Appeal from the Superior Court of the District of Columbia (CAB3212-04) (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, and NEWMAN and FARRELL, Senior Judges. Opinion for the court by Chief Judge WASHINGTON.
Dissenting opinion by Senior Judge NEWMAN at p.12.
On January 14, 2002, at about 3:30 in the afternoon, Graciette DiSalvo ("DiSalvo"), a scholarship student at the University of the District of Columbia ("UDC"), was attacked by two unidentified, armed assailants in parking garage 52 on the UDC campus. The assailants demanded money and one of the assailants stabbed DiSalvo through her cheek with a knife, fracturing her tooth. During the attack, a man opened a nearby door to enter the garage, but retreated immediately. DiSalvo used this interruption to break free from her assailants and escape. The assailants were not apprehended or identified.
DiSalvo and her husband, Michael DiSalvo, brought the instant negligence action against UDC seeking monetary damages for their injuries stemming from the armed attack in the parking garage. The DiSalvos claimed that UDC was liable for failing to take adequate safety precautions to prevent the attack. Before trial, UDC moved for judgment as a matter of law, and the trial court denied the motion. On August 24, 2006, the jury found in favor of the DiSalvos and awarded $300,000 to DiSalvo and $100,000 to her husband. At the conclusion of trial, UDC renewed its motion for judgment as a matter of law, and the trial court reserved ruling on the motion until after the jury reached its verdict. In support of its motion for judgment as a matter of law, UDC argued that the DiSalvos failed to put forth the quantum of proof necessary for a reasonable jury to have found UDC liable for the attack on DiSalvo in the parking garage. See Super. Ct. Civ. R. 50 (a)(1). On November 3, 2006, the trial judge concluded that the DiSalvos had set forth sufficient evidence upon which a reasonable jury could find that UDC had heightened foreseeability with regard to the attack on DiSalvo and denied UDC's renewed motion for judgment as a matter of law. UDC now appeals the denial of its motion.
We review the denial of a motion for judgment as a matter of law de novo and apply the same standard as the trial court. See Youssef v. 3636 Corp., 777 A.2d 787, 792 (D.C. 2001). "When the evidence and its attendant inferences, viewed in the light most favorable to the non-moving party, support but one reasonable conclusion favorable to the moving party, the court must grant the motion; otherwise, however, the motion must be denied." Id. "[I]f it is clear that the plaintiff has not established a prima facie case," we must grant judgment as a matter of law for the defendant. See Clement v. Peoples Drug Store, Inc., 634 A.2d 425, 427 (D.C. 1993). Accordingly, the question before us is whether the DiSalvos presented sufficient evidence to permit the jury to return a verdict in their favor. UDC argues that the trial court erred in denying its motion for judgment as a matter of law because the DiSalvos failed to establish, as a matter of law, that the violent attack on DiSalvo in UDC's parking garage was sufficiently foreseeable to hold UDC liable for the attack. We agree.
It is axiomatic in torts that one can only be held liable for negligence if there was a duty, breach of that duty, and injury proximately caused by the breach. Under District of Columbia law, in order to hold a defendant liable for injury resulting from intervening criminal acts, "this court has repeatedly held that liability depends upon a more heightened showing of foreseeability than would be required if the act were merely negligent." Potts v. District of Columbia, 697 A.2d 1249, 1252 (D.C. 1997) (citations omitted); see also Lacy v. District of Columbia, 424 A.2d 317, 323 (D.C. 1980) ("[B]ecause of the extraordinary nature of criminal conduct, the law requires that the foreseeability of the risk be more precisely shown."). Specifically, heightened foreseeability factors directly into the duty analysis because a defendant is only liable for the intervening criminal acts of another "if the criminal act is so foreseeable that a duty arises to guard against it." See McKethean v. Washington Metro. Area Transit Auth., 588 A.2d 708, 717 (D.C. 1991). "In this context, then, the requisite duty of care required for negligence is a function of foreseeability, arising only when foreseeability is alleged commensurate with "the extraordinary nature of [intervening] criminal conduct." District of Columbia v. Beretta, U.S.A. Corp., 872 A.2d 633, 641 (D.C. 2005) (en banc).
The heightened foreseeability standard in District of Columbia law is premised on the assumption that the court must limit the extent to which defendants become the insurers of others' safety from criminal acts. As we noted in Cook v. Safeway Stores, Inc., "[e]veryone can foresee the commission of crime virtually anywhere and at anytime. If [ordinary] foreseeability itself gave rise to a duty to provide 'police' protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arms of the owner... Of course, none of this is at all palatable." 354 A.2d 507, 509 (D.C. 1976) (citations omitted). This logic has pervaded this court's decisions dealing with a defendant's liability to a plaintiff for injury resulting from intervening criminal acts. See McKethean, supra, 588 A.2d at 717 (holding that a defendant has a duty of protection for intervening criminal acts only if the criminal act was sufficiently foreseeable). Such incorporation of foreseeability directly into the duty analysis "might offend a doctrinaire."*fn1 Workman v. United Methodist Comm., 355 U.S. App. D.C. 131, 137 (D.C. Cir. 2003).
However, under District of Columbia law, a determination of whether a duty exists is the result of a variety of considerations and not solely the relationship between the parties.*fn2 Specifically, consideration of whether a duty exists to protect another from intervening criminal acts includes consideration of heightened foreseeability, and this court has not reconsidered that framework. See Beretta, 872 A.2d at 642 n.4 ("D.C. courts have repeatedly spoken of the heightened foreseeability requirement in terms of duty. We see no need to reconsider that framework of analysis in this case." (internal citation omitted)). As a division of this court, we must apply the law of the District of Columbia as it stands and our precedent is clear that the relationship between the defendant and plaintiff is not alone sufficient to establish a duty of protection for injuries resulting from intervening criminal acts of a third-party; in addition, there must be some evidence that the defendant was, or should have been, on prior notice that the intervening criminal act was reasonably likely to occur.
Here, it is undisputed that DiSalvo was injured due to the intervening criminal acts of a third party. The parties disagree, however, as to whether DiSalvo's relationship to UDC was one that entailed a greater duty of protection, and therefore requires a less heightened showing for foreseeability. The DiSalvos fairly assert that the relationship between the defendant and plaintiff and the defendant's liability to the plaintiff can be viewed on a "sliding scale," whereby a relationship entailing a greater duty of protection may require a lesser showing of foreseeability in order for liability to attach. See Workman, supra, 355 U.S. App. D.C. at 135-36 ("[District of Columbia] cases suggest a sliding scale: If the relationship between the parties strongly suggests a duty of protection, then specific evidence of foreseeability is less important, whereas if the relationship is not of a type that entails a duty of protection, then the evidentiary hurdle is higher."). However, DiSalvo asserts no authority to support her contention that her relationship with UDC was of the type that entailed a heightened duty of protection. Neither do we know of any authority finding that a university owes a greater duty of protection to its adult, commuter students against the criminal acts of outsiders than it owes to the general public.*fn3 However, even if the relationship here did entail a greater duty of protection, we find that to hold UDC liable for the DiSalvos' injuries would still require a heightened showing of foreseeability greater than the DiSalvos' showing here.
As we held in Doe, supra, 524 A.2d at 33, heightened foreseeability "does not require previous occurrences of the particular type of harm, but can be met instead by a combination of factors which give defendants an increased awareness of the danger of a particular criminal act." The crux of heightened foreseeability is a showing of the defendant's "increased awareness of the danger of a particular criminal act." Id. In order for a defendant to be liable to a plaintiff for injury caused by an intervening criminal act, the plaintiff is "obligated to present evidence establishing that the [crime] was so foreseeable that it became [the defendant's] duty to guard against it[.]" Clement v. Peoples Drug Store, Inc., 634 A.2d 425, 427 (D.C. 1993). In this case, the DiSalvos had to establish that UDC had an increased awareness of the risk of a violent, armed assault in the parking garage. It is not sufficient to establish a general possibility that the crime would occur, because, as we have said before, the mere possibility of crime is easily envisioned and heightened foreseeability requires more precision. This is particularly true considering that after the crime occurs the event seems more likely in retrospect. Accordingly, we must concern ourselves with what, based on the DiSalvos' evidence, UDC should have precisely foreseen before the attack occurred.
The DiSalvos adduced the following facts to establish that there was heightened foreseeability of the attack on DiSalvo in UDC's parking garage. The facts are disputed only as to their significance. Parking garage 52 is below-ground, open to the public, and patrolled by a roving security officer. The DiSalvos alleged that the security in the garage was inadequate, specifically noting that the parking garage lacked video or audio surveillance and did not have a parking attendant. The DiSalvos point to a UDC chief security officer's testimony that he had requested a parking attendant in parking garage 52. The DiSalvos also point to several previous on-campus crimes. Two were crimes of unlawful entry, one where a person unlawfully entered a campus building, was repeatedly asked to leave by a campus police officer, and then pushed the officer in the chest. Three others were crimes of theft accompanied by assault; one, where a woman was approached by an acquaintance who, after ...