2016 WL 759213, at *6 (D. Md. Feb. 26, 2016)
(rejecting an unsupported argument made in a footnote that because McDonald’s USA LLC was the
franchisor, and not McDonald’s Corporation7 the complaint against McDonald’s Corporation should be
dismissed).
University. Paul Casey Dep. 20:13-22; 31:10-11 [Dkt. #160-29]. In the very early
morning of September 23, 2011, Casey met his friends Claire Jun and David Lindsey at
Rhee’s McDonald’s Rhee’s SOMF ISO Mot. for Summ. J. 11 A(2) [hereinafter “Rhee’s
SOMF”] [Dkt. #155-1]. Among the other patrons in the crowded restaurant were Jason
Ward (“Ward”), Justin Ruark (“Ruark”), and Brian Giblin (“Giblin”), who arrived at
Rhee’s McDonald’s together after an evening of “bar hopping” at various establishments
in Northwest, Washington, D.C. 5 Rhee’s SOMF 11 A(3); Ruark Aff. 1111 1~3 [Dkt.
#160-13]. Ward and Giblin were noticeably rowdy while they waited in line to place their
orders. Rhee’s SOMF 11 (A)(3). After receiving their food, the two groups of friends sat
at tables near one another in the restaurant. Rhee’s SOMF 11 A(4). “Trash talking”
ensued, with the groups exchanging insults from their respective tables. Rhee’s SGMF
11 A(4). After a few minutes, Casey got up from his seat and approached Ward, Ruark,
and Giblin’s table. Rhee’s S()MF 11 A(4). Ruark stood up to face Casey, and the banter
continued. Rhee’s SOMF 1111 (A)(4); (B)(2)(b)(o). Lindsey then left his seat and stood
briefly with Casey, Rhee’s SOMF 1111 (A)(6); (B)(2)(b)(q). Lindsey told the other group
something along the lines of “Have fun going home together.” Rhee’s SOMF 1111 (A)(6);
(B)(2)(b)(q)-(r). Lindsey then started to leave the restaurant and Casey began to follow
5 The three were defendants in the present action. Plaintiffs dismissed their claims against Ruark, Giblin,
and Ward on September 23, 2014, September 21, 2015, and January 5, 2016 respectively. See Stipulations
of Dismissal [Dkts. ##103, 143, 152]. The bars in which they imbibed on the evening of September 22,
2011 and the early morning of September 23, 201 l were also defendants in this action but have since all
been dismissed. See Order (Sept. 5, 2014) [Dkt. # 99].
5
him. Rhee’s SOMF 11 A(6).
Angered by Lindsey’s comment, Giblin stood up and approached him near the
restaurant’s door. Rhee’s SOMF 1111 A(7)-(8). Pushing and shoving broke out, and
Lindsey, Giblin, Casey, and Ward exited the restaurant Rhee’s SOMF 1111 A(8)~(9).
lmmediately outside the restaurant, the scuffling continued and culminated with Ward
“sucker punching” Casey. Rhee’s SOMF 1111 A(9)-(1 l). Casey fell backwards and struck
his head on the sidewalk. Rhee’s SOMF ‘11 A(l l). Giblin fled. Rhee’s SOMF 11 A(12).
Ward went back inside the restaurant to get Ruark, and then the two exited and ran down
the street Rhee’s SOMF 11 A(12). Lindsey called 911 at 1:43 AM, and police officers
began arriving at the restaurant within about 73 seconds. Rhee’s SOMF 11 A(13). The
employees working at Rhee’s McDonald’s did not call the police during either the verbal
or physical altercation Pls.’ SOMF 11 19. Jose Martinez, the shift manager on duty
during the incident, stated that, after he observed the two groups yelling at one another and`
perceived that a physical altercation was imminent, he went to the restroom and did not
emerge until after Ward had punched Casey.6 Martinez Aff. 1111 7-8. The paramedics
took Casey to George Washington Hospital, Podlone Aff. at f 14 [Dkt. #160-10], where it
became apparent he had suffered severe head trauma and brain hemorrhaging. He
remained in a medically induced coma for four days and died of his injuries on September
° Martinez stated that he directly called a D.C. Metropolitan Police Department Officer he knew as “Offlcer
Jose” after Lindsey had already called 911 and the ambulance and police were already on their way to
Rhee’s McDonald’s Martinez Aff. 1111 8, ll.
WMM a ~ »
27, 2011. Gail Casey Dep. 26111~17; 54:11-13 [Dkt #160-30].
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and the record demonstrate
that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter oflaw.” Fed. R. Civ. P. 56(a). “A fact is material ifit ‘might affect
the outcome of the suit under the governing law,’ and a dispute about a material fact is
genuine ‘if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.”’ Steele v. Schafer,
535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Ana’erson v. Liberly Lobby, Inc.,
477 U.S. 242, 248 (1986)). The moving party bears the
initial burden of demonstrating the absence of a genuine dispute of material fact See
Celotex Corp. v. Catretz,
477 U.S. 317, 323 (1986). To defeat summary judgment, the
nonmoving party must “designate specific facts showing there is a genuine issue for trial.”
Ia’. at 324 (internal quotation marks omitted). In determining whether there is a genuine
dispute about material facts, the court “must view ‘the evidence in the light most favorable
to the nonmoving party and . . . draw all reasonable inferences in favor of the nonmoving
party.”’ Grosa’z`dl`er v. Broad. Ba’. of Governors, Chal'rmcm,
709 F.3d 19, 23-24 (D.C. Cir.
2013) (quoting Talavera v. Shah,
638 F.3d 303, 308 (D.C. Cir. 2011) (alteration in
original)). lf the non-moving party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial,” summary judgment may be granted. Celotex,
477 U.S. at 322.
DISCUSSION
Plaintiffs pursue negligence-based survival claims against Rhee and McDonald’s.
Pursuant to the District of Columbia’s Survival Act, “[o]n the death of a person in whose
favor or against whom a right of action has accrued for any cause prior to his death, the
right of action, for all such cases, survives in favor of or against the legal representative of
the deceased.”
D.C. Code § 12-101. The Survival Act is premised upon the recognition
“that liability to the victim should not be extinguished by” the victim’s death, Greater Se.
ley. Hosp. v. Wz'llz`ams,
482 A.2d 394, 397 (D.C. 1984), and “preserves and carries
forward for the benefit of the deceased’s estate the right of action which the deceased would
have had, had he not died,” Semler v. Psychl'a[ric Inst. of Washington, D.C., Inc.,
575 F.2d
922, 925 (D.C. Cir. 1978); see also
id. (“The Act is designed to place the deceased’s estate
in the position it would have been in had the deceased’s life not been cut short.”). “At
base, a survival action is a negligence action pursued by the estate of the decedent victim-
all that need be proven are the ordinary elements of negligence.” Burton v. United States,
668 F. Supp. 2d 86, 97 (D.D.C. 2009).
In the District of Columbia, the elements of a negligence claim are, of course, “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.” Wash.
Metro. Area TransitAuth. v. Ferguson,
977 A.2d 375, 377 (D.C. 2009). Where, as here,
“the plaintiff alleges that the defendant negligently failed to prevent a third party’ s injurious
criminal act” the plaintiff “must prove that the criminal act was ‘so foreseeable that it
became [the defendant’s] duty to guard against it by adhering to a recognized standard of
care, that [the defendant] breached that standard of care, and that the failure to exercise due
care proximately caused’ the injury.” Beckwith v. laterstate Mgmt. Co., LLC,
82 F. Supp.
3d 255, 258 (D.D.C. 2015) (quoting Clement v. Peoples Drug Store, ]nc.,
634 A.2d 425,
427 (D.C. 1993) (alterations in original)); see also Toy v. District ofColuml)z'a, 549 A.2d
l, 6 (D.C. 1988) (stating the plaintiff "‘bears the burden of proof on three issues: the
applicable standard of care, a deviation from that standard by the defendant and a causal
relationship between that deviation and the plaintiffs injury.” (internal quotation marks
omitted)).
I. Defendant Rhee’s Motion for Summary Judgment
a. Plaintiffs’ Claims of Failure to Prevent a Foreseeable Criminal Act
Rhee moves for summary judgment arguing that plaintiffs cannot prove that the
altercation was sufficiently foreseeable and that plaintiffs have not established the requisite
standard of care. See generally Mem. of P&A in Supp. of Rhee’s Mot. for Summ. J.
[hereinafter “Rhee’s Mem.”] [Dkt #155-2]. Plaintiffs respond that they have raised
genuine issues of material fact as to whether the incident was foreseeable and that their
expert has established that the standard of care required that Rhee employ a security guard
at the restaurant and that his employees call 911 to alert law enforcement of Ward and
Giblin’s rowdy behavior while in line or of the altercation between the groups. Pls.’ Mem.
KM~W,¢.,“~»“. .» t c~».<~.~,,t.. a¢._ . arm t.-.`.~W~.»~Mm ,W. fw t » l
of P&A in Supp. of Pls.’ Consolidated Opp’n to Defs. Kyung Rhee and McDonald’s
Corp.’s Mots. For Summ. J. 22~39 [hereinafter “Pls.’ Opp’n”] [Dkt. #160]. Regardless of
whether Ward’s assault on Casey was sufficiently foreseeable, plaintiffs must establish the
standard of care to survive summary judgment on their negligence claim. Scott v. District
ofColu)nbia,
101 F.3d 748, 757 (D.C. Cir. 1996) (stating that “[f]ailure to prove a standard
of care is . . . fatal to a negligence claim” under District of Columbia law). “[E]xpert
testimony regarding the appropriate standard of care is not necessary for acts within the
realm of common knowledge and everyday experience.” Katkz`sh v. District of Columbia,
763 A.2d 703, 705 (D.C. 2000) (intemal quotation marks omitted). However, “a plaintiff
must put on expert testimony to establish the standard of care when the issue in question is
so distinctly related to some science, profession or occupation as to be beyond the ken of
the average layperson.” Ia’. (internal quotation marks omitted). Where “the defendant is
alleged to have failed to protect the plaintiff from harm, the expert must clearly articulate
and reference a standard of care by which the defendant’s actions can be measured.”
Varner v. District ofColwnbia,
891 A.2d 260, 269 (D.C. 2006) (internal quotation marks
omitted). Specifically, “the expert must clearly relate the standard of care to the practices
in fact generally followed by other comparable . . . facilities or to some standard nationally
recognized by such units.” Clark v. District ofColumbl`a,
708 A.2d 632, 635 (D.C. 1997).
Rhee contends that expert testimony is necessary to establish the relevant standard
of care as to security practices at issue. Rhee’s Mem. 18_20 (quoting Briggs v.
10
Waslzington Metro. Area TransitAuth.,
481 F.3d 839, 845-46 (D.C. Cir. 2007) (“[E]xpert
testimony is routinely required in negligence cases . . . which involve issues of safety,
security and crime prevention.”) (internal quotation marks omitted)). Plaintiffs do not
dispute this point and put forth the expert testimony and report of Lance R. Foster, a
Certified Protection Professional and Certified Security Consultant See Foster Security
Expert Report [hereinafter “Foster Report”] [Dkt. #160-14].
i. Utilization of a Security Guard
Foster relies largely on McDonald’s O&T Manual’s safety and security chapter and
the fact that the Verizon Center and U Street McDonald’s restaurants in Washington, D.C.
use security guards to conclude that “the national standard of care required Rhee’s
McDonald [sic] to provide adequate security measures in the form of security guards to
ensure the safety of its patrons.” Foster Report 8. Foster’s report and testimony are
insufficient to establish a national standard of care. As an initial matter, Foster has not
articulated a standard of care with specificity. He suggests that his determination that the
national standard of care requires use of “security measures in the form of security guards”
is based on his conclusions that Rhee’s McDonald’s is open 24 hours, that given its
proximity to night clubs and bars it serves intoxicated customers, and that violent crime
has taken place both inside and near the restaurant Foster Report 8. He does not
however, identify in a concrete or discernable manner a standard governing the
circumstances under which a security guard should be on duty at a restaurant or comparable
ll
business so as to allow the factfinder to measure Rhee’s conduct against that standard. See
Brl`ggs,
481 F.3d at 847 (stating that “generalized references” to standards are not sufficient
and that “the expert must proffer ‘a specific, articulable (and articulated) standard of care”’
(quoting District ofColumbz'a v. Moreno,
647 A.2d 396, 400 (D.C. 1994) and District of
Columbia v. Carml'chael,
577 A.2d 312, 315 (D.C. 1990))).
Even if Foster had articulated a specific standard, his report and testimony do not
demonstrate that a standard requiring the provision of security guards to protect patrons
“ha[s] been promulgated, or [is] generally known” by restaurants or businesses comparable
to Rhee’s McDonald’s. Messz'na v. District ofColumbia,
663 A.2d 535, 539 (D.C. 1995).
Foster relies heavily on McDonald’s O&T Manual’s safety and security chapter, which
states that “security guards are often good protection against robberies,” and further
suggests that restaurants consider hiring security guards to assist with “crowd control,”
“burglary prevention,” and “robbery prevention.” Foster Report 7. The safety and
security chapter purports to establish policy only for l\/lcOpCo restaurants McDonald’s
Reply 7 n.3; Ex. A. lt does not however, require McOpCo restaurants to hire security
guards but instead merely recognizes that “[s]ome restaurants use security guards as
additional measures to maintain the restaurant in a safe and secure environment for their
guests and crew.”7 Foster Report 7 (emphasis added). At most, the chapter’s
7 ln their opposition, plaintiffs suggest that because the security chapter recommends McOpCo restaurants
consider hiring security guards, all 105 McOpCo restaurants in the Baltimore-Washington region
necessarily have hired guards Pls.’ Opp’n 31 (citing Webb Dep. 49:8~50:6; 118:7-15 [Dkt. #160-43]).
The testimony plaintiffs cite establishes that McOpCo restaurants were required to adhere to the safety and
12
recommendation that restaurants consider the possibility of hiring security guards
constitutes a “best practice,” which is not a standard of care under District of Columbia
law. See l/arner,
891 A.2d at 272 (“Aspirational practices do not establish the standard
of care which the plaintiff must prove in support of an allegation of negligence.”). Even
if the safety and security chapter did promulgate a standard requiring security guards,
which it clearly does not Foster’s report and testimony focuses on McDonald’s restaurants
and provide no indication that any similarly situated restaurants or businesses that are not
affiliated with McDonald’s have issued or acknowledged a standard under which security
guards should be used to ensure patron’s safety.8 lntemal distribution of a document like
the security chapter, does not demonstrate that a standard is generally known or recognized
outside the purview of McDonald’s and its franchisees.9
security chapter, but the relevant content of the chapter is plainly advisory in nature, Plaintiffs cite no
evidence as to the actual practices of the 105 local McOpCo restaurants
8 Plaintiffs play up Foster’s discussion of the District of Columbia Alcoholic Beverage Control Board’s
recognition ofa correlation between alcohol consumption and violence and his unsupported statement that
“[d]rinking establishments in the District of Columbia are required to have a security plan and dedicated
security personnel.” Foster Report 5~6 (“Violence can occur quickly in a nightclub and it is imperative
that these establishments be prepared to respond effectively to these potentially violent incidents
immediately.”) (quoting D.C. Council Report on Bill l7-201 at 26 (l\/lar. ll, 2008)). But Rhee responds
that District of Columbia law does nat require businesses other than bars and nightclubs to have security
personnel. Rhee’s Reply 15 [Dkt. #170]. Moreover, Foster’s recognition that a connection between
alcohol and violence could impact restaurants or businesses like Rhee’s McDonald’s, which do not serve
alcohol, does nothing to demonstrate how such restaurants and businesses respond or have been instructed
to respond to that issue.
9 Plaintiffs attempt to demonstrate that Foster’s proffered standard is “generally known” by pointing to
testimony from Rhee’s customers and staff that in their opinions, a security guard could have made a
difference Pls.’ Opp’n 32_33. But plaintiffs have not argued that the standard of care here is in the
layman’s domain and have instead relied on expert testimony. When an expert’s testimony is required to
demonstrate a standard of care, as plaintiffs do not dispute it is in this instance, the expert must demonstrate
that standard of care is recognized by similarly situated parties or generally followed by similarly situated
parties See Clark,
708 A.2d at 635. Plaintiffs do not argue that the patrons and staff identified here are
in fact security experts.
13
Further, Foster’s report and testimony do not suffice to show that his purported
standard of care “has been accepted as controlling in facilities and enterprises that are
similar to [Rhee’s] facilities or enterprises.” Brz'ggs,
481 F.3d at 847 (internal quotation
marks and alterations omitted). Foster does not provide data or estimates as to how many
similar restaurants and businesses actually use security guards and, thus, does nothing to
establish that employing security guards is a practice “in fact generally followed by”
entities comparable to Rhee’s McDonald’s. Clark,
708 A.2d at 635; see also Messina,
663 A.2d at 539. lnstead, Foster’s report merely identifies two McDonald’s restaurants in
Washington, D.C. that used security guards as of September 2011.10 Foster Report 7 .
This information does not come close to establishing that security guards are generally
used by comparable restaurants or businesses in this city, let alone across the nation. ll See
10 Foster notes that these franchised McDonald’s locations hired security guards at the recommendation of
a consultant for McDonald’s Corporation. Foster Report 7. This fact alone does not bear on whether
using security guards constitutes a national standard, because the consultant could have been recommending
a practice that exceeded industry norms. Moreover, even if it was established that all McDonald’s
restaurants use security guards, “there is no evidence that those entities alone can define the national
standard of care for the [] industry as a whole.” Beckwith, 82 F. Supp. 3d at 264.
" Plaintiffs rely on Novak v. Capital Mgmt. & Dev. Corp.,
570 F.3d 305, 313 (D.C. Cir. 2009) for the
proposition that merely pointing to a couple comparable Washington, D.C. establishments employing a
practice is sufficient to establish a national standard of care. But the expert in Novak testified that
“post[ing] security personnel outside [a nightclub’s] exit at closing until patrons dispersed” was
“widespread practice,” “standard practice,” and “normal practice” in the industry and further relied on
testimony from an industry professional who was unable to name a single nightclub in the city that did not
do so. Icl. Foster made no such statements here as to the overall prevalence of security guards in the
industry. Plaintiffs purport that he did, Pls.’ Opp’n 34 (citing Foster Dep. 195:12-19 [Dkt. #160-47]), but
in the testimony they reference Foster merely states that it is his opinion that restaurants across the country
with certain unidentified “risk factors” should hire security guards. See Travers v. District ofColum})ia,
672 A.2d 566, 568 (D.C. 1996). ("The personal opinion ofthe testifying expert as to what he or she would
do in a particular case, without reference to a standard ofcare. is insufficient to prove the applicable standard
of care.").
14
Beckwl'th, 82 F. Supp. 3d at 263 (finding evidence as to hotel chains’ practices in Baltimore
and Washington, D.C. insufficient to establish a “nationally recognized” standard of care).
ii. Calling 911 to Alert Law Enforcement of the Altercation
Plaintiffs next argue that Foster articulated a standard of care under which Rhee’s
McDonald’s was required to call the police during the altercation between the two groups.
Pls.’ Opp’n 38 (citing Foster Report 9-11). Foster discusses Rhee’s McDonald’s own
security policy, which required employees to first ask individuals engaged in “arguing”
and using “abusive language” to leave the restaurant and, if they refused, to then call the
police. Foster Report 9. Moreover, in the event of a physical altercation or assault in the
restaurant Foster states that Rhee’s McDonald’s policy was for employees to call 911.
F oster Report 9-10. F oster goes on to note that these policies are “substandard” and “fall[]
below the national standard of care . . . in light of the history of prior crimes in the
Restaurant.” Foster Report 11. Unfortunately for plaintiffs, however, Foster fails to
articulate the national standard of care; he merely states that Rhee’s policies did not
comport with some unidentified national standard. Nor does he make any reference to the
practices of other comparable restaurants or businesses. Further, Rhee’s internal policies,
alone, cannot establish the national standard of care because they could exceed that Which
are required by the applicable standard. See Brlggs, 481 F.3d at 848; Varner,
891 A.2d at
269-270. Plaintiffs have thus failed to meet their burden of putting forth expert testimony
as to the standard of care.
15
¢»~»~»-¢,-s~W-<~»..¢ n w
Plaintiffs attempt to skirt the issue by presenting alternative theories. They first
argue that by instituting a policy of calling 91 l during altercations in the restaurant Rhee’s
McDonald’s “voluntarily assumed” a duty to do so. Pls.’ Opp’n 34. But plaintiffs’
cursory briefing on this issue presents no legal authority supporting a proposition that
institution of an internal business policy constitutes voluntary assumption of a duty to
follow that policy or any authority “even suggest[ing] a categorical rule [under District of
Columbia law] that a business is necessarily negligent if it fails to abide by its own
policies.” Novak v. Capz'tal Mgrnt. & Dev. Corp., Civ. No. 01-00039,
2004 WL 4881276,
at *5 (D.D.C. July 12, 2004), vacated on other grounds,
452 F.3d 902 (D.C. Cir. 2006);
see also
id. (“While [] a failure [to follow a business’s own policy] indeed can be some
evidence of negligence, that in itself is insufficient to show negligence unless plaintiffs
also show that non-compliance with policy was also non-compliance with the duty of
care.”). Next, plaintiffs assert that a duty to call 911 in the event of an altercation in a
business is “a legal duty imposed upon business invitors.” Pls.’ Opp’n 34. They rely on
the Restaternent (Seeona’) of Torts § 314A’s recognition that “[a] possessor of land who
holds it open to the public is under a . . . duty to members of the public who enter in
response to his invitation . . . to take reasonable action . . . to protect them against
unreasonable risk of physical harm” and “to give them first aid after it knows or has reason
to know that they are ill or injured, and to care for them until they can be cared for by
16
others.”12 See also Hall v. Fora' Enters., Lta’.,
445 A.2d 610, 611 n. 4 (D.C. 1982)
(acknowledging a special relationship exists between business invitors and their invitees
under District of Columbia law). Recognition of a “special relations[hip] giving rise to
[a] duty to aid or protect,” Restatement (Secona’) of Torts § 314A, would serve to lighten
plaintiffs’ burden to demonstrate the heightened foreseeability of the altercation See
Becsz`th, 82 F. Supp. 3d at 259 (citing Bal. of Trustees of Univ. of D. C. v. Dz`Salvo,
974
A.2d 868, 872 (D.C. 2009)). lt would not however, affect plaintiffs’ burden to establish
the requisite standard of care. The Restatement references “reasonable action,”
Restatement (Secona') of Torts § 314A, and, indeed, “[i]n the typical negligence case, the
standard of care applicable to a person’s conduct is simply that of a ‘reasonable man under
like circumstances.”’ Godfrey v. Iverson,
559 F.3d 569, 572 (D.C. Cir. 2009) (quoting
C£C
Restaternent (Secona’) of Torts § 283). However, as discussed above, if the subject in
question is so distinctly related to some science, profession or occupation as to be beyond
the ken of the average layperson,’ D.C. law requires expert testimony to establish the
pertinent standard of care unless it is ‘within the realm of common knowledge and
everyday experience’ of the jurors.” Ia'. (quoting District of Columbia v. Arnola’ & Porter,
756 A.2d 427, 433 (D.C. 2000)). Here, defendant Rhee argues and plaintiffs do not
dispute that expert testimony is required to establish the standard of care. Rhee’s Mem.
12 Plaintiffs also cite Southlana’ Corporation v. Griffz`rh,
633 A.2d 84 (l\/ld. Ct. of Appeals 1993) for the
proposition that a store owner has a legal duty to call the police for invitees who are in danger. This case
interpreted Maryland law. As a federal court sitting in diversity jurisdiction, l will not rely on cases
interpreting the law of anotherjurisdiction to find and impose a duty under District of Columbia law.
17
19; Pls.’ Opp’n 35. Therefore, assuming, without deciding, that Rhee had a special duty
of protection that extended to Casey,13 plaintiffs must still establish through expert
testimony that the standard of care required calling 91 l to alert police of Giblin and Ward’s
rowdy behavior while in line, the verbal altercation between the groups, or the ensuing
physical altercation See, e.g., Beckwith, 82 F. Supp. 3d at 259, 262 (finding hotel had a
special duty to protect guests and going on to consider whether plaintiffs expert
established the requisite standard of care); see also Varner,
891 A.2d at 269 (“An expert
may not rely upon a general duty of care to establish an objective standard requiring
specific conduct”). As discussed above, plaintiffs have failed to set forth sufficient
evidence to do so. Because failure to establish a standard of care is “fatal to a negligence
claim” under District of Columbia law, Scott, 101 F.3d at 757, Rhee is entitled to summary
judgment on plaintiffs’ claims of negligent failure to prevent a foreseeable crime.
b. Plaintiffs’ Claim of Breach of Duty to Train and Supervise Employees
Plaintiffs next oppose Rhee’s Motion for Summary Judgment by arguing that a
reasonable jury could find that Rhee’s negligent failure to train and supervise his
employees was the proximate cause of the assault on Casey. Pls.’ ()pp’n 38-40.
Plaintiffs point to the fact that Rhee’s shift manager Jose Martinez went to the restroom,
instead of calling 91 l, when it became “clear from [the two group’s] yelling there was to
'3 Rhee argues that he did not have a duty to protect Casey, both because Ward’s punch was delivered
outside the doors of the restaurant and because Casey and Lindsey legally became “uninvited trespassors”
when they engaged in the confrontation with the other group. Rhee’s Mem. 38~45.
18
be a physical fight.” Pls.’ Opp’n 38 (quoting Martinez Aff. at 11 7). Moreover, another
employee on duty at the time testified that she did not call the police during the altercation
because she thought the manager would do so. Pls.’ Opp’n 39 (quoting Santos Dep.
74:20-21 [Dkt. #160-38]). “To prevail on a claim of negligent training and supervision
under D.C. law, a plaintiff must [, inter alia,] ‘show that an employer knew or should have
known its employee behaved in a dangerous or otherwise incompetent manner, and that
the employer, armed with that actual or constructive knowledge, failed to adequately
supervise the employee.”’ Blakeney v. O’Donnell,
117 F. Supp. 3d 6, 21 (D.D.C. 2015)
(quoting District ofColumbia v. Talz'n,
994 A.2d 788, 794 (D.C. 2010)). Plaintiffs point
to testimony that Rhee’s McDonald’s did not present employees with the G&T manual’s
safety and security chapter or explain its provisions to them and that Rhee and one of the
restaurant’s managers were either unaware of or did not recall a previous altercation that
had taken place in the restaurant in which a woman was struck in the face. Pls.’ Opp’n
39-40. But in order to survive summary judgment plaintiffs must set forth some evidence
that Rhee knew or should have known that the staff on duty during the incident at hand
was prone to dangerous or incompetent behavior. See Sokos v. Hl`lton Hotels Corp.,
283
F. Supp. 2d 42, 51-52 (D.D.C. 2003); Murphy v. Army Di.stajj”Founa’., Inc.,
458 A.2d 61,
63 (D.C. 1983). As plaintiffs have not pointed to any evidence as to the relevant
employees’ behavior before the incident summary judgment shall be awarded in favor of
19
Rhee.14
II. Defendant McDonald’s Motion for Summary Judgment
a. Plaintiffs’ Claim of Vicarious Liability
Plaintiffs claim that McDonald’s is vicariously liable for Rhee’s actions under the
doctrine of agency. Pls.’ Opp’n 43-44. McDonald’s counters that no agency
relationship existed between it and Rhee. McDonald’s Reply 7-8. Assuming arguendo
that it did, under either a theory of actual or apparent agency, plaintiffs failed to set forth
the required evidence to move forward with their claims of Rhee ’s liability. “[V]icarious
liability is not an independent cause of action, but rather is a legal concept used to transfer
liability from an agent to a principal at trial.” Crawford v. Signet Bank,
179 F.3d 926, 929
(D.C. Cir. 1999) (quoting Yoang v. ]stAmerz`can Fl`n. Servs.,
977 F. Supp. 38 (D.D.C. 1997)
(alteration in original)). “ln the absence of agent liability, therefore, none can attach to
the principal.”
Id. Thus, entry of summary judgment in favor of Rhee on all claims
against him warrants summary judgment for McDonald’s as to plaintiffs’ vicarious liability
claims.
b. Plaintiffs’ Claim of Direct Liability
McDonald’s next argues summary judgment should be granted in its favor because
it neither controlled security measures at Rhee’s McDonald’s nor had a duty to do so.
Mem. of P&A in Supp. of McDonald’s Mot. for Summ. J. 1-2; 10-11 [Dkt. #154-2].
14 Plaintiffs argue expert testimony is unnecessary for purposes of the negligent failure to supervise claim.
Pls.’ Opp’n 39. The Court need not and does not reach the issue.
20
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Plaintiffs respond that McDonald’s itself was negligent because it assumed responsibility
for ensuring Rhee complied with certain security practices but failed to implement those
practices. Pls.’ Opp’n 41~43. The inquiry here turns on the first element of negligence
Under District of Columbia law, “[t]he existence of the first element [of a negligence
claim], a legal duty owed by the defendant to the plaintiff, is a question of law, to be
determined by the court.” In re Sealed Case,
67 F.3d 965, 968 (D.C. Cir. 1995) (citing
Zlioa v. Jennl`fer Mall Restaurant,
534 A.2d 1268, 1274 (D.C. 1987)). AS our Circuit
Court has held, in the District of Columbia, when one assumes a contractual duty to be
responsible for overseeing another entity’s safety or security compliance, he acquires a
corresponding “duty of reasonable care in carrying out such duties” that extends to those
within “the orbit of danger as disclosed to the eye of reasonable vigilance.” Caldwell v.
Bechtel, lnc.,
631 F.2d 989, 1001 (D.C. Cir. 1980) (quoting Palsgrafv. Long Island R. Co.,
248 N.Y. 339 (1928)).
Plaintiffs claim that through the Franchise Agreement McDonald’s assumed
responsibility for ensuring security at Rhee’s McDonald’s and that it therefore owed a duty
of care to customers of the restaurant including Casey. Pls.’ Opp’n 41. Plaintiffs’ sole
legal authority is Caldwell. ln that case, consultant engineering firm Bechtel, lnc.
(“Bechtel”) entered into a contract with the Washington Metropolitan Area Transit
Authority (“WMATA”) to provide “safety engineering services” related to work being
performed by various other WMATA contractors Caldwell,
631 F.2d at 992. Bechtel
21
specifically agreed to be present on job sites “overseeing the enforcement of safety
provisions in relevant safety codes, and inspecting job sites for violations.”
Id. at 992-
93. Our Court of Appeals explained that pursuant to the contract between Bechtel and
WMATA, Bechtel was required to “ensure” and “supervis[e ] safety at [WMATA’s]
various construction sites,”
id. at 994, “direct[] the contractor to correct any unsatisfactory
condition,”
id., and “develop and ensure a uniform system of safety and accident
prevention procedures,”
id. lf Bechtel could not persuade contractors to adhere to the
relevant safety regulations, it was authorized “to order a work stoppage.”
Id. at 996. 'l`he
Court of Appeals reasoned that having assumed responsibility and authority over
WMATA project safety, Bechtel “was required to observe a standard of care ordinarily
adhered to by one providing such services, possessing such skill and expertise.”
Id. at
997. This duty of reasonable care extended to workers at WMATA project sites, including
Clem Caldwell, “Who allegedly contracted silicosis while he was mucking in a tunnel under
construction as a part of the metropolitan subway system.”
Id. at 992, 1001.
Unlike in Caldwell, however, there is simply no evidence here that McDonald’s
agreed to provide security-related services for Rhee’s McDonald’s or that it assumed
authority or responsibility over Rhee’s McDonald’s compliance with any security
practices. The Franchise Agreement obliges Rhee to comport with the McDonald’s
System, but plaintiffs point to no provisions in that agreement demonstrating the
McDonald’s System includes uniform security practices or that McDonald’s agreed to
22
ensure certain security practices were followed at Rhee’s McDonald’s. See Frederz`ck v.
TPG Hosp., lnc.,
56 F. Supp. 2d 76, 80 (D.D.C. 1999) (discussing Caldwell and stating, “lt
was because [Bechtel] had assumed those broad contractual obligations that the court found
it also had assumed a duty to plaintiff in tort."` (internal quotation marks and alteration
omitted)). lnstead, plaintiffs cite the Franchise Agreement’s requirement that Rhee “adopt
and use exclusively the formulas, methods, and policies contained in [McDonald’s]
business manuals.” Pls.’ Opp’n 42 (quoting FA114). They argue that the safety and
security chapter of the O&T Manual was one of those businesses manuals. Pls.’ Opp’n
42 (citing Warfield Dep. 39:21~40:2). But the safety and security chapter specifically
states that although corporately owned McDonald’s Restaurants (“McOpCo restaurants”)
97 §§
are to consider the chapter “as company policy, [s]ubsidiaries, affiliates, and licensees
establish their own human resources policies and may choose the information from this
chapter that will be helpful to them in operating their businesses.” McDonald’s Reply 7
n.3; Ex. A; see also Webb Dep. 49:8-10,' cf VanDeMark v. McDonald ’s Corp.,
904 A.2d
627, 632 (N.H. 2006) (reviewing similar handbook language and finding that it did not,
“impose an explicit mandate upon the franchisee to implement [McDonald’s] security
policies”). Plaintiffs have set forth no contradictory evidence suggesting the safety and
security chapter was indeed binding on Rhee’s McDonald’s That McDonald’s
promulgated safety and security practices for l\/lcOpCo restaurants and made that
information available to franchisees with the clear stipulation that only McOpCo
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restaurants were required to follow the practices therein does not demonstrate that
McDonald’s assumed any responsibility, control, or oversight over Rhee’s McDonald’s
security.
Plaintiffs next point to McDonald’s practice of auditing franchisees to ensure
compliance with the McDonald’s System and note that a full audit included approximately
three questions related to safety. Pls.’ Opp’n 42 (citing Warfied Dep. 26:3-9, 35:19-36).
The problem for plaintiffs is that they do not establish that McDonald’s had authority to
mandate correction of any security issues it could have detected in an audit of Rhee’s
McDonald’s.15 See Caldwell,
631 F.2d at 996 (emphasizing that Bechtel’s authorization
“to order a work stoppage” gave its experts in the field “effective authority”); cf. Kerl v.
Dennl's Rasmussen, Inc.,
682 N.W.2d 328, 334 (Wis. 2004) (citing direct liability cases that
“look to the franchisor’ s actual control or retained right of control to determine the presence
of a duty for purposes of evaluating whether the franchisor was itself negligent”).
Similarly, plaintiffs cite McDonald’s deployment of consultants and regional security
managers to provide advice on topics such as safety and security to franchised McDonald’s
15 Plaintiffs cite McDonald’s authority to terminate the Franchise Agreement in the event of a material
breach by Rhee, including “fail[ure] to maintain and operate the Restaurant in a good, clean, wholesome
manner and in compliance with the standards prescribed by the McDonald’s System.” FA 11 18(a); see also
FA 11 20(a) (stating that the effect of a material breach would be to give McDonald’s “an immediate right
to enter and take possession of the Restaurant”). As already stated, however, plaintiffs set forth no
evidence that the McDonald’s System included uniform security practices for franchisees, which is
especially problematic given the safety and security chapter’s explicit limitation of its mandate only to
McOpCo restaurants Moreover, the broad language in the Franchise Agreement is insufficient to establish
that McDonald’s “could terminate the license agreement if a franchisee failed to meet specific security”
requirements VanDeMark, 904 A.2d at 632.
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restaurants including the 14th and U Street and Verizon Center locations in Washington,
D.C. Pls.’ Gpp’n 42 (citing Webb Dep. 44:16-19 and Garrido Dep. 29:21_22 [Dkt.
#160-45]). But plaintiffs point to no evidence that McDonald’s was under an obligation
to provide security consultations or that Rhee ever requested or received one. Plaintiffs
concede that that regional security manager had no communication with Rhee regarding
security at Rhee’s McDonald’s Pls.’ Opp’n 43 (citing Webb Dep. 70:13-20). Indeed,
plaintiffs cite no evidence that McDonald’s participated in or had any role in decisions
regarding security whatsoever at Rhee’s l\/chonald’s16 Cf. Allen v. Choice Hotels Int’l,
lnc., 276 F. App’x 339, 343 (4th Cir. 2008) (stating franchisor did not owe duty to
franchisee hotel guests where it had not participated in decisions regarding fire or safety
equipment at the hotel and did not have a role in determining “whether or not to install fire
sprinklers”).
Caldwell stands for the proposition that those who are responsible for ensuring that
others comply with set safety or security requirements are governed by a duty of care when
executing their responsibilities
631 F.2d at 997. There is no evidence here, however,
that McDonald’s ever agreed to or actually did dictate, implement or oversee Rhee’s
security practices McDonald’s therefore did not assume a duty of care to customers of
16 Plaintiffs make much of a “tweet” by McDonald’s, issued on Twitter after an assault occurred in an
unidentified McDonald’s restaurant in the Baltimore-Washington region that stated “There’s no room for
violence under the Golden Arches & our thoughts are with the victim.” McDonald’s Tweet [Dkt.
#160-21]. Because the tweet does not relate to Rhee’s McDonald’s, it is not evidence that McDonald’s
assumed any responsibility over Rhee’s security operations
25
Rhee’s McDonald’s that would be applicable here as a matter of law, and summary
judgment is granted in favor of McDonald’s on plaintiffs’ direct liability claim.
CONCLUSION
F or all the foregoing reasons, the Court GRANTS defendants’ Motions for
Summary Judgment ln light of this ruling, defendants’ Motions to Dismiss Claim for
Punitive Damages, plaintiffs’ Motion to Strike Defendants’ Motions to Dismiss Claim for
Punitive Damages, and defendants’ Motion for Partial Reconsideration of the Court’s May
17, 2016 Order are MOOT. An Order consistent with this decision accompanies this
Memorandum Opinion.
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