Bruno v. Western Union Financial Serv., Inc., No. 06-CV-64.

• Citation: 973 A.2d 713
• Decision Date: 18 June 2009
• Docket Number: No. 06-CV-64.
• Parties: Marilyn BRUNO, Appellant, v. WESTERN UNION FINANCIAL SERVICES, INC., Apex-Petroleum Corporation, and First Data Corporation, Appellees.
• Court: Court of Appeals of Columbia District

973 A.2d 713

Marilyn BRUNO, Appellant, v. WESTERN UNION FINANCIAL SERVICES, INC., Apex-Petroleum Corporation, and First Data Corporation, Appellees.

No. 06-CV-64.

District of Columbia Court of Appeals.

Argued May 23, 2007.

Decided June 18, 2009.

Salvatore J. Zambri, with whom Patrick M. Regan and Paul J. Cornoni, was on the brief, Washington, for appellant.

Samuel N. Shapiro, with whom Jeffrey R. Schmieler, was on the brief, for appellees Western Union Financial Services, Inc. and First Data Corporation.

Ronald W. Cox, Jr., was on the brief, for appellee Apex-Petroleum Corporation.

Before KRAMER and FISHER, Associate Judges, and BELSON, Senior Judge.

PER CURIAM:

Appellant, Marilyn Bruno, sustained serious injuries during a robbery inside appellee Apex Petroleum's gas station, and thereafter sued Apex, Western Union, and First Data Corp. for negligence.¹ The trial court granted the motions of Western Union and First Data for summary judgment, and subsequently granted appellee Apex's renewed motion for summary judgment. Appellant now appeals these decisions, arguing that the trial court erred by finding that the assault that caused her injuries was not foreseeable and ruling that Apex was not the actual or apparent agent of Western Union. We affirm.

I.

In this case, we are confronted with the consequences of a violent crime. The appellant suffered serious physical and psychological injuries in a vicious robbery. At her deposition, appellant gave a detailed account of the events leading to her injuries, which we accept as accurate for the purposes of this appeal. On June 13, 2000, appellant went to a gas station owned by Apex at 2830 Sherman Avenue in Northwest Washington, D.C., to send money via a Western Union Wire transfer to her daughter, who was in urgent need of money. Appellant had initially called Western Union and asked if she could perform the transfer over the telephone with a credit card; she was told that the transfer could be made only by reporting to a Western Union service center with cash in hand. The Western Union telephone representative first directed appellant to a video store located one street away from appellant's residence in the Logan Circle area of Washington, D.C.² Appellant called the video store and found that it was closed. She therefore called Western Union again and was referred to Apex's gas station on Sherman Avenue. According to appellant's deposition testimony:

And this time I was put on hold while the Western Union woman called that station, got back on with me and said, Olu is waiting for you. He can give you directions on how to get there. He's waiting for your call. Here's his name and number.

Appellant next called and confirmed with Olu Ogundimu, an employee of Apex, that the station was open and that he would be able to process the $700 transfer to her daughter.

Appellant arrived at Apex at approximately 9:30 p.m. and immediately identified herself to the Apex employees who were on duty behind a plexiglass window.³ Despite appellant's earlier conversation with Ogundimu, he did not have the forms ready when she arrived and took some ten minutes to find them. As appellant continued to wait, she noticed a person in the corner of the store, twelve to fifteen feet away, staring fixedly at her. While she felt "[v]ery concerned" about her safety, she did not bring it to the attention of the two Apex employees in the enclosure because she thought it would be "impolite" and because she "was trying to be very inconspicuous and hope[d] that this was going to be over soon." She also noted that Olu "fanned out [the] seven hundred dollar bills" she gave him while "looking over at this guy in the corner." Although she was becoming increasingly uneasy, appellant "didn't want to be confrontational in any way with anybody.... [She] did not want to provoke."

During this time, appellant had her brief case over her shoulder, but had twisted the strap around her arm. Approximately fifteen minutes after she entered the store, with Ogundimu still processing her transfer, appellant felt someone grab her bag with such force that she was flung against a cement wall. Appellant screamed and implored bystanders, who included Ogundimu and another employee, to help her, but no one intervened. While appellant was willing to give the bag to her attacker, she could not extricate herself from the strap. Finally, the strap on the bag broke, and the assailant escaped through the door. In the meantime, Ogundimu had called 911, and police and EMS arrived on the scene. Despite her injuries, appellant would not leave for the emergency room until she received a receipt indicating that the funds had been successfully transferred, a process that took until 11:30 p.m. To date, the assailant has not been identified or apprehended.

Appellant testified at a deposition about the extent of the injuries she sustained in the assault. The fingertip on the middle finger of her right hand was "ripped off ... about half an inch, three quarters of an inch down," and was "ultimately stitched back on." She also suffered extensive lacerations to her left arm where she had been holding her briefcase, a broken front tooth, and neck injuries. In addition, both of appellant's eyes were injured in the attack and as a result, she suffered from frequent headaches, visual deficiencies, vertigo, and repeated surgeries. She described the injuries to her eyes "as a major, major life-changing problem." After the attack, appellant experienced nightmares, nervousness, and "acute fear," and she has been diagnosed with post-traumatic stress disorder. Appellant also testified that her career as a Foreign Service Officer with the Department of State has suffered as a result of the attack because she has not been "functioning at peak performance." Following discovery, Western Union and First Data⁴ filed a motion for summary judgment, asserting that no material facts refuted their claim that Apex was not First Data or Western Union's agent and that even if such an agency relationship existed, appellant could not recover because appellant's injuries were caused by the criminal act of a third party that was not foreseeable to the defendants. Apex then filed its own summary judgment motion based on the unforeseeability of the third-party robbery and assault. The trial court granted summary judgment in favor of Western Union and First Data, ruling that no agency relationship existed between Western Union and Apex and that the assault by a third party was not foreseeable to Western Union and First Data. However, the trial court did not immediately grant Apex's summary judgment motion, but it gave appellant additional time to obtain documentation from the Metropolitan Police Department regarding Apex's ability to foresee the incident. The deadline for appellant to supplement her opposition to the motion passed without any additional filings, and on December 15, 2005, the trial court granted Apex's motion for summary judgment.

II.

On appeal, Ms. Bruno argues: (1) the trial court erred in granting summary judgment in appellees' favor because the criminal assault she suffered was foreseeable to appellees, and (2) a principal-agent relationship exists between Western Union and Apex Petroleum, and Western Union is vicariously liable for the negligence of Apex, its agent. We affirm the trial court's grant of summary judgment in favor of appellees on the issue of foreseeability, and as a result, we do not reach appellant's second argument.

A. Standard of Review

"In reviewing a trial court order granting a summary judgment motion, we conduct an independent review of the record, and our standard of review is the same as the trial court's standard in considering the motion for summary judgment." Critchell v. Critchell, 746 A.2d 282, 284 (D.C.2000). That is:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

Super. Ct. Civ. R. 56(c). "[O]ne who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, and any doubt as to the existence of such an issue is resolved against the movant." Doolin v. Environmental Power Ltd., 360 A.2d 493, 496 (D.C.1976) (internal quotation marks, ellipses, and citations omitted). "Once this showing has been made, the burden shifts to the non-moving party to show the existence of an issue of material fact." Landow v. Georgetown-Inland West Corp., 454 A.2d 310, 313 (D.C.1982). The non-moving party may not avoid summary judgment merely with conclusory allegations; rather he or she "must produce at least enough evidence to make out a prima facie case in support of his [or her] position." Joeckel v. Disabled Am. Veterans, 793 A.2d 1279, 1281-82 (D.C.2002); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thus, "[a] plaintiff opposing a defense motion for summary judgment, in order to make the evidentiary showing that will permit him [or her] to advance to trial must show that he [or she] has a plausible ground for the maintenance of the cause of action." Nader v. de Toledano, 408 A.2d 31, 48 (D.C. 1979) (internal quotation marks and citations omitted).

B. Foreseeability of the Criminal Assault

To prevail in a negligence cause of action, a plaintiff must prove "`the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff's injury.'" Evans-Reid v. District of Columbia, 930 A.2d 930, 937 n. 6 (D.C.2007) (internal citation omitted). Where a plaintiff suffers injury due to an intervening criminal act committed by a third party, "the requisite duty of care required for negligence is a function of...