Night and Day Management, LLC v. Thomas M. Butler & Thomas M. Butler v. Night and Day Management, LLC , 101 A.3d 1033 ( 2014 )

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CV-944
NIGHT AND DAY MANAGEMENT, LLC, et al., APPELLANTS,
V.
THOMAS M. BUTLER, et al., APPELLEES,
and
NO. 13-CV-1168
THOMAS M. BUTLER, et al., APPELLANTS,
V.
NIGHT AND DAY MANAGEMENT, LLC, et al., APPELLEES.
Appeals from the Superior Court
of the District of Columbia
(CAB-8033-12)
(Hon. Anthony C. Epstein, Trial Judge)
(Argued September 24, 2014 Decided October 23, 2014)
Matthew August LeFande for appellants/cross-appellees.
David L. Shurtz for appellees/cross-appellants.
Before FISHER and EASTERLY, Associate Judges, and NEBEKER, Senior
Judge.
2
FISHER, Associate Judge: These cross-appeals arise out of a fight at a
nightclub. Plaintiffs Thomas M. Butler, Patrick K. Glover, Gerry M. Delilly, and
Richard T. Short sued the owner of the Fur Factory Nightclub, defendant Night and
Day Management, LLC, and its principal, defendant Michael R. Rehman, claiming
that the lack of proper security caused the injuries they sustained. The trial court
entered summary judgment for defendants because plaintiffs had not proffered the
expert testimony regarding the appropriate standard of care that they would need to
prevail; it also denied defendants’ request for sanctions. We affirm both orders.
I. Background
A. The Nightclub Altercation
According to declarations submitted in opposition to defendants’ motion to
dismiss, on February 26, 2010, plaintiffs reserved a table in the VIP section of the
Fur Factory Nightclub, located at 33 Patterson Street in Northeast Washington,
D.C. At around 11:30 p.m., they arrived at the club. There were no security
personnel in the VIP section.
3
While in the VIP section, Short slipped and fell, knocking over a bottle of
vodka which belonged to another group of patrons at a nearby table. Plaintiffs’
repeated offers to pay for a new bottle were refused. Over the next fifteen minutes,
tension increased between the two groups. At one point, one of the other patrons
flashed gang signs at plaintiffs.
About twenty minutes after Short slipped, one of those patrons finished the
remaining liquor in the bottle of vodka and broke it over Short’s head. The
assailant and his friends then attacked plaintiffs with broken bottles. The fight
lasted ten to fifteen minutes. There were no security personnel in the VIP room
when the fight began, and the cameras in the room were not working.
Club security personnel arrived after the fight was over, but they did not
attempt to determine who started the fight. The assaulting patrons left without
being identified or questioned. Security personnel escorted plaintiffs out of the
club, but did not offer any medical assistance although plaintiffs were visibly
bleeding. Plaintiffs went to Washington Hospital Center to have their injuries
treated.
4
B. Fur’s Agreement With the ANC
On April 29, 2008, Fur Factory Nightclub entered into an agreement with
Advisory Neighborhood Commission 6C. The nightclub was obligated to abide by
the agreement in order to keep its liquor license. The agreement provided, in
pertinent part:
b) Establishment shall have on the premises a sufficient
number of employees to assure adequate security and to
control unruly patrons, whether inside or in the
immediate outside area. At a minimum, the
Establishment shall have two security persons, whose
sole responsibility is monitoring of the peace, order and
quiet of the establishment and its immediate environs.
....
f) Establishment shall operate surveillance/cameras
inside and outside of the Premises and preserve
surveillance tapes a minimum of two weeks.
....
h) Establishment shall take all necessary steps to prevent
patron rowdiness, including refusing admission and
service to, or ejecting rowdy or unruly persons.
5
C. Procedural Background
On October 11, 2012, plaintiffs filed their complaint, claiming, among other
things, that the nightclub was negligent because it had not provided adequate
security. 1 On July 16, 2013, the trial court granted defendants’ motion for
summary judgment but denied their request for attorneys’ fees. The court did not
base the first decision on any argument raised by the parties. Instead, relying on
Thomas v. District of Columbia, 942 A.2d 1154 (D.C. 2008), it granted summary
judgment sua sponte on the ground that plaintiffs could not establish the standard
of care for nightclub security without presenting expert testimony. The court
recognized that defendants had not raised the issue, and gave plaintiffs an
opportunity to file a motion for reconsideration so that they could “identify
admissible, competent evidence sufficient to carry their burden of proof.”
On August 5, 2013, plaintiffs moved for reconsideration, contending that the
standard of care could be established by reference to Title 25 of the D.C. Code and
1
The complaint alleged another negligence claim for Short’s slip and fall, a
breach-of-contract claim, and a fraud claim. Those claims are not at issue in this
appeal.
6
the nightclub’s agreement with the ANC. On August 29, 2013, the court denied
the motion for reconsideration.
In the meantime, on August 19, 2013, defendants appealed the trial court’s
denial of attorneys’ fees. On September 14, 2013, plaintiffs tendered a notice of
appeal from the court’s summary judgment order and moved for leave to file it
pursuant to D.C. App. R. 4 (a)(5)(A). On October 16, 2013, the court granted that
motion. Defendants moved to dismiss, contending that this court has no
jurisdiction over plaintiffs’ cross-appeal because it was late. We consolidated the
appeals and ordered the parties to address the jurisdictional issue in their briefs.
II. Summary Judgment
We review the trial court’s grant of a motion for summary judgment
de novo, and affirm the judgment only if there is no genuine issue of material fact
remaining after taking all inferences in favor of the non-moving party. Super. Ct.
Civ. R. 56 (c); Steele v. Salb, 93 A.3d 1277, 1281 (D.C. 2014). Once the movant
has made a sufficient evidentiary showing to support the motion, the opposing
party’s response “must set forth specific facts showing that there is a genuine issue
for trial.” Super. Ct. Civ. R. 56 (e); Logan v. LaSalle Bank Nat’l Ass’n, 80 A.3d
71014, 1019 (D.C. 2013). It is appropriate to enter summary judgment “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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Doe v.
Safeway, Inc., 88 A.3d 131, 132-33 (D.C. 2014).
A. Granting Summary Judgment Sua Sponte
Although plaintiffs do not challenge the trial court’s decision on procedural
grounds, we first discuss whether summary judgment was properly granted on a
ground the trial court raised sua sponte. As we have recognized, “[a] court may
grant summary judgment sua sponte when it appears that a party cannot prevail on
a claim or defense as a matter of law, so long as the losing party was on notice that
it had to come forward with all of its evidence.” Thomas v. District of Columbia,
942 A.2d 1154, 1158 (D.C. 2008). In determining whether summary judgment
was properly granted sua sponte, our decisions have focused on whether the losing
party had adequate notice. See, e.g., Embassy of Pakistan, IIS v. Lenkin Co.
Mgmt., 996 A.2d 817, 819 (D.C. 2010) (holding that Rule 56 (c) requires the trial
court to give a party at least ten days’ notice before granting a motion to dismiss
that it converted into a motion for summary judgment sua sponte); Thomas, 942
8
A.2d at 1158 (sua sponte grant of summary judgment proper where losing party
“was not prejudiced by any lack of notice”); Tobin v. John Grotta Co., 886 A.2d
87, 91 (D.C. 2005) (trial court erred in granting summary judgment sua sponte
without giving losing party “prior notice and an opportunity to oppose that course
of action”).
By granting summary judgment before giving plaintiffs an opportunity to
respond to the issue it had raised sua sponte, the trial court unnecessarily
complicated the record and the calculation of the time for noting an appeal. It
would have been preferable for the court to defer ruling on the motion for
summary judgment, raise the issue with both parties, and give them adequate time
to respond before deciding the motion. That procedure would have alleviated any
concerns that plaintiffs were prejudiced by the manner in which summary
judgment was granted.
Nevertheless, plaintiffs were given notice of the expert testimony issue and
the opportunity to submit more evidence in a motion for reconsideration. The trial
court evaluated that motion under the Rule 56 standard for summary judgment
9
instead of the more demanding standards which apply to motions filed under
Rule 59 (e) or Rule 60. Thus, plaintiffs ultimately did not suffer any prejudice.2
B. Necessity of Expert Testimony
To prevail on a claim of negligence, a plaintiff must prove “(1) that the
defendant owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the
plaintiff that was proximately caused by the breach.” Hedgepeth v. Whitman
Walker Clinic, 22 A.3d 789, 793 (D.C. 2011) (en banc). “In the District of
Columbia the applicable standard for determining whether an owner or occupier of
2
Defendants contend that plaintiffs’ cross-appeal should be dismissed
because they did not file a timely notice of appeal. Although a party normally
must file a notice of appeal within thirty days, D.C. App. R. 4 (a)(1), the trial court
may extend the time for filing a notice of appeal if the party files the notice no later
than thirty days after the notice of appeal was due and shows “excusable neglect or
good cause.” Clark v. Bridges, 75 A.3d 149, 153 n.8 (D.C. 2013) (quoting D.C.
App. R. 4 (a)(5)(A)). The decision to grant an extension of time to appeal is
reviewed for abuse of discretion. Snow v. Capitol Terrace, Inc., 602 A.2d 121, 124
(D.C. 1992) (citing Trezevant v. Trezevant, 403 A.2d 1134, 1137 (D.C. 1979)).
Plaintiffs tendered a notice of appeal and moved for an extension of time on
September 14, 2013, thirty days after any appeal from the July 16, 2013, order was
due. See D.C. App. R. 4 (a)(1), (6); D.C. Super. Ct. R. 54 (a). Plaintiffs delayed in
filing a notice of appeal because of a pending motion for reconsideration, which
the trial court was obliged to consider because it had granted summary judgment
against plaintiffs on an issue it raised sua sponte. We therefore find no abuse of
discretion in the trial court’s granting, for good cause, plaintiffs’ request for an
extension of time to file a notice of appeal.
10
land has exercised the proper level of care to a person lawfully upon his premises
is reasonable care under all of the circumstances.” District of Columbia Hous.
Auth. v. Pinkney, 970 A.2d 854, 866 (D.C. 2009) (quoting Sandoe v. Lefta Assocs.,
559 A.2d 732, 738 (D.C. 1988)).
In a context that is “within the realm of common knowledge and everyday
experience, the plaintiff is not required to adduce expert testimony either to
establish the applicable standard of care or to prove that the defendant failed to
adhere to it.” Tolu v. Ayodeji, 945 A.2d 596, 601 (D.C. 2008) (quoting Varner v.
District of Columbia, 891 A.2d 260, 265 (D.C. 2006)). However, if the subject of
the standard of care is “so distinctly related to some science, profession, or
occupation as to be beyond the ken of the average lay juror[,] . . . expert testimony
is required in order for a plaintiff to meet this burden.” Id. Accordingly, we have
affirmed trial court rulings that expert testimony is required to establish the
standard of care in negligence cases that involve “issues of safety, security and
crime prevention.” Varner, 891 A.2d at 267; see also Hill v. Metro. African
Methodist Episcopal Church, 779 A.2d 906, 908-10 (D.C. 2001).
In Hill, for example, the appellant was injured when a rush of people caused
her to fall on a stairway while leaving an inauguration ceremony at a church. Hill,
11
779 A.2d at 907. She claimed that the church was negligent in not using ushers to
control the crowd while people were leaving. Id. at 907-08. We held that though
the process of entering and leaving large events was within the common
knowledge of the average juror, establishing security for such events was not. Id.
at 910. Thus, we held that, without expert testimony, “the jury would be left to
sheer speculation as to various types of crowd control, what level of measures is
generally accepted as reasonable in such circumstances, and the relation of such
measures to possible mishaps in the exiting process.” Id.In this case, plaintiffs claimed that the nightclub was negligent because
security personnel did not intervene in the fight. But plaintiffs took no discovery
and provided no evidence regarding how many guards were on duty the night of
the fight, how they were deployed, or why they did not intervene. This is the type
of information an expert would need to formulate an informed opinion on the
appropriate standard of care and whether it was breached. Even assuming that
there were no security guards or working security cameras in the VIP room when
the fight occurred, those facts cannot establish, by themselves, what the nightclub
security arrangements should have been. Such issues are generally beyond the
common knowledge of the average juror. See Hill, 779 A.2d at 910. Without
12
expert testimony or some other evidence of the standard of care, a jury could
resolve plaintiffs’ negligence claim only through sheer speculation.3
C. Other Sources for the Standard of Care
Plaintiffs contend, at length, that the standard of care in this case may be
provided by statute, rather than expert testimony, under the doctrine of negligence
per se. “To prevail on a negligence per se theory, the plaintiff may, in certain
circumstances and under specified conditions[,] rely on a statute or regulation as
proof of the applicable standard of care.” Clark v. District of Columbia, 708 A.2d
632, 636 (D.C. 1997) (internal quotations and alteration omitted). Violation of a
statute or regulation may constitute negligence per se only “if the statute is meant
to promote safety, if the plaintiff is a member of the class to be protected by the
statute, and if the defendant is a person upon whom the statute imposes specific
duties.” Ginsberg v. Granados, 963 A.2d 1134, 1140 (D.C. 2009) (quoting
McCracken v. Walls-Kaufman, 717 A.2d 346, 354 (D.C. 1998)). Moreover, the
statute or regulation “must not merely repeat the common law duty of reasonable
care, but must set forth specific guidelines to govern behavior.” Chadbourne v.
3
While plaintiffs did provide evidence that the nightclub’s security cameras
were not working, a jury would have to engage in speculation about the reasons
why the cameras were not working in order to find defendants negligent.
13
Kappaz, 779 A.2d 293, 296 (D.C. 2001) (quoting McNeil Pharm. v. Hawkins, 686
A.2d 567, 579 (D.C. 1996)).
We have held that the standard of care in a negligence action can be
established by D.C. Code § 25-781 (b), the statutory obligation of liquor licensees
not to permit minors or intoxicated persons to drink on their premises. Jarrett v.
Woodward Bros., 751 A.2d 972, 984-85 (D.C. 2000); Rong Yao Zhou v. Jennifer
Mall Rest., 534 A.2d 1268, 1276 (D.C. 1987).4 Plaintiffs claim that the applicable
standard of care in this case can be derived from § 25-402, which requires
nightclubs to submit a security plan with a liquor-license application. D.C. Code
§ 25-402 (d) (2010 Supp.).
Section 25-781 (b) specifically states that liquor licensees may not allow
minors or intoxicated persons to drink on their premises. D.C. Code § 25-781 (b)
(2001). In contrast, § 25-402 (d) only requires that a security plan be submitted
with a nightclub’s liquor-license application, which is subject to review by the
Alcoholic Beverage Control Board. D.C. Code §§ 25-402 (d), -433 (2010 Supp.).
4
Although plaintiffs contend that the nightclub violated § 25-781 (b) by
allowing their assailants to drink on the premises, the statute only imposes limits
with respect to minors, intoxicated persons, or persons of “notoriously intemperate
habits.” D.C. Code § 25-781 (b) (2001). There is no evidence that the assailants
fell into any of those categories.
14
Though the statute describes in great detail what topics the plan must address, the
specifics are left to the discretion of the applicant and the review board. D.C. Code
§ 25-403 (g) (2010 Supp.). Accordingly, a standard of care cannot be imported
from the statutory requirement that nightclubs submit a security plan with their
license applications. Cf. Carleton v. Winter, 901 A.2d 174, 179-80 (D.C. 2006)
(declining to import standard of care from statute generally defining a realtor’s
obligations). Moreover, even if the nightclub’s security plan could provide the
standard of care, plaintiffs did not submit it to the trial court.
Plaintiffs alternatively claim that the agreement between the nightclub and
the ANC provides the standard of care for security in this case because “[a] jury
could infer the connection between D.C. Code § 25-403 and the security plan
agreed to by the ANC and FUR . . . .” They contend that violation of the
agreement was negligence per se because the nightclub was obligated to comply
with the agreement to keep its liquor license.
However, the agreement contains no specific instructions on how the
security of the nightclub is to be arranged. For example, it states that the nightclub
“shall have on the premises a sufficient number of employees to assure adequate
security and to control unruly patrons, whether inside or in the immediate area.” It
15
also states that the nightclub “shall operate surveillance/cameras inside and outside
of the Premises and preserve surveillance tapes a minimum of two weeks.” Those
general requirements, using terms such as “sufficient” and “adequate,” grant the
nightclub considerable discretion and do not specifically outline any standards
through which its day-to-day security can be evaluated. The agreement therefore
cannot establish the standard of care under a theory of negligence per se.5
Plaintiffs failed to provide evidence of the applicable standard of care.
Accordingly, the judgment on appeal is
Affirmed.6
5
Even if the agreement did provide specific instructions, guidelines such as
internal policy manuals cannot provide the standard of care under the doctrine of
negligence per se. See, e.g., Clark, 708 A.2d at 636 (suicide prevention plan for
juvenile detention facility); Morgan v. District of Columbia, 468 A.2d 1306, 1317-
18 (D.C. 1983) (en banc) (police department general orders). While the agreement
may be admissible as bearing on the standard of care, expert testimony is still
necessary to establish that standard. See Clark, 708 A.2d at 636.
6
We need not devote much discussion to defendants’ separate appeal from
the denial of their repeated motions for sanctions. Under Super. Ct. Civ. R. 11,
sanctions may be imposed on attorneys or parties that have not made a reasonable
inquiry into whether the claims they allege in a complaint are supported by the law
and the facts, or will be after adequate discovery. Super. Ct. Civ. R. 11 (b), (c).
In this case, plaintiffs clearly had a good-faith basis for thinking that the
claims in their complaint were meritorious. The weaknesses in their case were
(continued…)
16
(…continued)
only illuminated at the summary judgment stage, after they had the opportunity to
conduct discovery but failed to do so. We therefore affirm the trial court’s refusal
to sanction plaintiffs. See Ruesch Int’l Monetary Servs. v. Farrington, 754 A.2d
328, 331 (D.C. 2000) (“Rule 11 is violated only when it is patently clear that a
claim has absolutely no chance of success.” (internal quotations omitted)).