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Sigmund v. Starwood Urban Investment

February 28, 2007

DONALD WRIGHT SIGMUND, PLAINTIFF,
v.
STARWOOD URBAN INVESTMENT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Donald Wright Sigmund sustained severe injuries on July 12, 2002, when a homemade pipe bomb exploded in his father's vehicle while it was parked in the garage beneath his father's office building at 5225 Wisconsin Avenue, Northwest in Washington, D.C. It is undisputed that the bomb was put there by his half brother, Prescott Sigmund, who has since pled guilty and been sentenced for that crime. Alleging negligence, negligent infliction of emotional distress and gross negligence, plaintiff brought this action against Starwood Urban Retail, VI, LLC ("Starwood"), the property owner; Cassidy & Pinkard Property Services, LLC and Cassidy & Pinkard, Inc. (collectively "Cassidy" or "C&P"), the property manager; Standard Parking Corporation, Standard Parking Corporation IL, and Standard Parking L.P. (collectively "Standard Parking"), the operators and supervisors of the parking garage; and APCOA, Inc. ("APCOA"), the entity allegedly responsible for the management and security of the garage.*fn1 Defendants Starwood, Cassidy, Standard Parking, and APCOA have moved for summary judgment. As explained below, because plaintiff cannot meet the legal standard of a "heightened showing of foreseeability" that is applied when an injury is caused by the intervening criminal act of a third party, see Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 912 (D.C. Cir. 2006), defendants' motions for summary judgment will be granted.

BACKGROUND

For some time prior to the bombing on July 12, 2002, plaintiff's half brother, Prescott Sigmund, planned to kill their father, Donald Sigmund. (Prescott Sigmund Dep. at 145-46.) According to his deposition testimony, Prescott*fn2 had fallen into debt after losing his job in December 2001, and he believed that he stood to inherit approximately $300,000 upon his father's death. (Prescott Sigmund Dep. at 75-80.) Prescott began to put his plan into action approximately six weeks before the bombing when on or about May 28, 2002, he used a fake driver's license that he had created on his home computer to purchase smokeless gunpowder from a shop in Silver Spring, Maryland under an assumed name. (Id. at 93-94; Standard Parking Facts ¶ 12.) Sometime thereafter, in June 2002, he purchased other bomb-making materials, including wires, piping, and model rocket fuses. (Standard Parking Facts ¶ 13.) Prescott told no one of his plan to murder his father. (C&P Facts ¶ 35.)

At the time, Donald Sigmund was president of Wolf & Cohen Life Insurance, Inc., which had its offices at 5225 Wisconsin Avenue, N.W., a multi-story commercial office building with shops and a restaurant on the ground level. (C&P Facts ¶¶ 4, 27.) Plaintiff was working for his father at Wolf & Cohen at the time of the bombing, and Prescott had also worked for the company in the past and was familiar with the office building. (Starwood Amended Compl. ¶ 14; C&P Facts ¶ 42.) Donald Sigmund owned a Chevrolet Blazer that he used "infrequently" and "usually" kept parked in the garage at 5225 Wisconsin. (Prescott Sigmund Dep. at 51, 85-86; Pl. Facts ¶¶ 45, 46.) Prescott possessed a set of keys to his father's Blazer. (Standard Parking Facts ¶ 9.) Late in the evening of July 10, 2002, Prescott drove his own car into the garage at 5225 Wisconsin, opened the Blazer with his keys, and spent approximately two hours assembling a pipe bomb inside the car using the materials he had previously acquired. (C&P Facts ¶¶ 28, 41; Prescott Sigmund Dep. at 45-46.) Prescott then closed up the Blazer and left the garage in his own car. (Prescott Sigmund Dep. at 115.) No one used the Blazer until two days later, when plaintiff, sent on an errand by his father, stepped into the car, thereby detonating the bomb. (C&P Facts ¶ 29.) Plaintiff suffered devastating permanent injuries in the resulting explosion. (Prescott Sigmund Stmt. of Offenses at 8.) Shortly after the bombing, Prescott fled to Missoula, Montana, where he lived under an assumed name for several months. (Id. at 16.) He was apprehended by police after a segment about the bombing aired on the television program "America's Most Wanted." (Id.) He pled guilty to a number of criminal charges and is currently serving a thirty-two year sentence at a federal prison in West Virginia. (Prescott Sigmund Dep. at 61-62.)

Ordinarily the garage at 5225 Wisconsin was secured by an overhead rolling-steel garage door. (Crouch Dep. at 24.) Building tenants could access the garage at any time using an electronic key card, and members of the public, including customers of the restaurant located on the first floor of the building, could also park in the garage for a fee during its hours of operation from 7:00 a.m. until 10:00 p.m. (Pl. Facts ¶ 19; C&P Facts ¶ 5; Collins Dep. at 135.) Parking attendants staffed the garage and monitored the entrance until 10:00 or 11:00 p.m. each evening. (Prescott Sigmund Dep. at 109.) The record also indicates that after-hours public access to the garage was available through the building's restaurant, which was open each night until approximately midnight. (C&P Facts ¶ 6; Collins Dep. at 42; Prescott Sigmund Stmt. of Offenses at 14.) One could walk into the restaurant from the street, through the restaurant into the building's lobby, and then down an unsecured staircase unto the garage.*fn3 (Starwood Amended Compl. ¶ 24; see Collins Dep. at 42 ("[T]he standard building operating hours are roughly from six in the morning to seven in the evening, although one can enter through the restaurant. The restaurant is open late into the evening, and one can enter . . . readily through the restaurant into the lobby, then go to the parking garage, and that includes weekends as well.").)

For several weeks prior to the bombing the garage door at 5225 Wisconsin was broken and stuck in the up position, so that access through the garage door was unrestricted after the parking attendants left for the evening.*fn4 (Pl. Facts ¶ 36.) Prescott learned about the broken garage door on July 9 while visiting his father's office. (Prescott Sigmund Dep. at 43-44.) In his deposition, he testified that the broken door provided "the opportunity . . . [he] had been looking for" to carry out his plan. (Id. at 12.) On the evening of July 10, Prescott arrived at 5225 Wisconsin after the parking attendants had left for the night and drove his car into the garage through the broken door, whereupon he proceeded to plant the bomb. (Id.)

Perhaps not surprisingly, there is no history of car bombings, homicides, or assaults with intent to kill on the premises of 5225 Wisconsin prior to July 12, 2002. Plaintiff's evidence indicates that there were at least thirty-two crimes that occurred at the property that were reported to the D.C. police in the preceding five years, including "9 felonies, 4 crimes against persons, and 8 crimes involving parked autos." (Ortenzo Aff. ¶ 44.) Plaintiff's expert's report and the police reports in the record indicate that the four reported crimes against persons consisted of: (1) a robbery at gunpoint in the area behind the building; (2) an incident in which a disruptive customer kicked an employee of a retail store in the buttocks while being ejected from the property (classified by the police report as "assault with a deadly weapon"); (3) a simple assault involving an employee of Kinko's print shop pushing a customer in the chest with his finger after a verbal dispute; and (4) another simple assault involving an individual striking another individual in the back of his head with his own head. (Ortenzo Report at 38-39; Pl. Ex. I [police reports].) None of these incidents resulted in serious bodily injury. (Starwood Facts ¶ 8.) Based on police reports, it is undisputed that there were only four crimes -- three thefts and a broken car window -- reported to the police as having occurred in the parking garage in the sixand-a-half year period preceding the bombing (C&P Facts ¶ 23), and from the time that Cassidy assumed management in April 2001 until the time of the incident, there was one reported incident of a car theft in October 2001 and an unreported theft of a drop safe from the garage in July 2001. (C&P Facts ¶ 14, Pl. Facts ¶ 26.) There were no crimes against persons reported at the building at all in 2001 or 2002. (Ortenzo Report at 38-39; Pl. Ex. I.) However, with respect to the five-block radius around the property, there were 503 documented crimes in the preceding two years, including twenty-eight assaults (ten being assaults with a deadly weapon and one being an aggravated assault). (Ortenzo Aff. ¶ 51.) Fifty-nine of these 503 crimes occurred in neighboring parking lots or garages. (Id.) There is no evidence in the record of any homicides, attempted homicides, or bombings in the surrounding five-block radius during that period.

Nor is there evidence in the record that any tenants complained to any of the defendants about inadequate security measures or suspicious intruders in the building in the year leading up to the bombing. The deposition testimony of Patricia Williams, director of human resources at Wolf & Cohen, indicates that the garage door was originally installed by the previous building manager about five years prior to the date of her deposition in October 2004 at the request of the building's tenants "[b]ecause the garage was just wide open. Anybody could just walk in and people did not feel safe." (Williams Dep. at 41.) She also testified, without specifying a particular time frame, that she "would see someone suspicious" at the building "maybe once every other month," and when this happened the people at Wolf & Cohen would inform the property manager. (Id. at 48.) However, plaintiff does not dispute that there were no complaints by tenants about security in the building or the garage from the time that Cassidy began managing the property in April 2001 until the time of the bombing, and that no tenant requested additional security in the building during that specific period. (C&P Facts ¶¶ 8, 16; Pl. Facts ¶¶ 22, 28.)

Plaintiff argues that by failing to repair the garage door in a timely manner and by failing to undertake other security measures, defendants did not maintain "the bare minimum of security required by the national standard of care" at 5225 Wisconsin, and that "[p]laintiff suffered catastrophic burn injuries directly due to the [d]efendants' negligence." (See Pl. Opp. at 1, 2, 27, 29.) Arguing that Prescott Sigmund's crimes were unforeseeable as a matter of law, that plaintiff has not identified with sufficient specificity a national standard of care that was breached, and that the negligence alleged by plaintiff was not the proximate cause of plaintiff's injuries, defendants Starwood, Cassidy, Standard Parking, and APCOA have moved for summary judgment. (See C&P Reply at 2, 5-7; Standard Parking Mot. at 11.)

ANALYSIS

I. Standard of Review

Under Fed. R. Civ. P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Only factual disputes that are capable of affecting the substantive outcome of the case under the governing law are deemed "material" and "genuine." See id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241-42 (D.C. Cir.1987). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255; see also Wash. Post Co. v. U.S. Dep't of Health & Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The non-moving party, however, must provide evidence that would permit a reasonable jury to find in its favor, Laningham, 813 F.2d at 1242, and its opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent ...


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