The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Early in the morning of September 7, 2003, Elizabeth Anton (represented in this action by her mother, Grace Anton), a hostess at the defendant restaurant, fell from an eighth floor residential balcony to her death. Anton was intoxicated at the time of her death and was twenty years of age. The plaintiff claims that the defendant served the decedent alcohol at its restaurant and that this action led ultimately to the decedent's death. The defendant now moves for summary judgment, arguing that doctrines of assumption of the risk and contributory negligence bar the plaintiff's suit and that the plaintiff lacks adequate evidence to prove its prima facie case. Because the plaintiff concedes dismissal of Count II, brought under the Virginia Survival Statute, and concedes dismissal of Count III, brought under the District of Columbia Wrongful Death Act, the court grants summary judgment as to those claims. Because assumption of the risk and contributory negligence are factual matters upon which reasonable jurors could disagree, and because the sufficiency of the evidence is ample to survive summary judgment, the court denies summary judgment as to Count I and Count IV of the plaintiff's complaint.
The decedent, Elizabeth Anton, was, until the time of her death, employed as a hostess at Café Milano on Prospect Street in Georgetown, Washington, D.C. Café Milano is owned by the defendant, Prospect Café Milano, Inc. Compl. ¶ 10. On September 6, 2003, the decedent worked an evening shift at Café Milano. Id. Following her shift, the plaintiff alleges that the decedent remained at the restaurant and the defendant's employees or agents served her alcoholic beverages. Id. ¶¶ 11, 12. According to the plaintiff, the defendant's employees had actual knowledge that the decedent was under 21 years old. Id. ¶ 13. The plaintiff claims that the practice of serving alcohol to underage employees was common at the defendant restaurant. Id. ¶ 14.
At approximately 2:00 a.m. on September 7, 2003, the decedent and assistant manager Pierre Chacra departed the restaurant for Chacra's residence at 1200 N. Veitch St., in Arlington, Virginia. Id. ¶ 15. At 2:33 a.m., Chacra called 911 to inform them that the decedent had fallen from his balcony. Id. ¶ 18. The injuries sustained by Anton proved fatal. Id. ¶ 19.
On September 2, 2004, the decedent's mother, Grace Anton, filed a lawsuit in this court as the administrator of her daughter's estate against the defendant restaurant claiming that the restaurant's negligence in serving alcohol to the decedent was a proximate cause of her death. See Compl. She seeks twenty million dollars in compensatory damages plus interest and costs. Id. As part of the plaintiff's pursuit of discovery material, the plaintiff deposed Chacra on September 21, 2005. Pl.'s Mot. at 2. Chacra appeared at the deposition with his criminal attorney, who, for virtually every question asked by the plaintiff's attorney, advised his client to assert his Fifth Amendment privilege against self-incrimination. Id. at 3.
On February 27, 2006, the court issued a memorandum opinion denying the plaintiff's motion to compel Chacra's testimony. Mem. Op. (Feb. 27, 2006). Specifically, the court ruled that Chacra had appropriately invoked his Fifth Amendment privilege in refusing to answer questions regarding the events immediately preceding the decedent's death. Id.
Following a period of discovery, the defendant now moves for summary judgment. The defendant supports its motion on several fronts. First, the defendant contends that due to Chacra's refusal to testify, the plaintiff lacks sufficient evidentiary support for its theory of the case and will be unable, as a matter of law, to demonstrate to the jury that the defendant's actions constituted the proximate cause of the plaintiff's death. Def.'s Mot. at 6-10. Second, as to Count I, which is brought under Virginia's wrongful death statute, the defendant argues ...