Banks v. Bank of America, N.A.

• Decision Date: 06 September 2007
• Docket Number: Civil Action No. 05-01688 (HHK).
• Citation: 505 F.Supp.2d 159
• Parties: George BANKS, Plaintiff, v. BANK OF AMERICA, N.A., Defendant.
• Court: U.S. District Court — District of Columbia

505 F.Supp.2d 159

George BANKS, Plaintiff, v. BANK OF AMERICA, N.A., Defendant.

Civil Action No. 05-01688 (HHK).

United States District Court, District of Columbia.

September 6, 2007.

COPYRIGHT MATERIAL OMITTED

Donald M. Temple, Temple Law Office, Washington, DC, for Plaintiff.

Tessa Laspia Frederick, Miles & Stockbridge PC, Baltimore, MD, for Defendant.

MEMORANDUM OPINION AND ORDER

HENRY H. KENNEDY, JR., District Judge.

George Banks brings this action against Bank of America, N.A. ("BofA"), asserting causes of action arising from an incident in which he was involved that occurred inside a BofA branch on June 15, 2002.¹ Banks's amended complaint alleges four causes of action: negligence, gross negligence, negligent supervision and training,² and violation of § 1981 of Title 42 of the U.S.Code. Before the court is BofA's motion for summary judgment [# 26]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion must be granted in part, but denied as to Banks's § 1981 claim.

I. BACKGROUND

Banks is the owner of Sentry Security International, Inc. ("SSI"), a business headquartered in the District of Columbia. On June 15, 2002, he entered defendant's BofA branch to conduct a business transaction involving two SSI company accounts that he maintained with the bank. Banks sought to withdraw $1,000 from one account, deposit $700 of that $1,000 into the second account, and keep the remaining $300 for himself. Def.'s Ex. B (Pl.'s Ex A) at 21-22 (Dep. of Banks, Nov. 6, 2003 ("Pl.'s 2003 Dep.")).³ When he reached the window of teller Roxanna Fuentes, he handed her completed withdrawal and deposit forms, along with his driver's licence. Id. at 23. Fuentes then requested an additional form of identification. Ibid. Each party's version of what happened thereafter differs substantially.

At his deposition, Banks testified that he provided Fuentes with two forms of identification and that she was about to disperse $300 to him when the head teller, Valentina Elebesunu, intervened. Id. at 23-24. According to Banks, Elebesunu stated that he "did not look like he owned the business" and ordered Fuentes to "reverse the transaction, which she did." Ibid. Banks responded by asking, "What do owners of these types of businesses look like?" Ibid. At that point, an off-duty D.C. Metropolitan Police Department ("MPD") officer — who was a bank customer waiting in line — approached Banks and asked the tellers if he should escort plaintiff out of the bank. Id. at 28:11-15, 30:1-4. At this point, the branch manager, German Jordan, "walked in right away ... and said, `[L]eave him alone; we will handle it. This is a bank issue and, Mr. Banks, go sit down [at] my desk.'" Id. at 30:9-13. Jordan did not question plaintiff about the incident but stepped away "so [that] he could inquire from the tellers what happened." Id. at 31:2-6.⁴

Jordan didn't hear the tellers' explanation, however, because Banks and the officer were arguing with each other and diverted his attention. Jordan 2006 Dep. at 28-29. Jordan tried to talk with Banks, but Banks "wasn't interested in talking" to Jordan as he was engaged in discussion with the officer. Id. at 28, 31, 35. At this point, Jordan said "this isn't working" and instructed the bank's security guard to "get him out of here." Am. Compl. ¶ 11; Jordan 2006 Dep. at 29, 31. The MPD officer then handcuffed Banks (the security guard came towards the scene afterwards) and told the security guard to call the police to have Banks picked up, which he did. Pl.'s 2003 Dep. at 32:20-33:1, 38:12-20. Next, Banks was dragged outside by the MPD officer and forced to wait on the sidewalk until a police car arrived. Id. at 38:21-13, 40:2-8.

Approximately thirty minutes later, Banks was transported to the Third Police District where he was charged with disorderly conduct and detained for four hours. Am. Compl. ¶ 13. The charge was subsequently dropped by the United States Attorney's Office. Id. ¶ 16.

II. ANALYSIS

A. Negligence And Gross Negligence

"To establish negligence a plaintiff must prove 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." District of Columbia v. Beretta, U.S.A., Corp., 847 A.2d 1127, 1134 n. 2 (D.C.2004). Banks contends that BofA was negligent when it allegedly failed to follow its internal banking policies and refused to complete his business transaction. As a result of defendant's alleged negligence, Banks asserts that he was wrongfully arrested by an off-duty MPD officer for disorderly conduct. Banks appears to argue that a standard of care arises solely out of BofA's policies and procedures regarding transactions. According to him, BofA's "[internal banking] policies and [his] business invitee status create the legal framework to establish defendant's duty owed to [him]." Pl.'s Opp'n at 11. As will be seen, this assertion is somewhat correct, but not in the way Banks appears to assert.

1. Defendant's Internal Policies Regarding Transactions

Banks states that his "negligence claims are based upon the bank teller, head teller, and bank manager's actions" in that the BofA employees "failed to properly handle a simple transaction after plaintiff produced appropriate identification."⁵ Pl.'s Opp'n, at 15. More specifically, albeit indirectly, Banks suggests that a business's failure to comply with its own internal policies amounts to a negligent breach of the duty of care owed to its customers. Banks fails to cite any authority which imposes such a duty, however.

In Novak v. Capital Management & Development Corp., 452 F.2d 902 (D.C.Cir. 2006), two patrons sued a nightclub for damages incurred when they were viciously attacked in an alley outside of the establishment. The plaintiffs asserted an alternative theory of negligence, arguing that the club had a security policy which mandated patrolling the alleys and that the club failed to follow that policy the night of the attack. Id. at 914-15. The crux of the plaintiffs' argument was that the club's failure to abide by its own security policy was sufficient to establish prima facie negligence. Ibid. Addressing this argument, the appellate court found that the trial court was correct when it determined that no such theory of liability exists. Ibid.; Novak v. Capital Mgmt. & Dev. Corp., 2004 WL 4881276, at *5 (D.D.C. July 12, 2004), rev'd on other grounds, 452 F.3d 902 (that "[w]hile [a business's non-compliance with its own policies] can be some evidence of negligence, that in itself is insufficient to show negligence unless plaintiffs also show that non-compliance with policy was also non-compliance with the duty of care").

Here, Banks has failed to establish that BofA owed him a duty of care to comply with its internal policies regarding financial transactions involving its customers' accounts. The court will now address whether defendant breached its duty of care to Banks as a business invitee.

2. Duty Of Care To Business Invitees

The principles of law governing the duty of a business establishment with respect to, the security of members of the public who are invited to enter and patronize it are well settled. See, e.g., Seganish v. Dist. of Columbia Safeway Stores, Inc., 406 F.2d 653, 655 (D.C.Cir.1968) (a business invitor's "duty is to exercise reasonable care to keep his place of business safe for customers using it"). A business invitor is liable to customers for injuries caused by its failure to reasonably maintain its premises. Ibid. Liability may also arise from a business's negligent failure to safeguard, against the harmful acts of its employees or third persons. Ibid. However, a business invitor "is not an insurer of customers' safety and is liable only for injuries resulting from his negligence." Smith v. Safeway Stores, Inc., 206 A.2d 264, 265 (D.C.1965); see Preston v. Safeway Stores, Inc., 163 F.Supp. 749, 751 (D.D.C.1958).

Banks contends that "the bank enjoyed a duty to protect its depositors ... from harm and to follow its customer service and transaction policies." Pl.'s Opp'n at 12.⁶ He maintains further that BofA's refusal to complete his transaction and instruction to its security personnel to escort him out of the bank, "triggered the involvement of the [off-duty] D.C. police officer and caused [p]laintiff to be arrested," id., and that these "triggering" acts constituted a breach of duty.⁷ To support his argument, Banks cites Viands v. Safeway Stores, 107 A.2d 118, 120-21 (D.C. 1954) (interpreting the Restatement (First) of Torts § 348 (1939)). In Viands, the D.C. Court of Appeals held that:

[A]n invitor is liable to a business invitee for injury caused by the accidental negligence or intentionally harmful acts of third persons if the invitor by the exercise of reasonable care could have (a) discovered that such acts were being done or were about to be done, and (b) protected the invitee by controlling the conduct of the third persons or giving a warning adequate to enable him to avoid the harm.

107 A.2d at 120-21.

Although Banks succeeds in establishing BofA's duty to exercise reasonable care, in protecting him from foreseeable harm, his claim that BofA breached its duty is unconvincing. First, Banks fails to set forth any competent evidence to show that BofA knew, or should have known, that at the time the tellers rejected Banks's attempted transaction an off-duty police officer was present in the bank and likely to intervene. It is worth noting again that at no point did defendant's employees request the off-duty officer's assistance in the matter. Rather, the officer took it upon himself to get involved and subsequently arrest plaintiff. Second, Banks admits that while he was being handcuffed, the bank manager asked the MPD officer to stop. Pl.'s 2003 Dep. at 36:21-37:7. Assuming arguendo that the officer's actions were...