Workman v. United Methodist Committee On Relief

• Decision Date: 25 February 2003
• Docket Number: No. 01-7161.,01-7161.
• Citation: 320 F.3d 259
• Parties: MaryAnn WORKMAN, Individually and as personal and legal representative of the Estate of Deena Marie Umbarger, deceased, Appellant, v. UNITED METHODIST COMMITTEE ON RELIEF OF THE GENERAL BOARD OF GLOBAL MINISTRIES OF THE UNITED METHODIST CHURCH, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 259

320 F.3d 259

MaryAnn WORKMAN, Individually and as personal and legal representative of the Estate of Deena Marie Umbarger, deceased, Appellant, v. UNITED METHODIST COMMITTEE ON RELIEF OF THE GENERAL BOARD OF GLOBAL MINISTRIES OF THE UNITED METHODIST CHURCH, Appellee.

No. 01-7161.

United States Court of Appeals, District of Columbia Circuit.

Argued October 24, 2002.

Decided February 25, 2003.

Appeal from the United States District Court for the District of Columbia (No. 00cv00616).

Mark London argued the cause and filed the briefs for appellant.

William H. Briggs, Jr. argued the cause for appellee. With him on the brief was Cathlene A. Tharp.

Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge:

MaryAnn Workman, the mother of a woman murdered in Somalia while on a mission for the United Methodist Committee on Relief (UMCOR), sued UMCOR, alleging that the defendant negligently failed to prepare her daughter for and protect her from the dangers of her assignment. We hold that the district court properly entered summary judgment for the defendant on the ground that Workman had failed to meet the "heightened foreseeability standard" applicable under the law of the District of Columbia to a case in which the harm arises from the criminal act of a third party.

I. Background

Deena Marie Umbarger, a 1994 graduate of the Yale Law School, left her law practice in 1997 to become a relief worker for UMCOR. Her first international assignment was to Kenya, followed by a brief stint in the Republic of Georgia. In November 1998 she returned to Kenya to live with her fiancé. There UMCOR retained her under a series of short-term consulting agreements until her death in March 1999.

The agreements defined Umbarger's role as that of an independent contractor charged with evaluating UMCOR's past relief efforts in Kenya and Somalia and with developing a plan for the future, possibly to include the opening of an UMCOR office in Nairobi. Umbarger was UMCOR's sole representative in the region; she reported directly to Kemba Eneas, UMCOR's Program Director for Africa and the Caribbean, who was based in Virginia.

On March 20, 1999 Umbarger traveled to Somalia. An UMCOR memorandum contains the following description, based upon a report from the United States Embassy in Kenya, of the events of that day:

At approximately 3:00 p.m., Deena and Ahmed Hussein [of Somali Community Services/Nairobi] arrived at Nkokani Airport, NW of Lamu, Kenya. Eight people in a vehicle with a Somalian license tag picked her up. Deena and her counterparts registered with the local police at the border to explain their business with the community. Six of the eight persons were there on the invitation of SCS, the other two we[r]e from the Aqwin Militia who were warlords there to monitor their activities. At 5:00 p.m. they arrived at a restaurant 40 km outside of Kiangu, on the border of Kenya and Somalia (in the SW corner of Somalia) where they were to meet five town elders. At 5:30 p.m. before eating, a gunman murdered Deena in the restaurant. The elders caught the gunman; however, other members of the militia shot in the air which startled the elders and caused the gunman's release. The persons that were with Deena put her back in the vehicle and drove her to the nearest clinic or hospital in Kenya whe[r]e she was dead on arrival.

In February 2000 Workman filed a complaint in the Superior Court for the District of Columbia alleging that UMCOR had "failed to discharge its duty and obligation to protect [Umbarger] as she assisted UMCOR in carrying out its activities in Kenya and Somalia." Workman sought damages for Umbarger's death under the District of Columbia Wrongful Death Act, D.C.Code § 16-2701, and under the Survival Statute, D.C.Code § 12-101, which allows a legal representative to bring a claim on behalf of a person who has died. UMCOR, invoking federal diversity jurisdiction, removed the case to the district court. In a ruling not challenged here, the district court dismissed the wrongful death claim because the statute applies only to deaths occurring within the District of Columbia.

At the close of discovery, UMCOR moved for summary judgment on the negligence claim under the Survival Statute arguing, as relevant here, that because UMCOR could not have foreseen Umbarger's murder, it had no duty to protect her from that crime. In support of its motion, UMCOR submitted declarations from Eneas and from Sam W. Dixon, the head of UMCOR's Nongovernmental Organization Unit. Dixon stated that Umbarger's duties were "to determine whether there were sources of funding for relief projects in the region and whether the region was safe and secure enough to justify a permanent UMCOR presence," and that Umbarger was "solely ... responsib[le]" for the manner in which she carried out these duties, including her decision to travel to Somalia. Dixon characterized Umbarger as UMCOR's "eyes and ears" in the region; indeed, "[t]he information that UMCOR had about potential security risks in Somalia came primarily from [her]." Dixon also stated:

I did not have, nor was I aware of anyone at UMCOR who had, any advance knowledge or warning that ... her travel to Somalia or work in Kenya would put her at some unique risk beyond the typical security risks known to anyone — including Deena — who provides relief to people living in the most dangerous areas of the world.

Eneas supported Dixon's description of the relationship between UMCOR and Umbarger. She stated that although Umbarger reported to her, Eneas did not "supervise" Umbarger and did not require Umbarger to travel to Somalia. Eneas stated that Umbarger had gone to Somalia once before, "without incident." In addition, Eneas reported that during her visit to Nairobi about a week prior to the fateful trip, "[w]e spent a large amount of time together and Deena never told me that she feared traveling to Somalia or that she was concerned that she might be harmed in any way during that trip. To the contrary, Deena was eager to travel to Somalia."

In opposition to UMCOR's motion for summary judgment, Workman submitted the declaration of Michael D. O'Neill, the Coordinator for Volunteer Safety and Overseas Security for the Peace Corps. According to O'Neill, even in cases in which decision-making is left to the aid worker, "the institution for whom she works also is expected to provide reasonable safety and security support," including "proper security assessment of the area in question, appropriate risk reduction strategies, a security management system, a program for sharing information, and training." By way of example, O'Neill noted that the Peace Corps provides 12 weeks of training to volunteers before they are posted abroad. O'Neill stated that upon his review of the evidence, he had seen nothing to indicate that Umbarger received "proper training and guidance" or that UMCOR maintained a "reasonable safety and security support system" for its overseas workers.

Workman also produced a February 1999 email from Umbarger to Eneas, in which Umbarger had noted possible irregularities in the accounting of relief funds earmarked for Somali Community Services and expressed concern that her investigation of the issue could render a planned trip to Somalia particularly dangerous. She wrote:

I need to spend a fair amount of time with Fawzi [the SCS liaison to UMCOR] getting the particulars of just what was provided to beneficiaries. The local SCS guys here are quite concerned that some of what Fawzi put as outputs in the one final report I do have was actually not correct. This could be a very sensitive (not to mention dangerous) issue as we try to confirm some of these things on the ground, particularly if the local people begin to suspect that they never received all of what SCS was supposed to provide. They have told me that a hostage/kidnapping situation would not be farfetched, and I am sure you would be as unhappy receiving a midnight phone call for help as I would be if I had to make one.

In addition, Workman produced an email to Shelly Sutherland, whom Workman described as "a long time UMCOR employee," in which Umbarger wrote: "I feel like I am at the breaking point with no support system or release valve. The way things are going it wouldn't surprise me if something happened in Somalia."

The district court held that Workman's evidence was insufficient as a matter of law to satisfy the "stringent showing of heightened foreseeability required under District of Columbia law" in a case in which the criminal act of a third party causes injury. On appeal, Workman argues that, in the light of all the evidence, the district court's conclusion was erroneous.

II. Analysis

In the District of Columbia, a defendant may be liable for harm caused by the criminal act of another only if the crime was particularly foreseeable. See, e.g., Potts v. District of Columbia, 697 A.2d 1249, 1252 (D.C.1997) ("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"). Courts in the District of Columbia regularly grant a defendant's motion for summary judgment on the ground that the plaintiff's evidence is "insufficient... to establish that [a] criminal act ... was reasonably foreseeable." Bailey v. District of Columbia, 668 A.2d 817, 822 (D.C.1995); Potts, 697 A.2d at 1252-53. We review de novo the district court's determination that Workman failed to present sufficient evidence to preclude summary judgment. DeGraff v. District of Columbia, 120 F.3d 298, 301 (D.C.Cir. 1997).

How foreseeable must the crime have been for the plaintiff to get her claim before a jury? The District of Columbia Court of Appeals has said a "heightened...