Potts v. District of Columbia, 94-CV-1499.

Decision Date07 August 1997
Docket NumberNo. 94-CV-1499.,94-CV-1499.
PartiesBobby POTTS, et al., Appellants, v. DISTRICT OF COLUMBIA, et al., Appellees.
CourtD.C. Court of Appeals

Boniface K. Cobbina, Washington, DC, for Appellants.

Dennis J. Sullivan for Appellees George Demarest and District of Columbia.

Thomas L. McCally, with whom Samuel J. Smith was on the brief, Washington, DC, for Appellees Spencer Promotions, Inc. and John Newman.

Before STEADMAN, FARRELL and REID, Associate Judges.

STEADMAN, Associate Judge.

Appellants Bobby Potts and Lou Smalls were injured by gunshots from an unknown source as they were exiting the Washington Convention Center ("WCC") after attending a boxing event on October 29, 1991. They brought a negligence action against the District of Columbia, George Demarest (as General Manager of the Convention Board), Spencer Promotions, Inc. (the promoter of the boxing match), and John Newman (as President of Spencer Promotions). Summary judgment was granted for Demarest and the District of Columbia on January 27, 1994, and for Spencer Promotions and Newman on October 21, 1994. Both orders dismissed the action for want of evidence supporting a finding of foreseeability under the standard enunciated in Clement v. Peoples Drug Store, 634 A.2d 425 (D.C.1993). Appellants contend that summary judgment was improperly granted because (1) there was a genuine issue of material fact regarding the foreseeability of the shooting, and (2) adequate discovery on this issue had not yet been had. We affirm.

I. Summary Judgment

To prevail upon a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Super. Ct. Civ. R. 56(c); Young v. Delaney, 647 A.2d 784, 788 (D.C. 1994). This initial showing can be made by pointing out that there is a lack of evidence to support the plaintiff's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198 (D.C.1991). The party opposing a properly supported motion for summary judgment may not rest upon the mere allegations contained in its pleadings, but must set forth "specific facts showing that there is a genuine issue for trial." Super. Ct. Civ. R. 56(e); Smith v. Washington Metro. Area Transit Auth., 631 A.2d 387, 390 (D.C.1993) (requiring the non-moving party to "produce enough evidence to make out a prima facie case in support of her claim").

In support of their motions for summary judgment, defendants each furnished affidavits averring that they had not been aware, nor had reason to be aware, of any indication that a criminal act would occur at the boxing event that evening. Furthermore, they contended that plaintiffs had presented no evidence whatsoever to establish the foreseeability of the shooting.

In opposition to summary judgment, the sole evidence proffered by appellants to show the requisite foreseeability was an unsworn statement by their attorney that he expected to call Robert diGrazia at trial.1 According to that statement, Mr. diGrazia was "expected to testify regarding the foreseeability of the criminal attack on the plaintiffs at the boxing event staged at the Washington Convention Center on October 29, 1991 and the adequacy of security in the light of that foreseeability." His opinions would be "based upon a review of police crime data, statistics regarding unreported crime, community characteristics, image and reputation of the location, environmental design of the building and the activity itself, i.e., boxing, creating opportunity for crime as well as a review of all records, pleadings, deposition transcripts and interviews with plaintiffs." No further information or data were provided. We agree with the trial court that this proffer was insufficient to defeat summary judgment.

We observe at the outset that Rule 56(e) requires that a party opposing summary judgment "set forth by affidavit or in similar sworn fashion specific facts showing there is a genuine issue for trial." New Places v. Communications Workers, 619 A.2d 73, 75 (D.C.1993). The opposing affidavit "shall be made on personal knowledge, shall set forth such facts as would be admissible at trial, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e). "The purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 3188-89, 111 L.Ed.2d 695 (1990). It has been said that statements by experts which are not made under oath are insufficient to defeat a motion for summary judgment. Woodfolk v. Group Health Ass'n, 644 A.2d 1367, 1369 (D.C.1994) (Terry, J., concurring). Similarly, "an attorney's affidavit that he intends to call an expert is not sufficient." Imperial Veal & Lamb Co. v. Caravan Refrig. Cargo, 554 F.Supp. 499, 501 (S.D.N.Y. 1982). Here, there is neither a statement from the expert himself, nor an affidavit from the attorney. Indeed, there is no categorical assurance from the proffer that Mr. diGrazia had yet come to the expected conclusion after reviewing the relevant facts, much less what those facts were or how they would be proven. See Lechuga v. Southern Pacific Transp. Co., 949 F.2d 790, 798 (5th Cir.1992) ("Conclusory statements in an affidavit do not provide facts that will counter summary judgment evidence, and testimony based on conjecture alone is insufficient to raise an issue to defeat summary judgment.").

In any event, even had it taken the form of the expert's statement, we agree with the motions courts' view that the proffer was not sufficient to avoid summary judgment. Where an injury is caused by the intervening criminal act of a third party, this court has repeatedly held that liability depends upon "a more heightened showing of foreseeability" than would be required if the act were merely negligent. Bailey v. District of Columbia, 668 A.2d 817, 819 (D.C. 1995). In such a case, the plaintiff bears the burden of establishing that the criminal act "was so foreseeable that a duty arises to guard against it," Clement, supra, 634 A.2d at 427 (quoting McKethean v. Washington Metro. Area Transit Auth., 588 A.2d 708, 717 (D.C.1991)). "Because of the extraordinary nature of criminal conduct, the law requires that the foreseeability of the risk be more precisely shown." Id.

Our opinions have made clear the demanding nature of the requirement of "precise" proof of a "heightened showing of foreseeability" in the context of an intervening criminal act involving the discharge of weapons. Bailey, supra, 668 A.2d at 819. Most recently, in Bailey, plaintiff was shot at a cheerleading competition at Evans Junior High School as she was leaving the building. She offered the affidavits of witnesses who asserted that the area around the school was a "high drug area" and that shootings occurred in that neighborhood. We held that such a general proffer was insufficient. "Although the occurrence of shootings in, and in the vicinity of, the District's public schools is an unhappy reality, such `generic information,' by itself, does not create a duty on the part of the District to protect against the use of firearms under the circumstances presented here." Id. at 820. We noted that plaintiff in that case had proffered no evidence of any shooting incidents, assaults, or other gunrelated violence at any other event held at the school, or at any other cheerleading competition, and therefore was unable to survive a motion for summary judgment.

Similarly, in Clement, supra, 634 A.2d at 429, the only evidence presented with respect to a shooting's foreseeability was an expert's opinion based on police reports of criminal activity in the surrounding area. No evidence was introduced involved any gun-related incidents at the particular shopping mall in which the shooting...

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