Doe v. Dominion Bank of Washington, N.A.

• Decision Date: 07 July 1992
• Docket Number: No. 91-7105,91-7105
• Parties: Jane DOE, Appellant, v. DOMINION BANK OF WASHINGTON, N.A.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1552

963 F.2d 1552

295 U.S.App.D.C. 385

Jane DOE, Appellant, v. DOMINION BANK OF WASHINGTON, N.A.

No. 91-7105.

United States Court of Appeals, District of Columbia Circuit.

Argued April 20, 1992.

Decided May 22, 1992.

Rehearing Denied July 7, 1992.

Appeal from the United States District Court for the District of Columbia (C.A. No. 90-00597).

Michael B. Waitzkin, with whom Lori E. Fox and Elizabeth Langer, Washington, D.C., were on the brief, for appellant.

Joseph Michael Hannon, Jr., with whom Randell Hunt Norton, Washington, D.C., was on the brief, for appellee. John Jude O'Donnell, Washington, D.C., also entered an appearance, for appellee.

Before: RUTH BADER GINSBURG, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG.

Concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

RUTH BADER GINSBURG, Circuit Judge:

On May 24, 1989, plaintiff-appellant, named here as Jane Doe, was raped at an office building downtown in the District of Columbia. At the time of the crime, Doe was employed in the building as a secretary for a commercial tenant. Defendant-appellee, Dominion Bank, held the master lease on the premises. The crime occurred during the workday in an unlocked office on a vacant floor. Invoking federal jurisdiction based on the parties' diverse citizenship, Doe commenced this tort action against the Bank. She alleged that the Bank, as landlord, had a duty to take reasonable measures to shield tenants and their employees from the foreseeable criminal conduct of third persons. Doe further alleged that the Bank was negligent in failing to secure vacant portions of the building, and was on notice that the absence of adequate security during normal business hours jeopardized the safety of persons who worked on the premises.

At the close of Doe's evidence, the Bank moved for a directed verdict. ¹ Concluding that Doe had not proved the foreseeability of the rape, the district court granted the motion and entered judgment as a matter of law for the Bank. Doe appeals from that judgment. The Bank defends the district court's ruling on foreseeability, and reasserts two other grounds for affirmance. First, the Bank argues that because of the exclusively commercial character of the building and of the landlord/tenant relationship, the Bank was under no duty to protect Doe from the criminal acts of third parties. ² Second, the Bank maintains that Doe's evidence failed, as a matter of law, to establish the appropriate standard of care. ³

We uphold the district court's determination that under D.C. case law, a commercial landlord has a duty to take reasonable measures to safeguard tenants from foreseeable criminal conduct in the common areas of the leased premises. We also uphold the district court's disposition of the standard of care issue. Doe's qualified security expert testified that the Bank, in failing to secure vacant floors and offices, did not comport with acceptable security practices for urban commercial buildings, either in D.C. or anywhere else in the country. That testimony sufficed to establish a standard of care against which the jury could measure the Bank's conduct.

We part ways with the district court, however, on the question whether Doe failed to present sufficient evidence of the foreseeability of the crime to which she fell prey. The district court refused to consider the unsecured condition of the premises as a proper factor in the determination of foreseeability. That refusal, in our estimation, missed the thrust of evolving D.C. precedent. Furthermore, the lack of evidence of prior crimes against persons in or around the building, we hold, did not "fatal[ly] flaw" Doe's case. Because we conclude that Doe presented evidence sufficient to require submission of the critical issue of foreseeability to a jury's verdict, we reverse the judgment entered as a matter of law for the Bank and remand the case for a full trial.

I. Background

From November 1988 through May 1989, Jane Doe worked as a secretary for Fiscal Planning Services, Inc., a financial consulting firm with offices at 1430 K Street, N.W., a commercial building in downtown Washington, D.C. Dominion Bank held the master lease to the 1430 K St. building, and engaged Community Management Corporation (CMC) to manage the property. ⁴ As part of its management responsibilities, CMC received, handled, and informed the Bank of tenant complaints, including reports of security problems in the building.

In February 1989, Fred Rigney, Senior Vice President of the Bank, informed CMC that the Bank had contracted to sell the 1430 K Street property. Rigney instructed CMC not to execute any new long term leases on office space in the building, and told CMC to renew existing leases, including the lease with Fiscal Planning, only on a month-to-month basis. According to Christine Mehling, CMC's Executive Administrator, the Bank resisted authorizing expenditures for building maintenance and repairs during 1988-89, while negotiating the sale of the property. By May 1989, five of the building's thirteen floors--the third, ninth, tenth, twelfth, and penthouse floors--were vacant.

At around 8:45 on the morning of May 24, 1989, Jane Doe arrived at 1430 K Street to begin her workday at Fiscal Planning. Having unlocked the file cabinets and made coffee in the firm's offices on the eleventh floor, Doe planned to go downstairs to a nearby shop to get some tea. Doe entered the elevator on the eleventh floor. No other passenger was in the cab. She pressed the button for the lobby, but the elevator stopped on the ninth floor. Doe pushed the "door open" button to admit the next passenger. She did not know that the ninth floor was vacant at that time.

A man boarded the elevator and moved behind Doe. Grabbing her in a choke hold, the man first dragged Doe from the elevator, then down the ninth floor hallway, and through unlocked doors to a dark vacant office, where he raped and robbed her. The rape occurred at around 9:20 a.m., during regular business hours at 1430 K St. offices.

Dennis Windsor, CMC's property manager for the building, conducted an investigation of the premises on the day of the rape. Windsor found that elevators had not been programmed to bypass all vacant floors. He also came upon unlocked doors leading from the building stairwell onto floors. CMC notified Fred Rigney of Windsor's findings, and Rigney instructed CMC to "secure the elevators by locking off access to all floors in the building that are unoccupied by tenants," to "secure the stairwells by making sure that none of the floors in 1430 can be accessed from the stairwells," and to "secure the stairwell doors leading from the lobby."

Doe's complaint, filed in the district court on March 15, 1990, ⁵ charges that her rape was a foreseeable consequence of inadequate security in the Bank's building and demands damages for injuries Doe sustained in the assault. The Bank moved for summary judgment, arguing that D.C. law does not hold a commercial landlord liable for the criminal acts of third parties. The district court denied the summary judgment motion in an oral ruling. While characterizing the question as "challenging" and "close," the district court did not discern in D.C. Court of Appeals analyses the distinction urged by the Bank between commercial and residential leases.

At trial, Doe presented evidence, through incident reports, tenant correspondence, and other business records maintained by CMC, of thefts of personal property and business equipment from offices in the building, drug use and sexual activity in a building rest room, and tenant complaints of threatening intruders and inadequate security at 1430 K Street. ⁶ These records, dated from January 1987 through May 1989, showed that most of the reported thefts occurred in the period running from the winter of 1987 through the summer of 1988. The evidence of drug use and sexual activity turned up in March 1988.

During the month preceding Doe's rape, however, CMC and the Bank received a number of alerts from tenants regarding potential threats to employee safety in the building. On April 20, 1989, G. Mario Moreno, regional director of the Mexican American Legal Defense and Educational Fund (MALDEF), a tenant at 1430 K Street, wrote to Christine Mehling at CMC reporting the repeated appearances "over the last five months" of "a strange street person" at MALDEF's office suite. Moreno described the intruder as "approximately six feet tall, 250 pounds and ... always dressed in dirty tattered clothes." According to Moreno, the stranger's "intimidating physical size and questionable mental state create[d] concern and tension" among MALDEF's staff. Moreno reported that as the intruder's visits increased in frequency, "his demeanor [became] more aggressive." The man's unexpected appearances, in Moreno's view, put MALDEF employees "always at risk," and the necessary "constant vigilance of the door interferes with our work patterns and draws into question the safety of remaining alone in our office."

Fearful "of becoming hostages within our own office," Moreno wrote, MALDEF "urgently" requested CMC to "take affirmative steps to ensure that this office building remains secure for its tenants." Moreno recommended that CMC employ a security guard to remain on duty in the building lobby during weekday business hours, or install an intercom system with an electronic release outside MALDEF's suite. Moreno warned that "a preventive measure needs to be taken before a tragedy occurs," and reminded CMC that his letter marked MALDEF's "second notice to CMC concerning this intruder." While MALDEF had alerted the police to the intruder's presence, Moreno observed that "the response time of the police" was "too long" and "after the fact." Moreno noted that the building elevators "have a long history of not operating properly," and expressed concern that "without a...