Night & Day Mgmt., LLC v. Butler
| Decision Date | 23 October 2014 |
| Docket Number | Nos. 13–CV–1168,13–CV–944.,s. 13–CV–1168 |
| Citation | 101 A.3d 1033 |
| Parties | NIGHT AND DAY MANAGEMENT, LLC, et al., Appellants, v. Thomas M. BUTLER, et al., Appellees. and Thomas M. Butler, et al., Appellants, v. Night and Day Management, LLC, et al., Appellees. |
| Court | D.C. Court of Appeals |
Matthew August LeFande, Arlington, VA, for appellants/cross-appellees.
David L. Shurtz for appellees/cross-appellants.
Before FISHER and EASTERLY, Associate Judges, and NEBEKER, Senior Judge.
These cross-appeals arise out of a fight at a nightclub. Plaintiffs Thomas M. Butler, Patrick K. Glover, Gerry M. Delilly, and Richard T. Short sued the owner of the Fur Factory Nightclub, defendant Night and Day Management, LLC, and its principal, defendant Michael R. Rehman, claiming that the lack of proper security caused the injuries they sustained. The trial court entered summary judgment for defendants because plaintiffs had not proffered the expert testimony regarding the appropriate standard of care that they would need to prevail; it also denied defendants' request for sanctions. We affirm both orders.
According to declarations submitted in opposition to defendants' motion to dismiss, on February 26, 2010, plaintiffs reserved a table in the VIP section of the Fur Factory Nightclub, located at 33 Patterson Street in Northeast Washington, D.C. At around 11:30 p.m., they arrived at the club. There were no security personnel in the VIP section.
While in the VIP section, Short slipped and fell, knocking over a bottle of vodka which belonged to another group of patrons at a nearby table. Plaintiffs' repeated offers to pay for a new bottle were refused. Over the next fifteen minutes, tension increased between the two groups. At one point, one of the other patrons flashed gang signs at plaintiffs.
About twenty minutes after Short slipped, one of those patrons finished the remaining liquor in the bottle of vodka and broke it over Short's head. The assailant and his friends then attacked plaintiffs with broken bottles. The fight lasted ten to fifteen minutes. There were no security personnel in the VIP room when the fight began, and the cameras in the room were not working.
Club security personnel arrived after the fight was over, but they did not attempt to determine who started the fight. The assaulting patrons left without being identified or questioned. Security personnel escorted plaintiffs out of the club, but did not offer any medical assistance although plaintiffs were visibly bleeding. Plaintiffs went to Washington Hospital Center to have their injuries treated.
On April 29, 2008, Fur Factory Nightclub entered into an agreement with Advisory Neighborhood Commission 6C. The nightclub was obligated to abide by the agreement in order to keep its liquor license. The agreement provided, in pertinent part:
On October 11, 2012, plaintiffs filed their complaint, claiming, among other things, that the nightclub was negligent because it had not provided adequate security.1 On July 16, 2013, the trial court granted defendants' motion for summary judgment but denied their request for attorneys' fees. The court did not base the first decision on any argument raised by the parties. Instead, relying on Thomas v. District of Columbia, 942 A.2d 1154 (D.C.2008), it granted summary judgment sua sponte on the ground that plaintiffs could not establish the standard of care for nightclub security without presenting expert testimony. The court recognized that defendants had not raised the issue, and gave plaintiffs an opportunity to file a motion for reconsideration so that they could “identify admissible, competent evidence sufficient to carry their burden of proof.”
On August 5, 2013, plaintiffs moved for reconsideration, contending that the standard of care could be established by reference to Title 25 of the D.C.Code and the nightclub's agreement with the ANC. On August 29, 2013, the court denied the motion for reconsideration.
In the meantime, on August 19, 2013, defendants appealed the trial court's denial of attorneys' fees. On September 14, 2013, plaintiffs tendered a notice of appeal from the court's summary judgment order and moved for leave to file it pursuant to D.C.App. R. 4(a)(5)(A). On October 16, 2013, the court granted that motion. Defendants moved to dismiss, contending that this court has no jurisdiction over plaintiffs' cross-appeal because it was late. We consolidated the appeals and ordered the parties to address the jurisdictional issue in their briefs.
We review the trial court's grant of a motion for summary judgment de novo, and affirm the judgment only if there is no genuine issue of material fact remaining after taking all inferences in favor of the non-moving party. Super. Ct. Civ. R. 56(c) ; Steele v. Salb, 93 A.3d 1277, 1281 (D.C.2014). Once the movant has made a sufficient evidentiary showing to support the motion, the opposing party's response “must set forth specific facts showing that there is a genuine issue for trial.” Super. Ct. Civ. R. 56(e) ; Logan v. LaSalle Bank Nat'l Ass'n, 80 A.3d 1014, 1019 (D.C.2013). It is appropriate to enter summary judgment “against a party who 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Doe v. Safeway, Inc., 88 A.3d 131, 132–33 (D.C.2014).
Although plaintiffs do not challenge the trial court's decision on procedural grounds, we first discuss whether summary judgment was properly granted on a ground the trial court raised sua sponte. As we have recognized, “[a] court may grant summary judgment sua sponte when it appears that a party cannot prevail on a claim or defense as a matter of law, so long as the losing party was on notice that it had to come forward with all of its evidence.” Thomas v. District of Columbia, 942 A.2d 1154, 1158 (D.C.2008). In determining whether summary judgment was properly granted sua sponte, our decisions have focused on whether the losing party had adequate notice. See, e.g., Embassy of Pakistan, IIS v. Lenkin Co. Mgmt., 996 A.2d 817, 819 (D.C.2010) (); Thomas, 942 A.2d at 1158 (); Tobin v. John Grotta Co., 886 A.2d 87, 91 (D.C.2005) ().
By granting summary judgment before giving plaintiffs an opportunity to respond to the issue it had raised sua sponte, the trial court unnecessarily complicated the record and the calculation of the time for noting an appeal. It would have been preferable for the court to defer ruling on the motion for summary judgment, raise the issue with both parties, and give them adequate time to respond before deciding the motion. That procedure would have alleviated any concerns that plaintiffs were prejudiced by the manner in which summary judgment was granted.
Nevertheless, plaintiffs were given notice of the expert testimony issue and the opportunity to submit more evidence in a motion for reconsideration. The trial court evaluated that motion under the Rule 56 standard for summary judgment instead of the more demanding standards which apply to motions filed under Rule 59(e) or Rule 60. Thus, plaintiffs ultimately did not suffer any prejudice.2
To prevail on a claim of negligence, a plaintiff must prove “(1) that the defendant owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the plaintiff that was proximately caused by the breach.” Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 793 (D.C.2011) (en banc). “In the District of Columbia the applicable standard for determining whether an owner or occupier of land has exercised the proper level of care to a person lawfully upon his premises is reasonable care under all of the circumstances.” District of Columbia Hous. Auth. v. Pinkney, 970 A.2d 854, 866 (D.C.2009) (quoting Sandoe v. Lefta Assocs., 559 A.2d 732, 738 (D.C.1988) ).
In a context that is “within the realm of common knowledge and everyday experience, the plaintiff is not required to adduce expert testimony either to establish the applicable standard of care or to prove that the defendant failed to adhere to it.” Tolu v. Ayodeji, 945 A.2d 596, 601 (D.C.2008) (quoting Varner v. District of Columbia, 891 A.2d 260, 265 (D.C.2006) ). However, if the subject of the standard of care is “so distinctly related to some science, profession, or occupation as to be beyond the ken of the average lay juror[,] ... expert testimony is required in order for a plaintiff to meet this burden.” Id. Accordingly, we have affirmed trial court rulings that expert testimony is required to establish...
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