Potts v. District of Columbia, No. 94-CV-1499.

• Docket Nº: No. 94-CV-1499.
• Citation: 697 A.2d 1249
• Case Date: August 07, 1997

697 A.2d 1249

Bobby POTTS, et al., Appellants,
v.
DISTRICT OF COLUMBIA, et al., Appellees.

No. 94-CV-1499.

District of Columbia Court of Appeals.

Argued January 27, 1997.

Decided August 7, 1997.

697 A.2d 1250

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

697 A.2d 1251

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

697 A.2d 1252

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...