Novak v. Capital Management and Development Corp., 08-7135.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation570 F.3d 305
Docket NumberNo. 08-7135.,08-7135.
Decision Date26 June 2009
570 F.3d 305
Dominic NOVAK, Appellee
No. 08-7135.
United States Court of Appeals, District of Columbia Circuit.
Submitted November 14, 2008.
Decided June 26, 2009.

[570 F.3d 308]

Appeal from the United States District Court for the District of Columbia (No. 1:01-cv-00039-HHK).

Brian E. Hoffman argued the cause for appellants. With him on the briefs was Jeffrey R. Schmieler.

Patrick M. Regan argued the cause and filed the briefs for appellee.

Before: HENDERSON, RANDOLPH, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

A group of men attacked and brutally beat appellee Dominic Novak moments after he left a nightclub in 1998. The club required patrons to leave the building through a single door that led into an alley, and the attack occurred in close proximity to that door. Although the club employed several security officers, they were all inside the building during the beating. Novak, who sustained permanent injuries, brought this diversity action against the club, alleging negligence under District of Columbia law.

The district court initially granted summary judgment in favor of the club, holding that the club owed Novak no duty of care because the attack occurred in a public alley, and that the criminal assault was not foreseeable. In July 2006, a panel of this court reversed and remanded, determining that a reasonable jury could find that the club owed Novak a duty if it put the alley to a substantial special use, and that evidence of frequent fights in the alley could establish foreseeability. The case proceeded to trial and, in May 2007, a jury found in favor of Novak and awarded him damages.

The club now appeals, contesting the district court's judgment on a number of grounds. We reject those challenges and affirm the judgment.


This court's 2006 opinion reversing summary judgment in favor of the club describes the facts surrounding the attack. See Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902 (D.C.Cir.2006) (Novak I). We reprise them in somewhat less detail here.

Appellants owned and operated the Zei Club, a bar and dance club located in northwest Washington, D.C.1 The club was situated next to—and was only accessible through—two alleys that formed an upside-down T shape, "one running east-west from 14th to 15th Street, named `Zei Alley,' and another running from Zei Alley north to I Street (the `I Street alley')." Novak I, 452 F.3d at 904. The club's front entrance was located at the southeast corner of the building, which lay at the intersection of the two alleys; its back door was at the northeast corner, which abutted the I Street alley. J.A. 3001 (Pl.'s Ex. 1). At closing time, the club required patrons to depart through the back door, which locked behind them to prevent re-entry. Patrons then had to walk south down the I Street alley to return to Zei Alley.

570 F.3d 309

In the early morning of March 22, 1998, Novak visited the club with a group of friends. He left the club through the back door—the only available exit—at approximately 2:35 a.m., and turned south on the I Street alley. At that time, twelve to fifteen men were standing together next to a wall in the alley. Moments after Novak left the club, and "within view of the exit," the men attacked Novak and other members of his party. Novak I, 452 F.3d at 904. The men struck Novak's friend John Henderson first, before attacking Novak. Near the end of the assault, which lasted for approximately five minutes, the assailants "tripped Novak, then hit him in the back of the head" with wooden boards. Id.

Although the Zei Club maintained a private security team of fifteen people and also employed two off-duty Metropolitan Police Department (MPD) officers, all employees were inside the club when the assault began. When the MPD officers working security learned of the attack, they "ran out of the club, stopped the attack, and apprehended some of the assailants." Id. at 905. Novak sustained severe injuries as a result of the beating. He underwent emergency brain surgery immediately after the attack and was in a coma for nearly three weeks. He suffered permanent brain damage, loss of motor functions, speech disturbance, and loss of strength.

Novak filed suit against the Zei Club in the United States District Court for the District of Columbia, invoking the court's diversity jurisdiction. He alleged that the club was liable for the common law tort of negligence because it did not protect him from a foreseeable fight in the alley abutting the club's only exit. The district court initially granted summary judgment in the club's favor, concluding that its "lack of exclusive control" over the I Street alley "relieved the Zei Club of any duty of care to patrons using the alley to leave the club." Id. The court also held that the criminal attack on Novak was not foreseeable. Although the court "acknowledged that fights occurred as often as twice a month[, it] concluded that these fights were not sufficiently `frequent.'" Id. (quoting Novak v. Capital Mgmt. & Dev. Corp., No. 01-0039, 2004 WL 4881276, *3 (D.D.C. July 12, 2004)).

A previous panel of this court reversed the grant of summary judgment on both grounds. The court explained that the District of Columbia employs a "substantial special use" test, rather than an exclusive control test, to determine "when a business invitor's duty extends to an egress." Id. at 909. Reviewing the facts in the light most favorable to Novak, the court concluded that a reasonable jury could find that "the Zei Club put the I Street alley to a substantial special use." Id. at 911. The facts relevant to that conclusion were as follows:

The Zei Club was set off from any public street and surrounded by alleys. Its patrons were invited to use the alleys as approaches and exits to the club. The attack occurred within a few steps of the exit in the I Street alley, which was the chief path of egress from the club. At the hour of the attack, the only exit from the club led to the I Street alley. The exact spot of the attack was on a "calculated" and "necessary" egress. No other businesses used the alley at that hour, and the Zei Club routinely used its security guards to clear the alley of loiterers and maintain order.

Id. (citation omitted).

The previous panel also held that a reasonable jury could find that the criminal attack on Novak met the standard of foreseeability required under District of Columbia

570 F.3d 310

case law. Id. at 913. As the court explained:

Novak ... proffered testimony from the club's security guards and other employees indicating that fights occurred in the club "once every two weeks at least," "twice a month," or "probably 1 a month or 1 a week." One employee testified that he saw fights in the alley by the exit "twice a month;" another said he saw "maybe 1 or 2 fights" each month in the alley by the exit. If believed, this evidence certainly could put a reasonable club owner on heightened notice that a serious problem existed outside its door.... Indeed, in the words of the Zei Club's own incident report from the night of the attack, just "moments" prior to the assault on Novak[,] ... the club had ejected a group of patrons for fighting inside the club.

Id. at 913-14 (footnote omitted). In addition, "[t]he club, as business invitor, shared a special relationship with its business invitees, [including] ... Novak." Id. at 913. Drawing all inferences in Novak's favor, the court determined that "the club cannot now seriously contend that an assault at its exit was not legally foreseeable." Id. at 914.

In summary, the court concluded that:

With notice of repeated fights on its premises and in its entryways and approaches, having made substantial special use of those entryways and approaches, with every reason to expect that fights would continue absent the exercise of reasonable care, and with the power to exercise reasonable care over entryways and approaches, a reasonable jury could believe Novak['s] ... evidence on prior similar conduct and conclude that the Zei Club failed to take reasonable steps to secure its alley.

Id. Accordingly, we vacated the district court's grant of summary judgment and remanded the case for further proceedings. Id. at 915.

After our ruling in Novak I, the case proceeded to trial. During the trial, Novak presented evidence consistent with his proffer of testimony at the summary judgment stage. Regarding substantial special use, witnesses at trial testified, inter alia, that: the Zei Club required people seeking to enter the club to form a line in the I Street alley, and security personnel maintained order in the line; the club forced patrons to depart through a single exit abutting the alley; and Novak's party was first attacked in the alley in close proximity to the exit. Regarding foreseeability, the evidence was as follows: one former Zei Club security officer testified that he observed an altercation in the club or in the alley "at least on a weekly basis" and that he was aware of gang members taking materials from the Zei Club's dumpsters to use in assaults on others; another employee stated that patrons in the club were ejected from the premises "twice a month" and that he witnessed altercations in the alley with the same frequency; the club's former head of security stated that the club ejected patrons who were fighting "every two or three weeks"; and one of the off-duty MPD officers who worked security testified that he became involved in customer altercations at the club "once or twice a month." J.A.2055-56, 2229, 2723, 2830. In addition, Novak introduced into evidence the club's incident report, which stated that patrons fighting inside were "ejected from the club" just "[m]oments" before the attack on Novak. J.A. 3021 (Pl.'s Ex. 6).

Novak also presented evidence at trial indicating that the absence...

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