UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) CAMEROON WHITERU, Individually ) and as Personal Representative of the ) Estate of Okiemute C. Whiteru, et ux., ) ) Plaintiffs, ) ) v. ) No. 15-cv-0844 (KBJ) ) WASHINGTON METROPOLITAN ) AREA TRANSIT AUTHORITY, ) ) Defendant. ) )

MEMORANDUM OPINION

On October 19, 2013, Okiemute Whiteru (“Whiteru”) suffered an accidental

injury inside the Judiciary Square Metro Station that resulted in his death. His body

was discovered under a platform in the Metro Station on October 23, 2013. Whiteru’s

parents, Cameroon and Agnes Whiteru (collectively, “Plaintiffs”), have brought the

instant action against Defendant Washington Metropolitan Area Transit Authority

(“WMATA”); they seek monetary damages and make three legal claims about

WMATA’s liability for alleged negligence. Plaintiffs’ assert, first, that WMATA acted

negligently under the common law of the District of Columbia when it failed to

discover Whiteru in time to provide him with life-saving emergency medical assistance

(See also Am. Compl., ECF No. 21, ¶¶ 23–30 (Count I).) They also maintain that they

are entitled to survivor’s damages due to WMATA’s negligence under

-

101 (see

¶¶ 31–34 (Count II)), and that WMATA’s negligence caused Whiteru’s

wrongful death for the purpose of

(see

¶¶ 35–36 (Count III)). This Court previously denied WMATA’s motion for summary judgment with

respect to these claims, on the grounds that WMATA was not entitled to sovereign

immunity, and that Plaintiffs had offered sufficient evidence such that a reasonable jury

could find that WMATA breached its duty of care to Whiteru. See Whiteru v. WMATA,

(D.D.C. 2017). The Court then authorized additional expert

discovery concerning the national standard of care for inspections of metropolitan

subway systems, at Plaintiffs’ request (see May 4, 2018, Hr’g Tr., ECF No. 68, at 40:8,

42:2–10), and allowed WMATA to submit supplemental summary judgment briefing, as

necessary to permit WMATA to raise the defense of contributory negligence, see

Whiteru v. WMATA, No. 15-CV-0844 (KBJ),

, at *1 (D.D.C. Dec. 17,

2018).

Before this Court at present is WMATA’s supplemental motion for summary

judgment under Federal Rule of Civil Procedure 56. (See Def.’s Suppl. Mot. for Summ.

J. (“Def.’s Suppl. Mot.”), ECF No. 80, at 1.) 1 In support of this motion, WMATA

argues that Whiteru’s contributory negligence is a complete bar to Plaintiffs’ recovery

with respect to any of their tort claims. (See

.) In opposition to WMATA’s

motion, Plaintiffs argue that WMATA cannot assert a defense of contributory

negligence, as a common carrier, because WMATA had an affirmative duty to render

aid to an injured passenger such as Whiteru, regardless of that passenger’s own

1 Page-number citations to documents the parties have filed refer to the page numbers that the Court’s electronic filing system assigns.

2 negligence. (See Pls.’ Opp’n to Def.’s Suppl. Mot. for Summ. J. (“Pls.’ Opp’n”), ECF

No. 82, at 4.)

For the reasons explained fully below, this Court finds that Whiteru was

contributorily negligent as a matter of law, and that, as a result, Plaintiffs’ recovery is

completely barred under District of Columbia law, despite WMATA’s status as a

common carrier. Accordingly, WMATA’s supplemental motion for summary judgment

will be GRANTED, and summary judgment will be entered in WMATA’s favor. A

separate Order consistent with this Memorandum Opinion shall follow.

I. BACKGROUND

A. The Facts Pertaining To Whiteru’s Fall

The facts that have given rise to the negligence claims at issue in this case are

detailed fully in this Court’s prior summary judgment opinion. See Whiteru, 258 F.

Supp. 3d at 178–79. What follows are the undisputed facts that are relevant to the issue

of Whiteru’s alleged contributory negligence.

Whiteru disembarked a WMATA Metro train at the Judiciary Square Metro

Station at approximately 12:45 a.m. on Saturday, October 19, 2013. (See Pls.’ Resp. to

Def.’s Statement of Material Facts (“Pls.’ Material Facts”), ECF No. 30, at 3–4.) After

he exited the train, he walked up the escalator steps (which were in stationary mode)

from the platform to the mezzanine level of the station. (See

.) Video footage

from a surveillance camera inside the station documents this conduct (see Video of

Incident (

) (“Video”), at 1:28–50), and Whiteru does not appear on

camera again until approximately twenty-two minutes later.

3 Whether or not Whiteru left the Judiciary Square Metro Station entirely before

he returned to the train platform is disputed. (Compare Pls.’ Material Facts at 4, with

Def.’s Reply to Pls.’ Material Facts (“Def.’s Reply re: Material Facts”), ECF No. 31, at

3.) However, there is no dispute that Whiteru exited the “paid area” of the Metro

Station at 12:48 a.m., and that at 1:07 a.m., he approached the information kiosk on the

mezzanine level of the Judiciary Square station and spoke to Rhonda Brown, the station

manager on duty, who then helped Whiteru pass through the turnstile to re-enter the

paid area of the station. (Aff. of William Martin, Ex. 1 to Def.’s Reply re: Material

Facts, ECF No. 31-1, at 2–3.)

At that point, Whiteru’s conduct is captured on video tape once again; he walked

back down the stationary escalator steps, stumbled on the last few stairs and landed

prostrate on the platform. (See Video at 23:50–24:01.) Whiteru lay on his back at the

base of the escalator for a full three-and-a-half minutes before he pushed himself up to

his feet. (See

at 24:01–27:24.) Whiteru then reached for the parapet wall that is

adjacent to the base of the escalator and pulled himself up to lean against it. (See

at

27:24–28.) 2 Forty-five seconds after Whiteru first leaned against the parapet wall, he

appears to turn his body in an attempt to sit on the wall. (See Video at 28:14–16.) The

footage shows Whiteru unable to catch his balance, and ten seconds after first

attempting to sit, Whiteru falls head first over the parapet and into the gap between the

parapet and the station wall. (See

at 28:16–26.) 3 There is no surveillance video

2 The parapet is a protective wall that runs along the outside edge of the platform where passengers wait for Metro trains to arrive. (See Pls.’ Material Facts at 5.) There is a 53-inch gap between the edge of the platform that the parapet wall borders and the station wall. (See Investigative Report of Brian L. Mills, Ex. 7 to Pls.’ Opp’n, ECF No. 28-7, at 14.) 3 The parties dispute whether Whiteru merely leaned on the wall or attempted to sit on it. (Compare Pls.’ Add’l Statement of Material Facts, ECF No 82-2, at ¶ 11, with Def.’s Reply to Pls.’ Opp’n to

4 footage of Whiteru after the fall, and no surveillance video of the platform and/or the

subsequent station-manager inspections is available. 4

The station manager on duty that night, Rhonda Brown, was supposed to have

inspected the station platform three times after Whiteru’s fall—at 1:30 a.m., 2:30 a.m.,

and 3:15 a.m. (See Pls’ Material Facts at 10–11.) Brown has no independent memory

of conducting those particular inspections (see Pls.’ Material Facts at 10); however, she

signed the station-manager checklist that night, indicating that she had completed these

inspections (see Station Manager Hourly Checklist, Ex. to Def.’s Mot for Summ. J.,

ECF No. 27-3, at 2). Ultimately, Whiteru’s body was not discovered until more than

four and a half days later, by an anonymous Metro passenger. (See Pls.’ Material Facts

at 5–6.) Whiteru had suffered serious injuries due to his fall, including a fracture of his

“bony vertebrae at the C-5 level” (Pls.’ Material Facts at 5), and he succumbed to those

injuries at some point between the fall and his discovery. The parties dispute how long

Whiteru remained alive after the fall, but they agree that Whiteru would have survived

his injuries if he had been discovered within 15 minutes of the fall, i.e., at or before

approximately 1:30 a.m. (See id.; Def.’s Reply re: Material Facts at 16.)

Def.’s Mot. for Summ. J. (“Def.’s Reply”), ECF No. 83, at 5, 6; see also May 16, 2019, Hr’g Tr. at 24:5–8.) Regardless, the video shows that Whiteru engaged with the wall in a manner which caused him to lose his balance and fall into the gap between the parapet wall and the outer wall of the station. (See Video at 28:16–28:26.)

4 The parties dispute whether surveillance footage of the platform in the hours after Whiteru’s fall exists. (Compare Pls.’ Material Facts at 11–12 (claiming as an undisputed fact that there is “no surveillance video evidence” of the station manager’s inspections at 1:30 a.m., 2:30 a.m., and 3:15 a.m.), with Def.’s Reply re: Material Facts at 13–14 (disputing the contention that no such evidence exists, but stating that “[t]here is no video imaging that was retrieved after Mr. Whiteru’s fall over the concrete wall”).)

5 B. Procedural History

Plaintiffs filed the instant negligence action against WMATA on May 1, 2015, in

D.C. Superior Court, and it was removed to this Court on June 8, 2015. (See Notice of

Removal, ECF No. 1, at 1.) On July 7, 2017, the Court denied WMATA’s first motion

for summary judgment, see Whiteru,

, and the Court subsequently

scheduled an initial pretrial conference and set a trial date (see Minute Entry of Dec.

21, 2017). During the initial pretrial conference, held on May 4, 2018, the Court

granted Plaintiffs’ motion to reopen expert discovery and vacated the trial date as a

result. (See Minute Entry of May 4, 2018.) Thereafter, WMATA retained a new

counsel of record, who subsequently moved to file a supplemental motion for summary

judgment to raise the defense of contributory negligence. (See Def.’s Mem. in Supp. of

Def.’s Mot. for Leave to File, ECF No. 71-1, at 2–3.) This Court granted leave for this

supplemental filing on December 6, 2018. (See Order Granting Def.’s Mot. for Leave to

File Suppl. Mot. for Summ. J., ECF No. 77.)

WMATA’s supplemental motion for summary judgment contends that judgment

must be entered in its favor because Whiteru’s public intoxication in violation of

section 25-1001(c) of the D.C. Code constituted contributory negligence per se (see

Def.’s Suppl. Mot. at 9, 13–14), and also because Whiteru was contributorily negligent

as a matter of law (see id. at 14). Plaintiffs filed an opposition brief on January 11,

2019 (see Pls.’ Opp’n), arguing that, as a common carrier, WMATA has an affirmative

duty to render aid, and that WMATA had breached that duty after any contributory

negligence on Whiteru’s part occurred such that recovery was not precluded (see id. at

4). WMATA filed a reply brief on January 25, 2019 (see Def.’s Reply to Pls.’ Opp’n to

Def.’s Mot. for Summ. J., ECF No. 83), and the parties appeared before this Court for a 6 hearing on the ripe supplemental summary judgment motion on May 16, 2019. (See

Minute Entry of May 16, 2019.)

II. LEGAL STANDARDS

A. Motions for Summary Judgment Under Rule 56

To succeed on a motion for summary judgment, the moving party must “show[]

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact

cannot be or is genuinely disputed must support the assertion by citing to particular

parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). And “[a] fact is material

if it ‘might affect the outcome of the suit under the governing law[.]’” Steele v.

Schafer,

(D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)). The moving party bears the initial burden of demonstrating

the absence of a genuine dispute as to any material fact. Celotex Corp. v. Catrett,

(1986). If the moving party meets this burden, the non-moving party

must designate “specific facts showing that there is a genuine issue for trial.”

at 324

(quoting Fed. R. Civ. P. 56(e)).

At the summary-judgment stage of litigation, this Court’s role is strictly limited

to the determination of “whether there is a genuine dispute for trial[,]” and the Court

must not assess credibility or weigh evidence. Barnett v. PA Consulting Grp., Inc.,

(D.C. Cir. 2013). Instead, “[t]he evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Anderson,

. However, the Court need not accept conclusory assertions that the record

evidence does not support. See Ass’n of Flight Attendants–CWA, AFL–CIO v. U.S.

7 Dep’t of Transp.,

, 465–66 (D.C. Cir. 2009); see also Scott v. Harris,

(2007) (“When opposing parties tell two different stories, one of which is

blatantly contradicted by [video evidence in] the record, so that no reasonable jury

could believe it, a court should not adopt that version of the facts for purposes of ruling

on a motion for summary judgment.”).

B. Contributory Negligence Under District Of Columbia Law

“Because this is a diversity case, the substantive tort law of the District of

Columbia controls.” Smith v. Wash. Sheraton Corp.,

(D.C. Cir.

1998) (citing Joy v. Bell Helicopter Textron, Inc.,

(D.C. Cir. 1993)).

Under District of Columbia law, a plaintiff who claims entitlement to damages for harm

caused by the defendant’s negligence must demonstrate: (1) the defendant’s duty to the

plaintiff; (2) a breach of that duty; and (3) harm to the plaintiff, proximately caused by

defendant’s breach. See Wash. Metro. Area Transit Auth. v. Ferguson,

(D.C. 2009). However, even when a plaintiff can establish a 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.,

(D.C.

2000) (emphasis added).

“Contributory negligence is ‘conduct which falls below the standard to which a

plaintiff should conform for his own protection.’” WMATA v. Cross,

(D.C. 2004) (quoting Scoggins v. Jude,

(D.C. 1980)). Thus, a

plaintiff is contributorily negligent when he “fail[s] ‘to act with the prudence of an

ordinary reasonable person under the circumstances.’” Queen v. WMATA,

(D.C. Cir. 1988) (citing Stager v. Schneider,

(D.C.

1985)). Moreover, a plaintiff’s conduct may meet the “higher standard” of contributory

negligence per se, which raises “a rebuttable presumption of negligence where a party

violates a statute and the violation is a proximate cause of an injury that the statute was

designed to prevent.” Blake v. Securitas Sec. Servs., Inc.,

(D.D.C. 2013) (quoting Marshall v. D.C. Caribbean Carnival, Inc., No. 02–1298,

, at *8 (D.D.C. Oct. 26, 2004)); (cf. Def.’s Suppl. Mot. at 9, 13–14

(arguing that Whiteru violated the District’s public intoxication statute,

(c))). As such, to prevail on a defense of contributory negligence per se, a

defendant must show “a causal link” between the plaintiff’s violation of a statute and

the plaintiff’s injury. Caribbean Carnival,

, at *8.

“Issues of contributory negligence, like issues of negligence, present factual

questions for the trier of fact unless the evidence is so clear and undisputed that fair-

minded men can draw only one conclusion.” Lyons v. Barrazotto,

(D.C. 1995) (citations, alteration, and internal quotation marks omitted). Because

contributory negligence is an affirmative defense, 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,

(D.C. 1997). And, the court can

determine the issue of contributory negligence as a matter of law if “only one

conclusion may be drawn” from the undisputed facts. Blake,

(quoting WMATA v. Jones,

(D.C. 1982)). Courts may also decline to

reach any per se negligence arguments if they conclude that the plaintiff was

contributorily negligent as a matter of law. See

9 Importantly, because contributory negligence is a complete defense in the

District of Columbia, a “plaintiff is barred from recovery if his negligence was a

substantial factor in causing 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.,

(D.C. 1985) (internal quotation marks and citation

omitted)).

III. ANALYSIS

It is undisputed that Whiteru was heavily intoxicated when he entered the

Judiciary Square Metro Station in the early morning hours of October 19, 2013, 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. Thus, as

explained below, there is no genuine issue of material fact concerning Whiteru’s

contributory negligence, as a matter of law. Moreover, and consequently, Plaintiffs are

completely barred from any recovery pursuant to the law of the District of Columbia.

This unfortunate result stems from the fact that WMATA is entitled to assert

contributory negligence as a complete defense, and the Court finds unpersuasive

Plaintiffs’ contention that WMATA’s alleged negligent failure to render aid to Whiteru

(as a common carrier must) is an intervening act that broke the chain of causation

between Whiteru’s own negligence and his fatal injuries.

A. Whiteru’s Own Conduct Was Negligent, And His Negligence Was The Proximate Cause Of His Death

“It is well settled in [the District of Columbia] that negligence and contributory

negligence are usually questions of fact and become questions of law only where there

10 is but one reasonable inference which may be drawn from undisputed facts.” District of

Columbia v. Brown,

(D.C. 1991) (quoting Aqui v. Isaac,

, 371–72 (D.C. 1975)). For example, cases involving complicated interactions

between multiple parties—like multi-vehicle crashes at intersections—can rarely be

determined as a matter of law at summary judgment. See Mahnke v. WMATA,

(D.D.C. 2011). However, it is also well established that courts can

find contributory negligence as a matter of law where the undisputed facts are clear.

See, e.g., Krombein v. Gali Serv. Indus., Inc.,

, 19–20 (D.D.C. 2004)

(finding plaintiff was contributorily negligent as a matter of law when she slipped after

deliberately walking on a wet floor); see

(noting that the mere assertion that a

jury should determine contributory negligence was not enough to avoid summary

judgment, because “conclusory declarations . . . do not amount to specific facts that

would lead a reasonable jury to find in [plaintiff’s] favor”); Phillips v. Fujitec Am.,

Inc.,

(D.C. 2010) (finding plaintiff was contributorily negligent as a

matter of law when she attempted to get out of an elevator that had stalled between

floors and fell to her death).

Two cases from the District of Columbia Court of Appeals dispel all doubts

about this point. In Fells v. WMATA, the court found that an elderly bus-passenger was

contributorily negligent as a matter of law, where she attempted to change her seat

while the bus was in motion and suffered an injury after the bus made an abrupt stop.

See

(D.C. 1976). The Fells court determined that the passenger’s act

of changing seats while the bus was moving was the proximate cause of her injuries and

that, by choosing to change seats at the time she did, she had failed to exercise ordinary

11 and reasonable care, particularly where she knew (or should have known) that it was

dangerous to change seats while a bus is moving. See Fells, 357 A.2d at 395–96.

WMATA v. Cross also involved an elderly bus-passenger who suffered an injury

after an abrupt bus stop. See

(D.C. 2004). In that case, the bus driver

testified that the plaintiff had been in the process of moving between seats at the time

of the abrupt stop and ensuing injury, while the plaintiff testified that she had not yet

taken a seat after boarding the bus. See

. The court in Cross determined that

there was sufficient evidence presented for a jury to find that the plaintiff was

negligent, and thus, that the law of contributory negligence applied. See

.

The court then remanded the case for retrial, finding that the trial court’s failure to

instruct the jury on contributory negligence was reversible error. See

.

Fells and Cross provide helpful juxtaposition of the circumstances under which

contributory negligence can be found as a matter of law. In Fells, the court determined

that the undisputed facts were clear, and therefore, as a matter of law, the plaintiff was

negligent when she changed seats. See Fells,

. But, in Cross, the court

returned the case to a jury to determine whether the plaintiff was contributorily

negligent, concluding that a jury could credit the testimony of either the plaintiff or the

bus driver. See Cross,

; see also, e.g., Boff v. Inter-Continental Hotels

Corp.,

at *5–6 (D.D.C. 2018) (declining to find contributory

negligence when it was unclear whether the plaintiff was running before she slipped and

fell on a wet sidewalk during a rainstorm); Stehn v. Cody,

(D.D.C. 2013) (declining to grant plaintiff’s motion for summary judgment when “[a]

genuine issue of material fact remains as to whether Plaintiff left the sidewalk when she

12 was permitted to do so” before being struck in a crosswalk); Lynn v. District of

Columbia,

, 172–73 (D.C. 1999) (reversing summary judgment due to

plaintiff’s contributory negligence where there were disputed facts about the

availability of an alternative, safer route after the plaintiff fell while walking on a

sidewalk in deteriorated condition).

The state of the evidence in the instant case makes WMATA’s contributory

negligence contention more like the one in Fells, because there is video footage that

clearly establishes Whiteru’s own negligent conduct. The parties dispute whether

Whiteru sat on the parapet wall, or merely leaned against it (see supra n. 3), but

regardless, the video clearly shows that Whiteru engaged with the wall voluntarily, and

in an unreasonable manner, and that it was this engagement that caused him to fall over

the wall. (See Video at 28:14–26.) Simply standing up on a moving bus—something

that regularly occurs on public transportation—was deemed sufficient to support a

contributory negligence defense in Fells and Cross. And given the extraordinary

movements that were necessary for Whiteru to tumble “head over feet” over the wall, a

similar finding is inescapable here. Moreover, leaning on such a low wall is especially

negligent when one is heavily intoxicated—i.e., it is conduct that falls far below the

standard to which a reasonable person “should conform for his own protection.’”

Cross,

(quoting Scoggins,

).

Plaintiffs have not pointed to any specific facts that undermine this conclusion.

Instead, they merely state—with no support—that a jury might find that Whiteru was

not negligent. (See May 16, 2019, Hr’g Tr. (“May 16 Hr’g Tr.”) at 36:17–37:4.)

However, it is clear beyond cavil that just asserting that a jury could conclude the

13 opposite of what the record evidence plainly demonstrates is not sufficient to establish

that there is a genuine issue of material fact. See, e.g., Ben-Kotel v. Howard Univ.,

(D.C. Cir. 2003) (“A party opposing a motion for summary judgment

must point to more than just ‘a scintilla of evidence’ supporting his position[.]”). And

the facts that Plaintiffs highlight to counter the absence of a genuine dispute regarding

Whiteru’s negligence do no such thing. For example, Plaintiffs insist that the issue of

whether or not Whiteru’s intoxication caused his fall is vigorously disputed. (See May

16 Hr’g Tr. at 23:3–5.) Yet, an alleged causal connection between a tort victim’s

intoxication and the conduct that precipitates his injury is only relevant in the context

of determining whether the conduct at issue qualifies as negligence per se. See Blake,

(explaining that contributory negligence per se considers

whether the plaintiff’s violation of a statute “is a proximate cause of an injury that the

statute was designed to prevent”). What matters for present purposes is the far more

mundane evaluation of whether Whiteru’s conduct with respect to the parapet wall was

negligent at all, and whether that negligence was the proximate cause of his injury,

neither of which can reasonably be disputed on the present facts. See, e.g., Norwood v.

Marrocco,

(D.D.C. 1984), aff’d,

(D.C. Cir. 1986)

(finding that “[n]o reasonable jury could fail to conclude that [plaintiff’s] own

intoxication and actions . . . were a proximate cause of plaintiff’s injuries[,]” because

“[a] reasonable person using ordinary care would not become intoxicated and then”

engage in high-risk conduct); (see also May 16 Hr’g Tr. at 24:7–15 (counsel responding

affirmatively when asked whether Plaintiffs concede that Whiteru was drunk and that he

leaned on and fell backwards over the parapet wall)).

14 B. The Defense Of Contributory Negligence Completely Bars Plaintiffs’ Recovery Notwithstanding The Fact That WMATA Has A Common Carrier’s Duty To Aid Its Passengers

Undaunted, Plaintiffs insist that, because Whiteru’s own negligence preceded

WMATA’s breach of the common carrier’s duty to render aid, contributory negligence

does not preclude WMATA’s liability. In essence, Plaintiffs suggest that Whiteru’s

own negligence should not be deemed the proximate cause of his injury and death,

because WMATA’s duty to render aid arose and was an intervening (non)event (as if

the causation clock stopped at the moment of the fall and restarted after Whiteru landed

under the platform). (See Pl.’s Opp’n at 6–7.) But Whiteru’s negligence caused the fall

that plainly precipitated his injury, and the D.C. Court of Appeals has long made clear

that, if passengers are injured due to their own negligence, the defense of contributory

negligence is available to common carriers, including WMATA, such that liability is

precluded for the carrier’s alleged breach of the duty of care. See, e.g., Cross,

(reversing and remanding for a new trial with a contributory negligence

instruction when there was evidence that an elderly passenger left her seat while the bus

was moving, which caused her to be injured when the bus stopped suddenly); Fells,

(affirming directed verdict for defendant on similar facts because the

elderly passenger “knew or should have know that it would be dangerous to change

seats under all the circumstances” (footnote omitted)). 5 In fact, the application of the

5 See also Reeves v. WMATA,

, 811 n.7 (D.C. 2016) (implicitly acknowledging contributory negligence in the context of a passenger slip and fall case, but declining to address the issue because it was not the basis of the trial court’s ruling); WMATA v. Johnson,

(D.C. 1999) (considering the application of the last clear chance doctrine to overcome the defense of contributory negligence after “[t]he trial court instructed the jury that [a suicidal WMATA passenger] was contributorily negligent as a matter of law” when she threw herself in front of the train); WMATA v. Jeanty,

, 176 n.9 (D.C. 1998) (affirming that contributory negligence applies to common carriers, including WMATA, in a case where a jury “expressly found that [a WMATA bus passenger] was not contributorily negligent”); Weston v. WMATA,

, 687 n.10 (D.C. Cir.

15 contributory negligence defense to the common carrier/passenger context is so

commonplace that the D.C. courts have formulated a pattern jury instruction with

respect to this scenario, to wit—

The requirement that [a common carrier] exercise ordinary care for a passenger’s safety does not relieve the passenger of the duty to exercise ordinary care for [his] own safety. If a passenger fails to exercise ordinary care for [his] own safety and that failure is the proximate cause of the passenger’s injury, then [the common carrier] is not liable for the passenger’s injury.

D.C. Std. Civ. Jury Instr. No. 8-11.

Thus, Plaintiffs’ argument that “contributory negligence is not an available

defense” because, as a common carrier, WMATA had a duty to render aid to Whiteru

after he fell over the parapet wall and injured himself (see Pls.’ Opp’n at 4, 5–8) finds

no support in the established law of the District of Columbia. Indeed, the only

authority that Plaintiffs rely on to support this proposition is Section 314 of the

Restatement (Second) of Torts, which states generally that “[a] common carrier is under

a duty to its passengers to take reasonable action . . . 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.” (See

at 5 (quoting Restatement (Second) of Torts

§ 314A (1965)).) According to Plaintiffs, this Restatement provision contemplates that

such a duty “arises and exists even if [Whiteru’s] ‘illness or injury [wa]s due to’ his

own ‘negligence.’” (Id. at 6 (quoting Restatement (Second) of Torts § 314A cmt. d.)

1996) (noting that contributory negligence defense could have been available to WMATA where a two- year-old passenger’s hand was injured in an escalator, but WMATA presented no evidence in support of that defense); Wainwright v. WMATA,

, 136–37 (D.D.C. 1995) (considering contributory negligence argument at summary judgment when WMATA passenger was injured on an escalator).

16 (last alteration in original).) That may be so, but, there is a significant and substantial

difference between a defendant’s breach of an existing legal duty and the plaintiff’s

ability to claim that the defendant should be held liable for that breach. (See, e.g., May

16 Hr’g Tr. at 21:15–23:22.) And, properly understood, the defense of “[c]ontributory

negligence does not deny the negligence of the defendant but merely precludes recovery

to a plaintiff who, in effect, failed to take due care for his own well-being.” Martin v.

George Hyman Const. Co.,

(D.C. 1978).

In this regard, the D.C. Circuit’s opinion in Andrews v. Wilkins,

(D.C. Cir. 1991), is instructive. In Andrews, an officer with the U.S. Park Police

approached an intoxicated man, Gino Andrews, who was urinating on the side of a

building. See Andrews,

. After being threatened with arrest, Andrews

fled and eventually jumped into the Washington Channel. See

at 1268–69. He

swam thirty to forty feet into the Channel before tiring and beginning to drown, see

and the Park Police officers then launched a less-than-robust series of rescue efforts,

including attempting to throw a life ring to Andrews “without apparent urgency[,]”

The police did not jump in after Andrews, and they actually prevented a private boat

owner from getting into the water to save him.

After Andrews drowned, his parents

brought constitutional and common law tort claims for the wrongful death of their son.

See

. The federal district court granted summary judgment for the various

defendants on both the constitutional and common law tort claims, and with respect to

the common law negligence claims in particular, the D.C. Circuit affirmed, holding that

Andrews had been contributorily negligent—he was intoxicated, had fled from the

police, and voluntarily swam into the Channel—and this negligence was a complete bar

17 to the plaintiffs’ recovery, even if the police had subsequently breached a duty to act

reasonably with respect to the rescue efforts they had attempted. See

(affirming the district court’s contributory negligence finding without resolving

whether the Park Police officers breached any duty to rescue non-negligibly). Thus,

Andrews stands for the basic proposition that if a plaintiff’s contributory negligence is

the proximate cause of his injury, recovery is completely barred under District of

Columbia law, even when the defendant breaches a duty of care that arises after the

plaintiff’s negligent conduct.

This all means that, regardless of whether WMATA actually breached a duty to

render aid to Whiteru after he fell, it was the fall that was the proximate cause of

Whiteru’s death, and Whiteru’s family cannot recover damages for WMATA’s

intervening breach precisely because Whiteru contributed to his own injury by

negligently falling over the parapet wall in the first place. See Whiteru,

, at *4 (clarifying that this Court’s prior summary judgment opinion does not

address the issue of contributory negligence, i.e., whether liability attaches, but instead

“merely references caselaw that suggests that the contributory negligence of a

passenger on a common carrier does not erase the common carrier’s duty to render

assistance”). 6 Plaintiffs have not pointed to any authority that suggests that an

6 The structure of the Restatement underscores the distinction between duty and liability, insofar as one of the sections of the Restatement of Torts to which Plaintiffs cite is devoted to “Duties of Affirmative Action.” See Restatement (Second) of Torts §§ 314–314B (“Topic 7. Duties of Affirmative Action”). These subchapters discuss when an affirmative duty to aid arises, and also how and when such duty may be breached. See id. Notably, this section is distinct from the subsequent chapters of the Restatement that address liability, including a lengthy chapter that is devoted to “Contributory Negligence.” See id. §§ 463–496. Five subchapters within that chapter describe the circumstances when a plaintiff can recover notwithstanding their contributory negligence, see id. §§ 479–484 (“Topic 3. When No Bar to Action”), and none of those circumstances is related to whether or not a defendant has a duty to render aid. See id.

18 affirmative duty to render aid creates an exception to the contributory negligence

regime that the District of Columbia has chosen to apply as a bar to recovery in tort

actions. And as far as this Court can tell, the D.C. Court of Appeals has identified only

one exception to the application of contributory negligence doctrine to bar liability: the

last clear chance doctrine, which allows a plaintiff whose own negligence has

contributed to the injury of which he complains to recover nonetheless if, among other

things, “the defendant had a superior opportunity to avoid the accident.” Fisher v.

Latney,

(D.C. 2016) (internal quotation marks and citation omitted);

see also Sabo v. Breckenridge Lands, Inc.,

(D. Colo. 1966)

(explaining, in a case where the jury was instructed on the special relationship between

a passenger and ski lift, which the court suggested was a type of common carrier, that

the two circumstances where a plaintiff’s contributory negligence is not a substantial

factor in his injury involve the last clear chance doctrine and “rescue” doctrine, both of

which require plaintiff’s action to not be a proximate cause of injury). Plaintiffs here

acknowledge that WMATA did not cause Whiteru’s fall, nor did it have a chance to

prevent the fall from occurring; therefore, they concede that the last clear chance

exception does not apply under the circumstances presented here. (See May 16 Hr’g Tr.

at 48:4–5 (“[W]e’re not making a claim of last clear chance doctrine because it doesn’t

apply here.”).)

Nor do general policy concerns buoy Plaintiffs’ arguments that the contributory

negligence doctrine does not preclude liability with respect to common carriers.

Indeed, to the contrary, holding that WMATA’s affirmative duty to render aid limits the

application of contributory negligence appears to subvert the District of Columbia’s tort

19 law scheme, insofar as a common carrier would thereby incur the same liability to the

negligent passenger as it would have to the passenger who exercised care for his or her

own protection—i.e., precisely the situation that the contributory negligence policy

flatly rejects. Moreover, Plaintiffs’ purported concern that applying the law of

contributory negligence disincentivizes WMATA from affirmatively rendering aid to its

passengers (see May 16 Hr’g Tr. at 27:19–23) seems overblown. WMATA continues to

have such an affirmative duty; this Court’s holding means only that WMATA may not

be held liable for every breach of that duty. And WMATA remains incentivized to aid

all passengers regardless, because it will not know ex ante, at the moment in which the

duty to aid arises, whether a Court will eventually find that the passenger’s negligence

was the proximate cause of his injury.

In short, Plaintiffs’ argument that contributory negligence does not bar liability

if the defendant has a duty to render aid after the victim’s own negligent conduct finds

no support either in District of Columbia law or in logic. By statute, the District of

Columbia has decided that where a plaintiff’s negligence is a substantial factor in his or

her injury, such person is barred from recovery even if the defendant was negligent as

well, and even if the defendant’s negligence is in the form of a failure to come to the

plaintiff’s rescue (after he has been injured) despite a duty to do so. Cf. Andrews,

. In other words, the courts of the District have upheld the propriety of

contributory negligence even where the defendant is a common carrier; thus, even

where a passenger and common carrier have a special relationship imbued with certain

heightened duties, the law of contributory negligence still applies.

20 IV. CONCLUSION

Contributory negligence may well be “antiquated” and “harsh[,]” and

commentators often point out that it “has been rejected in a majority” of states.

Coleman v. Soccer Ass’n of Columbia,

(Md. 2013). But, it is the

law of the District of Columbia, and when this Court sits in diversity jurisdiction, it is

bound to apply it. See Smith,

. Under District of Columbia law, the

relationship between common carriers and passengers does not abrogate a plaintiff’s

contributory negligence. See, e.g., Cross,

. Nor have Plaintiffs

provided any persuasive authority for their assertion that WMATA’s duty to aid, alone,

qualifies as an intervening event that breaks any chain of causation of a passenger’s

own negligence. Instead, the undisputed facts in this case show that Whiteru was

negligent, and that his negligence was the proximate cause of his injury. Consequently,

this Court finds that Whiteru was contributorily negligent as a matter of law, and as a

result, Plaintiffs are barred from recovery for WMATA’s alleged breach of its duty to

aid Whiteru.

Thus, as set forth in the accompanying Order, WMATA’s supplemental motion

for summary judgment will be GRANTED.

DATE: August 14, 2020 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

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