United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 3, 2008 Decided March 24, 2009
No. 07-7151
MARLIN GODFREY,
APPELLEE
v.
ALLEN IVERSON AND JASON KANE,
APPELLANTS
Consolidated with 07-7152, 07-7157
Appeals from the United States District Court
for the District of Columbia
(No. 05cv02044)
William R. Martin argued the cause for appellants/cross-
appellees. With him on the briefs was Alan C. Milstein. David
A. Rosenberg entered an appearance.
Gregory L. Lattimer argued the cause and filed the briefs
for appellee/cross-appellant.
Before: HENDERSON, RANDOLPH and GARLAND, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: In the early hours of July 20,
2005, a brawl erupted at the Eyebar, a Washington, D.C.
nightclub. Among the injured was Marlin Godfrey, a patron in
the Eyebar VIP area that night. He suffered a concussion, a
ruptured eardrum, a burst blood vessel in his eye, a torn rotator
cuff, various cuts and bruises, and emotional injuries. Godfrey
sued Allen Iverson and his bodyguard, Jason Kane, both of
whom were in the Eyebar VIP area that night. The amended
complaint alleged that Kane and Terrance Williams, who also
sometimes acted as Iverson’s bodyguard, attacked him and
directly caused his physical and emotional injuries, and that
Iverson was negligent in failing to stop both men from injuring
Godfrey. After a six-day trial, the jury returned a verdict in
favor of Godfrey against Kane for assault and battery and
intentional infliction of emotional distress, and against Iverson
for negligent supervision of Kane, in the total amount of
$260,000. In response to Iverson’s and Kane’s appeal, Godfrey
filed what may be described as a conditional cross-appeal: if we
order a new trial, he would like us to declare that several of the
district court’s evidentiary rulings were in error. The only issue
warranting discussion is Iverson’s contention that, absent expert
testimony, the evidence was legally insufficient to support the
verdict against him for negligent supervision.
Allen Iverson has played professional basketball since the
Philadelphia 76ers drafted him in 1996. He now plays for the
Detroit Pistons. He often hires bodyguards to accompany him
when he attends public events. Iverson’s manager Gary Moore
was in charge of hiring the bodyguards and telling them when
and where to work. Jason Kane has provided security for
Iverson in the Washington, D.C. area for some time and was
doing so during Iverson’s charity weekend events in July 2005.
3
Iverson and several friends entered the Eyebar nightclub
shortly after midnight, with Kane as his bodyguard. They went
straight to the small VIP area of the club, where Marlin Godfrey
and his party already had a table. Although accounts differed
about how the fight started, the evidence indicated that an
argument broke out between Godfrey and Williams, Kane’s
friend who sometimes worked as Iverson’s bodyguard and
happened to be in the club that night. Witnesses said that Kane
and Williams loudly and aggressively ordered patrons, including
Godfrey and his party, to leave the VIP area and make room for
Iverson and his friends. Soon after Curtis Fitzgerald – an
Eyebar security employee and friend of Kane’s and Godfrey’s
– intervened to defuse the situation and move Godfrey’s party
to a different table, Kane shoved Fitzgerald and a group of
others jumped in the attack. When Godfrey, who has significant
martial arts training, walked toward the fracas to “help his
friend” Fitzgerald, he was attacked and beaten until he became
disoriented; he regained his senses in the club’s storage room,
where he had wandered to get away from the fight. Godfrey
received treatment for his injuries that night in the George
Washington Hospital emergency room and was released at noon
that day.
Williams admitted that he took part in beating up Godfrey.
Other witnesses testified that after Kane pushed Fitzgerald, they
saw Kane jump into the fight and attack Godfrey, punching him,
kicking him, and striking him in the head with a bottle. Iverson
stayed out of the fray in the back corner of the VIP area,
standing on a couch or bench and observing. He did not say or
do anything to try to stop Kane or anyone else from fighting.
There was no evidence that any of the club’s patrons or
employees attacked or threatened Iverson.
After the district court disposed of the defendants’ motions
for directed verdict, the case went to the jury with two claims
4
against Kane – assault and battery and intentional infliction of
emotional distress – and two claims against Iverson for
negligent supervision of Kane and Williams. The jury found
Kane liable on both claims against him, and it found Iverson
liable for negligently supervising Kane. As to Williams, the jury
found that he was not working for Iverson that night. The jury
awarded Godfrey $250,000 for pain and suffering and $10,000
for medical expenses. The district court upheld the verdict,
rejecting the defendants’ post-trial motions. See Godfrey v.
Iverson, 503 F. Supp. 2d 363, 366 (D.D.C. 2007).
Liability for negligent supervision arises when an
“employer knew or should have known its employee behaved in
a dangerous or otherwise incompetent manner, and that the
employer, armed with that actual or constructive knowledge,
failed to adequately supervise the employee.” Brown v.
Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C. 2001) (internal
quotation marks and citation omitted). Iverson argues that the
district court should have granted judgment as a matter of law
on the negligent supervision claim because Godfrey did not
introduce expert testimony to establish the standard of care
Iverson owed in supervising Kane. This argument stems from
a peculiar aspect of common law negligence in the District of
Columbia. A plaintiff has the burden of proving the applicable
standard of care, the defendant’s failure to meet that standard,
and the causal relationship between that failure and the
plaintiff’s injury. Meek v. Shepard, 484 A.2d 579, 581 (D.C.
1984). In the typical negligence case, the standard of care
applicable to a person’s conduct is simply that of a “reasonable
man under like circumstances.” Restatement (Second) of Torts
§ 283 (1965); see also id. § 298. Ordinarily a jury can ascertain
this standard without the aid of expert testimony. But “if the
subject in question is so distinctly related to some science,
profession or occupation as to be beyond the ken of the average
layperson,” D.C. law requires expert testimony to establish the
5
pertinent standard of care unless it is “within the realm of
common knowledge and everyday experience” of the jurors.
District of Columbia v. Arnold & Porter, 756 A.2d 427, 433
(D.C. 2000) (internal quotation marks and citations omitted).
The expert testimony requirement originated in professional
malpractice cases. See District of Columbia v. Hampton, 666
A.2d 30, 35 (D.C. 1995) (citing, for example, medical and legal
malpractice cases in which expert testimony was required to
establish the standard of care). Recently, though, the D.C. Court
of Appeals has required expert testimony in a wider variety of
cases, id., even in those that might initially seem to fall within
jurors’ common knowledge. See Briggs v. Wash. Metro. Area
Transit Auth., 481 F.3d 839, 845 (D.C. Cir. 2007) (cataloguing
various non-malpractice cases in which expert testimony was
required to establish the standard of care). And as Briggs
recognized, “expert testimony is routinely required ‘in
negligence cases . . . which involve issues of safety, security and
crime prevention.’” Id. at 845–46 (quoting Varner v. District of
Columbia, 891 A.2d 260, 267 (D.C. 2006)).
Iverson argues that because this case involves security
issues, Godfrey had to establish the standard of care through
expert testimony. He relies on a series of district court cases. In
Edwards v. Okie Dokie, Inc., plaintiffs sued a nightclub and the
District of Columbia for negligently supervising security
personnel and police officers who used allegedly unreasonable
force to stop an altercation outside a nightclub. 473 F. Supp. 2d
31, 35, 45–46 (D.D.C. 2007). In Parker v. Grand Hyatt Hotel,
police officers and hotel security personnel forcibly removed the
plaintiff from a hotel restaurant under suspicion that he
attempted to steal something; he sued the District of Columbia
and hotel management for negligently supervising those officers.
124 F. Supp. 2d 79, 83–84 (D.D.C. 2000). In Farooq v. MDRB
Corp., the plaintiff brought suit against a hotel for negligently
6
training and supervising security personnel who failed to find a
knife that a patron carried into a hotel party and used to kill the
plaintiff’s son. 498 F. Supp. 2d 284, 285–86 (D.D.C. 2007).
The district court granted summary judgment in each of these
cases because the plaintiffs failed to present expert testimony
establishing the standard of care applicable to a municipality or
business entity in training and supervising its police or security
officers. Edwards, 473 F. Supp. 2d at 46; Parker, 124 F. Supp.
2d at 90; Farooq, 498 F. Supp. 2d at 287.
We do not believe these cases stand for the proposition that
expert testimony is always required to establish the standard of
care in cases involving supervision of security personnel, much
less personal bodyguards. Expert testimony was necessary to
establish the standard of care for installation of cushioning under
the monkey bars on a playground, Messina v. District of
Columbia, 663 A.2d 535, 538 (D.C. 1995), but not to establish
whether holes in the side rails of a playground slide created an
unreasonably dangerous condition, District of Columbia v.
Shannon, 696 A.2d 1359, 1365–66 (D.C. 1997). As the court
put it in Shannon, “It takes no expert knowledge of human
behavior to know that children stick their fingers in holes.” Id.
at 1365. As to the need for expert testimony, the factual context
mattered in those cases and it matters in this one too.
The key distinction between what happened at the Eyebar
and the district court cases Iverson cites is that here the
individual with the supervisory authority (Iverson) was present
when his employee (his personal bodyguard Kane) committed
the tortious acts. It was this fact, together with the duration of
the melee, that led the district court to believe that the jury could
find that Iverson had the ability to supervise or control Kane’s
behavior that night, a mandatory element of the negligent
supervision tort. Iverson’s presence during the attack also
affects the standard of care. A jury may need the aid of expert
7
testimony to evaluate how a hotel should train and otherwise
supervise its security guards to ensure that they do not
unreasonably use force on some future date. But it is a different
thing altogether to say such expert assistance is needed to
establish the standard of care for an individual who is present
while his personal bodyguard, acting on his behalf in clearing a
room in a nightclub, beats a customer and causes significant
injuries. Iverson has pointed to no case in the District of
Columbia – nor have we been able to locate any – dealing with
the standard of care a person owes in supervising his personal
bodyguard in his presence. The evidence in this case supported
the jury’s finding that Kane attacked Godfrey in a fight that
lasted several minutes, and that Iverson stood and watched
without attempting to do anything to stop the beating. See 2922
Sherman Ave. Tenants’ Ass’n v. District of Columbia, 444 F.3d
673, 679 (D.C. Cir. 2006). We find no error in the district
court’s ruling that the jury did not need the assistance of expert
testimony to determine the standard of care Iverson owed to
Godfrey.
It would serve no purpose to discuss Iverson’s and Kane’s
other arguments. We have considered these contentions and
have concluded that the district court committed no reversible
error. We do not reach Godfrey’s cross-appeal because he
conditioned it on our ordering a new trial.
Affirmed.