“This was error,” the appeals panel ruled in a 12-page decision written by Judge Robert L. Wilkins and joined by Judges Karen LeCraft Henderson and David S. Tatel.
Under D.C. law, Metro and other “common carriers” have a 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 they contributed to their own injury, the appeals court ruled, agreeing with the Whiteru family.
Video footage showed the lawyer falling over a low concrete parapet at the back of the platform at the Judiciary Square station about 1:15 a.m. on Oct. 19, 2013, landing in a trench-like pit eight feet below. He suffered severe injuries and fractured at least one vertebra, but he was still alive after his fall. The parties agreed he would have survived the accident had he been discovered by 1:30 a.m. by station personnel making one of several scheduled inspections that night. Instead, his body was discovered by a commuter four days later.
“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,” the appeals court said. “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.”
Whiteru’s parents, Cameroon and Agnes Whiteru, and their lawyers declined to comment, attorney Kobie Flowers said. Metro spokesman Ian Jannetta declined to comment, saying, “We are unable to comment on active or pending litigation.”
According to both sides and surveillance video cited by the court, Whiteru was heavily intoxicated when he exited a train and a station turnstile about 12:45 a.m. About 22 minutes later, at 1:07 a.m., Whiteru returned to speak with an on-duty station manager at the information kiosk at the mezzanine level, and she helped him reenter the paid area of the station, the opinion said.
Video footage showed Whiteru walking down the stationary escalator steps, stumbling on the last few stairs, falling and lying on his back for about 3½ minutes before rising, according to the opinion. He pulled himself up to lean on a nearby parapet wall, but he lost his balance after possibly trying to sit on the wall. He fell headfirst over it and into the gap between it and the station wall, video cited by the court showed.
The sides agreed the station manager under standard operating procedures was supposed to perform routine inspections of the platform at 1:30 a.m., 2:30 a.m. and 3:15 a.m., but disputed whether she in fact did so. The station manager signed a checklist indicating the checks were performed, but said she had no recollection of conducting those specific inspections.
Whiteru’s body had rolled under the platform, but he was still partially visible from above, Jackson ruled. It took four days before a rider spotted his body and alerted a station manager.
“On the disputed facts, a reasonable jury could conclude that [the station manager] failed to perform the routine inspections, or performed them unreasonably,” and that WMATA could be liable for failing to help Whiteru “because it knew or had reason to know that he was injured,” even if he had been drinking, the panel found.
The Whiteru family sued in 2015. Jackson denied WMATA’s first bid to toss out the case in 2017, but allowed the transit system to raise the defense of contributory negligence and argue that Whiteru was intoxicated in violation of District law. Jackson then ruled in favor of dismissal in August 2020, which Whiteru’s family appealed.