Whiteru Returns: D.C. Circuit Sends the "Trespasser Question" to DC's Highest Court
Some cases refuse to end because the question they ask is too important to leave unanswered. The decade-long litigation over the death of Okiemute Whiteru is one of them — and late last month, it took a turn that puts the most consequential open question in DC premises law squarely before the District's highest court.
On December 29, 2023, the U.S. Court of Appeals for the D.C. Circuit issued its second published decision in Whiteru v. WMATA, 89 F.4th 166 (D.C. Cir. 2023) — and rather than decide the case, it certified the controlling question of DC law to the D.C. Court of Appeals.
How we got here
Readers of this blog will remember the case from our coverage of the first appeal. In October 2013, Mr. Whiteru, an attorney, fell backward over a station-platform parapet at Judiciary Square late at night and landed in the concrete trough behind it, fracturing his spine. He was alive but unable to move. WMATA's own procedures required periodic station inspections that night; he was not found. He died of asphyxiation, and it was undisputed in the litigation that he would have survived had he been found in time.
In Whiteru I, 25 F.4th 1053 (D.C. Cir. 2022), the D.C. Circuit reversed summary judgment for WMATA, holding that under DC law a passenger's own contributory negligence does not bar a claim that a common carrier breached its duty to aid a passenger it knows or has reason to know is injured. The carrier's duty to render aid arises after — and independent of — whatever carelessness put the passenger in peril. That holding punched a rare and valuable hole in the District's harsh contributory negligence regime.
The new defense theory: he wasn't a "passenger" anymore
On remand, WMATA won summary judgment again, this time on a different theory: that when Mr. Whiteru fell over the parapet into the non-public trough, he stopped being a passenger and became a trespasser — and under traditional DC premises doctrine, a landowner owes a trespasser only the minimal duty to avoid willful or wanton injury, not a duty of aid.
Think about what that argument means. A paying rider, on the platform his fare entitled him to occupy, falls — through no design of his own — a few feet into an area the public cannot enter. On WMATA's theory, the fall itself demoted him from the law's most protected status (a common carrier's passenger) to its least protected (a trespasser), extinguishing the very duty of aid that Whiteru I had just confirmed.
What the D.C. Circuit did — and why certification matters
The D.C. Circuit did not decide whether that theory is right. Instead, it certified the question to the D.C. Court of Appeals: may a Metro passenger who involuntarily falls into a non-public area of the station recover from the carrier for the exacerbation of his injuries caused by the failure to discover and aid him — or does his technical trespasser status cut off the claim?
Certification is a procedural device with real significance. Federal courts sitting over DC-law claims must predict how the D.C. Court of Appeals would rule; certification lets them ask directly. When the D.C. Circuit certifies rather than predicts, it is signaling that the question is genuinely open, genuinely important, and belongs to the District's own highest court. Whatever the DCCA says will bind not just WMATA in this case but every future court applying DC law.
What this means for injured people in the District of Columbia
As of this writing, the certified question is pending — the D.C. Court of Appeals has not yet answered it. But the stakes for injured people are easy to state:
- If the answer favors the Whiteru estate, DC law will recognize that a person's status at the moment of injury does not strip a carrier or property owner of the duty to help someone it knows (or should know) is hurt and trapped on its property.
- If the answer favors WMATA, the trespasser label could become a powerful defense tool far beyond Metro — any time an injured person ends up somewhere they were not technically permitted to be, even involuntarily.
- Either way, the failure-to-aid theory of Whiteru I remains a critical tool in transit and premises cases, because it operates independently of the contributory negligence bar that defeats so many DC claims.
We will be watching for the D.C. Court of Appeals' answer closely, and we will report on it here when it comes. For families who have lost someone in a fall, on transit property, or in any case where the defense says the victim "wasn't supposed to be there," the lesson of the Whiteru litigation so far is this: do not accept the first immunity or status-based defense at face value. The law in this area is moving.
If you or a loved one has been hurt, call Posey Lebowitz at (202) 524-0123 or send us a message for a free consultation.
Part of our DMV case law archive, compiled in 2026 to reflect the archive of some of the most important decisions in injury law.
Update: On November 20, 2025, the D.C. Court of Appeals answered the certified question in the estate's favor, confirming a duty of reasonable affirmative aid to known injured trespassers. Read the conclusion of the saga in Whiteru, the Finale.