WMATA’s Status as Common Carrier Under Fire in Wrongful Death Claim

WASHINGTON -- Washington, D.C.'s transit agency is trying to win dismissal of a lawsuit by the family of a lawyer who died after falling off a subway platform while intoxicated in a case testing the limits of common carrier liability.

Okiemute C. Whiteru, a 35-year-old lawyer, fell off a Judiciary Square Metro station platform in October 2013 and was found dead days later behind a wall.

The transit agency calls him an “unknown trespasser” for landing in a trough behind a wall where he could not easily be seen by passengers or employees of the Washington Metropolitan Area Transit Authority (WMATA).

Common carriers owe a duty to protect passengers from hazards or to render aid when they are injured.

Whiteru’s family says WMATA breached the duty. The transit agency argues the duty of care does not extend to trespassers.

The bigger issue in the lawsuit is how far common carriers must go to prevent risks to customers who are negligent, such as by being drunk.

Common carriers refer to entities whose businesses transport people or goods from one place to another for a fee. They include transit agencies, airlines, cruise ships and railroads.

They are required by federal and local law to exercise reasonable care to avoid harm from risks created by their customers as well as from third parties. Third parties often mean criminals or negligent employees.

A judge for the U.S. District Court for the District of Columbia ruled in 2020 that Whiteru was a trespasser who was "contributorily negligent." District of Columbia law prevented Whiteru's family from being compensated for the injuries he suffered in his fall, the ruling said.

The D.C. Circuit Court of Appeals revived the lawsuit last year after finding the district court did not properly evaluate WMATA’s common carrier duties.

Whiteru’s family argued in a brief that regardless of the lawyer’s negligence, the transit agency should have come to his aid.

"As a common carrier, WMATA owes a duty to aid injured passengers on its premises when it knows, or should know, of their presence," the brief said. "Here, Mr. Whiteru remained a passenger even though he fell behind the wall of the Metro passenger platform: he was a paying customer, he remained on WMATA's property, he fell accidentally, and the location where he lay injured was both foreseeable and in a place the station manager had a duty to inspect."

WMATA argued it owed Whiteru a “lesser standard of care” when he sat on a 3-foot-high wall in a drunken state and fell into a trough where passengers are not allowed.

"D.C. case law is clear: Landowners, including common carriers, owe trespassers a lesser duty of care — merely a duty not to engage in intentional, willful, or wanton misconduct," WMATA said in a D.C. Court of Appeals filing.

It added, “Under D.C. law, when a passenger enters an area without a common carrier's consent or acquiescence, the passenger becomes a trespasser."

The appellate case is Cameroon Whiteru v. Washington Metropolitan Area Transit Authority, number 22-7154, in the U.S. Court of Appeals for the District of Columbia Circuit.

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