United States District Court, District of Columbia
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,
RICHARD J. LEON DISTRICT JUDGE.
Paul D. Casey and Abigail O. Casey
("plaintiffs") 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.
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. 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 . . . ." 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.
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. 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].
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. 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).
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. 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
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.
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
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)).
Defendant Rhee's Motion for Summary Judgment
Plaintiffs' Claims of Failure to Prevent a Foreseeable
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).
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 ...