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Varner v. District of Columbia

February 2, 2006


Appeals from the Superior Court of the District of Columbia (CA9049-01) (Hon. Herbert B. Dixon, Jr., Trial Judge).

The opinion of the court was delivered by: Schwelb, Associate Judge

Argued December 7, 2005

Before SCHWELB and FARRELL, Associate Judges, and NEBEKER, Senior Judge.

Willie and Diane Varner appeal from an order granting summary judgment in favor of defendants Gallaudet University and the District of Columbia*fn1 in the wrongful death and survival action brought against these defendants following the murder at Gallaudet University of the Varners' son, Benjamin Varner. We conclude, as did the trial court, that the Varners' evidence, viewed in the light most favorable to them, did not establish a standard of care applicable to the University or the breach of such a standard, that no genuine issue of material fact was presented, and that the University was entitled to judgment as a matter of law. We further conclude that the trial judge did not err in granting summary judgment in favor of the District on the basis of the public duty doctrine. Accordingly, we affirm.


Most of the principal historical facts relevant to these appeals are undisputed. Gallaudet University is an educational institution in Washington, D.C., for students who are deaf or hard of hearing. At the time of his death, Benjamin Varner was a freshman at the University, and he resided on campus at Cogswell Hall.

On September 28, 2000, Eric Plunkett, another student living in Cogswell Hall, was murdered in his room. Plunkett had cerebral palsy and, unable to defend himself from an unexpected attack, he was beaten to death. It was subsequently established that Plunkett's killer was his fellow-student, Joseph Mesa, and that Mesa murdered both Plunkett and Varner. Following Plunkett's death, however, the police arrested freshman Thomas Minch and accused Minch of the murder. Minch had come under suspicion because he had allegedly accused Plunkett of making sexual advances on him. Detective Cimiotti claimed at the time that Minch had confessed to the murder. The United States Attorney declined to file charges against Minch, however, and Minch was released from custody. Nevertheless, Minch remained under suspicion, and he was suspended by the University. It was later discovered that Mesa had stolen Plunkett's credit card and had used it to make purchases, but the police, believing that Minch was responsible, did not attempt to determine whether the murder was related to a theft.

On February 3, 2001, Benjamin Varner was stabbed to death in his room. The police promptly discovered that Varner's checkbook had been stolen, and the use of the checks was traced to Mesa. Mesa was arrested and acknowledged his guilt, and he was subsequently convicted of both murders.

On December 11, 2001, Varner's parents filed suit against the University and the District,*fn2 alleging that both defendants had been negligent. The Varners' principal allegations against the University were

1. that the University was negligent in allowing Mesa to be on campus and by failing to expel him in 1999, after it had been determined that Mesa had committed a number of major thefts and other offenses, and that this negligence on the University's part put Benjamin Varner and other students at risk of bodily harm;*fn3 and

2. that the University was negligent in its security procedures following Plunkett's murder, thereby proximately causing Benjamin Varner's death.

The Varners further alleged that after the Plunkett homicide, the police provided assurances to Gallaudet students, including Benjamin Varner, that they would receive special protection, that their security would be accorded the highest priority, and that it was therefore safe for them to remain in school. According to the Varners, Benjamin and other students relied on these assurances.

Following extensive discovery, the District and Gallaudet filed separate motions for summary judgment. On April 8, 2004, in an eleven-page written order, the trial court granted both motions. The Varners filed a timely appeal.


In order to be entitled to summary judgment, a moving party must show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Super. Ct. Civ. R. 56 (c). We review the trial court's judgment de novo, Drejza v. Vaccaro, 650 A.2d 1308, 1312 (D.C. 1994), and we apply the same substantive standard on appeal as does the trial court in initially considering the motion. Fry v. Diamond Constr., Inc., 659 A.2d 241, 245 (D.C. 1995). The record is viewed in the light most favorable to the party opposing the motion. Graff v. Malawer, 592 A.2d 1038, 1040 (D.C. 1991). "Summary judgment is proper when a party fails to establish an essential element of his case upon which he bears the burden of proof." Pannell v. District of Columbia, 829 A.2d 474, 478 (D.C. 2003).*fn4


A. The University's Failure to Expel Mesa

(1) The Contentions of the Parties

"In an action for negligence, the plaintiff has the burden of proving by a preponderance of the evidence the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between the deviation and the plaintiff's injury." District of Columbia v. Wilson, 721 A.2d 591, 597 (D.C. 1998) (citing District of Columbia v. Watkins, 684 A.2d 395, 401 (D.C. 1996)). The Varners' principal claim against the University is that by failing to expel Mesa for theft and other misconduct, or to suspend him for a longer period, the University caused him to be present on the campus and in a position to murder Benjamin Varner (as well as Eric Plunkett). In particular, the Varners assert that the University's decision in 1999 to suspend Mesa for one year (rather than to expel him) for thefts of several thousand dollars violated the applicable standard of care and proximately caused Benjamin Varner's death. The University contends that the Varners' evidence, viewed in the light most favorable to them, did not demonstrate the existence of an applicable standard of care or the breach of any such standard, that no genuine issue of material fact was raised in regard to the University's negligence, and that the University is entitled to judgment as a matter of law. We agree with the University.

(2) The Need for Expert Testimony

The Varners first assert that the question whether the University was negligent was not "beyond the ken" of the average lay person, Toy v. District of Columbia, 549 A.2d 1, 6 (D.C. 1988), and that therefore no expert testimony was required. "Where negligent conduct is alleged in a context which 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." Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 200 (D.C. 1991) (citations omitted). The Varners point out that Mesa had been disciplined for various acts of misconduct beginning in 1995 when he was attending the high school affiliated with Gallaudet; that he had been repeatedly warned that further misconduct could result in dismissal; and that prior to his suspension in 1999, among other crimes, he had stolen $3,000 from his roommate by misappropriating the victim's ATM card. The Varners also rely on the enumeration, in the University's student handbook, of specific acts of misconduct that, "because of the immediate or eventual jeopardy they pose to human life and/or University property, will more than likely result in automatic and immediate dismissal":

1. activating a false fire alarm or bomb threat

2. tampering with fire apparatus

3. acts of vandalism

4. theft

5. physical assault and battery

6. possession of firearms, explosives, other weapons, or dangerous chemicals

7. other serious offenses as determined by the administration

Pointing out that by 1999, Mesa had committed almost all of these infractions, including repeated thefts, the Varners assert that, even without expert testimony, a genuine issue of material fact was presented as to whether the University failed to exercise reasonable care in deciding not to expel Mesa, or (at least) in permitting him to reside on campus in a student dormitory.

At first blush, there is arguably some common sense appeal to the Varners' suggestion that the average juror does not require advice from experts from academe in order to be able to identify repeated major thefts as misconduct warranting expulsion, or, at least, exclusion from on-campus dormitories. There can be no doubt that, had Mesa been criminally prosecuted for and convicted of some of his misdeeds, he would have faced the prospect of incarceration, perhaps for several years. The precise question here, however, is whether the trial judge committed reversible error in holding that a lay juror could not be expected to determine whether the result of the University's disciplinary process was unreasonable. Mesa was suspended for a year, but not expelled, and ...

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