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Case number 22-7154, Cameron Wideroo, individually and as personal representative of the state of Okemute C. Wideroo and Agnes Wideroo, a balance versus Washington Metropolitan Area Transit Authority.

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Mr. Levy for the evidence, Mr. Shah for the evidence.

[00:00:20] Speaker 01:
Mr. Levy, is it pronounced Levy or Levy?

[00:00:23] Speaker 06:
Levy, but I answered either one, Your Honor.

[00:00:25] Speaker 01:
All right.

[00:00:26] Speaker 01:
Okay.

[00:00:26] Speaker 01:
Well, Judge Ginsburg has told us to go ahead.

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So let me ask you first, and I'll ask the other side as well.

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What is your position on certifying this issue to the local court of appeals?

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That is, which restatement provision?

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May it please the court, Andrew Levy, on behalf of the Plaintiff Appellant.

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Obviously, that is a matter within the discretion of this court.

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The appellant's position is that while this is a case of first impression and that there's never been, there is no case on all fours directly on point, that just as this court felt self-capable of deciding

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question in Widerow 1, that there is no reason that this court does not have the expertise and the knowledge of DC law to decide this question.

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Yesterday was 10 years to the day since Oke Witteru paid the required fare, went into the Judiciary Square metro station, and several hours later, got a slow, painful, and completely preventable death.

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The issue, the controlling issue,

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is whether WMATA's special relationship with Mr. Witteru continued after he stumbled and fell backwards into a place passengers were not permitted.

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Had he fallen forward, of course, there would be no question and we would not be here.

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Can it be that the special relationship turned on the happenstance of which way he had the misfortune to fall backwards or forward?

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In Whitteroo 1, this court held that in the case of contributory negligence, the Section 314A special relationship took the case out of the general contributory negligence rule, that notwithstanding his contributory negligence, if WMATA knew or should have known of his plight, it had a duty to take reasonable steps on his behalf.

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The answer we respectfully submit should be no different for the general trespass rule under Section 329.

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It is explicitly referred to as the general rule.

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But as the commentary to Section 314A notes, the special relationship quote takes the case out of the general rule.

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The section 314A, duty to aid, did not end when he fell and cried for help.

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That's when it began.

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To interpret the rule so that the very moment Mr. Witteru most needed the carrier's assistance was the moment he lost it would we submit the bizarre and it is not required by DC law.

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And we begin with the

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statement that you see in the Genti case and in the Gould case, that all of the decisions with respect to the trespasser standard recognize that it is always contextual and that the carrier's relation to and duties towards passengers constitute the critical context.

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Here the context is that there was a special relationship between Mr. Wideru and Womata.

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It is the nature of a relationship

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Unlike say a status that it is not a bubble that bursts upon the happening of a certain event and all of the cases relied upon by WMATA to hold that a trespasser that there's no

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requisite duty on behalf of the trespasser are distinguishable in critical respects.

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Either there was no special relationship or in the case like Hines, Johnson,

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where the individual had chosen go on the tracks.

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There is the notion of forfeiture, which is not present in this case.

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Plus, all of the cases cited by WMATA, all of the cases on which they rely, dealt with a liability for a primary injury.

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And here, no claim is made for Mr. Witteroo's initial injury.

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The claim, as in Witteroo 1, was that once he was in the position he was in, should the mere fact that he had accidentally fallen in a place passengers were not permitted

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Let me say this, that I think WMATA's authorities are not only distinguishable, I think they're inapplicable.

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314A uses this Yazoo, old case from the 20s or earlier.

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to prove its point.

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And there's no way to read Yazoo except that that man was a passenger when it mattered.

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He was on that platform.

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They knew it.

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Well, they didn't know it until the other passengers told them.

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He fell onto the track.

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Still, they didn't rescue him until later, but they had the duty to rescue because at the point it mattered, that is, when he fell, he was a passenger.

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I don't see how you can read that any other way.

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Well, obviously, I agree with that completely, Your Honor, and I will say that the district court

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who characterized this as a hard but nuanced issue, it broke the tie between the competing restatement sections by going and looking at the Yazoo case and saying, well, the restatement didn't really capture what that case actually held.

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frankly is irrelevant.

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The DC Court of Appeals did not adopt the cases that underlie or that that generated the the comment in the illustrations.

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It adopted the restatement itself and the and the comments and illustrations that were there.

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And it is certainly the case that

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That's the comment about the passenger who

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negligently falls off and there is a duty to come to his aid is not only on all fours with this case, but the competing section 329 illustration dealt with again, a general rule.

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It dealt, it only addressed the question of a primary

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injury, not the duty to come to the aid to prevent an aggravation of that injury.

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And I guess where I ultimately come down, Your Honor, is that more than one thing can be true at a time.

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When this court is faced with two seemingly contradictory statutory provisions, you don't feel compelled to choose one over the other.

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You make an effort to reconcile them

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and see, are they really irreconcilable?

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Is it truly a binary choice, as the district court seemed to believe?

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And I see into my rebuttal time.

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So I would like to leave note of what we see as an analogous situation that is maybe more familiar to everybody, because the facts of this case are somewhat unusual and bizarre.

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But if you think about an innkeeper,

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was the same duty as a comic carrier and a guest of the hotel has some sort of a seizure and accidentally falls into a fountain in the middle of the lobby.

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Well, everybody knows guests aren't allowed in the fountain in the middle of the lobby, but it couldn't truly be said that a guest in that situation, that the innkeeper has no duty to take reasonable steps,

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come to the aid of that individual?

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Yes, sir.

[00:10:01] Speaker 07:
Yeah, of course.

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But the facts of the case that Judge Henderson recounted depended vitally on the getting notice from a fellow passenger about the accident.

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In this case, it seems you're imputing constructive knowledge to Omada because there's no evidence of actual knowledge, correct?

[00:10:24] Speaker 06:
There is.

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No evidence of actual knowledge.

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We don't think that is a distinction that matters, Your Honor.

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The restatement... So if someone falls into a place where they could not be discovered by any means... It's reasonable steps, Your Honor.

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That's what we're talking about.

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Right.

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Because the question is one of negligence.

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Correct.

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Yeah.

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And so what constitutes a reasonable step in a negligence context is a precaution that is justifiable

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in view of the potential for injury.

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And here, what was it that WMATA could or should have done that would have discovered the accident in a timely fashion?

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Your Honor, it is the law of the case that WMATA, and I believe undisputed, that it was certainly a tribal

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This is not undisputed, but it's certainly a jury question as to whether they should have known, whether they knew or should have known.

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And the standard is always phrased as new or should have known.

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There's no suggestion that constructive knowledge is not enough.

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And if you should have known, I'll accept that.

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That's really what we're talking about.

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The record, Your Honor, is that both WMATA's internal standard operating procedures and the national standard required the station manager to walk the station end-to-end.

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walk the platform and to specifically look in places where a person might hide or where a package might be stacked.

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It's also the forensic evidence.

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I understand that there is some evidence, record testimony on the record that that inspection because of the upward lights on the barrier would not have revealed

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the person lying there.

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That's a tribal issue of fact.

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And the other thing I would add with respect to

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constructive knowledge, whether it's, as WMATA argues, only actual knowledge is enough.

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That would create such a perverse incentive to the carrier to almost engage in willful blind.

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Council, can I ask a clarifying question about what's before us?

[00:12:54] Speaker 05:
Yes, sir.

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As you know, there's two aspects to the duty to aid.

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The person has to be a passenger and there has to be a reason to know.

[00:13:01] Speaker 05:
My understanding was that WMATA

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moved for summary judgment in this motion, just on the ground that he is categorically not a passenger.

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They've not moved for summary judgment on the ground that there's no dispute of fact as to whether there was a reason to know.

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Is that right?

[00:13:18] Speaker 05:
I believe that is in the record.

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No more in a minute.

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We'll give you a couple minutes.

[00:14:00] Speaker 04:
Good morning.

[00:14:01] Speaker 02:
May it please the court.

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Finding precedents applying DC tort law make two principles clear.

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One, a passenger becomes a trespasser when he enters a restricted area, even if accidentally.

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And two, such trespassers, at least if unknown, are owed only a duty not to be harmed through willful or wanton misconduct, not the special 314A duty to aid.

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Those entrenched principles of D.C.

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tort law resolve this case.

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It's not just about reconciling the two, it is about reconciling the two restatement provisions, but there is a long line, a four-decade line of unbroken cases from both this court and the DDC relying on Furfur, Holland, and Copeland.

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Those are the D.C.

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Court of Appeals precedents that are consistent with Restatement Section 329 that hold this

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a WMATA passenger who leaves the platform into a restricted station area, whether intentionally or accidentally becomes a trespasser.

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Council, I'm sorry to interject, but I want to ask you the very first thing you said.

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You said DC case law is clear.

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D.C.

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tort binding precedents applying D.C.

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tort law.

[00:15:21] Speaker 05:
Yes.

[00:15:22] Speaker 05:
Okay.

[00:15:22] Speaker 05:
So and the question in our case is when does a paying passenger lose, whether they lose passenger status or exempted from the duty to aid because of a

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Accidental trespass, which DC case holds that they lose?

[00:15:40] Speaker 02:
Yes.

[00:15:40] Speaker 02:
OK.

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I'm going to answer that directly.

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There are two cases.

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If you add them together, it answers your question perfectly.

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Berfer and Holland and Co.

[00:15:48] Speaker 02:
No.

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I'm going to start with actually a case of this court.

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The DC Circuit, we cite a half dozen cases that are from DDC on pages 14 and 15 of our brief.

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One of those cases, though, was actually a decision by this court.

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We cited about a half dozen times.

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That's the Johnson case.

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In our brief, we cite the district court citation that was on remand from this court's decision, which quotes the rule that this court cites.

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But let me give you the site to this court's decision itself.

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It's 883.

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F2D at 130.

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That's Johnson case, again, cited about a half dozen times in our brief.

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Here's what this court said, quote, under DC law plaintiff, a fair paying passenger became a trespasser when she jumped onto the tracks and thus may only recover for intentional wanton or willful injury.

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End quote.

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Then you take the DC Court of Appeals decision in Copeland, which rejects any distinction between jumping and falling onto the tracks.

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Those two cases together, both binding on this court, Johnson, because it's a decision of this court,

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Copeland, because it's a decision of the DC Court of Appeals.

[00:17:03] Speaker 05:
I'm not saying this is wrong.

[00:17:04] Speaker 05:
I just want to make sure we're on the same page.

[00:17:06] Speaker 05:
Yes.

[00:17:06] Speaker 05:
DC Circuit case did not address an accidental trespass, right?

[00:17:10] Speaker 02:
Accidental.

[00:17:10] Speaker 02:
It was intentional.

[00:17:11] Speaker 05:
Correct.

[00:17:12] Speaker 05:
OK, thank you.

[00:17:12] Speaker 02:
And then you take that decision, which says a fare paying passenger, just as you said, a WMATA fare-paying passenger becomes a trespasser no longer entitled to 314A when they end up on the tracks.

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You combine that with Copeland.

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DC Court of Appeals decision that says, quote, whether it's intentional, accidental, or inadvertent does not matter with respect to trespasser status under the restatement.

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That removes any daylight between those cases and this case.

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That's exactly this case on point when you add up this court's binding decision and Copeland's binding decision, you get this case.

[00:17:53] Speaker 05:
So I very much appreciate that.

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Adding those two principles together.

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Yes, just more directly though.

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What would the logic be of this rule?

[00:18:02] Speaker 05:
What purpose does it advance?

[00:18:04] Speaker 05:
If we concede that the person.

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If he fell the other way, he'd be owed a duty to aid, but because he fell into a restricted area, you say he's not.

[00:18:14] Speaker 02:
Sure.

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So the reasoning which we cite in the brief that comes from FERFER and the DC Court of Appeals reasoning this is because you have to look at it's the duty of the landowner or the common carrier.

[00:18:26] Speaker 02:
And that person shouldn't have a duty to aid, right, or a special, even the ordinary negligence duty, they say, but certainly not a duty to rescue when someone goes into an area that's off limits when they become a trespasser.

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That's the

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the rationale behind the tort rule, but whatever, and I can understand a competing rationale, certainly, right, that no, you don't want them to do it.

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But the point is the DC Court of Appeals has already chosen that that's the rule.

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They've adopted that rule, the DC Circuit applied it in Johnson, and the DDC, you know, I have the additive principle, you have to add two together.

[00:19:02] Speaker 02:
The DDC has added those two principles together already in both Whitaker and Hines, which again are cited in our brief.

[00:19:09] Speaker 02:
Those are exactly the questions you asked me, Judge Garcia, an accidental falling into an area of the train station that's off limits.

[00:19:18] Speaker 02:
That's both Heinz.

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That person was senile, so didn't quite have the intentionality you would invoke.

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And then we have Whittaker from 1984, 40 years old.

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That person was intoxicated, just like Mr. Wittru.

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So you have the binding precedent from Johnson.

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You have Copeland.

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Then you have DDC applying Johnson and Copeland in both Whittaker and Heinz.

[00:19:42] Speaker 05:
Absolutely.

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And I'm still just trying to figure out

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So if this was in front of the DC Court of Appeals, they would say, they certainly could say, we don't have a case directly on point.

[00:19:53] Speaker 05:
We haven't addressed whether these two principles combined yield the result you want.

[00:19:58] Speaker 05:
And if they were to ask why, what principle of tort law is served by saying that the special relationship to a passenger ends because they fall half an inch over the line into a restricted area as opposed to on the platform.

[00:20:16] Speaker 02:
Well, the rationale is the one that I've given you that we say is you don't put the burden on the landowner or the common carrier when someone enters a restricted area.

[00:20:27] Speaker 02:
They shouldn't have that same ordinary duty.

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That's the whole point of the trespasser rule.

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Whether it's one inch over or a hundred feet over the line, that is the rationale is when you're somewhere where you're not even, this goes back to fur

[00:20:41] Speaker 02:
the DC Court of Appeals decision from 70 years ago, right, with respect to the Jefferson Memorial.

[00:20:47] Speaker 02:
Yes, lots of people are invited onto the Jefferson Memorial, but when someone goes into the grassy knoll behind it, that's not restricted, then they don't get the same protections or the same ordinary duty of care.

[00:21:00] Speaker 02:
So I think the important point is when you look at these cases, they don't have a single- I'll try to have this be my last question.

[00:21:07] Speaker 05:
Okay.

[00:21:07] Speaker 05:
Oh, of course.

[00:21:08] Speaker 05:
So on fur fur, right, this case is as if

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This case is as if Mr. Furfer was in the Jefferson Memorial, tripped and fell down and landed in the grassy area.

[00:21:19] Speaker 05:
That's right.

[00:21:20] Speaker 05:
And the question is whether it would have come out the same way.

[00:21:24] Speaker 05:
Anything is different in the sense of saying it certainly could be very different in terms of a reason to know.

[00:21:33] Speaker 05:
This is not about whether you have to inspect those areas, but it is about whether there's a duty to aid.

[00:21:38] Speaker 05:
So if an employee sees the person down there, is there a duty to aid?

[00:21:42] Speaker 05:
Or are they just now a known trespasser?

[00:21:45] Speaker 02:
So let me give you two answers.

[00:21:46] Speaker 02:
What is, of course, the court that decided Furfer is the same court that decided Copeland and said expressly, whether you trip and fall, Copeland was even worse.

[00:21:55] Speaker 02:
He was unconscious, and they put him on the tracks.

[00:21:57] Speaker 02:
So I am fully confident that unless the DC Court of Appeals was going to reverse itself from Copeland, whether you trip and fall into that grassy knoll intentionally, accidentally, or inadvertently, that's the phrase Copeland uses.

[00:22:10] Speaker 02:
Same duties apply, Your Honor.

[00:22:13] Speaker 02:
Now, there is a question of, and Judge Ginsburg, I think you touched on this, if the person actually saw them, right?

[00:22:21] Speaker 02:
You don't have to decide that in this case.

[00:22:24] Speaker 02:
You could leave that question open because it is undisputed that it was unknown that Mr. Wittru was there.

[00:22:31] Speaker 02:
And it's not just a constructive knowledge test.

[00:22:34] Speaker 02:
It's an actual knowledge test.

[00:22:36] Speaker 02:
That comes from the DC Court of Appeals decision in Copeland, which said there's one duty until you discover the trespasser.

[00:22:44] Speaker 02:
That is, when you haven't discovered him, he's unknown.

[00:22:49] Speaker 02:
It is the wanton, willful misconduct duty.

[00:22:52] Speaker 02:
Obviously, no duty to rescue.

[00:22:54] Speaker 02:
But once you discover, that's the word that Copeland uses, once you discover

[00:23:00] Speaker 01:
And why didn't they discover it from the surveillance camera, which shows him falling backwards?

[00:23:07] Speaker 02:
Your Honor, it wasn't known at the time, of course.

[00:23:11] Speaker 01:
What do you do with those surveillance?

[00:23:14] Speaker 02:
Those surveillance cameras are there, but someone is not watching the surveillance camera every second of every day.

[00:23:20] Speaker 02:
So in that two seconds, it took him... Maybe they should be, and maybe that's a jury question.

[00:23:26] Speaker 02:
Well, Your Honor, they themselves have disclaimed any violation of any.

[00:23:34] Speaker 02:
Their claim isn't that Womata was negligent in not preventing his fall or seeing it.

[00:23:41] Speaker 02:
Their claim is that they didn't rescue him, Your Honor.

[00:23:46] Speaker 02:
That is the claim.

[00:23:47] Speaker 02:
And I want you to.

[00:23:49] Speaker 01:
Because they either knew or had reason to know.

[00:23:52] Speaker 02:
Well, here's the

[00:23:54] Speaker 02:
I think it's a jury issue, whether they had reason.

[00:23:59] Speaker 02:
Judge Henderson, respectfully, you would be right if that were the right standard, new or reason to know.

[00:24:06] Speaker 02:
But under the DC Court of Appeals, for a trespasser, as opposed to a passenger, you're right.

[00:24:13] Speaker 02:
If it were a passenger, that's the standard.

[00:24:14] Speaker 02:
314A says,

[00:24:16] Speaker 02:
no or reason to know.

[00:24:18] Speaker 02:
But once you're a trespasser, the DC Court of Appeals in Copeland said, no, it's actual discovery.

[00:24:25] Speaker 02:
And I want to point you to Estrada.

[00:24:26] Speaker 02:
It's on pages 18 and 19 of our brief.

[00:24:29] Speaker 02:
Here's what Estrada, another DC Court of Appeals decision says exactly, Judge Henderson, on this question of constructive knowledge versus actual knowledge.

[00:24:39] Speaker 02:
It says,

[00:24:40] Speaker 02:
Quote, the duty to abstain from willful or wanton misconduct does not arise unless the owner has actual rather than merely constructive knowledge of the trespassers presence on the property and is cognizant that he's in danger of immediate rather than merely possible harm.

[00:25:00] Speaker 05:
So if he's in the trespasser box and not the passenger box, there's no question.

[00:25:05] Speaker 05:
Absolutely.

[00:25:06] Speaker 02:
And it's an actual knowledge, whether he's a known, not should have known.

[00:25:11] Speaker 02:
It's not that they should have discovered him.

[00:25:14] Speaker 02:
The DC Court of Appeals said that's not the standard.

[00:25:17] Speaker 02:
It says when it comes to trespasser, yes, if you actually know they're there, then maybe a greater duty applies.

[00:25:23] Speaker 02:
You don't have to decide.

[00:25:24] Speaker 01:
He was a passenger on that ledge.

[00:25:27] Speaker 02:
Absolutely.

[00:25:27] Speaker 01:
He fell.

[00:25:28] Speaker 01:
He was still a passenger.

[00:25:30] Speaker 01:
We can argue about whether when he hit, he was a trespasser.

[00:25:35] Speaker 01:
But you can't explain Yazoo any other way than when that fella fell off the platform and hit the tracks.

[00:25:43] Speaker 01:
that the railroad had the duty to aid him.

[00:25:48] Speaker 01:
Sure.

[00:25:48] Speaker 01:
Can't read that except to construe he was a passenger when it mattered.

[00:25:55] Speaker 02:
Judge Anderson, I agree with your reading of Yahoo, Yazoo.

[00:25:58] Speaker 02:
The distinction I would draw in Yazoo is

[00:26:01] Speaker 02:
that it says specifically in the case and in the restatement that the train crew discovered it.

[00:26:09] Speaker 02:
They knew he fell.

[00:26:10] Speaker 02:
They saw him.

[00:26:11] Speaker 02:
They were notified by a passenger, and they saw him.

[00:26:14] Speaker 02:
So that takes him from the unknown trespasser, like this case, into the known trespasser.

[00:26:19] Speaker 02:
That quote that I just read you from the DC Court of Appeals is completely consistent with Yazoo.

[00:26:24] Speaker 02:
I completely agree.

[00:26:24] Speaker 01:
And I think it's a reason to know.

[00:26:26] Speaker 02:
And that's a jury question.

[00:26:27] Speaker 02:
But that's what Estrada says.

[00:26:28] Speaker 02:
No, it's not a reason to know.

[00:26:30] Speaker 02:
They said constructive knowledge is not enough.

[00:26:33] Speaker 02:
So that's when you have to reconcile 314, which I agree with you, Judge Henderson.

[00:26:39] Speaker 02:
If that case, if the train crew didn't actually know he fell,

[00:26:45] Speaker 02:
Then that case would be a big problem for me, and I would lose.

[00:26:49] Speaker 02:
The problem is, in that case, it says explicitly, and in the restatement and illustration, it says, the trained crew discovered him.

[00:26:57] Speaker 02:
So you can reconcile 314A, and that's the sports job, reconcile 314A and the on-point illustration in 329, right?

[00:27:05] Speaker 05:
Council, can I just on Yazoo?

[00:27:07] Speaker 05:
Yes.

[00:27:08] Speaker 05:
It held there was a duty to aid, right?

[00:27:10] Speaker 02:
A duty to aid because they knew he was there.

[00:27:19] Speaker 05:
My understanding is that even a known trespasser is not owed a duty to aid.

[00:27:24] Speaker 05:
It's owed a different duty to prevent harm.

[00:27:28] Speaker 05:
Yes, so as you says, yes, that there was a duty to aid, despite technically being a trespasser.

[00:27:33] Speaker 02:
Well, so here's where I would push back on that.

[00:27:37] Speaker 02:
Judge Garcia, again, I don't think you need to resolve this because he was known and the person here was unknown.

[00:27:42] Speaker 02:
It's not constructive knowledge, actual knowledge.

[00:27:44] Speaker 02:
But even taking that, putting that aside, here's the difference.

[00:27:49] Speaker 02:
In Yazoo, that was a 1906 Mississippi case.

[00:27:52] Speaker 02:
What happened is this person's, if you want to talk about Yazoo, again, the restatement doesn't go into any of this.

[00:27:57] Speaker 02:
But if we're going to bootstrap into Yazoo, what happened there, 1906 Mississippi case, he ended up on the side of the tracks in a grassy field.

[00:28:05] Speaker 02:
It's unclear whether he was a trespasser.

[00:28:08] Speaker 02:
That could have been public land.

[00:28:09] Speaker 02:
That could have been the railroad's land.

[00:28:11] Speaker 02:
The case doesn't analyze trespasser.

[00:28:14] Speaker 02:
That's what the illustration in 329 does, which is based on a different case, Frederick.

[00:28:19] Speaker 02:
And in that case, we know 329, there's no daylight between 329 in this case.

[00:28:25] Speaker 02:
It's an unknown person who is a trespasser that accidentally falls through no fault of his own.

[00:28:31] Speaker 02:
into a subway, right?

[00:28:33] Speaker 02:
And the court says it's wanton, or I'm sorry, the restatement says, apply the wanton willful misconduct standard that's in the restatement.

[00:28:42] Speaker 02:
So if you're going to parse between the two restatement sections, 329 is actually more on point.

[00:28:48] Speaker 02:
But the job I think of is this court is to read both the sections as a whole, as my friend Mr. Levy said,

[00:28:54] Speaker 02:
and reconcile it with the DC court cases, Johnson, Copeland, Estrada.

[00:29:02] Speaker 02:
They have not cited you yet today a single DC case that's even in the ballpark of Johnson, Copeland, Whitaker, Hines.

[00:29:11] Speaker 02:
All of those, you put them together, unbroken line of 40-year cases that say when you have an unknown trespasser, whether intentionally or accidentally, and these are all WMATA cases, right?

[00:29:24] Speaker 02:
Falling into a restricted area, you don't owe a duty to rescue, you don't owe that special duty, just a duty to refrain from wanton, willful misconduct.

[00:29:34] Speaker 02:
And obviously, the failure to find him wasn't wanton or willful.

[00:29:38] Speaker 02:
And for that reason,

[00:29:40] Speaker 02:
The judge both got it exactly right.

[00:29:43] Speaker 01:
Thank you.

[00:29:44] Speaker 01:
Thank you, Your Honor.

[00:29:46] Speaker 01:
Mr. Levy, why don't you take two minutes?

[00:29:47] Speaker 04:
Thank you, Your Honor.

[00:30:22] Speaker 04:
Copeland has nothing to do with this case.

[00:30:26] Speaker 06:
It doesn't help this court answer the question because Copeland had never been in a special relationship with, had never been a paid passenger.

[00:30:34] Speaker 06:
So there was no question of whether 314A took it out of the general rule.

[00:30:41] Speaker 06:
So Copeland is irrelevant.

[00:30:47] Speaker 06:
The Whittaker, the Hines case, those cases all involved volitional conduct.

[00:30:56] Speaker 06:
plaintiffs had a theory that the senility took it out of it or the intoxication took it out of it.

[00:31:02] Speaker 06:
But that was not accepted.

[00:31:04] Speaker 06:
And so those cases have to be understood in the context of a volitional act.

[00:31:12] Speaker 06:
And again, they also dealt only with the initial injury.

[00:31:17] Speaker 06:
They didn't speak to the aggravation of the injury.

[00:31:27] Speaker 06:
But my gestalt with respect to the appellee's presentation is that we are not arguing about the finer points of trespasser law.

[00:31:38] Speaker 06:
And all of those cases about that it got to be a known trespasser versus an unknown trespasser are

[00:31:46] Speaker 06:
Beside the point in this case, because there's no question that as a result of the special relationship in section 314A unambiguously uses the standard new or should have known.

[00:32:03] Speaker 06:
So if the duty that existed between WMATA and Mr. Witteru was that between a paid passenger

[00:32:12] Speaker 06:
and a carrier as it was, then all of that case law cited by council is beside the point.

[00:32:22] Speaker 06:
That's all 329 law.

[00:32:25] Speaker 06:
It's not at all 314A law.

[00:32:28] Speaker 01:
All right.

[00:32:31] Speaker 01:
Let me ask you one thing.

[00:32:33] Speaker 01:
Mr. Witteru wouldn't have even been in the metro stop.

[00:32:40] Speaker 01:
if WMATA hadn't decided to extend its hours in order to protect the inebriated people.

[00:32:48] Speaker 06:
Exactly right, Your Honor.

[00:32:50] Speaker 01:
No question.

[00:32:51] Speaker 01:
Thank you.

[00:32:52] Speaker 04:
Thank you.