United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 21, 2010 Decided August 17, 2010
No. 08-7137
DONALD WRIGHT SIGMUND,
APPELLANT
v.
STARWOOD URBAN RETAIL VI, LLC, ET AL.,
APPELLEES
v.
WOLF & COHEN LIFE INSURANCE, INC.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-01366)
Paul J. Cornoni argued the cause for appellant. With him
on the brief was Patrick M. Regan. Thanos Basdekis entered an
appearance.
Brian E. Hoffman argued the cause for appellees Starwood
Urban Retail VI, LLC, et al. With him on the brief were Jeffrey
R. Schmieler, Steven Roy Migdal, and Timothy E. Fizer.
2
Before: GINSBURG, GARLAND, and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Solon, the ancient Athenian
lawgiver, made no law against patricide because he thought it
impossible that anyone could commit so unnatural a crime. Two
and a half millennia later, Freud famously claimed the opposite
-- that every son harbors murderous impulses toward his father.
In this case, we side with the lawyer not the psychoanalyst.
Donald Sigmund, the accidental victim of a car bomb that his
half-brother intended for their father, cannot recover from the
third-party defendants he has sued unless his half-brother’s
crime was foreseeable. We conclude that neither that crime nor
any similar one was foreseeable, and thus affirm the district
court’s grant of summary judgment in favor of the defendants.
I
At approximately 2:00 p.m. on July 12, 2002, a pipe bomb
exploded in a Chevrolet Blazer in which Donald Sigmund was
sitting. Donald sustained serious injuries in the blast. The
Blazer was owned by Donald’s father, and Donald had gone to
retrieve it from the basement garage of the building in which
they worked in order to run an errand. In March 2003, Donald’s
half-brother, Prescott Sigmund, pled guilty to planting the bomb
and was sentenced to 32 years’ incarceration.
Like Donald, Prescott also had keys to his father’s Blazer
and, like his half-brother, he had also worked for some time at
his father’s office in the building at 5225 Wisconsin Avenue,
N.W. For months, Prescott had been devising a plan to detonate
a bomb that would kill his father, from whom he stood to inherit
approximately $300,000. Prescott knew that his father kept the
Blazer parked in the building’s garage. The garage, which was
3
open to the public, was ordinarily secured by an overhead
rolling steel garage door and guarded by attendants until about
10 p.m. The garage was also accessible from a staircase in the
building’s lobby, which was open to the public until about
midnight.
Late in the evening of July 10, Prescott drove to the garage
with the pipe bomb in his car. When he arrived, the overhead
garage door, which had broken sometime shortly before June 24,
was stuck in the open position. Prescott had noticed that the
door was broken the day before. Notwithstanding the months he
had invested in preparing the attack, he later described the
broken garage door as “the opportunity . . . [he] had been
looking for.” Prescott Sigmund Dep. 12 (Feb. 2, 2006).
Prescott parked next to his father’s Blazer, opened the
Blazer with his own key, and -- within the space of
approximately two hours -- planted the pipe bomb inside. The
garage door was repaired on July 11, one day after Prescott
planted the bomb. The Blazer then sat untouched until the
following afternoon, when Donald came to retrieve it and
suffered the blow intended for his father.
One year later, Donald filed suit in federal court, predicated
on diversity jurisdiction, seeking tort damages from Prescott and
the owner, managers, and operators of the garage. The district
court granted summary judgment for the defendants other than
Prescott, finding that Donald could not “meet the legal standard
of a ‘heightened showing of foreseeability’ that is applied when
an injury is caused by the intervening act of a third party.”
Sigmund v. Starwood Urban Inv., et al., 475 F. Supp. 2d 36, 38
(D.D.C. 2007). Donald then dismissed his claims against
Prescott and filed this appeal.
4
II
We review the district court’s grant of summary judgment
de novo, viewing the evidence in the light most favorable to the
nonmoving party, Donald Sigmund. See Czekalski v. Peters,
475 F.3d 360, 362-63 (D.C. Cir. 2007). We must affirm the
grant if “there is no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(c).
Because Sigmund brought this suit based upon diversity of
citizenship, see 28 U.S.C. § 1332, we apply the law of the
District of Columbia. See Smith v. Wash. Sheraton Corp., 135
F.3d 779, 782 (D.C. Cir. 1998). “To establish negligence” under
D.C. law, “a plaintiff must prove a duty of care owed by the
defendant to the plaintiff, a breach of that duty by the defendant,
and damage to the interests of the plaintiff, proximately caused
by the breach.” District of Columbia v. Beretta, U.S.A., Corp.,
872 A.2d 633, 642 n.3 (D.C. 2005) (en banc) (internal quotation
marks omitted).
In Beretta, the D.C. Court of Appeals, sitting en banc,
summarized the analysis applicable “[w]here an injury is caused
by the intervening criminal act of a third party”:
[T]his court has repeatedly held that liability depends
upon a more heightened showing of foreseeability than
would be required if the act were merely negligent. In
such a case, the plaintiff bears the burden of
establishing that the criminal act was so foreseeable
that a duty arises to guard against it. Because of the
extraordinary nature of criminal conduct, the law
requires that the foreseeability of the risk be more
precisely shown.
5
872 A.2d at 641 (quoting Potts v. District of Columbia, 697
A.2d 1249, 1252 (D.C. 1997)) (internal quotation marks
omitted). “In this context,” the court said, “the requisite duty of
care required for negligence is a function of foreseeability,
arising only when foreseeability is alleged commensurate with
‘the extraordinary nature of [intervening] criminal conduct.’”
Id. (quoting Potts, 697 A.2d at 1252) (footnote omitted).1
Moreover, it noted, “‘our opinions have made clear the
demanding nature of the requirement of ‘precise’ proof of a
‘heightened showing of foreseeability’ in the context of an
intervening criminal act involving the discharge of weapons.’”
Id. at 642 (quoting Potts, 697 A.2d at 1252) (emphasis omitted).
In Beretta, the court reviewed several of its prior cases,
which, it said, “demonstrate the tight boundaries . . . within
which a claim of common-law negligence must be
framed . . . ‘in the context of an intervening criminal act
involving the discharge of weapons.’” Id. at 643 (quoting Potts,
697 A.2d at 1252) (internal quotation marks and citation
omitted). As the court explained, in Potts v. District of
Columbia it sustained a grant of summary judgment against the
plaintiffs, who had been injured by gunshots as they were
leaving an event at the Washington Convention Center, because
they had “proffered no evidence of any prior gun-related
violence at any other event” held at the Center or planned by the
event’s promoters, “nor any other specific evidence bearing
1
In Workman v. United Methodist Committee on Relief, this
Circuit observed that, although ordinarily “foreseeability is important
to issues of proximate causation and conformity to the standard of
care, . . . the D.C. courts have repeatedly spoken of the heightened
foreseeability requirement in terms of [the] duty” of care. 320 F.3d
259, 265 (D.C. Cir. 2003). Beretta acknowledged Workman’s
observation, but saw “no need to reconsider that framework.” Beretta,
872 A.2d at 642 n.4.
6
directly on the foreseeability of the shooting incident at issue.”
Id. (quoting Potts, 697 A.2d at 1252). In Bailey v. District of
Columbia, 668 A.2d 817 (D.C. 1995), the court likewise
affirmed a grant of summary judgment against a plaintiff who
was shot as she was leaving a cheerleading competition at a
junior high school. There was no evidence of prior gun-related
violence or assaults at the school, and the court found
insufficient the plaintiff’s showing that “the neighborhood
around the school was a ‘high drug area’ and that shootings and
other criminal acts had taken place there.” Beretta, 872 A.2d at
642 (citing Bailey, 668 A.2d at 820). “[S]uch ‘generic
information,’ by itself,” the court said, “does not create a duty
on the part of the District to protect against the use of firearms
under the circumstances presented here.” Id. (quoting Bailey,
668 A.2d at 820). Finally, in Clement v. Peoples Drug Store,
634 A.2d 425 (D.C. 1993), the court affirmed a directed verdict
against the widow of an employee who was shot to death in the
parking lot of a store. “[T]he only evidence presented with
respect to [the] shooting’s foreseeability was an expert’s opinion
based on police reports of criminal activity in the surrounding
area[,] . . . [and no] evidence was introduced involv[ing] any
gun-related incidents at the particular shopping mall in which
the shooting occurred.” Beretta, 872 A.2d at 642 (quoting Potts,
697 A.2d at 1252) (internal quotation marks omitted). In all
three of these cases, the Court of Appeals said, it “rejected
liability as a matter of law where foreseeability (hence duty) was
not limited by any evidentiary reference to a precise location or
class of persons.” Id.
The D.C. Court of Appeals has issued two opinions on this
subject since Beretta, and both have emphasized the requirement
of a heightened showing of foreseeability in cases involving
intervening criminal acts. In Bruno v. Western Union Financial
Services, Inc., 973 A.2d 713, 721-22 (D.C. 2009), the court
found that injuries the plaintiff sustained during a robbery inside
7
the defendant’s gas station were not foreseeable. “There was no
evidence,” the court said, “that any offense in the nature of an
assault had occurred previously inside the gas station,” although
there was evidence of a theft inside and of an armed assault just
outside within the previous two years. Id. at 718-19.
The court’s most recent decision, and the closest factually
to the present case, is Board of Trustees of the University of the
District of Columbia v. DiSalvo, 974 A.2d 868 (D.C. 2009),
which involved a student who was attacked by armed assailants
in a university parking garage. For the plaintiffs to succeed, the
court said, “[i]t is not sufficient to establish a general possibility
that the crime would occur, because . . . the mere possibility of
crime is easily envisioned and heightened foreseeability requires
more precision.” Id. at 872-73. Rather, they must “establish
that [the university] had an increased awareness of the risk of a
violent, armed assault in the parking garage.” Id. at 872. The
court found the plaintiffs failed to meet that standard as a matter
of law. Id. at 875. Although they alleged that security in the
garage was inadequate, they “proffered no evidence that [the
university] had received any complaints about the security of
[its] parking garage.” Id. at 873. And while they pointed to
“several previous on-campus crimes,” including three assaults,
“none was committed with a weapon, none was in a campus
parking garage, and none resulted in any serious injury to the
victim.” Id.
Finally, DiSalvo noted that, in “the few cases where [courts
in the District of Columbia] have held that a defendant had a
duty to protect the plaintiff from a criminal act[,] . . . the facts in
evidence established that the defendant had reason to anticipate
the type of particular criminal attack that actually occurred.” Id.
at 873. For example, “in Kline v. 1500 Massachusetts Ave.
Apartment Corp., 439 F.2d 477 (D.C. Cir. 1970), where the
plaintiff was assaulted and robbed in the common hallway of her
8
apartment building just two months after another tenant was
similarly attacked in the same hallway, the court found
heightened foreseeability because ‘the crimes of violence,
robbery, and assault [ ] had been occurring with mounting
frequency on the premises’ and the landlord had been asked to
secure the building in light of the crime.” Id. at 873-74 (quoting
Kline, 439 F.2d at 480). The court also distinguished District of
Columbia v. Doe, 524 A.2d 30 (D.C. 1987), “where a young
student was abducted from inside of her elementary school
classroom and raped by an unknown intruder,” on the grounds
that there were “‘crimes against persons in and around the
school . . . ; sexual assaults and other violent activity in the
surrounding area; and deficient school security [, including the]
presence of adult males who freely roamed throughout the
school.” DiSalvo, 974 A.2d at 874 (quoting Doe, 524 A.2d at
34).2 “In these cases,” the court concluded, “the common thread
is that the facts demonstrating heightened foreseeability showed,
if not awareness of the precise risk, close similarity in nature or
temporal and spatial proximity to the crime at issue.” Id.3
2
The court further distinguished Doe on the ground that, “[i]n
addition to the evidence of criminal activity and lapsed security . . . ,
the victim was also entitled to a heightened duty of protection because
she was a young child in public school over which the District of
Columbia exercised custodial care, who was ‘particularly vulnerable
to the conduct that befell her,’ and was ‘taken from a place that we
would expect to be a safe haven.’” DiSalvo, 974 A.2d at 874 n.4
(quoting Bailey, 668 A.2d at 821). In Beretta, the court described Doe
as the “high-water mark” of its willingness to recognize a duty to
protect against an intervening criminal act. 872 A.2d at 642.
3
On the same grounds, DiSalvo distinguished two cases in which
this Circuit, sitting in diversity, found sufficient evidence of
heightened foreseeability. In Doe v. Dominion Bank, N.A., 963 F.2d
1552 (D.C. Cir. 1992), where a woman was raped inside a building,
DiSalvo noted that the rape took place “on an unsecured vacant floor
9
III
Sigmund cannot satisfy the heightened foreseeability
standard required by the D.C. Court of Appeals. Although he
need not show “previous occurrences of the particular type of
harm” that befell him, he must show the defendants’ “increased
awareness of the danger of a particular criminal act.” DiSalvo,
974 A.2d at 872 (quoting Doe, 524 A.2d at 33). “[I]n the
context of an intervening criminal act involving the discharge of
[a] weapon[]” -- and, a fortiori, of a pipe bomb -- the
requirement of “precise proof of a heightened showing of
foreseeability” is particularly demanding. Beretta, 872 A.2d at
643 (internal quotation marks omitted). As the court required in
DiSalvo, Sigmund must “establish that [the defendants] had an
increased awareness of the risk of a violent, armed assault in the
parking garage.” DiSalvo, 974 A.2d at 872 (emphasis added).
Needless to say, there is no history of car bombings at 5225
Wisconsin Avenue. Sigmund, 475 F. Supp. 2d at 40. Nor is
there any history of “homicides, or assaults with intent to kill on
the premises.” Id. In fact, in the six-and-a-half years preceding
the bombing, there were only four crimes reported in the garage,
. . . where other criminal activity had occurred and tenants had
specifically warned the landlord about the potential danger posed by
the lack of security, vacant floors, and unauthorized persons in the
building.” DiSalvo, 974 A.2d at 874 (citing Dominion Bank, 963 F.2d
at 1555-56). Similarly, DiSalvo noted that in Novak v. Capital
Management & Development Corp., 452 F.3d 902 (D.C. Cir. 2006),
the plaintiffs “were attacked by a group of men immediately outside
of a club’s alley entrance, the entrance lacked any security measures,
and the club owner had increased awareness due to prior fights in and
around the club, including repeated fights at the alley entrance.”
DiSalvo, 974 A.2d at 874 (citing Novak, 452 F.3d at 904).
10
none of which involved an assault of any kind.4 And, of all of
the crimes reported at the building during that period, only four
were crimes against persons -- none involving “a violent, armed
assault” resulting “in any serious injury to the victim,” DiSalvo,
974 A.2d at 872-73. See Sigmund, 475 F. Supp. 2d at 40.5 In
2001 and 2002, there were no crimes against persons reported at
the building at all. Id.
Sigmund wants us to widen our focus beyond the garage
and building to the surrounding area. Although District of
Columbia cases certainly have done so, see, e.g., Doe, 524 A.2d
at 32, both DiSalvo and Beretta caution against opening the
aperture too wide, see DiSalvo 974 A.2d at 874 (noting that, in
cases finding “heightened foreseeability,” the facts showed
“close similarity in nature or temporal and spatial proximity to
the crime at issue”); Beretta, 872 A.2d at 642 (noting that the
court has rejected liability where the evidence was not limited
“to a precise location or class of persons”). In any event, the
evidence regarding violent assaults in the surrounding area is
also thin. Sigmund identifies 503 crimes within a five-block
radius of 5225 Wisconsin Avenue that were reported to the
police during the two years preceding the bombing. Al Ortenzo,
Security Expert Report 10. None of those was a murder or an
attempted murder. Al Ortenzo Dep. 104 (Sept. 25, 2006). Of
the 503 crimes, Sigmund identifies only one aggravated assault
and ten assaults with a deadly weapon, see Al Ortenzo Aff. 20
4
The crimes were: one theft of a car, two thefts from cars, and
the destruction of a car window. Sigmund, 475 F. Supp. 2d at 40.
5
These crimes consisted of: a robbery at gunpoint in the area
behind the building, a customer in a retail store kicking an employee
in the buttocks, an employee pushing a customer in the chest with his
finger, and a person using his head to strike another person’s head.
Sigmund, 475 F. Supp. 2d at 40.
11
(Jan. 8, 2007); his evidence does not indicate that any “resulted
in any serious injury to the victim,” DiSalvo, 974 A.2d at 873.
Sigmund further proffers that “10 percent of the local crime
occurred in parking lots and garages.” Appellant’s Br. 25. This
statistic is just the kind of “generic information” about crime
that the D.C. Court of Appeals has found insufficient to establish
foreseeability. Beretta, 872 A.2d at 642 (quoting Bailey, 668
A.2d at 820) (internal quotation marks omitted). The conclusory
statements of Sigmund’s experts that crime in the garage should
have been foreseeable6 are similarly insufficient. See DiSalvo,
974 A.2d at 872-73.
Citing Dominion Bank, Sigmund argues that, in addition to
evidence of prior incidents, “‘the condition of the premises is a
critical factor in assessing the foreseeability of criminal
conduct.’” Appellant’s Br. 14 (quoting Dominion Bank, 963
F.2d at 1559). Here, he argues, the overhead door had been
stuck open for approximately three weeks, creating “a gaping
hole in the building’s security.” Id. at 16. Sigmund maintains
that this condition, in combination with the history of criminal
incidents, was sufficient to satisfy the requirement of heightened
foreseeability.7
6
See, e.g., Al Ortenzo Aff. 18 (averring that there was “reasonable
notice of the high risk of future criminal acts” and “future violent
crime” on the property); James Womack Dep. 99 (averring that the
defendants “should have been able to foresee any incidence of
someone . . . entering the premises to do harm, bodily or physically”).
7
Cf. DiSalvo, 974 A.2d at 872 (stating that “heightened
foreseeability ‘does not require previous occurrences of the particular
type of harm, but can be met instead by a combination of factors
which give defendants an increased awareness of the danger of a
particular criminal act’” (quoting Doe, 524 A.2d at 33)).
12
As DiSalvo explained, however, Dominion Bank was a case
in which the crime occurred in a location “where other criminal
activity had occurred and tenants had specifically warned the
landlord about the potential danger posed by the lack of
security.” DiSalvo, 974 A.2d at 874; see Dominion Bank, 963
F.2d at 1561 (noting that “the Bank had incessant notice of
criminal activity -- including theft, burglary, drug use, and
possibly prostitution” at the building). The same was true in the
other cases Sigmund cites as focusing on the condition of the
premises as a factor in foreseeability.8
Sigmund produced no evidence of crime in the garage while
the door was broken, and no evidence that tenants had
complained about the door’s condition. Nor were there security
complaints or requests of any kind for more than a year before
the bombing. See Sigmund, 475 F. Supp. 2d at 40; Thomas
Updike Dep. 62-63 (Nov. 9, 2004); Constance Collins Dep. 165-
66 (July 30, 2004). We also agree with the district court that
“the fact that the garage was ordinarily readily accessible
through the . . . lobby undercuts plaintiff’s argument that the
8
See DiSalvo, 974 A.2d at 873 (stating that in Kline, “‘crimes of
violence, robbery, and assault [ ] had been occurring with mounting
frequency on the premises’ and the landlord had been asked to secure
the building in light of the crime” (quoting Kline, 439 F.2d at 480));
Spar v. Obwoya, 369 A.2d 173, 177 (D.C. 1977) (noting that “there
was evidence of . . . individual apartment units of the building being
burglarized by forcible entry from the common hallway,” as well as
“complaints [by] the tenants”). In DiSalvo itself, the court rejected the
import of the plaintiffs’ claims of inadequate garage security, noting
that none of the crimes they detailed were committed in a campus
parking garage, that they “proffered no evidence that [the university]
had received any complaints about the security of [the] parking
garage,” and that the one request for more security it had received
“was routine and pro-active, . . . not in response to any specific
security concerns.” 974 A.2d at 873.
13
broken garage door made the bombing more foreseeable.” 475
F. Supp. 2d at 47.9
Finally, Sigmund maintains that there was a “special
relationship” between him and the defendants, which justifies
application of the “sliding scale” described by the Court of
Appeals in DiSalvo. There, the court said that “the relationship
between the defendant and plaintiff and the defendant’s liability
to the plaintiff can be viewed on a ‘sliding scale,’ whereby a
relationship entailing a greater duty of protection may require a
lesser showing of foreseeability in order for liability to attach.”
Id. at 872 (citing Workman v. United Methodist Comm. on
Relief, 320 F.3d 259, 264 (D.C. Cir. 2003)). But DiSalvo
expressed doubt that the defendant university in that case owed
its “adult, commuter students” such a “heightened duty of
protection,” id., and the relationship Sigmund claims to the
defendants here seems no more significant. In any event,
DiSalvo held that, “even if the relationship . . . did entail a
greater duty of protection,” finding the defendant liable “would
still require a heightened showing of foreseeability greater than”
the DiSalvo plaintiffs had shown. Id. Because Sigmund has
made a weaker showing than those plaintiffs did, “there is no
genuine issue as to any material fact and . . . the [defendants are]
entitled to judgment as a matter of law,” FED. R. CIV. P. 56(c).
9
Because the district court disposed of the case on the ground that
Sigmund failed to show foreseeability as a matter of law, we do not
address the defendants’ contention that he also failed to show that the
condition of the garage door was a proximate cause of his injuries
because access to the garage was available through the lobby. See
Sigmund, 475 F. Supp. 2d at 48; id. at 39 & n.3.
14
IV
For the foregoing reasons, the judgment of the district court
is
Affirmed.