United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 26, 2005 Decided July 7, 2006
No. 04-7149
DOMINIC NOVAK,
APPELLANT
v.
CAPITAL MANAGEMENT AND DEVELOPMENT CORPORATION,
ET AL.,
APPELLEES
Consolidated with
04-7150
Appeals from the United States District Court
for the District of Columbia
(No. 01cv00039)
(No. 01cv00456)
Patrick M. Regan argued the cause for appellants. With him
on the briefs were Jonathan E. Halperin and Thanos Basdekis.
William C. Parler, Jr. argued the cause and filed the briefs
for appellee.
2
Before: HENDERSON and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Opinion concurring in part and dissenting in part filed by
Circuit Judge KAREN LECRAFT HENDERSON.
GRIFFITH, Circuit Judge: Twelve to fifteen thugs criminally
attacked and permanently injured appellants Dominic Novak and
George Valdivia as they were leaving a bar and dance club in
the District of Columbia. The attack occurred late at night in an
alley that was immediately outside the only exit from the club
and was the most common path for departing patrons. The club’s
operators allegedly knew that there had been numerous attacks
on their customers in and around the club at that time of night
and yet failed to take steps to protect Novak and Valdivia. This
case presents the question whether the club’s operators had a
duty to use reasonable care to protect Novak and Valdivia from
the danger of an attack. The District Court concluded there was
no such duty because the club did not exercise “exclusive
control” over the alley and granted summary judgment for the
club’s operators. The District Court also held that evidence of
two similar assaults per month witnessed by the club’s security
guards was insufficient to make this attack foreseeable.
Applying District of Columbia case law, we conclude that the
District of Columbia Court of Appeals would not look to
whether the club exercised “exclusive control” over the alley,
but would instead inquire whether the club put the alley to a
“substantial special use.” Because a reasonable jury could find
facts establishing that the club put the alley to a substantial
special use, and because evidence of two fights per month
occurring in the alley could demonstrate foreseeability, we
reverse and remand.
3
I.
The Zei Club is a bar and dance club owned and operated
by appellees Capital Management and Development
Corporation; Menage Limited Partnership; Zei, Inc.; Capital
Restaurant Concepts, Ltd.; Power Station Limited Partnership;
and SJG Properties.1 The club is not located on any particular
street. Rather, it is abutted by alleys on each side and situated
near the intersection of I and 14th Streets in Northwest
Washington, D.C. It is surrounded by office buildings and only
accessible via alleys. There are two main alleys leading to the
club, one running east-west from 14th to 15th Street, named
“Zei Alley,” and another running from Zei Alley north to I
Street (the “I Street alley”). At around 2:35 a.m. on March 23,
1998, Novak and Valdivia were attacked by a group of twelve
to fifteen men in the I Street alley. At that hour, the front doors
to the club were locked, and thus the rear exit onto the I Street
alley was the only way to leave the club. Upon exiting, Novak
and Valdivia turned south to head toward the entrance in order
to exit through Zei Alley. They immediately encountered the
men, who had been standing next to a wall in the I Street alley
across from the rear exit. The group followed Novak and
Valdivia for a few steps and attacked them within view of the
exit. The assailants struck Valdivia several times with fists.
They tripped Novak, then hit him in the back of the head with a
wooden board.
Upon learning of the assault, two off-duty Metropolitan
Police Department (“MPD”) officers working security at the
club, appellees Michael Braxton and Ricky Waller, ran out of
1
For ease of reference, we will refer to the owners and
operators of the Zei Club collectively as the “Zei Club” or “club.”
4
the club, stopped the attack, and apprehended some of the
assailants.2 Novak and Valdivia had been beaten badly. Valdivia
required emergency treatment and months of physical therapy
and Novak emerged from a three-week long coma with
permanent loss of various brain and motor functions.
The Zei Club employed fifteen security guards to protect
against frequent fights in the club and knew that fights in the
alley near the club’s rear exit were common. Several former Zei
Club security guards testified consistently that they witnessed
between one and two fights a month in the alleys around the exit
from the club and witnessed fights within the club with the same
frequency.
Novak and Valdivia argued to the District Court that the Zei
Club had a duty to protect departing patrons from fights it knew
were likely to occur outside the club’s sole exit. The Zei Club,
on the other hand, argued that its duty to protect patrons was
limited to the interior of the club and ended at the club’s
doorstep. The District Court agreed with the Zei Club and
granted summary judgment in its favor. Looking to Kline v.
1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477
(D.C. Cir. 1970), the District Court held that a business has a
duty to protect its patrons from criminal assaults on adjacent
property only if “the criminal activity takes place ‘in the portion
of the premises exclusively within [its] control’ and the business
has ‘exclusive power to take prevent[]ive action.’” Dist. Ct. Op.
at 5 (quoting Kline, 439 F.2d at 481) (first alteration in original;
2
The Zei Club’s own incident report from that night described
another “confrontation” taking place inside the club at 2:30 a.m. “All
persons involved in [the inside] incident,” according to the report,
were “ejected from the club.” “Moments later,” appellees Braxton and
Waller were called “back outside to stop another fight that was going
on.”
5
emphasis added). The District Court concluded that the “Zei
Club did not have exclusive control over the I Street alley”
because it noted that the District of Columbia MPD had
“discretion to close off all the alleys surrounding the Zei Club”
to car traffic, its “officers patrolled the alleys,” and “off-duty
MPD officers employed by the Zei Club were not allowed to
patrol the alleys because they were already covered by on-duty
MPD officers.” Dist. Ct. Op. at 9-10 (emphasis added). In the
District Court’s view, this lack of exclusive control over the I
Street alley relieved the Zei Club of any duty of care to patrons
using the alley to leave the club.
The District Court also held that no reasonable juror could
find that the attack on Novak and Valdivia was foreseeable to
the Zei Club. The Zei Club argued that there was no history of
criminal assaults in the I Street alley and that in the fifteen
months before the attack, police reports showed only three fights
at the Zei Club—two inside and one outside. Dist. Ct. Op. at 6.
Novak and Valdivia proffered contrary evidence demonstrating
that criminal assaults were, in fact, common inside the club and
in the nearby surrounding alleys. The District Court
acknowledged that fights occurred as often as twice a month but
concluded that these fights were not sufficiently “frequent.” Id.
at 7.
Novak and Valdivia also argued that the club failed to
follow its own security policy, which, they alleged, required the
club’s guards to secure and patrol the adjacent alleyways. The
club’s alleged failure to follow this policy on the night of the
attack amounted to, in the appellants’ view, a breach of the
club’s duty to protect departing patrons. The District Court
rejected this theory of negligence and concluded in the
alternative that there was insufficient evidence of such a policy.
Id. at 12, 14.
6
Novak and Valdivia filed a timely notice of appeal,
invoking our jurisdiction under 28 U.S.C. § 1291. We review
“the district court’s grant of summary judgment de novo.” Info.
Handling Servs., Inc. v. Def. Automated Printing Servs., 338
F.3d 1024, 1031 (D.C. Cir. 2003). “Summary judgment is
appropriate only if ‘there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a
matter of law.’” Id. at 1031-32 (quoting Fed. R. Civ. P. 56(c)).
We “must view the evidence in the light most favorable to the
nonmoving party,” Breen v. Dep’t of Transp., 282 F.3d 839, 841
(D.C. Cir. 2002), “and draw all reasonable inferences in [that
party’s] favor.” Waterhouse v. District of Columbia, 298 F.3d
989, 991 (D.C. Cir. 2002). Because we are reviewing a grant of
summary judgment in favor of the club, we have stated the facts
in the light most favorable to Novak and Valdivia. See, e.g.,
Info. Handling Servs., 338 F.3d at 1032.
II.
Novak and Valdivia brought their common law tort claim
in the United States District Court for the District of Columbia
alleging diversity jurisdiction. Neither the parties nor the District
Court questioned subject matter jurisdiction. They should have.
When this appeal reached this Court, we requested that the
parties brief jurisdictional problems apparent from the face of
the complaint. Novak and Valdivia failed to allege their
citizenship and the citizenship of two individual defendants,
Michael Braxton and Ricky Waller, and claimed only that both
plaintiffs and these two defendants were “residents” of
Maryland. At the least, alleging that all plaintiffs and some
defendants are “residents” of Maryland raises the concern that
there might not be complete diversity between all plaintiffs and
7
all defendants.3 But before that issue can be reached, plaintiffs’
residency allegation raises a threshold problem: “an allegation
of residence alone is insufficient to establish the citizenship
necessary for diversity jurisdiction.” Naartex Consulting Corp.
v. Watt, 722 F.2d 779, 792 n.20 (D.C. Cir. 1983) (emphasis
added). Citizenship is an essential element of federal diversity
jurisdiction; failing to establish citizenship is not a mere
technicality. “[T]he party seeking the exercise of diversity
jurisdiction bears the burden of pleading the citizenship of each
and every party to the action.” Id. at 792.
The complaint also contained no allegations regarding the
states of incorporation and principal places of business of the
corporate defendants, instead alleging only that one defendant,
Capital Management and Development Corporation, operated a
business in the District of Columbia. “[A] properly pleaded
diversity action . . . will not only allege that there is diversity of
citizenship, but will also advert to the factors set out by [28
U.S.C.] § 1332(c) that establish corporate citizenship.” District
of Columbia ex rel. Am. Combustion, Inc. v. Transamerica Ins.
Co., 797 F.2d 1041, 1043-44 (D.C. Cir. 1986). Thus, a
complaint must provide “a statement of . . . the corporations’
states of incorporation and their principal places of business.”
Id.
3
Section 1332(a) of Title 28, United States Code, provides:
“district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between . . . citizens of different
States . . . .” “When a plaintiff sues more than one defendant in a
diversity action, the plaintiff must meet the requirements of the
diversity statute for each defendant or face dismissal.” Newman-
Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989) (emphasis
in original).
8
Following our call for supplemental briefing, Novak and
Valdivia moved to dismiss Braxton and Waller as dispensable,
non-diverse parties pursuant to Fed. R. Civ. P. 21, which
provides: “Parties may be dropped or added by order of the court
on motion of any party or of its own initiative at any stage of the
action and on such terms as are just.”4 We granted the motion
and dismissed Braxton and Waller from the lawsuit. The
remaining appellees conceded that they “are to be deemed
citizens of the District of Columbia.” We also granted a motion
by Novak and Valdivia to amend their complaint to plead
citizenship properly, which they did.5 With the case properly
before us, we turn to the merits of this appeal.
III.
“Except in matters governed by the Federal Constitution or
by acts of Congress, the law to be applied in any case is the law
of the state.” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
In Lee v. Flintkote Co., 593 F.2d 1275, 1279 n.14 (D.C. Cir.
1979), we concluded that the Erie doctrine also applies to the
District of Columbia. Thus, in “a diversity case, the substantive
4
“Although the Federal Rules of Civil Procedure strictly
apply only in the district courts,” Newman-Green, 490 U.S. at 832,
“the weight of authority favor[s] the view that appellate courts
possess[] the authority to grant motions to dismiss dispensable
nondiverse parties.” Id. at 836. “Today [appellate] courts rely on . . .
Federal Rule 21” for the authority to dismiss nondiverse parties. Id. In
Newman-Green, the Supreme Court “decline[d] to disturb that deeply
rooted understanding of appellate power.” Id.
5
Under the liberal amendment rule of 28 U.S.C. § 1653, “a
party who has not proved, or even alleged, that diversity exists [may]
amend his pleadings even as late as on appeal.” Transamerica, 797
F.2d at 1044.
9
tort law of the District of Columbia controls.” Smith v. Wash.
Sheraton Corp., 135 F.3d 779, 782 (D.C. Cir 1998). Our duty,
then, is to achieve the same outcome we believe would result if
the District of Columbia Court of Appeals considered this case.
See Workman v. United Methodist Comm. on Relief, 320 F.3d
259, 262 (D.C. Cir. 2003) (this Court “reason[s] by analogy
from D.C. cases” to predict the law the District of Columbia
Court of Appeals would apply if it decided this case).
A. The Zei Club’s Duty Over an Adjacent Egress.
In the District of Columbia, as elsewhere, “[t]o establish
negligence 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.,
847 A.2d 1127, 1135 n.2 (D.C. 2004) (quoting District of
Columbia v. Harris, 770 A.2d 82, 87 (D.C. 2001)) (quotation
marks and alteration omitted). At issue in this case is whether
the Zei Club had a duty to use reasonable care to protect Novak
and Valdivia from criminal conduct in an alley used as the
club’s egress.
It is fundamental and well-settled that a business invitor has
a duty of care to its patrons while they are on its premises. See,
e.g., Seganish v. District of Columbia Safeway Stores, Inc., 406
F.2d 653, 655 (D.C. Cir. 1968) (a business invitor’s “duty is to
exercise reasonable care to keep his place of business safe for
the customer using it”); Smith v. Safeway Stores, Inc., 298 A.2d
214, 216 (D.C. 1972) (discussing Seganish). In the District of
Columbia, under Viands v. Safeway Stores, Inc., 107 A.2d 118
(D.C. 1954), and its progeny, a business’s duty extends to
protecting its customers from foreseeable harm caused by third
parties at its “exit doorway and the approach thereto.” Id. at 121.
In Viands, a customer leaving a grocery store through its only
10
exit tripped over a small wagon that had been left on a public
sidewalk by some young boys. Id. at 119. Though not store
employees, the boys customarily gathered outside the store to
offer delivery services for a fee. Id. The trial court instructed the
jury that “there can be no duty imposed on the defendant in this
or any other case of this type with respect to space over which
the defendant has no control and no legal opportunity for
control.” Id. The Court of Appeals disagreed, concluding that
the trial court stated too narrow a view of a business’s duty of
care. Id.
Under Viands, business invitors in the District of Columbia
have a duty of care to monitor the entrances and exits of their
premises. “There is nothing novel or extraordinary surrounding
the duty of an invitor to use care with reference to exits,
entrances, and approaches to his premises.” Id. at 119. This duty,
the Court concluded, is well grounded in the common law and
Supreme Court precedent:
As long ago as 1881, the United States Supreme Court,
speaking through Justice Harlan, stated the rule,
“founded in justice and necessity and illustrated in
many adjudged cases in the American courts” that an
owner or occupant of land is liable to an invitee “for
injuries occasioned by the unsafe condition of the land
or its approaches, if such condition was known to him
and not to them, and was negligently suffered to exist,
without timely notice to the public or to those who
were likely to act upon such invitation.”
Id. at 119-20 (quoting Bennett v. Louisville & Nashville R.R.
Co., 102 U.S. 577, 580 (1881)) (emphasis added). Thus, a
business invitor’s duty does not strictly end at the shopkeeper’s
door. “[I]t has been specifically held,” the Court observed, “that
the duty to properly maintain approaches to an invitor’s property
11
is not to be determined by the exact boundaries of the premises,
and that such duty does not end at the door through which the
invitee makes his exit.” Viands, 107 A.2d at 120.
Businesses also have a well-settled duty, Viands noted, to
protect invitees from foreseeable harm caused by third parties.
“It has generally been held that the invitor is liable if he has not
taken reasonable and appropriate measures to restrict the
conduct of third parties of which he should have been aware and
should have realized was dangerous.” Id. Viands found
persuasive the Restatement (First) of Torts § 348 (1939), which
Viands summarized as follows: “an invitor is liable to a business
invitee for injury caused by the accidental negligence or
intentionally harmful acts of third persons if the invitor by the
exercise of reasonable care could have (a) discovered that such
acts were being done or were about to be done, and (b) protected
the invitee by controlling the conduct of the third persons or
giving a warning adequate to enable him to avoid the harm.” Id.
at 120-21 (emphasis in original).
Viands turned on the fact that even though the “paved
public sidewalk” where the injury occurred was not on the
business’s premises, it was the sole exit from the store and an
area that the business put to substantial use. There was a parking
lot on either side of the sidewalk leading up to the grocery store.
Id. at 118. To enter or exit the store, “customers [had to] cross
[the] paved public sidewalk which leads up to the front of the
store,” to a door that was “the only entrance or exit for use of
shoppers.” Id. Thus, Viands held that a reasonable jury could
conclude a grocery store was liable for failing to protect exiting
customers from the foreseeable negligent acts of “agile,
scurrying and troublesome boys” regularly located outside the
store’s sole exit. Id. at 121.
This Court encountered a similar issue shortly thereafter in
12
Merriam v. Anacostia National Bank, 247 F.2d 596 (D.C. Cir.
1957). In Merriam, a pedestrian was injured on a sidewalk in
front of a bank under construction. Id. at 597-98. The
construction allegedly created a dangerous condition on the
sidewalk. We concluded a reasonable jury could find “that [the]
bank had actual knowledge of the danger in time to afford
protection.” Id. at 598. The bank “could [not] stand by knowing
a dangerous condition was being created on the public sidewalk
in furtherance of [its] . . . private and special interests and be
free from liability if [it] did nothing to protect the public from
such danger.” Id. Thus, “[w]here [a] public way is used by
private parties for their own private and special use,” those
private parties “may be liable.” Id. at 598 (emphasis added).
In Quigley’s Pharmacy, Inc. v. Beebe, 261 A.2d 242 (D.C.
1970), applying Merriam, the Court of Appeals held that the
“duty to invitees to maintain their safety” when invitees are
traveling “directly and necessarily in the path of the entrance to
adjacent private property” arises from a business “hav[ing]
substantially used public space for a direct and special purpose
in aid of [its] use of private property.” Id. at 244; cf. Brown v.
Consol. Rail Corp., 717 A.2d 309, 316 n.9 (D.C. 1998) (“the
common law duty . . . is ‘not invariably [placed] on the person
in whom the land is titled’”) (quoting Husovsky v. United States,
590 F.2d 944, 953 (D.C. Cir. 1978)) (second alteration in
original). In Quigley’s Pharmacy, a woman walking to a nearby
mailbox caught her heel in a hole on a heavily used public
sidewalk twenty feet from the exit to a pharmacy she had just
left. A jury awarded the woman damages. The Court of Appeals
reversed, holding that the pharmacy had no duty of care because
the plaintiff was not “attracted to the spot [where the injury
occurred] as a calculated means of ingress or egress or for other
business-related purposes.” Quigley’s Pharmacy, 261 A.2d at
244. The pharmacy derived no “substantial special use” from the
path from its exit to the mailbox. Id. That is, the plaintiff was
13
“attracted to the spot” not by anything the pharmacy did, but by
her decision to use the mailbox.
The District of Columbia’s substantial special use test for
when a business invitor’s duty extends to an egress is consistent
with the approach other courts have taken in applying the
Restatement (Second) of Torts. Comment l to § 332(3) provides
that an invitor has a duty of care for the “area included within
the invitation.” Restatement (Second) of Torts § 332 cmt. l
(1965). According to Dean Prosser, the first reporter for the
Restatement, “[t]his ‘area of invitation’ . . . extends to the
entrance to the property, and to a safe exit.” W. Page Keeton et
al., Prosser and Keeton on the Law of Torts § 61, at 424 (5th ed.
1984) (footnote omitted). As the Fifth Circuit has explained,
“the general law of torts, as reflected in the Restatement and in
Prosser, does not preclude recovery against [a business invitor]
for injury occurring in the entranceway to the defendants’
premises.” Banks v. Hyatt Corp., 722 F.2d 214, 222 (5th Cir.
1984).
The Fifth Circuit in Banks, as well as our sister circuits,
have adopted a “sphere of control” test which also recognizes a
boundary of responsibility for proprietors that extends beyond
their front door. Banks employed such a test in determining
whether a hotel had a duty to protect a guest from a criminal
assault just outside the hotel’s exit and on a public sidewalk. Id.
at 227. Applying the Restatement, the Third Circuit adopted that
test in Fabend v. Rosewood Hotels and Resorts, LLC, 381 F.3d
152, 156 (3d Cir. 2004). “[W]hen an innkeeper possesses or
exercises sufficient control over the property adjacent to his
premises, he has the power to take protective measures to reduce
the risk of injury on that property” and “has a duty to exercise it
to the benefit of his patrons.” Id. The sphere of control test,
Fabend held, “requires that we look at the circumstances of the
case to ascertain whether sufficient control exists over the
14
adjacent premises.” Id.; see Pacheco v. United States, 220 F.3d
1126, 1132 (9th Cir. 2000) (where defendants charged permit
fee for beach access, the Court looked to, among other things,
whether “defendants exercised control over what visitors to the
beach did” in determining whether defendants had a duty to
warn of dangers in the water adjacent to the beach).6
The case before us raises this familiar issue of when a
business invitor will be liable for a dangerous condition on
adjacent land used as an entryway and approach. The District
Court did not discuss the substantial special use test of Viands,
Merriam, or Quigley’s Pharmacy. Instead, with limited analysis,
6
We note that several courts have applied tests similar to
substantial special use or sphere of control. See, e.g., Zepf v. Hilton
Hotel & Casino, 786 A.2d 154, 162 (N.J. Super. Ct. App. Div. 2001)
(“A defense witness testified that defendant provided security to
protect its patrons and property. We fail to perceive how defendant
would assert under these circumstances no duty to provide security on
Providence Avenue when its property borders that street and its
patrons could clearly traverse that street in entering and exiting its
property.”); Southland Corp. v. Spencer, 250 Cal. Rptr. 57, 61-63
(Cal. Ct. App. 1988) (in case of assault on adjacent property, where
convenience store made use of that property for parking, duty of care
extends); Holiday Inns, Inc. v. Shelburne, 576 So.2d 322, 329 (Fla.
Dist. Ct. App. 1991) (in case of assault, bar had a “duty not only to its
patrons who parked on the premises, but also to those who parked on
the adjacent lots in accordance with the instructions of the security
guards”); Ember v. B.F.D., Inc., 490 N.E.2d 764, 769 (Ind. Ct. App.
1986) (duty of bar owner may extend to persons beyond boundaries
of a tavern); Ralls v. Noble Roman’s Inc., 491 N.E.2d 205, 207-08
(Ind. Ct. App. 1986) (restaurant owner’s duty of care extended to a
yard adjacent to the restaurant); Roe by M.J. v. N.J. Transit Rail
Operations, Inc., 721 A.2d 302, 306-07 (N.J. Super. Ct. App. Div.
1998) (business invitor liable for rape that occurred in adjacent public
park).
15
the District Court turned to Kline v. 1500 Massachusetts Avenue
Apartment Corp., a preeminent case addressing a landlord’s
liability for conditions that are dangerous to tenants. 439 F.2d
477 (D.C. Cir. 1970). In the District Court’s view, Kline stands
for the following proposition: “A business owner has a duty of
care to take preventative action if it has exclusive power over the
area in which criminal activity occurs.” Dist. Ct. Op. at 9 (citing
Kline, 439 F.2d at 481) (emphasis added). Thus, because the
MPD also patrolled the I Street alley at times, in the District
Court’s view, no other business invitor could “exclusively”
control the I Street alley and therefore face liability. Presumably,
then, Viands, Merriam, and Quigley’s Pharmacy incorrectly
suggest that business invitors can be liable for subjecting their
patrons to dangerous conditions in their entryways and
approaches because, under the District Court’s reasoning, the
police can always patrol a public area just beyond the
shopkeeper’s door and off the shopkeeper’s property.
Kline, however, contains no such conflicting rule. The
portion of Kline cited by the District Court addressed a specific
duty of care: the duty of a landlord who “has notice of repeated
criminal assaults and robberies.” Kline, 439 F.2d at 481. Kline
notes the “general rule [that] a private person does not have a
duty to protect another from a criminal attack by a third person,”
but concludes that “the rationale of this very broad general rule
falters when it is applied to the conditions of modern day urban
apartment living.” Id. Instead, the landlord-tenant context
mandates a special standard of care:
The landlord is no insurer of his tenants’ safety, but he
certainly is no bystander. And where, as here, the
landlord has notice of repeated criminal assaults and
robberies, has notice that these crimes occurred in the
portion of the premises exclusively within his control,
has every reason to expect like crimes to happen again,
16
and has the exclusive power to take preventive action,
it does not seem unfair to place upon the landlord a
duty to take those steps which are within his power to
minimize the predictable risk to his tenants.
Id. (emphasis added). Today, the duty discussed in Kline is well-
known in the landlord-tenant world, just as Kline noted, the
“innkeeper-guest relationship” has historically also been known
to require a special duty of care by innkeepers. Id. at 482. The
“exclusive power to take preventive action,” id. at 481, referred
to by Kline, however, addresses a landlord’s duty when “tenants
were being subjected to crimes against their persons and their
property in and from the common hallways,” id. at 483
(emphasis added). Kline concluded that landlords must exercise
a duty of care for common hallways within their exclusive
control, but had no occasion to address a business invitor’s duty
over adjacent property or the extensive case law addressing that
area of tort law. Thus, Kline provides no support for the District
Court’s suggestion that a business invitor’s liability for an
entryway or approach should be governed by an “exclusive
power” standard. To the contrary, extensive District of
Columbia case law provides for a substantial special use
standard, just as case law from other circuits prescribes a similar
standard, and we have no basis for disturbing that precedent.
Looking at the facts in the light most favorable to
appellants, and applying Viands, Merriam, and Quigley’s
Pharmacy, the Zei Club put the I Street alley to a substantial
special use. See Viands, 107 A.2d at 119-21; Merriam, 247 F.2d
at 598; Quigley’s Pharmacy, 261 A.2d at 244. The Zei Club was
set off from any public street and surrounded by alleys. Its
patrons were invited to use the alleys as approaches and exits to
the club. The attack occurred within a few steps of the exit in the
I Street alley, which was the chief path of egress from the club.
At the hour of the attack, the only exit from the club led to the
17
I Street alley. The exact spot of the attack was on a “calculated”
and “necessary” egress. Quigley’s Pharmacy, 261 A.2d at 244.
No other businesses used the alley at that hour, and the Zei Club
routinely used its security guards to clear the alley of loiterers
and maintain order.7
B. The Foreseeability of Intervening Criminal Conduct in
an Egress.
“It is axiomatic that under a negligence regime, one has a
duty to guard against only foreseeable risks.” Doe v. Dominion
Bank of Washington, N.A., 963 F.2d 1552, 1560 (D.C. Cir.
1992); see Viands, 107 A.2d at 121. “‘As a general rule the
proprietor of a place of public resort is subject to liability to his
business invitees for injuries inflicted by the acts of other
patrons or third persons if the proprietor by the exercise of
reasonable care could have known that such acts were being
done or were about to be done . . . .’” Grasso v. Blue Bell Waffle
Shop, Inc., 164 A.2d 475, 476 (D.C. 1960) (quoting Gregorc v.
Londoff Cocktail Lounge, Inc., 314 S.W.2d 704, 707 (Mo.
1958)).
The foreseeability required when the harm is caused by the
criminal act of a third party, however, is more exacting.
“Because of the extraordinary nature of criminal conduct,”
7
The District Court pointed to evidence showing that some of
the club’s security guards—those who were off-duty MPD
officers—were not allowed to patrol the alleys. Dist. Ct. Op. at 10
(citing D.C. Mun. Regs. tit. 6A § 301.2, which restricts off-duty MPD
officers from patrolling areas where the MPD exercises “a special
supervisory, regulatory, or enforcement function”). There is other
record evidence indicating, however, that the club’s security guards,
including some off-duty MPD officers, routinely patrolled the alleys
around the club.
18
liability depends on “a heightened showing of foreseeability in
the context of an intervening criminal act.” Potts v. District of
Columbia, 697 A.2d 1249, 1252 (D.C. 1997) (quotation marks
omitted). In Workman, we recently observed that the Court of
Appeals has provided only limited “specific guidance,” 320 F.3d
at 262, on what a “heightened showing” of foreseeability
requires, id. Workman explained:
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 v. District of Columbia, 668 A.2d 817,
820 (D.C. 1995)], 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 “previous occurrences of
the particular type of harm”; the requirement “can be
met instead by a combination of factors which give
[the] defendant[ ] an increased awareness of the danger
of a particular criminal act.” District of Columbia v.
Doe, 524 A.2d 30, 33 (D.C. 1987).
320 F.3d at 262 (second and third alterations in original). After
reviewing D.C. tort cases involving a third party’s criminal
conduct, we predicted in Workman that heightened
foreseeability is present when there is a “special relationship”
between the person injured by the crime and the defendant, and
prior, similar criminal acts have occurred in the area where the
19
plaintiff was hurt. Id. at 264.8
“[T]he requirement that the defendant have been able to
foresee that a third party would likely commit a criminal act,”
we explained, “ordinarily has, and perhaps must have, a
relational component.” Id. at 263. Cases in this area “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.” Id. at 264. We noted, for example, that in
District of Columbia v. Doe, 524 A.2d at 33-34, the Court of
Appeals determined a duty could exist where a criminal
abducted a young girl from her classroom in a public school and
raped her at a park across the street from the school. Workman,
320 F.3d at 263. The Court of Appeals found persuasive the fact
that there was evidence of prior crimes occurring in and around
the school (although there was no evidence that this exact crime
occurred previously in this location) and the fact that the victim
was a young schoolchild over whom the District of Columbia
exercised custodial care. Id.
This Court, as Workman notes, see id., looked to a special
relationship and evidence of prior similar conduct in Doe v.
Dominion Bank. There, a woman who had been raped on a
vacant floor of an office building sued the landlord of the
8
We noted in Workman that “[o]rdinarily, the relationship
between the parties is the key to determining whether the defendant
had a legally enforceable duty to the plaintiff.” Id. at 265 (emphasis
added). D.C. courts, however, “have in more recent cases tended to
leapfrog directly to the foreseeability issue, with the parties’
relationship [being considered] a factor relevant to determining
whether the requirement of foreseeability has been satisfied.” Id.
(emphasis added).
20
building. The District Court entered a directed verdict for the
defendant, but we reversed because “[t]here was ample evidence
. . . that the [landlord] had incessant notice of criminal
activity—including theft, burglary, drug use, and possibly
prostitution—ongoing at [the office building] during the two and
a half years preceding Doe’s rape.” 963 F.2d at 1561. Although
there was no evidence of criminal assaults, see id., Workman
noted that in Dominion Bank “the relationship between the
plaintiff and the defendant suggested the defendant should be
held liable . . . because the landlord was in the better position
both to know about security threats and to protect against them.”
Workman, 320 F.3d at 263. The parties’ special relationship and
evidence of repeated intruders and prior nonviolent crimes made
up for the lack of evidence of prior violent crimes. Id.
Looking to the existence of a special relationship is not
novel; it is the basis for, and determines the contours of, the law
of premises liability. The Restatement (Second) of Torts
§ 314A(3) (1965), provides: “[a] possessor of land who holds it
open to the public is under a . . . duty to members of the public
who enter in response to his invitation.” The duty “arise[s] out
of special relations between the parties, which create a special
responsibility.” Id. § 314A cmt. b. This “duty to protect the
other against unreasonable risk of harm extends to risks arising
. . . from the acts of third persons, whether they be innocent,
negligent, intentional, or even criminal.” Id. § 314A cmt. d.
Applying Viands and Workman to the facts before us and
looking at those facts in the light most favorable to appellants,
we conclude that a criminal attack on Novak and Valdivia in the
I Street alley met the requirements of heightened foreseeability.
The club, as business invitor, shared a special relationship with
its business invitees, patrons Novak and Valdivia. See Hall v.
Ford Enters., Ltd., 445 A.2d 610, 611 n.4 (D.C. 1982)
(“Traditionally, relationships that were considered to give rise
21
to a duty of one party to protect the other party from foreseeable
criminal acts of third persons have included the relationships of
landowner to invitee, businessman to patron, employer to
employee, school district to pupil, hospital to patient, and
common carrier to passenger.”). Additionally, there is evidence
that the Zei Club had “an increased awareness of the danger of
a particular criminal act.” District of Columbia v. Doe, 524 A.2d
at 33. Novak and Valdivia proffered testimony from the club’s
security guards and other employees indicating that fights
occurred in the club “once every two weeks at least,” “twice a
month,” or “probably 1 a month or 1 a week.” One employee
testified that he saw fights in the alley by the exit “twice a
month;” another said he saw “maybe 1 or 2 fights” each month
in the alley by the exit.9 If believed, this evidence certainly could
put a reasonable club owner on heightened notice that a serious
problem existed outside its door. See Washington Metro. Area
Transit Auth. v. O’Neill, 633 A.2d 834, 840 n.11 (D.C. 1993)
(“Virtually all courts and all commentators who have considered
the issue have concluded that a common carrier’s duty to its
passengers includes a duty to protect them from assault by
fellow passengers.”) (quotation marks and alteration omitted).10
The Zei Club had notice that prior fights frequently
occurred in and around the club. Indeed, in the words of the Zei
9
Indeed, Novak and Valdivia allege that the club hired
security guards precisely because fights occurred frequently in and
around the club.
10
See Restatement of Torts (Second) § 314A (1965) (requiring
an “innkeeper” to observe “a similar duty to his guests” as a “common
carrier,” which “is under a duty to its passengers to take reasonable
action . . . to protect them against unreasonable risk of physical
harm”); Bower v. O’Hara, 759 F.2d 1117, 1124 (3d Cir. 1985)
(applying the innkeeper duty of § 314A to a tavern owner).
22
Club’s own incident report from the night of the attack, just
“moments” prior to the assault on Novak and Valdivia, the club
had ejected a group of patrons for fighting inside the club.
Looking at the evidence in the light most favorable to Novak
and Valdivia, the club cannot now seriously contend that an
assault at its exit was not legally foreseeable. The club’s special
relationship, combined with significant evidence of repeated
fights in and around the establishment, put this club on notice
that its violence problem was not “sudden and unexpected,”
Kline, 439 F.2d at 483, such that it had no duty to foresee any
problem in its alleys for its patrons. With notice of repeated
fights on its premises and in its entryways and approaches,
having made substantial special use of those entryways and
approaches, with every reason to expect that fights would
continue absent the exercise of reasonable care, and with the
power to exercise reasonable care over entryways and
approaches, a reasonable jury could believe Novak and
Valdivia’s evidence on prior similar conduct and conclude that
the Zei Club failed to take reasonable steps to secure its alley.11
11
The dissent argues that evidence of repeated “fisticuffs”
(i.e., fistfights) in and around the Zei Club was not sufficient to
demonstrate the foreseeability of Novak and Valdivia being beaten on
their way out of the club, and thus there was no need to ensure that the
club’s exit was secure. That is, if assailants routinely beat up on a
club’s patrons and yet fights generally rise only to the level of
fisticuffs, a club has a duty to exercise reasonable care to try to
prevent such fights. But it is entirely unforeseeable if an assailant
really beats up on a club patron in a future fight. We respectfully do
not see a basis for such a distinction and do not believe the District of
Columbia Court of Appeals would endorse the dissent’s suggestion
that a business need only protect against an extremely precise level of
past fighting.
In any event, there is no record basis for the dissent’s labeling
of the attack in this case as criminal “mayhem,” see D.C. Code § 22-
23
IV.
Novak and Valdivia assert an alternative theory of
negligence liability, arguing that the Zei Club had a security
policy that mandated patrolling the alleys and that the club failed
to follow that policy the night of the criminal attack. This
alleged policy, in their view, demonstrates a duty, and failure to
follow that policy demonstrates a breach of that duty. The
District Court granted summary judgment to the Zei Club on this
claim, holding that there is no such recognized theory of liability
and that Novak and Valdivia failed to show that the club even
had such a policy. Dist. Ct. Op. at 10-13.
Even assuming arguendo that failure to follow a security
policy could establish negligence, we agree with the District
Court that appellants offered insufficient evidence that such a
policy existed. Appellants only offered testimony that Zei Club
guards patrolled the alleys; they did not present any evidence
showing that it was club policy to do so. Because there was no
406 (criminalizing mayhem), as distinguished from prior violence in
and around the Zei Club that the dissent describes as mere, apparently
noncriminal, “fisticuffs.” For using wooden boards from the alley in
carrying out their attack, the two assailants convicted in this matter
faced judgments of conviction not on mayhem, but assault
charges—one for assault with a dangerous weapon, see D.C. Code
§ 22-402, and the other for aggravated assault while armed, see D.C.
Code §§ 22-404.01 and 22-4502. Moreover, the record indicates that
this attack was yet another of many fights that occurred at the Zei
Club. Contrary to the dissent’s suggestion, past fighting at the club,
i.e., assaults upon patrons, would also be criminal, see D.C. Code
§ 22-401 to -405 (criminalizing assault), and perhaps even mayhem in
some circumstances, see id. § 22-406. But most importantly, past
fighting such as what occurred at the Zei Club could put a reasonable
establishment on notice of highly similar violent acts being perpetrated
against its patrons.
24
such evidence, we affirm the District Court’s grant of summary
judgment on this claim. See Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986) (“[T]he plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”).
V.
We vacate the District Court’s judgment in favor of the
defendants, reverse the District Court’s grant of summary
judgment on appellants’ negligence claim as indicated, and
remand the case for further proceedings consistent with this
opinion.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring in part
and dissenting in part:
While I concur in Part IV of the majority opinion affirming
the district court’s grant of summary judgment to the defendants
on Novak’s and Valdivia’s alternative claim of negligence
arising from the Zei Club’s alleged failure to follow its security
policy, I dissent from its holding reversing and remanding the
district court’s grant of summary judgment to the defendants as
set forth in Part III thereof—that is, even assuming the Zei Club
put the public alley outside its exit to “special use,” the Zei Club
is not liable for Novak’s and Valdivia’s injuries because the
attack on them was not foreseeable.
Tort law adheres to a “general rule of nonliability . . . for
harm resulting from the criminal acts of third parties.” Romero
v. Nat’l Rifle Ass’n of Am., Inc., 749 F.2d 77, 81 (D.C. Cir.
1984) (citing Kline v. 1500 Mass. Ave. Apartment Corp., 439
F.2d 477, 481 (D.C. Cir. 1970); Hall v. Ford Enters., Ltd., 445
A.2d 610, 611 (D.C. 1982)). The District of Columbia Court of
Appeals (D.C. Court of Appeals) has created an exception to this
“general rule” if “the criminal act is so foreseeable that a duty
arises to guard against it.” McKethean v. Wash. Metro. Area
Transit Auth., 588 A.2d 708, 717 (D.C. 1991). While its
articulation of the exception is hardly self-defining, our review
of the case law suggested to us that “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 Workman v. United
Methodist Comm. on Relief of Gen. Bd. of Global Ministries of
United Methodist Church, 320 F.3d 259, 263 (D.C. Cir. 2003).
We found that the D.C. Court of Appeals in fact tends to follow
a “sliding scale” whereby “[i]f 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
2
the evidentiary hurdle is higher.” Id. at 264. The duty imposed,
therefore, is one of degree: the closer the relationship between
the plaintiff and defendant—that is, the more control the
defendant exercises over the plaintiff—the more exacting the
defendant’s duty to provide for the plaintiff’s well-being and,
accordingly, the less necessary becomes “specific evidence of
foreseeability.”1 Id. At one end of the scale—requiring less
foreseeability—is a custodial relationship such as between a
school and a student, see District of Columbia v. Doe, 524 A.2d
30, 33 (D.C. 1987), while, at the other end of the
scale—requiring specific foreseeability—is no relationship
between the parties.
Here, a relationship existed between the Zei Club and Novak
and Valdivia—that of invitor and invitees. Although the
majority identifies the relationship, see maj. op. at 20, it does not
determine where on the sliding scale it falls. A close reading of
D.C. case law suggests, I believe, that the invitor-invitee
relationship falls somewhere closer to the “no relationship” end
of the scale—requiring fairly specific evidence of foreseeability.
In recent cases involving the invitor-invitee relationship, the
D.C. Court of Appeals held that the criminal acts of third parties
were not sufficiently foreseeable to impose a duty on the invitor
to protect the invitee. Bailey v. District of Columbia, 668 A.2d
817 (D.C. 1995), is instructive. In that case, Bailey was shot
while exiting a cheerleading competition held at a D.C. junior
1
The sliding scale makes sense if one views foreseeability as an
aspect of the duty prong of the prima facie negligence case as the D.C.
Court of Appeals does. See McKethean, 588 A.2d at 717. But see
Restatement (Third) of Torts § 40 cmt. K (“However, consistent with
its treatment throughout this Restatement, this subsection rejects the
requirement of knowledge (or foreseeability) of the danger as an
aspect of the duty.”).
3
high school. The defendant District moved for summary
judgment and, in response, Bailey submitted affidavits of
witnesses who testified that the neighborhood in which the
school was located was a “high drug area” and that shootings
and other violent crimes had taken place nearby. Id. at 820. The
trial court granted the District summary judgment, concluding
that
[t]he question is not whether defendant should have
known that fights, or minor scuffles might erupt at this
gathering of 500-600 people on school property in the
absence of an adequate security presence, including at
the least a police cruiser. Rather, the question is whether
the District had a duty to guard against a reasonably
foreseeable risk that a person attending the competition
would decide to settle a dispute with another individual
over an item of clothing by indiscriminately shooting at
that person while in the midst of a crowd of spectators.
Id. at 819–20 (alteration in original) (quoting trial court order).
The D.C. Court of Appeals expressly agreed with the trial
court’s analysis of the foreseeability issue. It dismissed Bailey’s
evidence as “generic information,” insufficient to establish the
foreseeability of the particular type of violent crime at the
particular location. Critically, the court observed that “there was
no evidence of prior gun-related violence or assaults occurring
at the school or at any of the many cheerleading competitions
that had been held anywhere in the city.” Id. at 821.
More recently, in Potts v. District of Columbia, 697 A.2d
1249 (D.C. 1997), the plaintiffs were shot while leaving the
Washington Convention Center (WCC) after having attended a
boxing match. They sued Spencer Promotions, the event’s
organizer, and the District, the WCC’s owner. The D.C. Court
of Appeals affirmed the trial court’s grant of summary judgment
4
to the defendants because the “plaintiffs [had] proffered no
evidence of any prior gun-related violence at any other event
held at the WCC or promoted by Spencer Promotions, nor any
other specific evidence bearing directly on the foreseeability of
the shooting incident at issue here.” Id. at 1252.
I believe that the invitor-invitee relationship is akin to the
employer-employee relationship and falls at about the same
place on the “sliding scale.” The D.C. Court of Appeals requires
fairly specific evidence of foreseeability in the employer-
employee context. In Clement v. Peoples Drug Store, 634 A.2d
425 (D.C.1993), an employee’s widow sued the deceased’s
employer after he was fatally shot in the employer’s parking lot.
The plaintiff offered an expert witness who testified about
criminal activity in the surrounding area. The court held that the
plaintiff failed to show that the criminal act was foreseeable
because “[n]o evidence was introduced involv[ing] any gun-
related incidents at the particular shopping mall in which the
shooting occurred.” Potts, 697 A.2d at 1252 (summarizing
Clement’s holding).
Ignoring cases directly on point—that is, cases involving an
invitor’s duty to protect an invitee from the criminal acts of third
parties—the majority finds that the relationship between the Zei
Club and Novak and Valdivia frees the two plaintiffs from
having to produce “specific evidence” that the criminal act was
“particularly foreseeable.” Workman, 320 F.3d at 262–63; see
maj. op. at 20–22. But the D.C. Court of Appeals has recently
observed that “Potts, Bailey, and Clement . . . demonstrate the
tight boundaries—requiring precise proof of a heightened
showing of foreseeability.” District of Columbia v. Beretta,
U.S.A., Corp., 872 A.2d 633, 643 (D.C. 2005) (internal
quotation marks and citations omitted). The three cases
manifest that, when suing an invitor, the invitee must show that
the particular type of criminal act at the particular location was
5
foreseeable. See Potts, 697 A.2d at 1252 (“In this case, as in
Bailey and Clement, plaintiffs proffered no evidence of any
prior gun-related violence at any other event held at the WCC
or promoted by Spencer Promotions.” (emphasis added));
Clement, 634 A.2d at 429 (“For example, only one offense, a
robbery at a nearby Giant supermarket, involved a firearm and
no homicides had been reported.” (emphasis added)); Bailey,
668 A.2d at 820 (“Bailey proffered no evidence of any shooting
incidents, assaults, or other gun-related violence at any
Department cheerleading competition or any other Department
event held at Evans Junior High School” (emphasis added)).
Novak and Valdivia have failed to make this showing. Police
reports from the 15 months preceding Novak’s and Valdivia’s
injuries show only three incidents occurring at the Zei Club: two
incidents involving fights between patrons inside the club and a
third incident just outside the doorway involving an employee
of the club. See Novak v. Capital Mgmt. & Dev. Corp., No, 01-
cv-39, slip op. at 6 (D.D.C. July 12, 2004). Similarly, the Zei
Club’s internal records show no fights occurring in either the I
Street alley or the Zei Street alley. Appellants’ Br. 15;
Appellees’ Br. 15. Viewing the evidence in the light most
favorable to them, as we must at the summary judgment stage,
see Crawford v. Signet Bank, 179 F.3d 926, 928 (D.C. Cir.
1999), Novak and Valdivia have shown only that altercations
occurred in either of the two alleys as often as twice each month
and that they ranged from “pushing to fist fights.” See maj. op.
at 3 (describing alleys’ location). All they have shown,
however, is that “fights, or minor scuffles might erupt” in the I
Street alley. Bailey, 668 A.2d at 819. Fisticuffs is not what
occurred here. In Novak’s and Valdivia’s own words, they were
the victims of a “vicious and deadly assault by which [the
perpetrators] sought to kill and/or seriously injure [them].”
Compl. ¶ 42. In short, the perpetrators lay in wait for them
6
intending to commit mayhem2—a criminal act that was wholly
unforeseeable.3 Because they have failed to establish an
essential element of their claim, see Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986), that is, “the criminal act is so
foreseeable that a duty arises to guard against it,” McKethean,
588 A.2d at 717 (internal quotation marks and citation omitted),
I would affirm the district court’s grant of summary judgment to
2
As the majority notes, see maj. op. at 4, the injuries Novak and
Valdivia sustained manifest that their attackers committed mayhem,
regardless what crime they were charged with. The D.C. Court of
Appeals has held that “essential elements of the crime of mayhem are:
(1) that the defendant caused permanent disabling injury to another;
(2) that he had the general intent to do the injurious act; and (3) that
he did so willfully and maliciously.” Peoples v. United States, 640
A.2d 1047, 1054 (D.C. 1994) (internal quotations and citations
omitted).
3
The majority claims I imply that pushing/fisticuffs is
“noncriminal.” Maj. op. at 23 n.11. Not so. Certain crimes—e.g.,
attempted murder (which is what Novak and Valdivia allege their
attackers committed, see Compl. ¶ 42)—are simply more egregious
than others—e.g., simple assault (that is, fisticuffs/pushing). The
majority also characterizes my dissent as concluding that fisticuffs
may have been foreseeable but “really beating” someone was not.
Maj. op. at 22 n.11 (emphasis omitted). If the majority equates “really
beating” with attempted murder, then, yes, I believe fisticuffs may
have been foreseeable but attempted murder (“really beating” with the
intent to kill) was not. Just as an occasional pickpocket does not,
under District of Columbia precedent, make foreseeable an armed
robbery, an occasional drunken shoving match does not make
attempted murder foreseeable.
7
the defendants. Accordingly, I respectfully dissent from the
reversal and remand of the district court’s grant of summary
judgment to the defendants as set forth in Part III of the majority
opinion.