Monday, February 21, 2022
Another Reason to Get Rid of Contributory Negligence
For those few jurisdictions hanging on to contributory negligence, there recently emerged yet another reason to get rid of the rule: even our brightest stars in the judiciary get it wrong. I am referring here to the recent D.C. Circuit Court of Appeals opinion in Whiteru v. Washington Metropolitan Area Transit Authority, D.C. Cir., February 11, 2022 (which may be found on the D.C. Circuit website at https://www.cadc.uscourts.gov/internet/opinions.nsf/EA0847DA866B2BB6852587E600551961/$file/20-7087-1934759.pdf)
United States Court of Appeals . FOR THE DISTRICT OF COLUMBIA CIRCUIT. Argued September 22, 2021 Decided February 11, 2022 . No. 20-7087 . CAMEROON WHITERU, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF OKIEMUTE C. WHITERU AND AGNES WHITERU, . APPELLANTS. v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, . APPELLEE. Appeal from the United States District Court
The case was brought by the family of a man who, while intoxicated, fell over a walkway railing in the D.C. Metro, becoming stuck behind a wall near the train tracks below. The man survived the fall, but suffered a broken spine rendering him unable to move. He was not found for four and a half days, at which point he had perished. The man’s family sued the Metro in federal court, alleging that had its employees not negligently failed to discover him, he would have survived. The law of the District of Columbia—which retains contributory negligence—applied to the case.
A proper torts analysis of this case (presuming immunity does not bar liability) would proceed as follows: As a common carrier, the Metro owed Mr. Whiteru a duty to use reasonable care to rescue him, regardless of his negligence in falling over the railing. The common carrier-passenger relationship qualifies as a special relationship sufficient to give rise to this affirmative duty pursuant to long-established precedent, captured in the Restatement Second § 314A and Restatement Third § 40. It would typically be left to a jury to determine whether the Metro had breached this duty. A jury would also need to decide whether the Metro’s failure to rescue Mr. Whiteru in a timely manner was a cause of his death—there was expert evidence that had Whiteru been discovered within fifteen minutes or so, he would have survived.
Even if defendant Metro was negligent, however, it seems clear that Mr. Whiteru was also negligent in falling from the parapet—perhaps even negligent per se assuming his public intoxication constituted a crime. So, without some exception to the rule of contributory negligence, Mr. Whiteru’s family would be barred from recovery.
As it turns out, an exception readily applies: the last clear chance doctrine, expressed in Restatement Second § 479 and adopted by the District of Columbia. See District of Columbia v. Huysman, 650 A.2d 1323, 1326 (D.C. 1994). Under this doctrine, a plaintiff who has negligently subjected himself to a risk of harm, and who is helpless to avoid that harm, may hold a defendant liable notwithstanding contributory negligence if the defendant had the “last clear chance” of preventing the harm—that is, if the defendant knew or should have known of the plaintiff’s danger and could have rescued the plaintiff using reasonable care. In Mr. Whiteru’s case, once he fell from the balcony and was trapped with a broken spine, he was certainly helpless to prevent further injury—and it is this further injury (death) that is relevant because this is the injury the plaintiff is claiming the Metro negligently caused. The only remaining question is whether the Metro knew or should have known of his plight and whether reasonable people in their position should have rescued him. These are jury questions, about which Whiteru’s family and the Metro asserted different facts and normative arguments.
So, in summary, a court’s analysis has three steps: (1) determine defendant’s negligence, (2) determine plaintiff’s negligence, (3) determine whether an exception to contributory negligence is satisfied. Where did the D.C. Circuit go wrong? In short, the court appears to have confused step 1 with step 3. At one level, this is understandable, as the existence of Metro’s affirmative duty is likely to turn, in part, on Whiteru’s helplessness and Metro’s ability to know of his danger—also factors central to the last clear chance doctrine. The court’s opinion does cite last clear chance but appears not to rely on it, instead relying on an exception to contributory negligence based on the defendant’s status as a common carrier. (Slip Opinion, p. 10.) The problem is that there exists no such exception—not in District of Columbia precedent, nor any other common-law holding that I can find. The court’s only support for this supposed exception is § 314A of the Restatement Second of Torts—but § 314 does not restate an exception to contributory negligence (a topic covered in a different chapter of the Restatement), but rather restates the special relationship between common carriers and their passengers. In other words, § 314A—which appears in the Restatement Topic, “Duties of Affirmative Action”—is a duty rule (relevant to step 1 in the analysis), not a contributory negligence rule (relevant to step 3).
As an interesting side note, Supreme Court short-lister Judge Ketanji Brown Jackson wrote the district court opinion in the Whiteru case. Although a torts scholar might take minor issue with some of the language in her opinion, Judge Jackson properly refused to recognize an exception to the contributory negligence rule for common carriers. She also dismissed application of the last clear chance doctrine, but only because the plaintiff’s attorney stated at oral argument that the doctrine does not apply. It is hard to understand why the plaintiff’s attorney took this stance. Perhaps there were circumstances that made such a concession the best strategic choice—but under the facts as reported in the opinions, the plaintiffs had a strong argument for last clear chance.
One might wonder why the law would, on the one hand, impose a duty of care on a common carrier to rescue passengers who have negligently put themselves at risk, but then nevertheless allow contributory negligence to bar a negligent plaintiff’s claim. This seeming-contradiction seems to underlie the Circuit Court’s holding. The answer lies in tort law’s careful division of labor between each element of a claim, and between those elements and any affirmative defenses. In a comparative fault jurisdiction, for example, it is necessary to separate the duty of the defendant from the negligence of the plaintiff—they are independent and not-inconsistent inquiries. A negligent passenger’s recovery will only be reduced, in a failure-to-rescue suit against a common carrier. Similarly, in a contributory negligence jurisdiction, a common carrier’s duty must be established first, without regard to the plaintiff’s negligence, because the plaintiff’s fault might or might not bar recovery. If no exception to contributory negligence applies, then the negligent defendant wins; in a last-clear-chance scenario, even a negligent plaintiff recovers.
There are many reasons to abrogate contributory negligence. If our best and brightest struggle with the analysis, perhaps it is time to put this doctrine to rest.