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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2002 Decided February 25, 2003
No. 01-7161
MARYANN WORKMAN, INDIVIDUALLY AND AS PERSONAL AND
LEGAL REPRESENTATIVE OF THE ESTATE OF
DEENA MARIE UMBARGER,
DECEASED,
APPELLANT
v.
UNITED METHODIST COMMITTEE ON RELIEF OF THE
GENERAL BOARD OF GLOBAL MINISTRIES OF THE
UNITED METHODIST CHURCH,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv00616)
Mark London argued the cause and filed the briefs for
appellant.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
William H. Briggs, Jr. argued the cause for appellee.
With him on the brief was Cathlene A. Tharp.
Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: MaryAnn Workman, the mother of
a woman murdered in Somalia while on a mission for the
United Methodist Committee on Relief (UMCOR), sued
UMCOR, alleging that the defendant negligently failed to
prepare her daughter for and protect her from the dangers of
her assignment. We hold that the district court properly
entered summary judgment for the defendant on the ground
that Workman had failed to meet the ‘‘heightened foreseeabil-
ity standard’’ applicable under the law of the District of
Columbia to a case in which the harm arises from the criminal
act of a third party.
I. Background
Deena Marie Umbarger, a 1994 graduate of the Yale Law
School, left her law practice in 1997 to become a relief worker
for UMCOR. Her first international assignment was to
Kenya, followed by a brief stint in the Republic of Georgia.
In November 1998 she returned to Kenya to live with her
fianc´. There UMCOR retained her under a series of short-
e
term consulting agreements until her death in March 1999.
The agreements defined Umbarger’s role as that of an
independent contractor charged with evaluating UMCOR’s
past relief efforts in Kenya and Somalia and with developing
a plan for the future, possibly to include the opening of an
UMCOR office in Nairobi. Umbarger was UMCOR’s sole
representative in the region; she reported directly to Kemba
Eneas, UMCOR’s Program Director for Africa and the Carib-
bean, who was based in Virginia.
On March 20, 1999 Umbarger traveled to Somalia. An
UMCOR memorandum contains the following description,
based upon a report from the United States Embassy in
Kenya, of the events of that day:
3
At approximately 3:00 p.m., Deena and Ahmed Hus-
sein [of Somali Community Services/Nairobi] arrived
at Nkokani Airport, NW of Lamu, Kenya. Eight
people in a vehicle with a Somalian license tag
picked her up. Deena and her counterparts regis-
tered with the local police at the border to explain
their business with the community. Six of the eight
persons were there on the invitation of SCS, the
other two we[r]e from the Aqwin Militia who were
warlords there to monitor their activities. At 5:00
p.m. they arrived at a restaurant 40 km outside of
Kiangu, on the border of Kenya and Somalia (in the
SW corner of Somalia) where they were to meet five
town elders. At 5:30 p.m. before eating, a gunman
murdered Deena in the restaurant. The elders
caught the gunman; however, other members of the
militia shot in the air which startled the elders and
caused the gunman’s release. The persons that
were with Deena put her back in the vehicle and
drove her to the nearest clinic or hospital in Kenya
whe[r]e she was dead on arrival.
In February 2000 Workman filed a complaint in the Superi-
or Court for the District of Columbia alleging that UMCOR
had ‘‘failed to discharge its duty and obligation to protect
[Umbarger] as she assisted UMCOR in carrying out its
activities in Kenya and Somalia.’’ Workman sought damages
for Umbarger’s death under the District of Columbia Wrong-
ful Death Act, D.C. Code § 16–2701, and under the Survival
Statute, D.C. Code § 12–101, which allows a legal representa-
tive to bring a claim on behalf of a person who has died.
UMCOR, invoking federal diversity jurisdiction, removed the
case to the district court. In a ruling not challenged here,
the district court dismissed the wrongful death claim because
the statute applies only to deaths occurring within the Dis-
trict of Columbia.
At the close of discovery, UMCOR moved for summary
judgment on the negligence claim under the Survival Statute
arguing, as relevant here, that because UMCOR could not
have foreseen Umbarger’s murder, it had no duty to protect
4
her from that crime. In support of its motion, UMCOR
submitted declarations from Eneas and from Sam W. Dixon,
the head of UMCOR’s Nongovernmental Organization Unit.
Dixon stated that Umbarger’s duties were ‘‘to determine
whether there were sources of funding for relief projects in
the region and whether the region was safe and secure
enough to justify a permanent UMCOR presence,’’ and that
Umbarger was ‘‘solely TTT responsib[le]’’ for the manner in
which she carried out these duties, including her decision to
travel to Somalia. Dixon characterized Umbarger as
UMCOR’s ‘‘eyes and ears’’ in the region; indeed, ‘‘[t]he
information that UMCOR had about potential security risks
in Somalia came primarily from [her].’’ Dixon also stated:
I did not have, nor was I aware of anyone at
UMCOR who had, any advance knowledge or warn-
ing that TTT her travel to Somalia or work in Kenya
would put her at some unique risk beyond the
typical security risks known to anyone — including
Deena — who provides relief to people living in the
most dangerous areas of the world.
Eneas supported Dixon’s description of the relationship
between UMCOR and Umbarger. She stated that although
Umbarger reported to her, Eneas did not ‘‘supervise’’ Umbar-
ger and did not require Umbarger to travel to Somalia.
Eneas stated that Umbarger had gone to Somalia once
before, ‘‘without incident.’’ In addition, Eneas reported that
during her visit to Nairobi about a week prior to the fateful
trip, ‘‘[w]e spent a large amount of time together and Deena
never told me that she feared traveling to Somalia or that she
was concerned that she might be harmed in any way during
that trip. To the contrary, Deena was eager to travel to
Somalia.’’
In opposition to UMCOR’s motion for summary judgment,
Workman submitted the declaration of Michael D. O’Neill, the
Coordinator for Volunteer Safety and Overseas Security for
the Peace Corps. According to O’Neill, even in cases in
which decision-making is left to the aid worker, ‘‘the institu-
tion for whom she works also is expected to provide reason-
5
able safety and security support,’’ including ‘‘proper security
assessment of the area in question, appropriate risk reduction
strategies, a security management system, a program for
sharing information, and training.’’ By way of example,
O’Neill noted that the Peace Corps provides 12 weeks of
training to volunteers before they are posted abroad. O’Neill
stated that upon his review of the evidence, he had seen
nothing to indicate that Umbarger received ‘‘proper training
and guidance’’ or that UMCOR maintained a ‘‘reasonable
safety and security support system’’ for its overseas workers.
Workman also produced a February 1999 email from Um-
barger to Eneas, in which Umbarger had noted possible
irregularities in the accounting of relief funds earmarked for
Somali Community Services and expressed concern that her
investigation of the issue could render a planned trip to
Somalia particularly dangerous. She wrote:
I need to spend a fair amount of time with Fawzi
[the SCS liaison to UMCOR] getting the particulars
of just what was provided to beneficiaries. The local
SCS guys here are quite concerned that some of
what Fawzi put as outputs in the one final report I
do have was actually not correct. This could be a
very sensitive (not to mention dangerous) issue as
we try to confirm some of these things on the
ground, particularly if the local people begin to
suspect that they never received all of what SCS was
supposed to provide. They have told me that a
hostage/kidnapping situation would not be far-
fetched, and I am sure you would be as unhappy
receiving a midnight phone call for help as I would
be if I had to make one.
In addition, Workman produced an email to Shelly Suther-
land, whom Workman described as ‘‘a long time UMCOR
employee,’’ in which Umbarger wrote: ‘‘I feel like I am at the
breaking point with no support system or release valve. The
way things are going it wouldn’t surprise me if something
happened in Somalia.’’
6
The district court held that Workman’s evidence was insuf-
ficient as a matter of law to satisfy the ‘‘stringent showing of
heightened foreseeability required under District of Columbia
law’’ in a case in which the criminal act of a third party causes
injury. On appeal, Workman argues that, in the light of all
the evidence, the district court’s conclusion was erroneous.
II. Analysis
In the District of Columbia, a defendant may be liable for
harm caused by the criminal act of another only if the crime
was particularly foreseeable. See, e.g., Potts v. District of
Columbia, 697 A.2d 1249, 1252 (D.C. 1997) (‘‘Where an injury
is caused by the intervening criminal act of a third party, this
court has repeatedly held that liability depends upon a more
heightened showing of foreseeability than would be required
if the act were merely negligent’’). Courts in the District of
Columbia regularly grant a defendant’s motion for summary
judgment on the ground that the plaintiff’s evidence is ‘‘insuf-
ficient TTT to establish that [a] criminal act TTT was reason-
ably foreseeable.’’ Bailey v. District of Columbia, 668 A.2d
817, 822 (D.C. 1995); Potts, 697 A.2d at 1252–53. We review
de novo the district court’s determination that Workman
failed to present sufficient evidence to preclude summary
judgment. DeGraff v. District of Columbia, 120 F.3d 298,
301 (D.C. Cir. 1997).
How foreseeable must the crime have been for the plaintiff
to get her claim before a jury? The District of Columbia
Court of Appeals has said a ‘‘heightened showing’’ is required,
the requirement is a ‘‘demanding’’ one, and the proof must be
‘‘precise.’’ Potts, 697 A.2d at 1252. Foreseeability cannot be
predicated upon ‘‘generic information’’ such as crime rates,
Bailey, 668 A.2d at 820, or evidence that the defendant’s
employees worked in a ‘‘criminally active environment,’’
Clement v. Peoples Drug Store, Inc., 634 A.2d 425, 429 (D.C.
1993). The plaintiff is not, however, required to show ‘‘previ-
ous occurrences of the particular type of harm’’; the require-
ment ‘‘can be met instead by a combination of factors which
give [the] defendant[ ] an increased awareness of the danger
7
of a particular criminal act.’’ District of Columbia v. Doe,
524 A.2d 30, 33 (D.C. 1987).
Without more specific guidance, we are left to reason by
analogy from D.C. cases, as the district court did here. We
note first that the Court of Appeals has been reluctant to see
a defendant held liable for harm caused by the criminal act of
a third party. See, e.g., McKethean v. Washington Metropol-
itan Area Transit Authority, 588 A.2d 708, 717 (D.C. 1991)
(evidence regarding rate of collisions at bus stops and high
frequency of traffic accidents involving alcohol and drug
abuse insufficient); Bailey, 668 A.2d at 820 (finding insuffi-
cient ‘‘affidavits of witnesses who asserted that the area
around the school was a ‘high drug area’ and that shootings
occurred in that neighborhood’’); Clement, 634 A.2d at 427
(similar); Potts, 697 A.2d at 1252 (summary judgment war-
ranted in light of plaintiff’s failure to provide evidence of any
prior gun-related violence at similar events, ‘‘nor any other
specific evidence bearing directly on the foreseeability of the
shooting incident at issue’’). The Court’s reluctance is not
surprising, because the heightened foreseeability test pro-
vides a limited exception to the ‘‘general rule of nonliability’’
for such claims. Romero v. Nat’l Rifle Ass’n of America,
Inc., 749 F.2d 77, 81 (D.C. Cir. 1984).
Workman, naturally, relies upon the few cases in which a
court has found sufficient evidence of foreseeability either to
allow a claim to go to the jury or to uphold a jury verdict for
the plaintiff. In District of Columbia v. Doe, the Court of
Appeals upheld a jury verdict against the District after a
fourth grader was abducted from a classroom and raped.
The plaintiff’s evidence indicated that ‘‘school officials were on
notice of the danger to students from assaultive criminal
conduct by intruders.’’ 524 A.2d at 33–34. That evidence
included: ‘‘crimes against persons in and around the
school — an arson in the school and a robbery on the school’s
playground; sexual assaults and other violent activity in the
surrounding area; and deficient school security — the open
rear gate, broken doors, malfunctioning intercom, and pres-
8
ence of adult males who freely roamed throughout the
school.’’ Id. at 34. In those circumstances it would seem
only a matter of time until one of the District’s charges was
abducted or molested.
In Doe v. Dominion Bank of Washington, 963 F.2d 1552
(1992), a case in which the plaintiff was raped on a vacant
floor of an office building during business hours, this court
reversed the district court’s grant of a directed verdict in
favor of the defendant landlord. In the month preceding the
rape, tenants had lodged a number of complaints about
threatening intruders in the building. Id. at 1555–56. There
had also been reported thefts of personal property from
offices in the building and drug use and sexual activity in a
building rest room. Id. Again, another crime was just
waiting to befall a tenant.
In these cases a good deal of evidence suggested the
defendant was on notice there was a substantial risk of harm
to the plaintiff; in addition, the relationship between the
plaintiff and the defendant suggested the defendant should be
held liable as a matter of policy. For example, in Dominion
Bank the court imposed a duty of protection because the
landlord was in the better position both to know about
security threats and to protect against them. Id. at 1559
(relying upon ‘‘inability of an individual tenant to control the
security of common hallways, elevators, stairwells, and lob-
bies’’). Similarly, District of Columbia v. Doe involved the
District’s duty of custodial care for schoolchildren — a point
of distinction noted in other cases, including the decision here
under review. See, e.g., Clement, 634 A.2d at 429 (‘‘Implicit in
Doe’s holding was the notion that particular care is required
by school officials when the safety of young children is
involved’’); Bailey, 668 A.2d at 821 (noting that ‘‘victim was
young and she was taken from a place that we would expect
to be a safe haven, i.e., her classroom’’).
From our review of the D.C. cases, we see the requirement
that the defendant have been able to foresee that a third
party would likely commit a criminal act ordinarily has, and
perhaps must have, a relational component. See Romero, 749
9
F.2d at 81 (‘‘The only District cases departing from [the
‘general rule of nonliability’] involved either a special relation-
ship between the parties to the suit TTT or a relationship of
control between the defendant and the intervening criminal
actor’’). Indeed, the cases suggest a sliding scale: If the
relationship between the parties strongly suggests a duty of
protection, then specific evidence of foreseeability is less
important, whereas if the relationship is not of a type that
entails a duty of protection, then the evidentiary hurdle is
higher.
In the case at hand this principle supports the district
court’s grant of summary judgment in favor of UMCOR.
First, the evidence regarding the relationship between the
parties does not suggest that UMCOR should be held respon-
sible for Umbarger’s safety. UMCOR did not send Umbar-
ger to the region; she went there for personal reasons, after
which UMCOR contracted with her to assess factors, includ-
ing security risks, important to UMCOR’s decision whether to
open an office there. Umbarger decided how best to carry
out her mission, including whether and when to travel to
Somalia. Because UMCOR was in no better position to
provide for Umbarger’s safety than was Umbarger herself,
the relationship between the parties is unlike those in which
the courts have found a duty of protection. See Kline v. 1500
Massachusetts Ave. Apartment Corp., 439 F.2d 477, 483 (D.C.
Cir. 1970) (in general, no duty to take precautions against
foreseeable criminal attack unless ‘‘the ability of one of the
parties to provide for his own protection has been limited in
some way by his submission to the control of the other’’).
Insofar as the relationship between the parties in this case
tilts against holding the defendant liable for the harm caused
by someone else’s criminal act, the plaintiff’s evidence of
foreseeability must be particularly strong to survive summary
judgment — which it is not. Although there can be no doubt
that Umbarger faced far greater risks in Somalia than she
would have in a less volatile part of the world, the local
courts, as the learned district judge noted, give little or no
10
weight to ‘‘generic information’’ regarding the dangerousness
of an area. Bailey, 668 A.2d at 820; Clement, 634 A.2d at
429. The O’Neill declaration, which Workman complains the
district court ignored, is at best evidence of this generic type,
insofar as it reflects at all upon foreseeability.
Workman’s only specific evidence of foreseeability consist-
ed of the email messages Umbarger sent to Eneas and
Sutherland. As for the latter, UMCOR notes, and Workman
does not dispute, that there was no evidence that Sutherland
was an UMCOR employee at the time she received Umbar-
ger’s email, or that its contents were ever conveyed to anyone
at UMCOR. Although Umbarger did in the message to
Eneas describe the possibility of her being kidnapped as ‘‘not
TTT farfetched,’’ there was no evidence that the contingency
Umbarger feared might put her in danger — namely, the
‘‘local people begin[ning] to suspect that they never received
all of [the aid] SCS was supposed to provide’’ — ever materi-
alized. Moreover, again as noted by the district court, Um-
barger in the same message sought to extend her contract
and remarked that ‘‘[t]hings seem really positive here, and I
would really like to follow them up.’’ Umbarger later made
an initial visit to Somalia without incident, and did not
reiterate any concern to Eneas when Eneas visited her in
Kenya shortly before Umbarger’s second trip to Somalia. In
these circumstances, all of which were known to UMCOR,
Workman simply asks too much when she says that ‘‘UMCOR
should have read these emails as a plea from a proud woman
asking them to keep her from going to Somalia.’’ The district
court correctly concluded that Umbarger’s message did not
put UMCOR on notice of the danger that materialized.
We recognize that our approach in resolving this appeal —
that is, considering the relationship between the parties in
establishing the degree of foreseeability necessary to support
liability — might offend a doctrinaire. Ordinarily, the rela-
tionship between the parties is the key to determining wheth-
er the defendant had a legally enforceable duty to the plain-
tiff (or her decedent), whereas foreseeability is important to
issues of proximate causation and conformity to the standard
11
of care, issues that arise only after a duty has been found.
See, e.g., William L. Prosser, et al., The Law of Torts § 53
(5th ed. 1984) (‘‘[i]t is better to reserve ‘duty’ for the problem
of the relation between individuals which imposes upon one a
legal obligation for the benefit of the other TTT’’); Dominion
Bank, 963 F.2d at 1560 (‘‘Once it is established that duties,
generally, are owed to one party TTT by another TTT the
foreseeability of the risk at issue in a particular case might
seem more applicable to determining whether the standard of
care has been breached’’); cf. id. at 1564 (Williams, J.,
concurring) (foreseeability, ‘‘[t]hough framed as an issue re-
lating to ‘duty,’ [at least in the context of] landlord liability for
criminal acts [of another] TTT merges with the proximate
cause analysis’’).
Sitting in diversity, however, our task is to apply the law of
the District of Columbia as its own courts would apply it, not
to second-guess the analytical framework those courts have
erected. See Dominion Bank, 963 F.2d at 1560. And the
D.C. courts have repeatedly spoken of the heightened fore-
seeability requirement in terms of duty. E.g., Graham v. M.
& J. Corp., 424 A.2d 103, 105 (D.C. 1980) (‘‘[f]oreseeability is
the key element in establishing the landlord’s duty’’ in case
involving intervening criminal act); Potts, 697 A.2d at 1252
(‘‘the plaintiff has the burden of establishing that the criminal
act was so foreseeable that a duty arises to guard against it’’).
Although the courts did, in early decisions considering liabili-
ty for harm caused by the criminal act of a third party,
inquire at the threshold into the propriety of imposing a duty
of protection based upon the relationship between the plain-
tiff and the defendant, e.g., Kline, 439 F.2d at 483, the courts
have in more recent cases tended to leapfrog directly to the
foreseeability issue, with the parties’ relationship, as noted
above, a factor relevant to determining whether the require-
ment of foreseeability has been satisfied. Although perhaps
not analytically the most obvious approach, neither does it
strike us as imprudent. But even if it did, we would be bound
to apply it.
12
III. Conclusion
Because Workman failed to adduce sufficient evidence to
create a genuine issue of heightened foreseeability, the judg-
ment of the district court is
Affirmed.