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Blair v. District of Columbia

Court of Appeals of The District of Columbia

August 2, 2018

Walter Blair, II, Appellant,
District of Columbia & Thaddeus Modlin, Jr., Appellees.

          Argued February 28, 2018

          Appeals from the Superior Court of the District of Columbia (CAB-4815-12 & CAB-3271-14) Hon. Jeanette Jackson Clark, Trial Judge

          Jack A. Gold, with whom Ronald A. Karp and Zachary King were on the brief, for appellant.

          Lucy E. Pittman, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, and Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed, were on the brief, for appellee District of Columbia.

          Anthony Graham, Sr., for appellee Thaddeus Modlin, Jr.

          Before Fisher and Thompson, Associate Judges, and Ferren, Senior Judge.


         This case arises from a lawsuit against the District of Columbia ("District") and an off-duty Metropolitan Police Department ("MPD") officer claiming assaultive and negligent conduct that injured the plaintiff-appellant during a melee. The officer, Thaddeus Modlin, allegedly kicked Walter Blair II several times in the head outside a nightclub in June 2011, causing him severe personal injuries. Blair appeals the trial court's order granting summary judgment for both the District and Officer Modlin. We affirm the trial court's grant of summary judgment for Officer Modlin. We also affirm summary judgment for the District on Blair's claim alleging negligence in hiring, training, and supervising Modlin. We discern error, however, in the trial court's grant of summary judgment for the District on Blair's claim for assault and battery based on respondeat superior. To resolve that issue, we must reverse and remand the case for further proceedings.

         I. Background

         A. The Incident

         Blair's complaint alleges that in the early hours of June 10, 2011, he left the Lotus Lounge nightclub at 1420 K Street, N.W., as it was closing. After he left, a quarrel broke out near him in front of the club. As the fight began, Blair was surrounded by a group of (what he believed to be) Lotus Lounge bouncers clothed in black. Some of these individuals, he alleged, "were D.C. police officers." During the altercation, Blair fell to the ground. As he lay there, the bouncers struck him in the eye, head, face, shoulders, and chest, causing Blair eventually to lose his right eye. Officer Modlin, one of the officers in the group that surrounded Blair, later pled guilty to one count of simple assault, as well as one count of possession of a prohibited weapon, for his role in the affray.

         Pretrial discovery revealed Officer Modlin's understanding of the events leading up to the incident. On June 10, 2011, according to Modlin's deposition, he had gone to the Lotus Lounge to meet a fellow officer, Kenneth McRavin. Both officers were in civilian clothing. When the club closed at approximately 2:30 a.m., all patrons departed and began standing outside. Officer Modlin was part of one cluster of patrons, along with officers McRavin and Keith Goins, while Blair and his friends made up another group.

         While outside the nightclub, Blair and Officer Modlin got into a verbal dispute, although it is unclear how their conversation began. During their exchange, according to Modlin's deposition, he identified himself as a police officer, saying, "Hold on, Brother; we're the police." He then displayed his badge "that was sitting on [his] hip," and instructed Blair to calm down and leave the premises.[1] Officer Modlin gave these instructions more than once, he added, and "everyone out there knew we were . . . the police."

         While Officer Modlin was telling Blair to leave, there was (according to a Blair interrogatory response) "an altercation developing between an acquaintance of [Blair] and a Lotus Lounge bouncer and/or police officer."[2] As the altercation continued to develop, said Modlin, "Blair leap[ed] across [Officer] Goins' shoulder and punche[d] Officer McRavin in the face." Officer Modlin was then "struck in the back of the head by one of Mr. Blair's friends, and that's when the melee occurred." "After [Officer Modlin] recovered from being struck in the head," the attacker attempted to strike him again but was stopped by a bouncer. Modlin explained that, "[f]rom there, I started looking around to try to find Officer McRavin and Officer Goins" and saw Blair on top of a nightclub bouncer. Officer Modlin "[a]t that point . . . went over, . . . used [his] foot and . . . tried to . . . kick the guy off of the . . . bouncer, like three - three times." According to Modlin, Blair "eventually escaped my grip and started running eastbound on K Street, towards 14th, as the other police units were pulling up." The incident was recorded on the Lotus Lounge "surveillance equipment."

         Continuing on deposition, Officer Modlin explained that, as a police officer, he was always on duty, even when he was not formally scheduled. While the tension was beginning to brew, according to Modlin, he did not attempt to make an arrest "[b]ecause that would have been like sticking a stick into a bee hive, knowing that all these guys out there are drunk; as soon as we put our hands on them . . . we're going [to] get into a fight." He clarified that "when Mr. Blair began - and his compatriots started making threats, no, we didn't immediately go hands-on and try to arrest one of them or detain them, because . . . all of them were already hostile, and they were all drunk, so to avoid a fight," Modlin and the other officers attempted "verbally" to get them to comply. Modlin further explained that "it wasn't feasible," "it was total chaos," and "[t]o sit there and try to detain one [of] them would have meant that we would have subjected ourselves to possibly being assaulted while trying to hold him there, as we didn't have handcuffs." In essence, Modlin elucidated, "the altercation was thrust upon us by Mr. Blair," and "the only thing we had was survival instincts to, one, protect Officer Goins and Officer McRavin and, secondarily, to protect the bouncers who came out to assist us with the other 14 individuals that decided they wanted to jump on us too."

         B. Procedural History

         On June 5, 2012, less than a year after the incident, Blair filed his first lawsuit (Blair I) seeking damages from both the District and the Lotus Lounge. As to the District, he sought damages based on: (1) vicarious (respondeat superior) liability for negligence, alleging failure "to take reasonable measures" to protect Lotus Lounge patrons, including Blair; (2) vicarious liability for assault and battery by "D.C. police officers," who allegedly punched and kicked Blair "within the scope of their employment"; and (3) negligent hiring, training, and supervision of District police officers. Blair did not name Officer Modlin as a defendant in this complaint. On December 11, 2012, the trial court granted the District's motion to dismiss Blair's complaint pursuant to Super. Ct. Civ. R. 12 (b)(6) for failure to state a claim.[3] On appeal, we reversed and remanded Blair I, reinstating all counts pled against the District.[4]

         While Blair I was pending on appeal, Blair filed a second complaint (Blair II) on May 29, 2014, just shy of three years after the melee, this time seeking damages from Officer Modlin on two grounds: negligence and gross negligence.[5]Specifically, Blair alleged that "[i]nstead of acting to [defuse] the situation and keep individuals from harm, [Officer] Modlin joined the melee which was taking place in front of Lotus Lounge." The injuries he suffered, Blair continued, were caused by Officer Modlin's negligence, because the officer "had a duty to use reasonable care to protect individuals from harm," "had a duty to take reasonable steps to restrain [Blair]," and "had a duty to act reasonably in the use of force." According to the complaint, Officer Modlin also "negligently failed to stop the altercation or make any attempt to calm the situation," "negligently engaged in conduct which created a grave risk of serious bodily injury to [Blair]," failed "to act as a reasonably prudent police officer would have acted in such a situation," and failed "to follow normal and accepted practices and procedures."[6]

         On February 25, 2015, Officer Modlin filed a motion for summary judgment in Blair II, seeking dismissal of both negligence claims against him as a matter of law. He argued that, pursuant to the public duty doctrine, he was "shielded from liability because he was performing a public service." In opposing Officer Modlin's motion, Blair replied that the public duty doctrine was inapplicable, as he was "not simply alleging that [Officer] Modlin failed to protect him from harm caused by a third party." Rather, stressed Blair, Officer Modlin was "directly responsible for negligently injuring [Blair], i.e., joining a melee in front of the Lotus Lounge nightclub and kicking [Blair]." Such conduct, he argued, fell outside protection of the public duty doctrine.

         In a written order on March 17, 2015, the trial court granted summary judgment for Officer Modlin in Blair II, concluding that, as a matter of law based on the pleadings and discovery, neither of Blair's claims could proceed for two reasons. First, according to this court's Woods decision, [7] Officer Modlin owed no duty "to provide general services to the public," meaning that the "public duty doctrine" - absent an exception - protected Modlin (as well as his District employer) from liability.[8] The trial court then rejected the only recognized exception to the doctrine, concluding it was "clear from the record that no special duty was owed to Plaintiff," for he was neither a member of "a particular class of persons" expressly protected by statute against harm, nor was he in "direct or continuing contact" with the District government with "justifiable reliance" on government protection.

         Second, even without regard to the doctrinal bar, the trial court found sua sponte that, based on his proffered facts, plaintiff Blair had "not raised any negligence cause of action against Defendant Modlin"; rather, he was attempting, unpersuasively, to convert an obvious assault into a claim for negligence, in order to avoid the expired one-year statute of limitations for intentional torts. The court stressed that, in relying on Officer Modlin's criminal conviction for simple assault to support his claims based on negligence, plaintiff Blair was manifestly premising his case on "intentional conduct, not negligent conduct" and thus was barred by the limitation period from going forward.

         On July 1, 2015, almost four months after granting Modlin's motion for summary judgment, the trial court consolidated what was left of Blair II (Blair's allegations against Lotus Lounge bouncer, Timothy Brown) with Blair I (Blair's allegations against the District and Lotus Lounge).

         On December 1, 2015, the District filed a motion in Blair I to dismiss all claims against it premised on Officer Modlin's conduct, arguing that they were barred by res judicata (claim preclusion) based on the trial court's March 17, 2015, summary judgment for the District in Blair II. Basically the District was contending that if Modlin's conduct did not justify his own liability, then a fortiori his conduct could not justify the District's vicarious (derivative) liability. The trial court agreed and granted the District's dismissal motion on January 6, 2016, ruling that Blair had "not stated a cause of action against [the District] because the principle of res judicata bars his claims." Blair and the District agreed at the time, however, that the trial court's preclusion ruling in Blair I was unclear as to whether it extended to all its negligence counts, as well as to the count for assault and battery. As a result, the trial court granted the District leave to file a motion for summary judgment on claims it deemed outstanding, an invitation the District accepted by addressing each of Blair's claims on the merits, forgoing reliance on res judicata.

         On April 25, 2016, the District filed a motion for summary judgment in Blair I alleging that, as a matter of law, it could not be held liable for injuries that Blair had sustained as a result of Officer Modlin's conduct because Modlin was not acting within the scope of his employment. Shortly thereafter on June 10, 2016, the trial court heard argument and orally granted summary judgment for the District on Blair's two claims based on vicarious liability (respondeat superior), as well as on his claim for negligent hiring, training, and supervision.

         The trial court implicitly withdrew its January 6, 2016, ruling that dismissed Blair I based on res judicata. As to vicarious liability for both negligence and assault and battery, the trial court concluded that

reasonable jurors could not find that participating in an altercation would have been part of his duties/responsibilities. Kicking the individual with his shoe several times on the ground to the point where the plaintiff has lost sight would not have been a part of his duties and responsibilities.

         Thus, in rejecting Blair's theory that Officer Modlin had been acting, at least in part, to serve the District's interests, the trial court observed that criminal acts are the antithesis of police work, and so it was not "foreseeable/expectable" that Officer Modlin would use excessive force. In sum, Officer Modlin's actions did not fall within the scope of his employment.

         On the negligent hiring, training, and supervision claim, the trial court was dissatisfied with Blair's proffered expert on the national standard of care for "hiring, training, or retaining the police officer." The court elaborated:

With respect to training, what is the specific training at issue? What is the training that is required by a national standard and then how the defendant breached that particular standard? Did they require training on crowd control once a year and the District did not have this individual trained once a year? Did they have training on excessive force and what is the national standard for police officers on the issue of excessive force, and the District did not have that training in place for this particular officer? . . . And with the retention and supervision, what would be the . . . national standard to retain and to supervise an individual in this particular officer's position? The allegations by the plaintiff that he had problems on his job; that he engaged in other misconduct. Well, but what's the standard? How many infractions does it take? What's the nature of the infractions in terms of police departments across the country? That has not been articulated in this opposition filed by the plaintiff.

         Based on the evidence of record, the trial court found that Blair would be unable to prove negligent hiring, training, and supervision "mainly because he hasn't established what a national standard [of care] is." As a jury is not permitted to "engage in guesswork," said the court, the District was entitled to judgment as a matter of law.

         II. The Issues

         Blair asserts four grounds for reversal:

1. The trial court erred in ruling that the "public duty doctrine" barred recovery against Officer Modlin (Blair II) for actions outside the Lotus Lounge.
2. The trial court further erred in concluding that Blair's claims against Officer Modlin (Blair II), characterized as negligence actions, were actually intentional tort actions barred by the one-year statute of limitations.
3. The trial court also erred in ruling as a matter of law (Blair I) that Officer Modlin was acting outside the scope of his employment at the time of the alleged assault on Blair, and thus that the District could not be held vicariously liable for his actions under the respondeat superior theory of recovery.
4. Finally, the trial court abused its discretion (Blair I) by requiring Blair to present expert testimony explaining the national standard of care as the predicate essential to proving his claim that the District had negligently hired, trained, and supervised Officer Modlin.

         III. Standard of Review for Summary Judgment

         "The question whether summary judgment was properly granted is one of law, and we review de novo."[9] Summary judgment should be granted only if a party demonstrates that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."[10] In independently assessing the record, "[w]e view the facts in the light most favorable to the non-moving party to determine '(1) whether any genuine issue of material fact exists, and (2) whether appellees are entitled to judgment as a matter of law.'"[11]

         While the moving party bears the burden of demonstrating that there is no genuine issue of material fact, "conclusory allegations by the nonmoving party are insufficient to establish a genuine issue of material fact or to defeat the entry of summary judgment."[12] Any doubt, however, "about the existence of a factual dispute must be resolved in favor of the non-moving party."[13]

         IV. Alternate Rulings in Blair II

         In Blair II the trial court issued two alternate rulings. The court (1) applied the "public duty doctrine" to immunize Officer Modlin from liability for alleged simple and gross negligence that resulted in Blair's injuries outside the Lotus Lounge, and (2) rejected sua sponte Blair's two "negligence" claims against Modlin for failure to file suit within the one-year limitation period applicable to "assault and battery." As explained below in part V., we sustain the trial court's statute of limitations ruling that bars all recovery against Officer Modlin. Thus, we need not reach the court's initial, merits ruling in Blair II that interposed the "public duty doctrine" to bar recovery against Officer Modlin for his allegedly negligent conduct against Blair.

         Moreover, the District has not relied on the public duty doctrine in Blair I even as a fallback argument, for good reason: Our limitations ruling in Blair II precludes Blair's vicarious liability claims against the District based on the alleged negligence of Officer Modlin, and the public duty doctrine only permits recovery for negligent breach of a duty of care - specifically, breach of a duty to protect[14] - not for an intentional tort such as assault and battery, the only claim remaining in Blair I.

         V. Statute of Limitations

         We begin with the trial court's dispositive ruling in Blair II. Blair disputes the trial court's sua sponte ruling that his claims against Officer Modlin for gross and simple negligence were not sufficiently distinct from assaultive conduct to fend off dismissal under the one-year statute of limitations for intentional torts. We cannot agree with Blair; the court ruled correctly.

         Blair brought his simple negligence claim against Officer Modlin based on Modlin's actions leading up to, as well as during, his civil (and criminal) assault on Blair. In paragraphs 17 through 24 of his complaint Blair alleges that Officer Modlin failed "to [defuse] the situation" outside the Lotus Lounge, failed "to act as a reasonably prudent police officer would have acted," failed "to follow normal and accepted practices and procedures," and failed to "respond [] properly to the situation as it existed." Blair's gross negligence allegations in paragraph 26 focus on the officer's use of force, while stressing that before Officer Modlin had exerted that force, he had failed to "take reasonable measures" to protect ...

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