Bailey v. District of Columbia, No. 93-CV-1529.

• Docket Nº: No. 93-CV-1529.
• Citation: 668 A.2d 817
• Case Date: December 07, 1995
• Court: Court of Appeals of Columbia District

668 A.2d 817

Johnnie E. BAILEY, Appellant,
v.
DISTRICT OF COLUMBIA, Appellee.

No. 93-CV-1529.

District of Columbia Court of Appeals.

Argued October 18, 1995.

Decided December 7, 1995.

668 A.2d 818

Nathaniel Baccus, III, Washington, DC, for appellant.

Martin B. White, Assistant Corporation Counsel, with whom Garland Pinkston, Jr., Acting Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee.

Before STEADMAN and KING, Associate Judges, and PRYOR, Senior Judge.

KING, Associate Judge:

In this negligence action, Johnnie E. Bailey ("Bailey") seeks reversal of the grant of summary judgment in favor of the District of Columbia ("District").¹ The trial court's ruling turned on whether the District had an "increased awareness" of the criminal act that caused her injuries. The trial court ruled there was insufficient record evidence to establish that the criminal act in this case was reasonably foreseeable. We agree and, therefore, affirm.

I.

On November 17, 1989, Bailey paid an admissions fee to attend a cheerleading competition at Evans Junior High School ("Evans"), on 5600 East Capitol Street, N.E., where one of her daughters was competing. The District's Department of Recreation ("Department") sponsored the event for cheerleading teams from recreation centers located in Ward Seven. When the competition ended at about 9:00 p.m., the crowd, estimated at between five and six hundred people, began leaving the school gymnasium through a door to the outside. After Bailey had left the building, but while she was still on school grounds, an altercation broke out among some people in the crowd whom she

668 A.2d 819

did not know. Gunfire erupted and Bailey was struck in the leg by a ricocheting bullet. There was no evidence that the people involved in the exchange of gunfire were connected with the District government

Bailey alleges negligence and breach of duty by the District for failing to provide sufficient security personnel at the cheerleading competition. Further, Bailey claimed that the District knew, "and reasonably should have known of the high frequency of violence, and the reputation for violence at Evans Junior High School and on the school grounds."

The District countered through affidavits and depositions that the assault on Bailey was the first violent crime to have occurred at a Department cheerleading competition or at any Department event held at Evans. Furthermore, the District proffered that Department officials responsible for security notified the police department of the event and requested assistance with crowd control. However, no police appeared before the shooting took place.²

In entering summary judgment in favor of the District, the trial court ruled that: (1) there was insufficient record evidence to establish that the criminal act in this case was reasonably foreseeable; (2) the District's negligence, if any, was not the proximate cause of Bailey's injury; and (3) the District's decisions regarding security arrangements at the cheerleading competition were discretionary, not ministerial, thus the District was shielded from liability by the doctrine of sovereign immunity.³

II.

A motion for summary judgment should be granted if "(1) taking all reasonable inferences in the light most favorable to the nonmoving party, (2) a reasonable juror, acting reasonably, could not find for the nonmoving party, (3) under the appropriate burden of proof." See Sherman v. District of Columbia, 653 A.2d 866, 869 (D.C.1995). A party moving for summary judgment must demonstrate both that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Super.Ct.Civ.R. 56(c) (1995); Young v. Delaney, 647 A.2d 784, 788 (D.C.1994). We conduct an independent review, applying the same standard as the trial judge. See Sherman, supra, 653 A.2d at 869.

III.

Where an injury is caused by the intervening criminal act of a third party, this court has repeatedly held that liability depends upon "a more heightened showing of foreseeability" than would be required if the act was merely negligent. See Clement v. Peoples Drug Store, Inc. 634 A.2d 425, 428 (D.C.1993); McKethean v. Washington Metro. Area Transit Auth., 588 A.2d 708, 716-17 (D.C.1991); District of Columbia v. Doe, 524 A.2d 30, 32 (D.C.1987); Lacy v. District of Columbia, 424 A.2d 317 (D.C.1980). Foreseeability of the risk must be more precisely shown because of the extraordinary nature of criminal conduct. See Clement, supra, 634 A.2d at 428. In analyzing this point, the trial court observed,

the question is not whether defendant should have known that fights, or minor scuffles might erupt at this gathering of 500-600 people on school property in the absence of an adequate security presence, including at the least a police cruiser. Rather, the question is whether the District

668 A.2d 820

had a duty to guard against a reasonably foreseeable risk that a person attending the competition would decide to settle a dispute with another individual over an item of clothing by indiscriminately shooting at that person while in the midst of a crowd of spectators. While indiscriminate shootings occur with sickening regularity in our community, and some even more tragically occur at or near school property, this does not mean that the city can be found liable in tort for all such shootings. While the case law teaches that the foreseeability calculus does not require plaintiff to prove that a previous shooting had occurred at Evans Junior High School after a cheerleading competition to establish the District's increased awareness of the probable danger of a particular criminal act, the evidence in the Court's view must at least demonstrate that the District should have anticipated the prospect of violent criminal conduct. Having thoroughly reviewed the parties evidentiary submissions, the Court is constrained to conclude there is insufficient record evidence to establish that the criminal act in this case was reasonably foreseeable.

For the reasons stated below, we conclude that the trial court correctly analyzed this issue.

Although the occurrence of shootings in, and in the vicinity of, the District's public schools is an unhappy reality, we agree with the trial court that such "generic information," by itself, does not create a duty on the part of the District to protect against the use of firearms under the circumstances presented here. In short, there are...