Burke v. Air Serv Int'l Inc.

• Decision Date: 30 March 2011
• Docket Number: Civil Action No. 07–02335 (HHK).
• Citation: 775 F.Supp.2d 13
• Court: U.S. District Court — District of Columbia
• Parties: Paul Douglas BURKE, Plaintiff,v.AIR SERV INT'L, INC., et al., Defendants.

775 F.Supp.2d 13

Paul Douglas BURKE, Plaintiff,

v.AIR SERV INT'L, INC., et al., Defendants.

Civil Action No. 07–02335 (HHK).

United States District Court, District of Columbia.

March 30, 2011.

David E.R. Woolley, Law Office of David E.R. Woolley, Los Angeles, CA, Malcolm Leroy Benge, Zuckert, Scoutt & Rasenberger, L.L.P., Washington, DC, Patricia Barlow, Barlow Law, San Francisco, CA, for Plaintiff.Thomas J. Whalen, Mark Andrew Johnston, Daniel A. Glass, Eckert, Seamans, Cherin & Mellott, LLC, Washington, DC, Frank A. Silane, Richard A. Lazenby, Condon & Forsyth, LLP, Los Angeles, CA, for Defendants.

MEMORANDUM OPINION

HENRY H. KENNEDY, JR., District Judge.

Paul Douglas Burke brings this action against Air Serv International, Inc. and the Louis Berger Group (“LBG”), seeking to recover for personal injuries resulting from a 2004 ambush in Afghanistan, where Burke was working as a security contractor. Alleging negligence and intentional infliction of emotional distress, Burke seeks compensatory and punitive damages.¹ Before the Court is defendants' motion for summary judgment [# 31]. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion must be granted.

I. BACKGROUND

This case arises from an incident that occurred in the Afghan village of Taluqan ² on February 22, 2004. At the time, defendant LBG, a construction management company, was overseeing the construction of roads, schools, clinics and power stations in Afghanistan, pursuant to a contract with the United States Agency for International Development (“USAID”). LBG had engaged defendant Air Serv to provide helicopter transport to the sites of the work it was overseeing. Burke, a former British soldier, was at the time employed by U.S. Protections and Investigations, Inc. (“USPI”), a private security contractor, Burke Decl. ¶ 3, which was in turn engaged by LBG to provide security for various projects in Afghanistan. Burke was initially assigned to LBG's road construction project. Burke Decl. ¶ 4; Defs.' Mem. Ex. A (Burke Dep.) at 39–40. Then, in early 2004, USPI offered to place Burke in charge of security for LBG's “schools and clinics” project.³

In anticipation of assuming command of security for the schools and clinics project, Burke authored a memorandum addressed to USPI's other security agents, see Defs.' Mem. Ex. F (USPI SC's Briefing for Schools and Clinics), that outlined what Burke saw as the tenuous security situation in Afghanistan. Burke Dep. at 123–25. The memorandum recommended various steps that could be taken to improve USPI's security measures. It is unclear, however, whether Burke ever showed the memorandum to anyone.

On February 21, 2004, Burke joined LBG engineer Suzanne Wheeler–Wallace as she embarked on a trip to survey the progress of various LBG school and clinic projects. Burke was accompanied by Tariq Nazarwall, his USPI interpreter and driver. The party set out from Kabul in an Air Serv helicopter, piloted by Mark Burdorf. Burke and Nazarwall were both equipped with small arms. On the morning of February 22, the party flew to Taluqan. When they arrived in the village, Wheeler–Wallace left the helicopter with Nazarwall to inspect the building site, while Burdorf remained. Burke patrolled the area between the helicopter and the building site. Burke Dep. at 192–93. When Wheeler–Wallace had completed her inspection, she and Nazarwall returned to the helicopter and strapped in, while Burdorf prepared to take off. Burke Dep. at 196. As Burke climbed into the helicopter, unknown assailants opened fire on the party. The firing lasted roughly thirty minutes, during which time Burke took shelter next to the helicopter and returned fire. Burke Dep. at 214–17. During the firefight, Burke sustained five gunshot wounds, including one that shattered his left knee. Wheeler–Wallace was seriously wounded, and Burdorf was killed. Nazarwall was able to use a satellite phone to call for help, which arrived roughly one hour later.

Following a lengthy rehabilitation, Burke regained only partial use of his left leg. Burke Dep. at 215. Burke returned to work for USPI in Afghanistan in late 2005. He remained for four months, and then resigned. Burke Dep. at 252–54. Burke subsequently filed this action, alleging that defendants were negligent in their security measures, were negligent in hiring and retaining USPI, and intentionally inflicted emotional distress on Burke by recklessly placing him in danger. He asserts that defendants were “negligent about helicopter security, security training, security equipment and protection, security intelligence[,] and flight and security permissions.” Pl.'s Opp'n to Defs.' Mot. (“Pl.'s Opp'n”) at 2. In particular, he challenges defendants' failure to provide armor and other protective gear for the helicopter and its occupants. Compl. ¶¶ 32–33. Defendants have moved for summary judgment.

II. LEGAL STANDARD

A motion for summary judgment should be granted only if the moving party shows “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.” Fed.R.Civ.P. 56(c). The moving party's “initial responsibility” consists of “informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).

If the moving party meets its burden, the burden then shifts to the non-moving party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To meet its burden, the non-moving party must show that “the evidence is such that a reasonable jury could return a verdict” in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322 n. 3, 106 S.Ct. 2548. If the evidence is “merely colorable” or “not significantly probative,” summary judgment must be granted. Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505.

III. ANALYSIS

To resolve defendants' motion for summary judgment, the Court must first determine what body of law governs this diversity action. Next, the Court will address Burke's contention that a particular feature of District of Columbia tort law—an expert testimony requirement—does not apply to his specific claims or to any claims brought in federal court. Finally, the Court will turn to defendants' argument that Burke assumed the risk of his injuries.

A. District of Columbia Law Governs this Action

Federal courts sitting in diversity apply the choice-of-law rules of the forum where they sit, in this case the District of Columbia. GEICO v. Fetisoff, 958 F.2d 1137, 1141 (D.C.Cir.1992). To resolve choice-of-law questions in tort cases, the District's courts employ a modified governmental interest test, which is designed to “identify the jurisdiction with the ‘most significant relationship to the dispute.’ ” Drs. Groover, Christie & Merritt v. Burke, 917 A.2d 1110, 1117 (D.C.2007) (quoting Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 41 & n. 18 (D.C.1989)). Before identifying that jurisdiction, however, the Court must determine whether the laws of the potentially interested jurisdictions actually vary; if not, forum law applies by default. GEICO, 958 F.2d at 1141.

Here, the parties identify four potentially interested jurisdictions: the District of Columbia, Florida, New Jersey, and Virginia, each of which is either the place of incorporation or the primary place of business of one of the parties.⁴ Defendants argue that the laws of these jurisdictions are substantially identical such that District law, as the forum's law, should apply by default. Burke disagrees, but, strangely, does not argue that any particular jurisdiction's law should apply.⁵ Regardless, defendants are correct.

In the District of Columbia, a plaintiff alleging negligence must present expert testimony to establish the applicable standard of care “where the subject presented is ‘so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson.’ ” Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 200 (D.C.1991) (quoting Toy v. District of Columbia, 549 A.2d 1, 6 (D.C.1988)). Florida, New Jersey, and Virginia all apply a variant of this rule. See Evans v. McDonald, 313 Fed.Appx. 256, 258 (11th Cir.2009) (under Florida law, “when the facts of the case are such that the duty owed and the applicable standard of care are not common knowledge, expert opinion is necessary to establish a breach”); Bd. of Supervisors v. Lake Servs., Inc., 247 Va. 293, 440 S.E.2d 600, 602 (1994) (expert testimony is generally required “in cases involving the practice of professions requiring advanced, specialized education, such as engineering, medicine, and law, or those involving trades that focus upon scientific matters, such as electricity and blasting, which a jury cannot understand without expert assistance”); Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141, 1147 (1982) (“The test of need of expert testimony is whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable.”). Accordingly, defendants are correct that there is no conflict here, and the District's law applies by default. GEICO, 958 F.2d at 1141.

B. The District's Expert Testimony Requirement...