Rieser v. District of Columbia

Decision Date07 November 1977
Docket NumberNos. 76-1411 and 76-1412,s. 76-1411 and 76-1412
Citation183 U.S.App.D.C. 375,563 F.2d 462
PartiesRaymond C. RIESER, Administrator for the Estate and Personal Representative of Rebecca A. Rieser v. DISTRICT OF COLUMBIA, Appellant, and Timothy Abron. Raymond C. RIESER, Administrator for the Estate and Personal Representative of Rebecca A. Rieser, Appellant, v. DISTRICT OF COLUMBIA et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Page 462

563 F.2d 462
183 U.S.App.D.C. 375
Raymond C. RIESER, Administrator for the Estate and Personal
Representative of Rebecca A. Rieser
v.
DISTRICT OF COLUMBIA, Appellant, and Timothy Abron.
Raymond C. RIESER, Administrator for the Estate and Personal
Representative of Rebecca A. Rieser, Appellant,
v.
DISTRICT OF COLUMBIA et al.
Nos. 76-1411 and 76-1412.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 25, 1977.
Decided Aug. 15, 1977.
Rehearing En Banc Granted and Panel Opinion Vacated Nov. 7, 1977.

David P. Sutton, Asst. Corp. Counsel for the District of Columbia, Washington, D. C., with whom John R. Risher, Jr., Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, Richard W. Barton and Robert L. Chernikoff, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellant in No. 76-1411 and appellee in No. 74-1412.

Andrew L. Lipps, Washington, D. C., with whom Brendan V. Sullivan, Jr. and William W. Graham, Washington, D. C., were on the brief for appellant in No. 76-1412 and appellee Rieser in No. 76-1411.

Before Mr. Justice CLARK, * of the Supreme Court of the United States, and MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

Appellee's daughter, Rebecca A. Rieser, was raped and murdered by District of Columbia parolee who had been assisted by the District of Columbia Department of Corrections in obtaining employment at the apartment complex where she lived. Acting as her personal representative, appellee filed suit under the District of Columbia Wrongful Death Act, D.C.Code § 16-2701 to -2703, and the Survival Statute, D.C.Code § 12-101 (1973), against the owners of the apartment complex, the parolee, the parole officer, and the District of Columbia (District). A jury returned a verdict against the District under the Survival Statute for $201,633.00, and the district court entered judgment on this verdict and stipulated Wrongful Death damages of $2,764.30, but by remittitur reduced the Survival Statute award to $100,816.50. The District appeals, arguing (1) that the district court was without jurisdiction to entertain the action, (2) that the statutory notice requirements were not satisfied, and (3) that as a matter of law the facts do not establish that the District was liable on a negligence theory. Rieser cross-appeals, contending that the district court's dismissal of his claim for punitive damages was error. We affirm.

I. FACTS

The rather remarkable facts of this case are now largely undisputed. Rebecca Rieser's assailant, Thomas W. Whalen, had a long history of assaults on women. In 1956, at age 13, he killed an elderly woman whom he accused of "exciting him sexually." He was found of unsound mind and civilly committed to St. Elizabeths Hospital for the insane. In 1962, while on conditional release from St. Elizabeths, Whalen assaulted

Page 465

a female cab driver. He was found criminally responsible for this act, convicted of robbery and assault with intent to commit rape, and sentenced in April 1962 to serve 6 to 18 years at Lorton Reformatory. 1 Whalen unsuccessfully applied for parole on two occasions. On April 20, 1970, he was examined by Dr. Louis Berman who diagnosed him as

a man who had a very poor upbringing and is now functioning at a dull normal level of intelligence. He is 26 years of age, tall and strong. His judgment is defective and his hostility is carefully repressed. He has not learned about his feelings nor how to deal with his negative feelings. I gathered also that he has very little support in the community.

I believe that when released to the community he will pose a serious potential danger. The only way I can see him going out into the community is on a trial basis . . . . 2

During August 1971, Whalen was placed in a halfway house and employed by Government Employees Insurance Company (GEICO) as a maintenance worker. On September 10, 1971, he was paroled and subsequently employed at the Brentwood Village Apartments, again performing maintenance duties. 3 Timothy Abron was appointed Whalen's parole officer on November 31, 1971. By interviewing Whalen's supervisors, Abron learned that his work record in both jobs was satisfactory. 4 However, Whalen told Abron on February 14, 1972, that he, along with other employees, had become a suspect in the rape-murder of a woman and murder of her small child that occurred during his employment at Brentwood Village. 5

On February 28, 1972, because his supervisor subjected him to "undue pressures," 6 Whalen quit his position at Brentwood Village. Abron then referred Whalen to the Employment Counseling Service (ECS) of the District of Columbia Department of Corrections, which assists parolees to find employment. On the referral form, which asked only for the parolee's adult criminal record, Abron indicated that Whalen had been convicted of robbery but neglected to mention the attempted rape conviction. The form also did not mention Whalen's prior commitment to St. Elizabeths, current psychiatric evaluation, juvenile offenses or status as a suspect in the Brentwood murders. 7

Before Whalen had been placed for employment, Abron was approached by a Metropolitan Police detective who informed Abron that Whalen had refused to take a polygraph test in connection with the police investigation of the Brentwood murders, and solicited Abron's help in getting Whalen to take the test. 8 On March 1, 1972, Abron sent a memorandum through his supervisor to the parole board discussing

Page 466

Whalen's status as a suspect, his refusal to take the test, and the recent diagnosis of Whalen by Dr. Berman. 9 Abron later met with detectives concerning the investigation.

On March 21, 1972, when Whalen had not yet been placed for employment, Abron and Whalen together visited the Counseling Service and spoke with an employment counselor. Abron told the counselor that in his opinion, based on Whalen's work record, Whalen would be a good employee. Abron placed no limitations upon the types of work he considered appropriate for Whalen, and did not tell the counselor or ECS about Whalen's "murder or rape" offenses or his status as a suspect in the Brentwood Village murders. 10

Whalen was referred by the counselor to McLean Gardens 11 and was hired by them on March 21, 1972, as a maintenance worker. 12 The next day, Abron was called by a detective and told that Whalen was a "prime suspect" in the Brentwood murders because of his past record and the fact that there had been a complaint that he had used "phony excuses" to get into apartments in Brentwood Village. 13 On March 23, Abron testified, he visited McLean Gardens and told McKinley Walker, the McLean Gardens maintenance superintendent, that Whalen had been convicted of "robbery and rape" and that he was not to be given keys or permitted to work in the apartments or by himself. 14 Walker testified, however, that he was not at that time told either of the convictions or of the restriction against inside work, but did remember telling Abron that Whalen would not be working alone. 15

Abron subsequently learned that Whalen was a suspect in a third Brentwood Village murder, involving a sixteen-year old girl. In a March 27, 1972, memorandum through his supervisor, Abron recommended to the parole board that it revoke Whalen's parole. 16 The parole board declined, in view of the absence of "hard facts" of Whalen's guilt, and Whalen remained in his position at McLean Gardens. 17 Abron testified: "The only action the Board took was to inform me to supervise the man closely." 18

All reports on Whalen's work were favorable. He was promoted to apartment cleaner, and then to repair helper. He was sometimes assigned to work alone and given the keys to apartments. 19 While Walker

Page 467

did not inform Abron of this change in assignment, 20 Whalen told Abron on April 21, 1972, that he was doing carpentry, plumbing and electrical work and had received a pay increase. Abron testified that he did not believe or seek to confirm Whalen's report that he was doing inside work, and that Abron had visited McLean Gardens on several occasions but never saw Whalen working inside a building. 21

On May 30, 1972, Metropolitan Police detectives visited the home of Milton Carrick, the general manager of McLean Gardens. During the visit the police informed Carrick of Whalen's entire criminal record, the adverse psychiatric evaluation, and the fact that Whalen was a suspect in the Brentwood Village murders. Police also stated that Whalen had made no attempt to clear himself, and suggested a meeting at which police would confront Whalen with the evidence against him. 22 The next day, a meeting was held in Carrick's office attended by Carrick, Walker, Whalen, Detective Chaney and another detective. Chaney reviewed Whalen's entire criminal record and the psychiatric evaluation, and told him that he was the "prime suspect" in the Brentwood murders as a result of reports of his entering apartments without authorization. Whalen still refused to make a statement to the police. As Whalen was leaving the room, he asked Carrick, "Do I still have a job?" Carrick replied, "Yes, you still have a job." 23 Chaney testified:

When I was leaving I said, "Mr. Carrick, you had better have somebody watch him." I said, "Don't let him have any keys." I said, "Have somebody watch him." I said, "If you have anyone dead here in the next few months, you will know who is responsible for it." 24

On June 1, 1972, both Detective Chaney and Whalen told Abron of the McLean Gardens meeting. Chaney then arranged for Whalen's attendance at a meeting of the parole board designed to assist in the police investigation. 25 Abron, Chaney, the Acting Chief Parole Officer, and Whalen attended the meeting. Whalen's history was reviewed and it was again pointed out that he was a "prime suspect" in the Brentwood investigation. He was told to report to police...

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