Davis v. Bud and Papa, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LEAH WHITNEY DAVIS, :
:
Plaintiff, Counter-Defendant : Civil Action No.: 11-1001 (RC)
:
v. : Re Document No.: 11
:
BUD AND PAPA, INC., :
:
Defendant, Counter-Claimant. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT

I. INTRODUCTION

This is a personal injury case that stems from an altercation that occurred at a nightclub.

The plaintiff alleges that she got into a confrontation with the club’s security personnel. In the

ensuing scuffle, the plaintiff claims that a security guard tased her in the neck. She brought suit

against the nightclub for assault, battery, intentional infliction of emotional distress (“IIED”),

and negligence. The defendant filed a motion for summary judgment, in which it contends that

the plaintiff cannot prove her claim without an expert witness. In her opposition, the plaintiff

asks the court to grant summary judgment on her negligence claims, and the court will oblige.

The plaintiff nevertheless insists that her claims of assault, battery, and IIED may proceed

because they do not require expert testimony. Because the defendant has not shown that the

plaintiff’s remaining tort claims involve matters that lie beyond the comprehension of a lay jury,

the court will deny the defendant’s motion in part.

II. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Around 1:45 a.m. on March 21, 2011, Leah Davis and her sister prepared to leave Layla

Lounge, a D.C. nightclub that is operated by the defendant. Compl. ¶ 4. While exiting, Ms.
Davis alleges that she exchanged heated words with one of the nightclub’s security personnel.

Id. The plaintiff alleges that the security guard then forcefully shoved her. Id. As the security

guard continued to push her backwards, the plaintiff then heard the crackle of electricity and felt

an electric shock; the plaintiff alleges that she was tased in the neck. Pl.’s Stmt. of Facts ¶¶ 1–2.

The plaintiff brought suit for assault (Count I), battery (Count II), IIED (Count III), and

negligence (Count IV).1 The plaintiff does not bring suit against the individual security guard;

she instead claims that the nightclub is vicariously liable for its employee’s acts under the

doctrine of respondeat superior. Compl. ¶¶ 39–42.2 The defendant moves for summary

judgment on all counts.

III. ANALYSIS

A. Legal Standard for a Motion for Summary Judgment

Summary judgment may be granted when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a). A fact is “material” if it is capable of affecting the substantive outcome of the

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if

sufficient evidence exists such that a reasonable jury could return a verdict for the non-moving

party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

The principal purpose of summary judgment is to streamline litigation by disposing of

factually unsupported claims or defenses and determining whether there is a genuine need for

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The moving party bears the initial

1
The plaintiff claims that the defendant is liable for general negligence, negligent supervision, and
negligent training. Compl. ¶¶ 25–38.
2
Federal jurisdiction exists because of diversity between the parties. Compl. ¶ 2; see 28 U.S.C. §
1332.

2
responsibility of identifying those portions of the record which demonstrate the absence of any

genuine issue of material fact. Id. at 323; FED. R. CIV. P. 56(c)(1)(A) (noting that the movant

may cite to “depositions, documents, electronically stored information, affidavits or declarations,

. . . admissions, interrogatory answers, or other materials”). In response, the non-moving party

must similarly designate specific facts in the record that reveal a genuine issue that is suitable for

trial. Celotex, 477 U.S. at 324.

On a motion for summary judgment, the court must “eschew making credibility

determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.

2007), and all underlying facts and inferences must be analyzed in the light most favorable to the

non-moving party, Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered

without any evidentiary support do not establish a genuine issue for trial. Greene v. Dalton, 164

F.3d 671, 675 (D.C. Cir. 1999).

B. The Court Will Grant the Defendant’s Motion for Summary Judgment on the
Plaintiff’s Negligence Claims3

The plaintiff initially alleged that the defendant is liable for various forms of negligence.

See Compl. ¶¶ 25–38. In general, to prevail on a negligence claim, a plaintiff must show: (1)

that the defendant owed a duty to the plaintiff, (2) a breach of that duty, and (3) an injury to the

plaintiff that was proximately caused by the breach. Hedgepeth v. Whitman Walker Clinic, 22

A.3d 789, 793 (D.C. 2011). Ordinarily, a defendant owes the plaintiff a duty equivalent to the

standard of care deployed by a “reasonable man under like circumstances.” RESTATEMENT

(SECOND) OF TORTS § 283 (1965). In cases involving crowd control and public safety, courts

3
One preliminary matter requires the court’s attention: the plaintiff argues that the defendant’s
motion does not comply with Local Civil Rule 7(h)(1), which requires that a motion for summary
judgment be accompanied by a statement of material facts. But the defendant’s motion clearly
includes such a statement, which falls under the heading “STATEMENT OF FACTS.” See Def.’s
Mot. at 3–5. Accordingly, the court will not deny the defendant’s motion on this ground.

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have often concluded that expert testimony is needed to define the requisite standard of care.

Edwards v. Okie Dokie, Inc., 473 F. Supp. 2d 31, 45 (D.D.C. 2007); Varner v. District of

Columbia, 891 A.2d 260, 265 (D.C. 2006) (quoting District of Columbia v. Wilson, 721 A.2d

591, 597 (D.C. 1998)); but see Godfrey v. Iverson, 559 F.3d 569, 572 (D.C. Cir. 2009)

(emphasizing that expert testimony is not always required). And if expert testimony is necessary

to establish the relevant standard of care, a plaintiff’s failure to name an expert may be fatal to

her claim. Godfrey, 559 F.3d at 572. Here, the defendant asserts that the plaintiff cannot prove

her claim without expert testimony on the relevant standard of care. Def.’s Mot. at 8. Because

the plaintiff has not named such a witness, the defendant concludes that it is entitled to summary

judgment. Id. Although the court is not entirely persuaded by the defendant’s argument, the

issue is now moot because the plaintiff no longer wishes to pursue her negligence claims. Pl.’s

Opp’n at 15. Accordingly, the court will grant the defendant’s motion in part.

C. The Court Will Deny the Defendant’s Motion for Summary Judgment on the Plaintiff’s
Remaining Tort Claims

The defendant argues that the plaintiff cannot prove her remaining tort claims without

expert testimony. Def.’s Mot. at 11. The court disagrees. District of Columbia law provides

that expert testimony is required whenever the subject matter is “so distinctly related to some

science, profession or occupation as to be beyond the ken of the average layperson.” Beard v.

Goodyear Tire & Rubber Co., 587 A.2d 195, 200 (D.C. 1991) (citation omitted). On the other

hand, if the conduct is “within the realm of common knowledge and everyday experience, the

plaintiff is not required to adduce expert testimony . . . .” Id. (citations omitted). Thus, the Court

of Appeals has steadfastly applied a simple rule: expert testimony is required when “the subject

matter is too technical for the lay juror.” District of Columbia v. Hampton, 666 A.2d 30, 36

(D.C. 1995). And the decision whether to require expert testimony “is confided to the sound

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discretion of the district court.” Varner v. District of Columbia, 891 A.2d 260, 266 (D.C. 2006);

see also Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962) (“The trial judge has broad discretion in

the matter of the admission or exclusion of expert evidence, and his action is to be sustained

unless manifestly erroneous.”).

D.C. law often requires expert testimony in tort cases, even when the facts underlying the

plaintiff’s injury might seem fairly straightforward. See Varner, 891 A.2d at 267 (collecting

cases). But while the D.C. Court of Appeals often requires expert testimony in cases involving

public safety, it would be legal error to conclude that expert testimony is always required.

Godfrey v. Iverson, 559 F.3d 569, 572 (D.C. Cir. 2009). Instead, courts should determine

whether expert testimony is required on a case-by-case basis. Id.; see Wesby v. District of

Columbia, 2012 WL 130750, at *48 (D.D.C. Jan. 18, 2012) (concluding that expert testimony is

not always necessary to succeed on tort claims involving public safety). And courts deciding

whether to require expert testimony have carefully avoided the imposition of blanket rules,

instead being mindful that each case must turn on its facts. See Kotsch v. District of Columbia,

924 A.2d 1040, 1047 (D.C. 2007) (concluding that it would be “legal error” to impose a strict

expert-testimony requirement for all assault and battery claims); Halcomb v. Woods, 610 F.

Supp. 2d 77, 81 n.2 (D.D.C. 2009) (noting that the plaintiff was under “no obligation to produce

expert testimony” in support of her IIED claim); see Baltimore v. B.F. Goodrich Co., 545 A.2d

1228, 1231 & n.5 (D.C. 1988) (indicating that “[IIED] cases presenting medically complicated

questions” involving thorny issues of causality may require expert testimony, but that simpler

IIED cases may not).

Here, the defendant has submitted no arguments to suggest that the plaintiff’s claim is too

technical for a lay jury to understand. The defendant does not argue that the defendant runs a

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particularly complex security operation. Cf. Edwards v. Okie Dokie, Inc.. 473 F. Supp. 2d 31, 45

D.D.C. 2007) (“The [Defendant’s] Nightclub is a large and complicated operation. It is made up

of four floors, four decks, VIP rooms, and a Penthouse Suite. [The club] may host 3,000 to

5,000 guests throughout a single night.”) (citations omitted). Nor does the defendant contend

that the training procedures of its security personnel are too difficult or complicated for a

layperson to understand. Cf. District of Columbia v. Davis, 386 A.2d 1195, 1200 (D.C. 1978)

(concluding that the trial court did not abuse its discretion in requiring expert testimony when the

plaintiff’s claim required an “understanding of how [police officers’] weapons are assembled, the

dangers inherent in their use, and the most effective method . . . of instructing the officers as to

how to minimize those dangers”). Instead, the defendant simply insists that D.C. law imposes an

across-the-board expert testimony requirement for tort cases involving public safety. But this

conclusion is incorrect.4 In sum, the court finds that the defendant has not shown why the facts

of this particular case are too complicated for a lay jury to understand. See Varner, 891 A.2d at

266.

The defendant’s next argument is somewhat misplaced. The defendant argues that the

plaintiff cannot succeed on her assault, battery, or IIED claims because expert testimony is

required to prove the relevant “standard of care.” Def.’s Mot. at 11. This argument is predicated

on the faulty assumption D.C. law always requires expert testimony on this matter. See id. But

the defendant compounds the error by overlooking the differences between the elements of the

plaintiff’s various claims. While the “standard of care” is an element of a negligence claim, it is

4
The defendant’s argument relies exclusively on Edwards v. Okie Dokie, Inc.. 473 F. Supp. 2d 31,
45 (D.D.C. 2007) for the notion that D.C. law always requires expert testimony to prove such
claims. But the Circuit has explicitly rejected this conclusion. Godfrey, 559 F.3d at 572 (“We do
not believe [Edwards v. Okie Dokie and other] cases stand for the proposition that expert
testimony is always required . . . in cases involving supervision of security personnel . . . .”).

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not an element of a claim for assault, battery, or IIED. See Halcomb v. Woods, 767 F. Supp. 2d

123, 136 (D.D.C. 2011) (defining assault as “an intentional and unlawful attempt or threat, either

by words or by acts, to do physical harm to the victim.”); id. (defining battery as “an intentional

act that causes a harmful or offensive bodily contact.”); Baltimore v. District of Columbia, 10

A.3d 1141, 1155 (D.C. 2011) (listing the elements of an IIED claim as (1) extreme and

outrageous conduct which (2) intentionally or recklessly (3) causes the plaintiff severe emotional

distress). And because the plaintiff no longer wishes to pursue her negligence claim, the relevant

“standard of care” is immaterial. Celotex, 477 U.S. at 323 (underscoring that summary judgment

is only warranted when the defendant shows that the plaintiff cannot prove “an essential element

of her case with respect to which she has the burden of proof”); In re NBW Commercial Paper

Litig., 813 F. Supp. 7, 20 (D.D.C. 1992) (noting that the plaintiff’s failure to adduce proof on a

topic was immaterial because that topic was not an element of the plaintiff’s prima facie case).

In sum, the defendant has put forth no reason to believe that the plaintiff will be unable to

succeed on her claims for assault, battery, and IIED. Accordingly, the court will deny the

defendant’s motion for summary judgment as it pertains to those claims.

D. The Defendant’s Remaining Arguments Do Not Establish that It Is Entitled to
Summary Judgment

The defendant raises two additional arguments in its reply. See Def.’s Reply at 5–7

(attacking the adequacy of the plaintiff’s evidence); id. at 10 (arguing that the plaintiff consented

to the offensive touching). Of course, it is a well-settled prudential doctrine that courts generally

will not entertain new arguments first raised in a reply brief. Aleutian Pribilof Islands Ass’n, Inc.

v. Kempthorne, 537 F. Supp. 2d 1, 12 n.5 (D.D.C. 2008) (citing Herbert v. Nat’l Acad. of Scis.,

974 F.2d 192, 196 (D.C. Cir. 1992)); see McBride v. Merrell Dow & Pharm., 800 F.2d 1208,

1211 (D.C. Cir. 1986) (“Considering an argument advanced for the first time in a reply brief . . .

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is not only unfair to an appellee, but also entails the risk of an improvident or ill-advised opinion

on the legal issues tendered.”). For the sake of thoroughness, however, the court will briefly

explain why these arguments must also be rejected.

In support of her opposition, the plaintiff has submitted two affidavits: one from her

sister—a witness to the events—and one from the plaintiff herself. The defendant argues that the

court must reject the plaintiff’s affidavit because it does not “lay any foundation establishing

how [the plaintiff] has personal knowledge of what a taser looks, feels or sounds like.” See

Def.’s Reply at 6. The defendant is correct to note that a witness must have personal knowledge

regarding the subject of her testimony. FED. R. EVID. 602. But this not a particularly high bar;

testimony need only be “rationally based on the witness’s perception.” FED. R. EVID. 701(a).

And personal knowledge may be established by the witness’ own testimony. FED. R. EVID. 602.

Thus, the plaintiff may testify to any matter that she personally knows via sensory perception—

i.e., the zap of electricity she heard and the electrical shock she felt. The same goes for the

plaintiff’s sister, who was present at the scene and may testify as to any events she observed

firsthand.5 And if credited, a reasonable jury could conclude that the plaintiff suffered an injury

at the hands of the defendant’s employees. Thus, the plaintiff has submitted enough evidence to

create a genuine issue of material fact that is suitable for trial. Celotex, 477 U.S. at 324.

The defendant also argues that the plaintiff consented to the tasing by choosing to enter

the nightclub. Def.’s Reply at 11 (“Plaintiff gave consent to a certain amount of touching once

she entered the nightclub that night.”). The defendant notes: “Bouncers may have to use some

force, as long as it is not excessive, to accomplish this goal [of public safety], especially in the

5
The defendant also argues that the plaintiff has not demonstrated her competency to testify.
Def.’s Reply at 6. But Rule 601 makes clear that “[e]very person is competent to be a witness
unless these rules provide otherwise.” Thus, the defendant appears to be restating its argument
that the plaintiff lacks personal knowledge.

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case of unruly, staggering, or cantankerous patrons.” Id. A point well taken, but this assertion

alone will not insulate the defendant from liability. It is true that a plaintiff generally cannot

recover in tort if she consented to the allegedly offensive acts. See RESTATEMENT (SECOND) OF

TORTS § 892A; Evans v. Wash. Ctr. for Internships & Acad. Seminars, 587 F. Supp. 2d 148, 151

(D.D.C. 2008). But the presence and scope of consent is a fact-sensitive matter. See Graham v.

Davis, 880 F.2d 1414, 1418 (D.C. Cir. 1989) (noting that “the defense of consent would not be

available to [the defendant] if the jury found that the amount of force he used . . . exceeded the

scope of [the plaintiff’s] consent”); see Evans, 587 F. Supp. 2d at 151 (“[W]hether the plaintiff

consented to the [defendant’s] physical contact is a question of fact.”). And the plaintiff

vigorously disputes that she consented to the security guard’s actions. See Pl.’s Opp’n at 8–10.

Given that Tasers are apparently illegal in the District of Columbia,6 it is unclear how a patron at

a nightclub could implicitly consent to be the subject of an illegal act. Accordingly, summary

judgment would be premature, and this matter must be resolved by a factfinder at trial.

IV. CONCLUSION

For the foregoing reasons, the court grants in part and denies in part the defendant’s

motion for summary judgment. An order consistent with this memorandum opinion is separately

issued this 8th day of August, 2012.

RUDOLPH CONTRERAS
United States District Judge

6
See D.C. CODE § 7-2502.01 (forbidding the possession of any “destructive device”); id. § 7-
2501.01(7)(D) (defining a “destructive device” as “any device designed . . . to stun or disable a
person by means of electric shock”); see Applicability of Articles 50 and 55 of the Police
Regulations With Respect to the Taser Public Defender, Op. D.C. Att’y Gen. 850 (1976),
available at 1976 D.C. AG LEXIS 10 (concluding that a Taser is a “destructive device” under
prior regulations).

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