Sigmund v. Starwood Urban Retail Vi LLC

• Decision Date: 17 August 2010
• Docket Number: No. 08-7137.,08-7137.
• Citation: 617 F.3d 512
• Parties: Donald Wright SIGMUND, Appellantv.STARWOOD URBAN RETAIL VI, LLC, et al., Appelleesv.Wolf & Cohen Life Insurance, Inc., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

617 F.3d 512

Donald Wright SIGMUND, Appellant

v.STARWOOD URBAN RETAIL VI, LLC, et al., Appellees

v.Wolf & Cohen Life Insurance, Inc., Appellee.

No. 08-7137.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 21, 2010.

Decided Aug. 17, 2010.

Appeal from the United States District Court for the District of Columbia (No. 1:05-cv-01366).

Paul J. Cornoni argued the cause for appellant. With him on the brief was Patrick M. Regan. Thanos Basdekis entered an appearance.

Brian E. Hoffman argued the cause for appellees Starwood Urban Retail VI, LLC, et al. With him on the brief were Jeffrey R. Schmieler, Steven Roy Migdal, and Timothy E. Fizer.

Before: GINSBURG, GARLAND, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Solon, the ancient Athenian lawgiver, made no law against patricide because he thought it impossible that anyone could commit so unnatural a crime. Two and a half millennia later, Freud famously claimed the opposite-that every son harbors murderous impulses toward his father. In this case, we side with the lawyer not the psychoanalyst. Donald Sigmund, the accidental victim of a car bomb that his half-brother intended for their father, cannot recover from the third-party defendants he has sued unless his half-brother's crime was foreseeable. We conclude that neither that crime nor any similar one was foreseeable, and thus affirm the district court's grant of summary judgment in favor of the defendants.

I

At approximately 2:00 p.m. on July 12, 2002, a pipe bomb exploded in a Chevrolet Blazer in which Donald Sigmund was sitting. Donald sustained serious injuries in the blast. The Blazer was owned by Donald's father, and Donald had gone to retrieve it from the basement garage of the building in which they worked in order to run an errand. In March 2003, Donald's half-brother, Prescott Sigmund, pled guilty to planting the bomb and was sentenced to 32 years' incarceration.

Like Donald, Prescott also had keys to his father's Blazer and, like his half-brother, he had also worked for some time at his father's office in the building at 5225 Wisconsin Avenue, N.W. For months, Prescott had been devising a plan to detonate a bomb that would kill his father, from whom he stood to inherit approximately $300,000. Prescott knew that his father kept the Blazer parked in the building's garage. The garage, which was open to the public, was ordinarily secured by an overhead rolling steel garage door and guarded by attendants until about 10 p.m. The garage was also accessible from a staircase in the building's lobby, which was open to the public until about midnight.

Late in the evening of July 10, Prescott drove to the garage with the pipe bomb in his car. When he arrived, the overhead garage door, which had broken sometime shortly before June 24, was stuck in the open position. Prescott had noticed that the door was broken the day before. Notwithstanding the months he had invested in preparing the attack, he later described the broken garage door as “the opportunity ... [he] had been looking for.” Prescott Sigmund Dep. 12 (Feb. 2, 2006).

Prescott parked next to his father's Blazer, opened the Blazer with his own key, and-within the space of approximately two hours-planted the pipe bomb inside. The garage door was repaired on July 11, one day after Prescott planted the bomb. The Blazer then sat untouched until the following afternoon, when Donald came to retrieve it and suffered the blow intended for his father.

One year later, Donald filed suit in federal court, predicated on diversity jurisdiction, seeking tort damages from Prescott and the owner, managers, and operators of the garage. The district court granted summary judgment for the defendants other than Prescott, finding that Donald could not “meet the legal standard of a ‘heightened showing of foreseeability’ that is applied when an injury is caused by the intervening act of a third party.” Sigmund v. Starwood Urban Inv., et al., 475 F.Supp.2d 36, 38 (D.D.C.2007). Donald then dismissed his claims against Prescott and filed this appeal.

II

We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party, Donald Sigmund. See Czekalski v. Peters, 475 F.3d 360, 362-63 (D.C.Cir.2007). We must affirm the grant if “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

Because Sigmund brought this suit based upon diversity of citizenship see 28 U.S.C. § 1332, we apply the law of the District of Columbia. See Smith v. Wash. Sheraton Corp., 135 F.3d 779, 782 (D.C.Cir.1998). “To establish negligence” under D.C. law, “a plaintiff must prove a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the interests of the plaintiff, proximately caused by the breach.” District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 642 n. 3 (D.C.2005) (en banc) (internal quotation marks omitted).

In Beretta, the D.C. Court of Appeals, sitting en banc, summarized the analysis applicable “[w]here an injury is caused by the intervening criminal act of a third party”:

[T]his court has repeatedly held that liability depends upon a more heightened showing of foreseeability than would be required if the act were merely negligent. 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. Because of the extraordinary nature of criminal conduct, the law requires that the foreseeability of the risk be more precisely shown.

872 A.2d at 641 (quoting Potts v. District of Columbia, 697 A.2d 1249, 1252 (D.C.1997)) (internal quotation marks omitted). “In this context,” the court said, “the requisite duty of care required for negligence is a function of foreseeability, arising only when foreseeability is alleged commensurate with “ ‘the extraordinary nature of [intervening] criminal conduct.’ ” Id. (quoting Potts, 697 A.2d at 1252) (footnote omitted).¹ Moreover, it noted, “ ‘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.' ” Id. at 642 (quoting Potts, 697 A.2d at 1252) (emphasis omitted).

In Beretta, the court reviewed several of its prior cases, which, it said, “demonstrate the tight boundaries ... within which a claim of common-law negligence must be framed ... ‘in the context of an intervening criminal act involving the discharge of weapons.’ ” Id. at 643 (quoting Potts, 697 A.2d at 1252) (internal quotation marks and citation omitted). As the court explained, in Potts v. District of Columbia it sustained a grant of summary judgment against the plaintiffs, who had been injured by gunshots as they were leaving an event at the Washington Convention Center, because they had “proffered no evidence of any prior gun-related violence at any other event” held at the Center or planned by the event's promoters, “nor any other specific evidence bearing directly on the foreseeability of the shooting incident at issue.” Id. (quoting Potts, 697 A.2d at 1252). In Bailey v. District of Columbia, 668 A.2d 817 (D.C.1995), the court likewise affirmed a grant of summary judgment against a plaintiff who was shot as she was leaving a cheerleading competition at a junior high school. There was no evidence of prior gun-related violence or assaults at the school, and the court found insufficient the plaintiff's showing that “the neighborhood around the school was a ‘high drug area’ and that shootings and other criminal acts had taken place there.” Beretta, 872 A.2d at 642 (citing Bailey, 668 A.2d at 820). “[S]uch ‘generic information,’ by itself,” the court said, “does not create a duty on the part of the District to protect against the use of firearms under the circumstances presented here.” Id. (quoting Bailey, 668 A.2d at 820). Finally, in Clement v. Peoples Drug Store, 634 A.2d 425 (D.C.1993), the court affirmed a directed verdict against the widow of an employee who was shot to death in the parking lot of a store. “[T]he only evidence presented with respect to [the] shooting's foreseeability was an expert's opinion based on police reports of criminal activity in the surrounding area[,] ... [and no] evidence was introduced involv[ing] any gun-related incidents at the particular shopping mall in which the shooting occurred.” Beretta, 872 A.2d at 642 (quoting Potts, 697 A.2d at 1252) (internal quotation marks omitted). In all three of these cases, the Court of Appeals said, it “rejected liability as a matter of law where foreseeability (hence duty) was not limited by any evidentiary reference to a precise location or class of persons.” Id.

The D.C. Court of Appeals has issued two opinions on this subject since Beretta, and both have emphasized the requirement of a heightened showing of foreseeability in cases involving intervening criminal acts. In Bruno v. Western Union Financial Services, Inc., 973 A.2d 713, 721-22 (D.C.2009), the court found that injuries the plaintiff sustained during a robbery inside the defendant's gas station were not foreseeable. “There was no evidence,” the court said, “that any offense in the nature of an assault had occurred previously inside the gas station,” although there was evidence of a theft inside and of an armed assault just outside within the previous two years. Id. at 718-19.

The court's most recent decision, and the closest factually to the present case, is Board of Trustees of the University of the District of Columbia v. DiSalvo, 974 A.2d 868 (D.C.2009), which involved a student who was attacked by armed assailants in a university parking garage. For the plaintiffs to succeed, the court said, “[i]t is not sufficient to establish a general possibility that the...