United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted November 14, 2008 Decided June 26, 2009
No. 08-7135
DOMINIC NOVAK,
APPELLEE
v.
CAPITAL MANAGEMENT AND DEVELOPMENT CORPORATION,
ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:01-cv-00039-HHK)
Brian E. Hoffman argued the cause for appellants. With
him on the briefs was Jeffrey R. Schmieler.
Patrick M. Regan argued the cause and filed the briefs for
appellee.
Before: HENDERSON, RANDOLPH, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: A group of men attacked and
brutally beat appellee Dominic Novak moments after he left a
nightclub in 1998. The club required patrons to leave the
building through a single door that led into an alley, and the
attack occurred in close proximity to that door. Although the
club employed several security officers, they were all inside the
building during the beating. Novak, who sustained permanent
injuries, brought this diversity action against the club, alleging
negligence under District of Columbia law.
The district court initially granted summary judgment in
favor of the club, holding that the club owed Novak no duty of
care because the attack occurred in a public alley, and that the
criminal assault was not foreseeable. In July 2006, a panel of
this court reversed and remanded, determining that a reasonable
jury could find that the club owed Novak a duty if it put the
alley to a substantial special use, and that evidence of frequent
fights in the alley could establish foreseeability. The case
proceeded to trial and, in May 2007, a jury found in favor of
Novak and awarded him damages.
The club now appeals, contesting the district court’s
judgment on a number of grounds. We reject those challenges
and affirm the judgment.
I
This court’s 2006 opinion reversing summary judgment in
favor of the club describes the facts surrounding the attack. See
Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902 (D.C. Cir.
2006) (Novak I). We reprise them in somewhat less detail here.
3
Appellants owned and operated the Zei Club, a bar and
dance club located in northwest Washington, D.C.1 The club
was situated next to -- and was only accessible through -- two
alleys that formed an upside-down T shape, “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’).”
Novak I, 452 F.3d at 904. The club’s front entrance was located
at the southeast corner of the building, which lay at the
intersection of the two alleys; its back door was at the northeast
corner, which abutted the I Street alley. J.A. 3001 (Pl.’s Ex. 1).
At closing time, the club required patrons to depart through the
back door, which locked behind them to prevent re-entry.
Patrons then had to walk south down the I Street alley to return
to Zei Alley.
In the early morning of March 22, 1998, Novak visited the
club with a group of friends. He left the club through the back
door -- the only available exit -- at approximately 2:35 a.m., and
turned south on the I Street alley. At that time, twelve to fifteen
men were standing together next to a wall in the alley. Moments
after Novak left the club, and “within view of the exit,” the men
attacked Novak and other members of his party. Novak I, 452
F.3d at 904. The men struck Novak’s friend John Henderson
first, before attacking Novak. Near the end of the assault, which
lasted for approximately five minutes, the assailants “tripped
Novak, then hit him in the back of the head” with wooden
boards. Id.
1
Appellants are Capital Management and Development
Corporation; Menage Limited Partnership; Zei, Inc.; Capital
Restaurant Concepts, Ltd.; and Power Station Limited Partnership.
For ease of reference, we refer to appellants collectively as “the Zei
Club” or “the club.”
4
Although the Zei Club maintained a private security team
of fifteen people and also employed two off-duty Metropolitan
Police Department (MPD) officers, all employees were inside
the club when the assault began. When the MPD officers
working security learned of the attack, they “ran out of the club,
stopped the attack, and apprehended some of the assailants.” Id.
at 905. Novak sustained severe injuries as a result of the
beating. He underwent emergency brain surgery immediately
after the attack and was in a coma for nearly three weeks. He
suffered permanent brain damage, loss of motor functions,
speech disturbance, and loss of strength.
Novak filed suit against the Zei Club in the United States
District Court for the District of Columbia, invoking the court’s
diversity jurisdiction. He alleged that the club was liable for the
common law tort of negligence because it did not protect him
from a foreseeable fight in the alley abutting the club’s only exit.
The district court initially granted summary judgment in the
club’s favor, concluding that its “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.” Id. The court also
held that the criminal attack on Novak was not foreseeable.
Although the court “acknowledged that fights occurred as often
as twice a month[, it] concluded that these fights were not
sufficiently ‘frequent.’” Id. (quoting Novak v. Capital Mgmt. &
Dev. Corp., No. 01-0039, Mem. Op. at 7 (D.D.C. July 12,
2004)).
A previous panel of this court reversed the grant of
summary judgment on both grounds. The court explained that
the District of Columbia employs a “substantial special use” test,
rather than an exclusive control test, to determine “when a
business invitor’s duty extends to an egress.” Id. at 909.
Reviewing the facts in the light most favorable to Novak, the
court concluded that a reasonable jury could find that “the Zei
5
Club put the I Street alley to a substantial special use.” Id. at
911. The facts relevant to that conclusion were as follows:
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 I Street alley. The exact spot of the
attack was on a “calculated” and “necessary” egress.
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.
Id. (citation omitted).
The previous panel also held that a reasonable jury could
find that the criminal attack on Novak met the standard of
foreseeability required under District of Columbia case law. Id.
at 913. As the court explained:
Novak . . . 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. If believed, this evidence certainly could put a
reasonable club owner on heightened notice that a
serious problem existed outside its door. . . . Indeed, in
the words of the Zei Club’s own incident report from
the night of the attack, just “moments” prior to the
6
assault on Novak[,] . . . the club had ejected a group of
patrons for fighting inside the club.
Id. at 913-14 (footnote omitted). In addition, “[t]he club, as
business invitor, shared a special relationship with its business
invitees, [including] . . . Novak.” Id. at 913. Drawing all
inferences in Novak’s favor, the court determined that “the club
cannot now seriously contend that an assault at its exit was not
legally foreseeable.” Id. at 914.
In summary, the court concluded that:
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[’s]
. . . evidence on prior similar conduct and conclude that
the Zei Club failed to take reasonable steps to secure
its alley.
Id. Accordingly, we vacated the district court’s grant of
summary judgment and remanded the case for further
proceedings. Id. at 915.
After our ruling in Novak I, the case proceeded to trial.
During the trial, Novak presented evidence consistent with his
proffer of testimony at the summary judgment stage. Regarding
substantial special use, witnesses at trial testified, inter alia, that:
the Zei Club required people seeking to enter the club to form a
line in the I Street alley, and security personnel maintained order
in the line; the club forced patrons to depart through a single exit
abutting the alley; and Novak’s party was first attacked in the
7
alley in close proximity to the exit. Regarding foreseeability,
the evidence was as follows: one former Zei Club security
officer testified that he observed an altercation in the club or in
the alley “at least on a weekly basis” and that he was aware of
gang members taking materials from the Zei Club’s dumpsters
to use in assaults on others; another employee stated that patrons
in the club were ejected from the premises “twice a month” and
that he witnessed altercations in the alley with the same
frequency; the club’s former head of security stated that the club
ejected patrons who were fighting “every two or three weeks”;
and one of the off-duty MPD officers who worked security
testified that he became involved in customer altercations at the
club “once or twice a month.” J.A. 2055-56, 2229, 2723, 2830.
In addition, Novak introduced into evidence the club’s incident
report, which stated that patrons fighting inside were “ejected
from the club” just “[m]oments” before the attack on Novak.
J.A. 3021 (Pl.’s Ex. 6).
Novak also presented evidence at trial indicating that the
absence of security personnel guarding the club’s exit was a
substantial factor contributing to his injuries. Witnesses testified
that the attack lasted for nearly five minutes, that the assailants
did not strike Novak’s head with boards until the end of this
time period, and that the attack ceased immediately once the off-
duty MPD officers rushed outside and intervened. Reviewing
this testimony, Novak’s security expert stated that, in his
opinion, the lack of security in the alley proximately caused
Novak’s injuries. The expert also testified that the Zei Club had
violated a national standard of care by not posting security
guards outside its exit at closing time until all patrons had
dispersed. He described this security measure as the “standard
practice,” id. at 2114, and he named other nightclubs in the
District of Columbia that employed it.
8
The jury returned a verdict for Novak and awarded him
damages of $4,111,772. After the verdict, the Zei Club filed
motions for judgment as a matter of law under Federal Rule of
Civil Procedure 50(b) and for a new trial under Rule 59. The
district court denied both motions. Novak v. Capital Mgmt. &
Dev. Corp., No. 01-0039, Order (D.D.C. July 28, 2007). The
club now appeals.2 In Part II, we consider the club’s contention
that it was entitled to judgment as a matter of law based on the
insufficiency of Novak’s evidence and on his assumption of the
risk of injury. In Part III, we address its argument that the
district court failed to instruct the jury regarding Novak’s
obligation to prove the club’s substantial special use of the
alley.3
2
We initially dismissed an appeal by the club for lack of
jurisdiction because its cross-claims against four individuals alleged
to have assaulted Novak remained pending, and the district court’s
judgment on the verdict was therefore not final. See Novak v. Capital
Mgmt. & Dev. Corp., 298 Fed. Appx. 1 (D.C. Cir. 2008). We advised
the parties, however, that “in the interest of sparing [them] further
expenditure of resources,” if they obtained a final judgment as to all
of the claims and parties and filed a notice of appeal within thirty
days, we would permit them “to proceed on the new appeal on the
basis of the briefs and record previously submitted and on the oral
argument previously heard.” Id. at *2; see Chvala v. D.C. Transit
Sys., Inc., 293 F.2d 519, 521 (D.C. Cir. 1961); Pons v. Republic of
Cuba, 288 F.2d 879, 880 (D.C. Cir. 1961); see also 10 CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2660, at 152-53 & n.19 (3d ed. 1998).
Following our ruling, the district court dismissed the cross-claims and
the parties obtained a final judgment. Because the club filed its notice
of appeal within thirty days of the date of our dismissal, we now
consider its appeal on the basis of the previously submitted briefs and
record and on the previous oral argument.
3
The Zei Club also contends that the district court improperly
instructed the jury regarding proximate cause and vicarious liability,
9
II
The Zei Club contends that the district court erred in
denying its motion for judgment as a matter of law. We review
such a denial de novo, but “[w]e do not . . . lightly disturb a jury
verdict. Judgment as a matter of law is appropriate only if the
evidence and all reasonable inferences that can be drawn
therefrom are so one-sided that reasonable men and women
could not have reached a verdict in plaintiff’s favor.’” Muldrow
v. Re-Direct, Inc., 493 F.3d 160, 165 (D.C. Cir. 2007) (quoting
McGill v. Muñoz, 203 F.3d 843, 845 (D.C. Cir. 2000)). We first
discuss the club’s contention that there was insufficient evidence
to support the jury’s verdict; we then consider its argument that
Novak assumed the risk of injury as a matter of law.
A
The Zei Club’s arguments relating to the sufficiency of the
evidence merit only brief discussion. The club contends that
there was insufficient evidence of substantial special use,
foreseeability, proximate cause, and a national standard of care.
Novak I forecloses the club’s challenge regarding the
sufficiency of the evidence of substantial special use. As
explained in Part I above, the evidence Novak introduced at trial
relating to this issue was nearly identical to that which he
presented at the summary judgment stage. Indeed, at oral
erroneously used a general verdict form rather than one posing
specific interrogatories, and improperly admitted certain evidence.
We have considered and rejected these arguments, which are either too
insubstantial for extended discussion or are waived because the club
omitted them from its opening brief and raised them only in its reply
brief. See, e.g., World Wide Minerals, Ltd. v. Republic of Kazakhstan,
296 F.3d 1154, 1160 (D.C. Cir. 2002).
10
argument we asked the Zei Club’s counsel whether there was
any fact relating to substantial special use that was listed in
Novak I but that did not come into evidence at trial. He could
not cite a single one. Oral Arg. Recording at 9:24-10:22. In
Novak I, we reversed the grant of summary judgment in the
club’s favor because, based on the evidence then before the
district court, a reasonable jury could find that “the Zei Club put
the I Street alley to a substantial special use.” 452 F.3d at 911.
Based on the same evidence presented at trial, a reasonable jury
could -- and did -- find that the club made substantial special use
of the alley. See generally Borgo v. Goldin, 204 F.3d 251, 254
(D.C. Cir. 2000) (noting that neither summary judgment nor
judgment as a matter of law may be granted if “a reasonable jury
could return a verdict for the nonmoving party” (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986))).
Novak I also precludes the club’s argument regarding the
sufficiency of the evidence of foreseeability. Again, Novak’s
evidence at trial relating to foreseeability mirrored the testimony
he proffered at the summary judgment stage. Based on that
evidence, we concluded in Novak I that “the club cannot now
seriously contend that an assault at its exit was not legally
foreseeable.” 452 F.3d at 914. There is no ground to reach a
different conclusion after trial.
Nor does the club fare any better with its contention that
there was insufficient evidence of proximate cause. The club
argues that its failure to provide security in the I Street alley
could not qualify as the proximate cause of Novak’s injuries
because no evidence established that “the presence of one or
both of the off-duty officers on the outside of the exit door rather
than the inside of the exit door would have deterred or prevented
the attack.” Appellants’ Br. 30. But Novak did present
evidence that the absence of security personnel guarding the exit
was a substantial factor contributing to his injuries. See Lacy v.
11
Dist. of Columbia, 424 A.2d 317, 319-22 (D.C. 1980) (applying
a “substantial factor test” to determine whether a defendant’s
negligence was the proximate cause of an injury involving the
criminal acts of a third party). Several witnesses testified that
the attack lasted for nearly five minutes, that the assailants did
not strike Novak’s head with boards until the end of that time
period, and that the attack ceased immediately once the off-duty
MPD officers rushed outside and intervened. In light of this
evidence, the jury could have reasonably concluded that security
officers standing outside the exit would have deterred Novak’s
assailants from attacking him in the first place, or would have
broken up the fight before it escalated and caused him such
serious harm.
We are also unpersuaded by the club’s challenge to the
sufficiency of the evidence of a national standard of care. Under
District of Columbia law, an expert testifying about a national
standard of care must describe a specific standard rather than
refer generally to safety, see Pannell v. Dist. of Columbia, 829
A.2d 474, 479-80 (D.C. 2003), and must show that the standard
is accepted in the industry, see Clark v. Dist. of Columbia, 708
A.2d 632, 635 (D.C. 1997); see also Briggs v. Wash. Metro.
Area Transit Auth., 481 F.3d 839, 847 (D.C. Cir. 2007)
(explaining that “an expert may support a purported standard by
showing that it has been accepted as controlling in facilities and
enterprises that are similar to defendants’ facilities or
enterprises”).
In this case, Novak presented the opinion of a security
expert, Norman Bates, who testified that the Zei Club violated
a national standard of nightclub security by failing to post
security personnel outside its exit at closing time until patrons
dispersed. J.A. 2114 (stating that it was the “standard practice,”
“widespread practice,” and “normal practice” to station security
guards outside “with a special focus . . . at the end of the night
12
when people are leaving . . . to be outside to monitor the
crowd”); see id. at 2128, 2145-46. This testimony satisfied the
requirement of D.C. law that an expert testify about a specific
standard of care, rather than merely about the generalized
objective of safety. Bates also testified that other nightclubs
place security guards at their exits. See, e.g., id. at 2115, 2118.
He specifically named four D.C. nightclubs that follow the
practice, id. at 2146, and he relied on testimony by the Zei
Club’s former general manager, who was unable to name a
single professionally run nightclub in the District that does not
position security personnel outside, id. at 2146, 2177. This
factual basis for the expert’s asserted standard of care was
comparatively thin, see Butera v. Dist. of Columbia, 235 F.3d
637, 659-60 (D.C. Cir. 2001) (cataloguing D.C. cases in this
area of the law), but it was sufficient to establish that the
standard Bates articulated was in effect at comparable facilities,
see Dist. of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C.
1987) (holding that an expert established a national standard of
care for police officer training by testifying that police
departments throughout the country commonly trained officers
to deal with mentally disturbed persons and by naming several
departments that offered such training).4
4
We also reject the club’s argument that Bates’ testimony did not
meet the standard of admissibility announced in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 150, 152 (1999) (holding that
in some cases “the relevant reliability concerns may focus upon
personal knowledge or experience,” and that “the trial judge must have
considerable leeway in deciding . . . how to go about determining
whether particular expert testimony is reliable”).
13
B
The club further contends that the district court should have
granted its motion for judgment as a matter of law, as well as its
earlier motion for summary judgment, based on Novak’s alleged
assumption of the risk by “voluntarily . . . join[ing] the fight . . .
to assist his friend” John Henderson, whom the group of men
attacked first. Appellants’ Br. 20. Under District of Columbia
law, assumption of the risk “is an affirmative defense in all
negligence actions and if properly invoked, it may operate as a
complete bar to liability.” Morrison v. MacNamara, 407 A.2d
555, 566 (D.C. 1979). “[T]he princip[al] elements of the
defense are an actual knowledge and comprehension of a danger
caused by the defendant’s negligence and the plaintiff’s
voluntary exposure to that known danger.” Id. at 567. Because
this inquiry generally requires analysis of complex and case-
specific factors, “the determination as to whether or not a
plaintiff assumed the risk is a question of fact usually to be
determined by the jury.” Id. at 568.
According to the Zei Club, Novak assumed the risk of
injury because he knowingly and voluntarily became part of an
ongoing fight after the assailants attacked Henderson. Although
the club claims that Novak did not dispute at the summary
judgment stage that he “rushed back up the alley and joined the
fight to aid [Henderson],” J.A. 225 (Defs.’ Statement of
Undisputed Facts), in fact Novak vigorously contested this
characterization of the events. In his opposition to the club’s
summary judgment motion, Novak stated that he “became part
of the melee involuntarily, as it developed around [him],” id. at
410, and he proffered Henderson’s deposition testimony that
Novak was only seven feet away when the attack began, id. at
449. In light of this genuine issue of material fact, the district
court properly denied the club summary judgment on the issue
of assumption of the risk.
14
Nor was the club entitled to judgment as a matter of law
after the jury rendered its verdict in favor of Novak. Viewing
the evidence in the light most favorable to Novak, a reasonable
jury could have found that Novak did not voluntarily enter the
fray, but rather was swept up in the attack. One of Novak’s
friends testified that Novak left the club first, with Henderson
“just behind him.” Id. at 1913. The group “hadn’t gone four or
five feet” when Henderson was attacked, id. at 1915, suggesting
that Novak was just a few steps ahead and could easily have
been caught up in the fight against his will. Indeed, Novak’s
sister, who was present in the I Street alley and witnessed the
attack, testified at trial that “there was nowhere to really go, so
[the assailants] just all came towards us.” Id. at 1949.
The jury could also have reasonably believed that Novak
did not voluntarily assume the risk of injury because the
negligence of the Zei Club “left him no reasonable alternative
course of conduct in order to avert harm to himself or another.”
RESTATEMENT (SECOND) OF TORTS § 496E(2)(a) (1965). The
club misstates D.C. law when it asserts that “the reasonableness
of defending a friend has no impact on the defense of
assumption of the risk, and in fact proves it.” Appellants’ Br. 21
n.8. To the contrary, “[o]ne who endeavors to safeguard others
against a threat of injury posed by a defendant’s negligence does
not voluntarily assume the incidental risks where the alternative
is to suffer a continuation of the danger.” Aylor v. Intercounty
Constr. Corp., 381 F.2d 930, 934 n.9 (D.C. Cir. 1967) (citing
RESTATEMENT (SECOND) OF TORTS § 496E(2)(a)); see also
Kanelos v. Kettler, 406 F.2d 951, 955 (D.C. Cir. 1968) (“The
rescuer who extricates another from harm threatened by a third
person does not assume the risk as against the latter where the
only remaining choice is acquiescence in continuance of the
peril.”).
15
Finally, even if the jury believed that Novak voluntarily
entered the fight, it could still have reasonably found that he did
not fully appreciate the danger of the situation. See Morrison,
407 A.2d at 566-67 (“[T]he evidence must show that the
plaintiff possessed full comprehension and appreciation of the
danger.”). When Novak initially became involved in the fight,
his assailants were only using their fists. Near the end of the
five-minute attack, however, they picked up wooden boards and
used them to beat Novak over the head. Facing an analogous
situation in Sinai v. Pollinger Co., the District of Columbia
Court of Appeals concluded that the plaintiff had not assumed
the risk of injury. 498 A.2d 520, 524-25 (D.C. 1985). In that
case, the plaintiff was accosted by a man at the front entrance of
an apartment building. When the plaintiff voluntarily followed
his assailant out to the parking lot, the assailant pulled a gun
from his car and shot him. The court held that the plaintiff had
not assumed the risk of injury by following the assailant to the
parking lot because “the gun . . . introduced a ‘new element’ into
the situation,” which “escalated the conflict, transforming it
from one whose risks were more or less known into one whose
potentialities [the plaintiff] could in no way have anticipated.”
Id. In this case, the attackers’ use of the boards as weapons
qualifies as a “new element” that transformed the risks Novak
confronted.
Accordingly, we conclude that the district court properly
rejected the club’s motions for summary judgment and judgment
as a matter of law.
III
The Zei Club also maintains that the district court failed to
instruct the jury regarding the doctrine of substantial special use.
“An alleged failure to submit a proper jury instruction is a
question of law subject to de novo review; the choice of the
16
language to be used in a particular instruction, however, is
reviewed only for abuse of discretion.” Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993).
The club contends that “the trial court . . . deleted the issue
of ‘substantial special use’ entirely from the instructions given
to the jury.” Appellants’ Br. 13. That contention is factually
incorrect. As part of the jury instructions, the district court
stated:
In this case the plaintiff, Dominic Novak, claims that
the defendants are liable to him for the damages he
sustained on March 22nd, 1998, because they were
negligent. Specifically, Mr. Novak claims that
defendants did not properly monitor the exit of the Zei
Club and the alley beyond the exit, which is property
not owned by the Zei Club, because the Zei Club put
that area to a substantial special use.
The plaintiff must prove that the defendants were
negligent, and that such negligence proximately caused
the plaintiff’s injuries and damages. The plaintiff must
prove both negligence and damages by a
preponderance of the evidence.
J.A. 2963-64 (emphasis added). In context, the court listed
substantial special use as an element of Novak’s “[s]pecific[]”
claim of negligence, and the court’s subsequent references to
“negligence” are reasonably construed as using the term as
shorthand that incorporated that element. Thus, when the judge
immediately followed the reference to substantial special use
with the instruction that “[t]he plaintiff must prove that the
defendants were negligent,” he effectively stated that Novak
bore the burden of proving that the Zei Club did not properly
17
monitor its exit and the alley, and that the club put that area to
a substantial special use.
Indeed, both parties recognized that the jury instructions
made proof of substantial special use a part of Novak’s
negligence claim. In his summation, Novak’s counsel read the
instruction defining the negligence claim and then stated:
Okay. What does that mean? How did the Zei Club
put that alley, the I Street alley where this assault
occurred, how did they put that to a substantial special
use? They locked the front entrance, they forced
patrons to go out into that alley. . . . They lined up
patrons from the Zei street alley. . . . Two thousand
five hundred patrons on a Saturday night would be
forced out that exit down that alley or up to the left.
That’s what we mean by substantial special use.
Id. at 2905. Similarly, the Zei Club’s own counsel told the jury
in his closing argument that Novak had not met his burden of
proving substantial special use, as the jury instructions required:
Plaintiff’s burden in this case, and you’ll see it on page
six of the jury instructions[,] . . . is to demonstrate that
the Zei Club put the I Street alley to a substantial
special use. What evidence has been presented in this
case? The I Street and Zei alleys were both public
alleys open to pedestrians and motorists. The Zei Club
had no right to control either alley. They couldn’t clear
them, fence them, block them, close them or patrol
them. . . . [Novak’s counsel] has completely failed in
this case to present any evidence of special use for
control of those alleys.
18
Id. at 2935-36 (emphasis added). Although the district court
could certainly have expanded its discussion of substantial
special use, the charge that it entirely “deleted” the issue from
the jury instructions is simply untrue.5
IV
For the foregoing reasons, we find no merit in the
arguments that the Zei Club has raised on this appeal. The
judgment of the district court is therefore
Affirmed.
5
In its reply brief, the Zei Club changed tack and objected that the
district court failed to define the term “substantial special use” for the
jury. The club has waived this argument by waiting until its reply
brief to make it. See World Wide Minerals, 296 F.3d at 1160; see
also Bd. of Regents of Univ. of Wash. v. EPA, 86 F.3d 1214,
1221(D.C. Cir. 1996) (explaining that, “[t]o prevent . . . sandbagging
of appellees and respondents,” the court treats an argument as waived
when the petitioners “were obscure on th[e] issue in their opening
brief” and only “warmed to the . . . issue” in their reply brief).
Moreover, we note that the Zei Club’s own proposed jury instruction
on substantial special use did not contain a definition of the term. See
J.A. 1191.