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Casey v. Ward

United States District Court, District of Columbia

September 29, 2016

PAUL D. CASEY, individually and as administrator of the Estate of Patrick D. Casey, et al., Plaintiffs,
JASON WARD, et al., Defendants.

          MEMORANDUM OPINION [DKTS. ##154, 155, 156, 157, 158, 174]


         Plaintiffs Paul D. Casey and Abigail O. Casey ("plaintiffs")[1] bring negligence-based survival claims against defendants Kyung Rhee ("Rhee"), doing business as Rhee's McDonald's, and McDonald's Corporation ("McDonald's") for the death of their son, Patrick D. Casey ("Casey"). See Am. Compl. [Dkt. #40]. Presently before the Court are defendants' Motions for Summary Judgment. Upon consideration of the parties' pleadings, the relevant law, and the entire record in this case, the Court GRANTS defendants' Motions for the reasons set forth below.


         On May 22, 1995, defendants McDonald's and Rhee entered into a franchise agreement and operator's lease under which McDonald's granted Rhee a franchise for a particular McDonald's restaurant in Washington, D.C. McDonald's SOMF ISO Mot. for Summ. J. ¶¶ A-F [hereinafter "McDonald's SOMF"] [Dkt. #154-1]. Under the terms of their agreements, McDonald's is the franchisor and owner of the restaurant's premises at 1916 M Street N.W. in Washington, D.C.[2] Franchise Agreement 1 [hereinafter "FA"] [Dkt. #154-4]; Operator's Lease 1, Schedule B. [hereinafter "OL"] [Dkt. #154-4]. Rhee, who does business as "Rhee's McDonald's, " is the franchisee, leases the premises from McDonald's, and operates the restaurant. FA 1; OL 1. The Franchise Agreement describes the "McDonald's System, " a "comprehensive system for the ongoing development, operation and maintenance of McDonald's restaurant locations . . . ."[3] FA ¶ 1(a). Rhee's adherence "to standards and policies of McDonald's providing for the uniform operation of all McDonald's restaurants within the McDonald's System, " the Franchise Agreement states, is the "essence" of the franchise. FA ¶ 1(c). Those standards and policies include "serving only designated food and beverage products; the use of only prescribed equipment and building layout and designs; strict adherence to designated food and beverage specifications and to McDonald's prescribed standards of Quality, Service and Cleanliness in [Rhee's] restaurant operation." FA ¶ 1(c)- McDonald's and Rhee agreed that Rhee's McDonald's would be "operated in conformity to the McDonald's System through strict adherence to McDonald's standards and policies . . . ." FA ¶ 1(d); see also FA ¶ 2(a)(i) (granting Rhee the "right, license, and privilege ... to adopt and use the McDonald's System" at Rhee's McDonald's). Rhee was to "enroll himself and his managers, present and future, at Hamburger University or such other training center as may be designated by McDonald's" to learn the McDonald's System. FA ¶ 6.

         McDonald's agreed to provide Rhee with business manuals detailing "(a) required operations procedures; (b) methods of inventory control; (c) bookkeeping and accounting procedures; (d) business practices and policies; and (e) other management, advertising, and personnel policies." FA ¶ 4. In turn, Rhee agreed "to promptly adopt and use exclusively the formulas, methods, and policies contained in the business manuals . . . ." FA ¶ 4. Moreover, the manuals and the policies therein were "incorporated in [the] Franchise by reference." FA ¶ 4. One of those manuals, the U.S. Operations and Training Manual ("O&T Manual"), contains a chapter regarding safety and security. McDonald's SOMF ¶ O. The manual was issued to both franchised McDonald's restaurants like Rhee's McDonald's and to corporately owned McDonald's restaurants known as "McOpCo" restaurants. The opening of the safety and security chapter provides, "McOpCo employees should consider the information in this chapter as company policy. Subsidiaries, affiliates and licensees establish their own human resources policies and may choose the information from this chapter that will be helpful to them in operating their business." McDonald's Reply 7 n.3; Ex. A [Dkt. #169-1]. To ensure compliance with the McDonald's System, McDonald's reserved the "right to inspect [Rhee's McDonald's] at all reasonable times." FA ¶ 12. Moreover, McDonald's conducts periodic operations reviews ("audits") of franchisees like Rhee.[4] Warfield Dep. 26:3-9; 54:4-5 [Dkt. #160-44]. Although the parties disagree about their severity and significance, plaintiffs put forth evidence that thirteen incidents of violence took place either inside Rhee's McDonald's or close to it from approximately November 2009 to September 2011. Pls.' SOMF In Resp. to Def. Rhee's SOMF ¶ 1 [hereinafter "Pls.' SOMF"] [Dkt. #160-2]. Rhee, however, decided not to employ a security guard. In the event of an altercation in the restaurant, Rhee's policy provided, inter alia, that employees call 911 to alert law enforcement. See, e.g., Rhee's Dep. 120:8-10 [Dkt. #155-22]; Martinez Aff. ¶ 4 [Dkt. #160-11].

         Following his service in the United States Army, which included a tour in Afghanistan, 33 year-old Patrick Casey was honorably discharged and moved to Washington, D.C. in August 2011 to pursue a master's degree at George Washington University. Paul Casey Dep. 20:13-22; 31:10-11 [Dkt. #160-29]. In the very early morning of September 23, 2011, Casey met his friends Claire Jun and David Lindsey at Rhee's McDonald's. Rhee's SOMF ISO Mot. for Summ. J. ¶ A(2) [hereinafter "Rhee's SOMF"] [Dkt. #155-1]. Among the other patrons in the crowded restaurant were Jason Ward ("Ward"), Justin Ruark ("Ruark"), and Brian Giblin ("Giblin"), who arrived at Rhee's McDonald's together after an evening of "bar hopping" at various establishments in Northwest, Washington, D.C.[5] Rhee's SOMF ¶ A(3); Ruark Aff. ¶¶ 1-3 [Dkt. #160-13]. Ward and Giblin were noticeably rowdy while they waited in line to place their orders. Rhee's SOMF ¶ (A)(3). After receiving their food, the two groups of friends sat at tables near one another in the restaurant. Rhee's SOMF ¶ A(4). "Trash talking" ensued, with the groups exchanging insults from their respective tables. Rhee's SOMF ¶ A(4). After a few minutes, Casey got up from his seat and approached Ward, Ruark, and Giblin's table. Rhee's SOMF ¶ A(4). Ruark stood up to face Casey, and the banter continued. Rhee's SOMF ¶¶ (A)(4); (B)(2)(b)(o). Lindsey then left his seat and stood briefly with Casey. Rhee's SOMF ¶¶ (A)(6); (B)(2)(b)(q). Lindsey told the other group something along the lines of "Have fun going home together." Rhee's SOMF ¶¶ (A)(6); (B)(2)(b)(q)-(r). Lindsey then started to leave the restaurant, and Casey began to follow him. Rhee's SOMF ¶ A(6).

         Angered by Lindsey's comment, Giblin stood up and approached him near the restaurant's door. Rhee's SOMF ¶¶ A(7)-(8). Pushing and shoving broke out, and Lindsey, Giblin, Casey, and Ward exited the restaurant. Rhee's SOMF ¶¶ A(8)-(9). Immediately outside the restaurant, the scuffling continued and culminated with Ward "sucker punching" Casey. Rhee's SOMF ¶¶ A(9)-(11). Casey fell backwards and struck his head on the sidewalk. Rhee's SOMF ¶ A(11). Giblin fled. Rhee's SOMF ¶ A(12). Ward went back inside the restaurant to get Ruark, and then the two exited and ran down the street. Rhee's SOMF ¶ A(12). Lindsey called 911 at 1:43 AM, and police officers began arriving at the restaurant within about 73 seconds. Rhee's SOMF ¶ A(13). The employees working at Rhee's McDonald's did not call the police during either the verbal or physical altercation. Pls.' SOMF ¶ 19. Jose Martinez, the shift manager on duty during the incident, stated that, after he observed the two groups yelling at one another and perceived that a physical altercation was imminent, he went to the restroom and did not emerge until after Ward had punched Casey.[6] Martinez Aff. ¶¶ 7-8. The paramedics took Casey to George Washington Hospital, Podlone Aff. at ¶ 14 [Dkt. #160-10], where it became apparent he had suffered severe head trauma and brain hemorrhaging. He remained in a medically induced coma for four days and died of his injuries on September 27, 2011. Gail Casey Dep. 26:11-17; 54:11-13 [Dkt. #160-30].


         Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A fact is material if it 'might affect the outcome of the suit under the governing law, ' and a dispute about a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment, the nonmoving party must "designate specific facts showing there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). In determining whether there is a genuine dispute about material facts, the court "must view 'the evidence in the light most favorable to the nonmoving party and . . . draw all reasonable inferences in favor of the nonmoving party.'" Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23-24 (D.C. Cir. 2013) (quoting Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (alteration in original)). If the non-moving party "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, " summary judgment may be granted. Celotex, 477 U.S. at 322.


         Plaintiffs pursue negligence-based survival claims against Rhee and McDonald's. Pursuant to the District of Columbia's Survival Act, "[o]n the death of a person in whose favor or against whom a right of action has accrued for any cause prior to his death, the right of action, for all such cases, survives in favor of or against the legal representative of the deceased." D.C. Code § 12-101. The Survival Act is premised upon the recognition "that liability to the victim should not be extinguished by" the victim's death, Greater Se. Cmty. Hosp. v. Williams, 482 A.2d 394, 397 (D.C. 1984), and "preserves and carries forward for the benefit of the deceased's estate the right of action which the deceased would have had, had he not died, " Semler v. Psychiatric Inst, of Washington, D.C, Inc., 575 F.2d 922, 925 (D.C. Cir. 1978); see also Id. ("The Act is designed to place the deceased's estate in the position it would have been in had the deceased's life not been cut short."). "At base, a survival action is a negligence action pursued by the estate of the decedent victim- all that need be proven are the ordinary elements of negligence." Burton v. United States, 668 F.Supp.2d 86, 97 (D.D.C. 2009).

         In the District of Columbia, the elements of a negligence claim are, of course, "a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the interests of the plaintiff, proximately caused by the breach." Wash. Metro. Area Transit Auth. v. Ferguson, 977 A.2d 375, 377 (D.C. 2009). Where, as here, "the plaintiff alleges that the defendant negligently failed to prevent a third party's injurious criminal act, " the plaintiff "must prove that the criminal act was 'so foreseeable that it became [the defendant's] duty to guard against it by adhering to a recognized standard of care, that [the defendant] breached that standard of care, and that the failure to exercise due care proximately caused' the injury." Beckwith v. Interstate Mgmt. Co., LLC, 82 F.Supp.3d 255, 258 (D.D.C. 2015) (quoting Clement v. Peoples Drug Store, Inc., 634 A.2d 425, 427 (D.C. 1993) (alterations in original)); see also Toy v. District of Columbia, 549 A.2d 1, 6 (D.C. 1988) (stating the plaintiff "bears the burden of proof on three issues: the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiffs injury." (internal quotation marks omitted)).

         I. Defendant Rhee's Motion for Summary Judgment

         a. Plaintiffs' Claims of Failure to Prevent a Foreseeable Criminal Act

         Rhee moves for summary judgment, arguing that plaintiffs cannot prove that the altercation was sufficiently foreseeable and that plaintiffs have not established the requisite standard of care. See generally Mem. of P&A in Supp. of Rhee's Mot. for Summ. J. [hereinafter "Rhee's Mem."] [Dkt. #155-2]. Plaintiffs respond that they have raised genuine issues of material fact as to whether the incident was foreseeable and that their expert has established that the standard of care required that Rhee employ a security guard at the restaurant and that his employees call 911 to alert law enforcement of Ward and Giblin's rowdy behavior while in line or of the altercation between the groups. Pls.' Mem. of P&A in Supp. of Pls.' Consolidated Opp'n to Defs. Kyung Rhee and McDonald's Corp.'s Mots. For Summ. J. 22-39 [hereinafter "Pls.' Opp'n"] [Dkt. #160]. Regardless of whether Ward's assault on Casey was sufficiently foreseeable, plaintiffs must establish the standard of care to survive summary judgment on their negligence claim. Scott v. District of Columbia, 101 F.3d 748, 757 (D.C. Cir. 1996) (stating that "[f]ailure to prove a standard of care is . . . fatal to a negligence claim" under District of Columbia law). "[E]xpert testimony regarding the appropriate standard of care is not necessary for acts within the realm of common knowledge and everyday experience." Katkish v. District of Columbia, 763 A.2d 703, 705 (D.C. 2000) (internal quotation marks omitted). However, "a plaintiff must put on expert testimony to establish the standard of care when the issue in question is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson." Id. (internal quotation marks omitted). Where "the defendant is alleged to have failed to protect the plaintiff from harm, the expert must clearly articulate and reference a standard of care by which the defendant's actions can be measured." Varner v. District of Columbia, 891 A.2d 260, 269 (D.C. 2006) (internal quotation marks omitted). Specifically, "the expert must clearly relate the standard of care to the practices in fact generally followed by other comparable . . . facilities or to some standard nationally recognized by such units." Clark v. District of Columbia, 708 A.2d 632, 635 (D.C. 1997).

         Rhee contends that expert testimony is necessary to establish the relevant standard of care as to security practices at issue. Rhee's Mem. 18-20 (quoting Briggs v. Washington Metro. Area Transit Auth,481 F.3d 839, 845-46 (D.C. Cir. 2007) ("[E]xpert testimony is routinely required in negligence cases . . . which involve issues of safety, security and crime prevention.") (internal quotation marks omitted)). Plaintiffs do not dispute this point and put forth the expert testimony and report of Lance R. Foster, a Certified Protection ...

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