Defendant's Attorney: Pratik A. Shah, Michael Weisbuch, Anthony T. Pierce, and Caroline L. Wolverton

Description: Washington, DC personal injury lawyer represented the Plaintiff who sued the Defendant a premises liability wrongful death theory.

Plaintiffs Cameroon and Agnes Whiteru are the parents, and Cameroon is the personal representative, of the estate of Okiemute Whiteru, who died from injuries sustained at a Metro station here in Washington. Of particular significance is that Okiemute (first names are used for clarity and manifest no disrespect) took several days to die after falling off a parapet wall across from the train platform into an area not visible to the public while drunk late one night. It is Plaintiffs' theory that Defendant Washington Metropolitan Area Transit Authority personnel should have discovered him during routine inspections in time to render aid. With trial set for this November, the Court addresses three of Plaintiffs' Motions in Limine: to preclude a defense argument on contributory negligence, to preclude the same in regard to assumption of the risk, and for a jury instruction on failure to produce evidence.


This is the second time this case has been before our court. See Whiteru v. Washington Metro. Area Transit Auth. (Whiteru I), 25 F.4th 1053 (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.

Outcome: For the reasons stated above, the Court will grant Plaintiffs' Motion in Limine regarding assumption of the risk and deny it as to their Motions in Limine on contributory negligence and missing evidence.


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

Plaintiff's Experts:

Defendant's Experts:

Comments: