District of Columbia v. Doe

• Decision Date: 13 April 1987
• Docket Number: No. 85-1219.,85-1219.
• Citation: 524 A.2d 30
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Jane DOE, et al., Appellees.
• Court: D.C. Court of Appeals

Page 30

524 A.2d 30

DISTRICT OF COLUMBIA, Appellant, v. Jane DOE, et al., Appellees.

No. 85-1219.

District of Columbia Court of Appeals.

Argued February 25, 1987.

Decided April 13, 1987.

Michele Giuliani, Asst. Corp. Counsel, with whom John H. Suda, Acting Corp. Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Asst. Deputy Corp. Counsel, Washington, D.C., were on brief, for appellant.

Elizabeth H. Hamlin, with whom Patrick J. Christmas, Washington, D.C., was on brief, for appellees.

Before PRYOR, Chief Judge, and NEWMAN and STEADMAN, Associate Judges.

PRYOR, Chief Judge:

The District of Columbia appeals the jury verdict in favor of Jane Doe and her mother and next friend, Mary Doe, who brought a negligence claim against the District after an unknown intruder gained access to the Plummer Elementary School and abducted and raped Jane, a fourth grade student at the school. At the close of plaintiffs' case, the District of Columbia moved for a directed verdict, arguing, inter alia, that the District could not have reasonably foreseen the intervening criminal conduct involved and thus could not be held liable for damages to Jane. The trial court denied the motion.

The jury found the District negligent and awarded appellees $250,976.00 in damages. The District filed a motion for judgment notwithstanding the verdict, which was denied. The District, relying on Lacy v. District of Columbia, 424 A.2d 317 (D.C. 1980), now argues that the abduction and rape were unforeseeable as a matter of law because the District could not have reasonably anticipated nor protected against these particular criminal acts. The District also asserts that the trial court committed reversible error when it admitted testimony concerning offenses of a sexual nature which had occurred at other District of Columbia public schools. We first conclude that probative evidence was presented which shows that the District was put on notice of the danger of this type of criminal activity at Plummer School and that this evidence enabled appellees to put the issue of the District's negligence before the jury. We also conclude that, while the court erred in admitting testimony concerning sex offenses at other District elementary schools, this error was rendered harmless in light of the other sufficient probative evidence showing the District to be on notice of criminal activity of this nature. Accordingly, we affirm.

I

On September 20, 1979, at approximately 11:00 a.m., Jane Doe, a ten-year-old, fourth grade student at Plummer Elementary School, located at Texas and C Streets, Southeast, was chosen by her teacher to supervise a class of second graders while their teacher went to another area of the building for supplies. Shortly thereafter, Jane was lured away from the second floor classroom by an unknown intruder. The man told her the principal wanted to see her, and that he was outside. As they headed for the rear stairwell exit, the man put his arm around Jane's neck, drew a knife, pressed it to her back and forced her outside. They left the school through the unlocked rear door and through the open gate of the security fence surrounding the back of the school. The man forced Jane across the street and into the woods of Fort Chaplin Park, where he raped her. After the attack, Jane ran back to the unlocked front door of the school and reported the incident. She was taken to District of Columbia General Hospital for examination, and received psychiatric counseling as a result of the attack.

Testimony at trial showed that although the playground adjacent to the rear of the school building was surrounded by a ten to twelve foot high security fence, the gate on this fence usually was left open and unlocked. The back door, through which the intruder forced Jane Doe, consisted of a set of double doors, which, if in proper working order, were designed to close and lock automatically. Because of an alignment problem, the doors did not close tightly and automatically lock; the doors could be locked only if an effort was made to do so. Similar doors in the front of the school also were not closing properly at the time of the incident. An intercom system, which connected the classrooms to the principal's office, was malfunctioning at the time. Testimony also indicated that unaccompanied, unknown adult males often roamed the school hallways without challenge.

Appellees presented a security expert, Dale Moul, who testified that the school's normal security procedures should have included locking the back gate during school hours, proper maintenance of the automatic locking mechanisms on the doors, visual surveillance and screening of visitors, the issuance of passes to visitors, and maintenance of an operational intraschool intercom. Mr. Moul stated his opinion that in the absence of at least some of these security measures, the District did not comply with a reasonable standard of care for protection of the children at the school.

Mr. Moul also testified that the school was located in a statistically high crime area. Metropolitan Police Department crime report statistics for a ten block area surrounding the school and a similar area surrounding nearby Fort Chaplin Park for the years 1976 through 1979 were introduced. The report revealed that numerous crimes were committed, including murder, assault, rape, burglary, larceny, robbery, and auto theft. There was also testimony which detailed crimes committed in or around Plummer School during this same period. These crimes included robbery, burglary, larceny, and arson.

The District then presented its own security expert, Peter Blauvelt. He testified that it is normal practice to keep school doors locked to control access to the schools, and that it was particularly important to lock Plummer's back door because it is located on the vulnerable blind side of the school building. Mr. Blauvelt stated, however, that he knew of no applicable standard of care regarding the proper type of personal security to be implemented in an elementary school because such schools are rarely the target of crimes directed against persons. According to Blauvelt, elementary schools were generally targets of vandalism and other crimes against property; thus, security measures were primarily designed to combat this problem.

The jury also heard cross-examination testimony, over the District's objection, from Edgar Dews, Director of Security for D.C. Public Schools, that offenses of a sexual nature had occurred against children in other District elementary schools prior to September 20, 1979, and that guidelines had been developed to prevent future sex crimes.¹

II

The District's primary argument is that the evidence presented was legally insufficient to permit a reasonable inference of foreseeability of the intervening criminal act with the degree of specificity that our prior decision in Lacy v. District of Columbia, supra, demands. The District asserts that, in order for it to be under a duty to protect against the precise harm which came about, sexual assault by an intruder, the attack had to be foreseeable, and that absent a prior occurrence of such a crime on the grounds of Plummer, such attack was unforeseeable as a matter of law. In turn, appellees have consistently argued that the District could foresee the attack, based on its knowledge of the surrounding high crime area, and its failure to implement adequate security, which allowed access to the school from intruders in this high crime area.

While the District of Columbia is not the insurer of the complete safety of school children, nor is it strictly liable for any injuries which may occur to them, it has an obligation to exercise reasonable and ordinary care for the protection of pupils to whom it provides an education. See District of Columbia v. Royal, 465 A.2d 367, 369 (D.C. 1983); District of Columbia v. Cassidy, 465 A.2d 395, 399 (D.C. 1983) (issue of proximate cause is proper factual question in cases involving claims of negligent supervision of students). In cases such as this, however, where an injury is caused by the intervening criminal act of a third party, a defendant is liable for negligence only if the danger of that act "should have been reasonably anticipated and protected against." Lacy v. District of Columbia, supra, 424 A.2d at 323; St. Paul Fire & Marine Insurance Co. v. James G. Davis Construction Corp., 350 A.2d 751, 752 (D.C. 1976); see also Boykin v. District of Columbia, 484 A.2d 560, 565 (D.C. 1984).² If the intervening act "can fairly be said to be that which could not have been reasonably anticipated, plaintiff may not look beyond the intervening act for his recovery." St. Paul Fire & Marine Insurance Co., supra, 350 A.2d at 752. Yet "`Mlle question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures against it. Whether a duty exists is ultimately a question of fairness." Cook v. Safeway Stores, 354 A.2d 507, 509-10 (D.C. 1976) (quoting Goldberg v. Housing Authority of Newark, 38 N.J. 578, 583, 186 A.2d 291, 293, 10 A.L.R.3d 595, 601 (1962)) (emphasis in original).

In Lacy, supra, and Cook, supra, we have interpreted this fairness standard as requiring a heightened showing of foreseeability in cases involving intervening criminal conduct. While normally a defendant need not foresee the precise injury, or have notice of the particular method in which the harm is brought about in order for the plaintiff to establish proximate causation, Kendall v. Gore Properties, Inc., 98 U.S. App.D.C. 378, 387, 236 F.2d 673, 682 (1956), we held in Lacy that a school had no duty to act to protect the student from a sexual assault by a school janitor unless this particular harm was foreseeable. Lacy, supra, 424 A.2d at 323. There we noted that, because of the extraordinary nature of criminal conduct, the law requires that the foreseeability of the...