on the station’s mezzanine level
and spoke with Rhonda Brown, the station manager, who
helped him process his SmarTrip card. He then descended to
the station platform via an escalator that was in stair mode. He
stumbled over the last few steps and fell to the floor of the
station platform, where he lay for over three minutes. He got
up and attempted to lean against or sit on the narrow ledge
(approximately three feet high and four inches wide) at the
edge of the platform opposite the train tracks. On the other side
of the ledge and several feet below the platform is an uncovered
trough that houses electrical and lighting equipment.

     At about 1:15 a.m., Whiteru fell backward over the ledge,
landing at the bottom of the trough. As a result of the impact,
he fractured his C-5 vertebra which immobilized him and
compromised his breathing. Appellants’ medical experts
opined that Whiteru remained conscious and would have been
able to call for help over the next three to four hours. Whiteru’s
ability to breathe gradually waned due to his damaged phrenic
nerve, which damage was caused by the spinal fracture. He
ultimately died from asphyxiation. His body was discovered
four days later after a metro passenger brought it to the
attention of the station manager.
                              4
     WMATA’s operating procedure required the station
manager on duty to perform visual inspections of the platform
at 1:30 a.m., 2:30 a.m. and 3:15 a.m. It is disputed whether
Brown, the Judiciary Square station manager on duty that
night, in fact performed the inspections and whether the
inspections included looking behind the ledge and into the
trough. Video surveillance footage captured Whiteru’s fall into
the trough. It is undisputed that Whiteru would have survived
if he had been timely discovered. It is also undisputed that
Whiteru was a passenger while he was on the station platform.
The question is whether Whiteru became a trespasser by falling
backward into the trough, a non-public area.

          II. Passenger Versus Trespasser Status

     The District of Columbia (District) has adopted Section
314A of the Restatement (Second) of Torts, which states that a
common carrier like WMATA owes 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.” Restatement (Second) of Torts § 314A(1)(a)–(b)
(1965); see McKethean v. WMATA, 

 (D.C.
1991). Section 314A, titled “Special Relations Giving Rise to
Duty to Aid or Protect,” carves out an exception to the Section
314 general rule that, absent special circumstances, awareness
of another’s peril imposes no duty to take action to aid or
protect him. Restatement (Second) of Torts § 314; id. § 314A
cmt. b; accord McKethean, 

 (“A common
carrier has no special duty to non-passengers.”).

       The rules stated in [Section 314A] apply only
       where the relation exists between the parties,
       and the risk of harm, or of further harm, arises
                                5
       in the course of that relation. A carrier is under
       no duty to one who has left the vehicle and
       ceased to be a passenger, nor is an innkeeper
       under a duty to a guest who is injured or
       endangered while he is away from the premises.
       Nor is a possessor of land under any such duty
       to one who has ceased to be an invitee.

Restatement (Second) of Torts § 314A, cmt. c.

     Section 329 of the Restatement, which the District has also
adopted, defines “trespasser” as “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; Firfer v.
United States, 

 (D.C. Cir. 1953) (adopting
definition of § 329). An invitee may become a trespasser by
exceeding the scope of his invitation. See Firfer, 

 (“When Mr. Firfer left that portion of the Monument
grounds which is set aside for the public, he exceeded the scope
of his license and became a trespasser[.]”).

     Our district court has consistently held that under District
tort law, “fare-paying customers in a subway station become
trespassers when they leave the platform and enter the tracks.”
Hines v. WMATA, 

, at *5 (D.D.C. Feb. 9,
2022); see also Coulston v. WMATA, 

, at *3
(D.D.C. March 13, 2020); Johnson v. WMATA, 

, 1572–73 (D.D.C. 1991); Whitaker v. WMATA, 

, at *12, *14 (D.D.C. May 14, 1984). These
decisions dovetail with Firfer’s holding that an invitee may
become a trespasser when he exceeds the scope of his
invitation. 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
                                6
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.

     Our reading of District negligence precedent involving the
condition or use of land leads us to conclude that whether the
plaintiff’s unauthorized and unprivileged entry was voluntary
is immaterial to his legal status as a trespasser. Copeland v.
Balt. & O.R. Co., 

, 2–3 (D.C. 1980). Like the
passenger-turned-trespasser cases cited above (i.e., Whitaker
and its progeny), Copeland involved a plaintiff who sought to
recover for injuries resulting from his being struck by a train.
See 

 Unlike the plaintiffs in the passenger-turned-trespasser
cases, whose entry onto train tracks was a volitional act on their
part, Copeland’s entry onto the tracks was involuntary—one or
more unknown persons took him from his front porch, drove
him to a remote segment of the railroad tracks and placed him
on the tracks while he was semiconscious. 

.
Copeland is regularly cited in passenger-turned-trespasser
cases that reject a plaintiff’s argument that his entry onto the
tracks was less than intentional—for example, the result of
confusion or mental illness—and therefore he was not a
trespasser.

     There are substantial differences between those cases and
this one. At no relevant time had Copeland been a passenger
of the defendant railroad company. The starting point of the
involuntary movement that ultimately placed him on the
railroad tracks was his front porch. Here, the starting point of
Whiteru’s involuntary fall from the station platform ledge took
place on the station platform—where all agree he was a
                               7
WMATA passenger. 1 Second, the Copeland and passenger-
turned-trespasser plaintiffs sought to recover for their
immediate injuries, whereas Whiteru seeks to recover only for
the exacerbation of his original falling injuries—an
exacerbation attributable to WMATA’s failure to aid him.
Moreover, in neither Copeland nor the passenger-turned-
trespasser cases did the plaintiffs’ injuries result from their
entry onto the tracks but rather from their being struck by the
train passing over them. In other words, the injury for which
plaintiffs sought to recover was separate and distinct from their
trespass. By contrast, no intervening cause separates Whiteru’s
immediate injuries (which triggered his need for assistance)
from his involuntary fall, which WMATA seeks to characterize
as a trespass. Finally, we are skeptical that treating entry onto
train tracks as trespass no matter the plaintiff’s state of mind
applies to Whiteru’s fall from a ledge located on the portion of
the platform opposite the train tracks. Cf. Whitaker, 

, at *12 (“It must be apparent to any
reasonable person that a gate which leads into the subway
tunnel is not to be used as a public exit.”). District precedent
offers scant guidance in determining whether a plaintiff who
involuntarily falls from a passenger area into an area not held
open (except literally) to passengers remains a passenger or
becomes a trespasser.

     In concluding that Whiteru became a trespasser when he
fell into the trough, the district court focused on conflicting
scenarios attached to Sections 329 and 314A of the
Restatement. Whiteru v. WMATA, 

, 112–
15 (D.D.C. 2022). Section 329’s illustration, which is based
on Frederick v. Phila. Rapid Transit Co., 

 (Pa.
1940), states:

    1
      Indeed, had he fallen forward, he would have unquestionably
remained a passenger.
                               8
       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.

Restatement (Second) of Torts § 329 cmt. c, illus. 1.

     The district court found that the foregoing illustration
“essentially describes this case.” Whiteru, 636 F. Supp. 3d at
113. We acknowledge the similarities but note that the
Frederick plaintiff sought to recover for the injuries caused by
the train passing over him, not for the defendant railroad’s
failure to rescue him from the tracks. Indeed, it is unlikely the
railroad would have had an opportunity to rescue him from the
tracks because he had “slipped from the platform into the
pathway of the train, which meanwhile had started, but he fell
at a point so immediately in front of it as not to be within the
motorman’s range of vision.” Frederick, 

.

     Section 314A’s illustration, based on Yazoo & M.V.R. Co.
v. Byrd, 

 (Miss. 1906), states:

       A, a passenger on the train of B Railroad,
       negligently falls off 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.
                                9
Restatement (Second) of Torts § 314A cmt. f, illus. 1.

     The district court considered this illustration less relevant
in large part because Yazoo did not consider the issue of the
plaintiff’s potential “trespass” by virtue of his falling by the
side of the track. See Whiteru, 636 F. Supp. 3d at 114–15. But
a common carrier’s duty to aid attaches only if the plaintiff is a
passenger. Because A was a passenger when it mattered, that
is, when he fell from the train, B was liable for the aggravation
of A’s injuries caused by its failure to render aid.

     In sum, we believe this case presents an issue of first
impression regarding District tort law. Does the special
relationship between common carrier and passenger survive a
passenger’s involuntary backward fall from a station platform
into a trough adjacent to the station platform (which trough
passengers are not invited to enter) so that the common carrier
is obliged to render aid provided it knows or has reason to know
of his injury? Or does the fall from the station platform, no
matter its involuntary character, sever the relationship and
render the passenger a trespasser so that the common carrier
owes him only the duty to refrain from intentional, willful or
wanton injurious conduct? 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.

                    III. Certified Question

    Pursuant to D.C. Code § 11–723(a), the D.C. Court of
Appeals may answer a question of District law certified to it by
this court “which may be determinative of the cause
pending . . . and as to which it appears . . . there is no
controlling precedent in the decisions of the District of
Columbia Court of Appeals.” We have certified questions to
                               10
the D.C. Court of Appeals when it appears that District law is
“genuinely uncertain” and the questions are of “extreme public
importance.” Sturdza v. United Arab Emirates, 

 (D.C. Cir. 2002) (quoting Dial A Car, Inc. v. Transp.,
Inc., 

 (D.C. Cir. 1998)); see also, e.g.,
Akhmetshin v. Browder, 

, 928 (D.C. Cir. 2021).

     For the foregoing reasons, we conclude that the law of the
District of Columbia is genuinely uncertain as to whether a
passenger’s involuntary fall from a station platform into an
adjacent non-public area renders him a trespasser. We also
believe that the question posed by this case is of extreme public
importance. It is likely to recur, given that WMATA’s daily
ridership is in the hundreds of thousands. See Metrorail
Ridership Summary, WMATA, https://perma.cc/73GH-P2LY.
In fact, in the decades since the D.C. Court of Appeals issued
an opinion offering material guidance in this area, this Court
and our district court have considered this case and cases
raising related issues several times. See supra, slip op. at *5–
6. Because tort liability questions often entail not only legal
analysis but “policy decision[s]” about how “society would be
best served,” Luck v. Baltimore & Ohio R.R. Co., 

 (D.C. Cir. 1974), we believe this case calls for the D.C.
Court of Appeals’ “exercise of judgment.” See McKesson v.
Doe, 

, 5–6 (2020). We therefore certify the
following question to the D.C. Court of Appeals:

       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
                               11
       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?

    Appended hereto are the briefs and portions of the record
provided by the parties to this appeal as well as our decision in
Whiteru I.

                                                    So ordered.