On Friday a unanimous D.C. Circuit panel (in Whiteru v. WMATA) reversed a district-court ruling by Judge Ketanji Brown Jackson in 2020. The case involved claims that the Washington Metropolitan Area Transit Authority had negligently caused the death of Cameroon Whiteru, who, while intoxicated, fell over the parapet wall that separates the back of the platform from the station wall. Whiteru’s body wasn’t discovered until four days later. One factual matter in dispute was whether the station manager had performed a routine inspection that she was required to do fifteen minutes after Whiteru’s fall. The parties agreed that Whiteru would have survived his injuries if he had been discovered then.
Judge Jackson ruled that Whiteru’s conduct (“his own engagement with the station’s parapet wall”) was negligent, especially since he was intoxicated, and that D.C. law on contributory negligence completely barred his survivors’ claims. But the D.C. Circuit held that the District of Columbia “unambiguously recognizes the special relationship between common carriers and passengers,” which includes an obligation to “give [passengers] first aid after it knows or has reason to know that they are ill or injured.” Breach of this obligation is an exception to D.C.’s general rule on contributory negligence. Because there was a “key factual dispute” over whether the station manager actually conducted the inspection that should have led her to discover Whiteru, WMATA was not entitled to summary judgment.
No one expects a lower judge never to get reversed, and appellate courts, of course, often get things wrong. That said, I don’t think that this case reflects very favorably on Jackson (though it might go far to persuade me to cheer for President Biden to nominate her). A few observations:
1. The D.C. Circuit panel presents this as a very simple case. The panel itself is ideologically diverse—two liberal appointees and one conservative—and Obama appointee Robert Wilkins wrote the opinion.
2. As the D.C. Circuit panel points out, Jackson herself had stated in an earlier ruling that the station manager’s “alleged breach of the duty to inspect and thereby discover Whiteru is the linchpin of Plaintiffs’ negligence,” and she had cited the very provision of the Restatement of Torts (Section 314A) that, via its incorporation into D.C. law, the panel found decisive. But in the ruling under review Jackson concluded that common carriers enjoyed the defense of contributory negligence even when they breach that duty.
Jackson relied on two cases in which passengers were injured due to their own negligence, but, as the D.C. Circuit pointed out, those cases were obviously “inapposite”: they did not “implicate or address Section 314A of the Restatement because none involved the common carrier’s duty to render aid after it knew or had reason to know that a passenger negligently injured himself.” (Emphasis added.) Even more strangely, Jackson found “instructive” a case that (as the panel notes) involved the death of a person who was fleeing the police to evade arrest and thus “did not concern the duty of common carriers at all.”
3. When the D.C. Circuit invoked Section 314A of the Restatement, it properly makes clear that the District of Columbia “has explicitly adopted” that provision. (See also “District of Columbia common law … includes Section 314A.”) By contrast, a reader of Jackson’s opinion might wonder why plaintiffs are invoking a treatise and what weight she thinks the treatise has.
4. Typical of her writing, Jackson’s opinion has clunky verbiage (e.g., “Whiteru engaged with the wall…”), clumsy images (“the causation clock”), and mischosen words (a person who is “prostrate” is not “on his back”; an escalator “in stationary mode”). And it’s verbose: more than twice as long as the D.C. Circuit’s opinion.