Bode & Grenier attorneys Peter Grenier and Jacob Lebowitz recently opposed summary judgment in a third-party criminal behavior premises liability case involving the murder of a minor child in D.C. Defendants tried to argue that that Plaintiff's experts had to demonstrate the standard of care applicable to the landlord by making specific reference to written national standards based on two recent D.C. decisions, Varner v. District of Columbia, 891 A.2d 260 (D.C. 2006), and Briggs v. WMATA, 481 F.3d 839 (D.C. Cir. 2007). It was critically important to the case to distinguish those holdings in the context of landlord premises liability. The following summary of the relevant law and argument for distinguishing the case law in this fact scenario makes clear that this is the proper position for the D.C. Courts to adopt.
It is well established in the District of Columbia that landlords have a duty to protect tenants against third-party criminal activity, including in the common areas of residential apartment complexes. Graham v. M & J Corp., 424 A.2d 103, 105 (D.C. 1980); Kline v. 1500 Mass. Ave. Apt. Corp., 439 F.2d 477, 481 (D.C. Cir. 1970). In order to establish the duty owed, a plaintiff must demonstrate “a heightened showing of foreseeability in the context of an intervening criminal act.” Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 912 (D.C. Cir. 2006). A defendant’s duty to a plaintiff is “reasonable care under all circumstances,” which is a function of foreseeability. Doe v. Dominion Bank, N.A., 963 F.2d 1552, 1562 (D.C. Cir. 1992); Graham, 424 A.2d at 105. Additionally, foreseeability of criminal acts also impacts the proximate cause analysis. Graham, 424 A.2d at 107 (“The foreseeability of the criminal activity is a decisive factor in determining causation, as it is in determining duty.”)
D.C. law requires a heightened showing of foreseeability, which “does not require previous occurrences of the particular type of harm, but can be met instead by a combination of factors which give defendants an increased awareness of the danger of a particular criminal act.” District of Columbia v. Doe, 524 A.2d 30, 33 (D.C. 1987). Factors that are relevant under this combination of factors analysis include “the condition of the premises,” which is “the critical factor,” and other evidence such as “the reputation of a neighborhood as a high crime area” and “statistics on criminal activity in the environs surrounding the site of an assault.” Dominion Bank, 963 F.2d at 1560-61 (citations omitted).
Defendants in this type of case will try to rely heavily on Varner v. District of Columbia, 891 A.2d 260 (D.C. 2006), and Briggs v. WMATA, 481 F.3d 839 (D.C. Cir. 2007), to argue that “Plaintiff’s evidence is insufficient to establish a national standard of care and breach by Defendant. Both of these cases are and should be easily distinguishable on the facts: Varner is a university security case where the Court ruled on whether expert testimony was required for, “questions as to the appropriateness and sufficiency of academic discipline.” Varner, 891 A.2d at 267. Briggs concerns security measures during construction of a public subway station where the expert offered opinions concerning the standards for erecting “16 foot high” plywood barriers around the construction site and the length of time those barriers should be left up. Briggs, 481 F.3d at 842. The selective choice to rely on these two cases is striking when one considers the long line of premises liability cases in D.C. concerning residential and commercial property owners and managers. See, e.g., Graham v. M & J Corp., 424 A.2d 103, 105 (D.C. 1980) (residential property); Spar v. Obwoya, 369 A.2d 173, 177-78 (D.C. 1977) (residential property); Smith v. District of Columbia, 2002 U.S. Dist. LEXIS 27819, at *34 (D.D.C. Nov. 18, 2002) (residential property); Dominion Bank, 963 F.2d 1552 (commercial property); Kline v. 1500 Massachusetts Ave. Apt. Corp., 439 F.2d 477 (D.C. Cir. 1970) (residential property).
This distinction is critical, considering that the D.C. Circuit has limited the application of Briggs to its facts on two occasions in the short time since that opinion. First, in Novak, 570 F.3d at 313, and secondly in, Godfrey v. Iverson, 559 F.3d 569, 573 (D.C. Cir. 2009) (“As to the need for expert testimony, the factual context mattered in those cases and it matters in this one too.”). In addition to the D.C. Circuit’s limited reading, the D.C. Court of Appeals has clearly stated that the requirements for expert testimony to sufficiently establish the standard of care must be evaluated based on the specific type of case being considered. District of Columbia v. Wilson, 721 A.2d 591, 599 (D.C. 1998) (medical malpractice case). Additionally, in one of the earliest cases on the subject of a landlord’s liability for the criminal act of a third party, the D.C. Court of Appeals made clear that a Plaintiff was not required to show that the duty owed was not specific to particular security items, but was instead “what is reasonable in all the circumstances.” Ramsay v. Morrissette, 252 A.2d 509, 512-513 (D.C. 1969) (“We by no means suggest that there is a general legal duty on the landlord to provide full time resident managers or to install locks on the front door of an apartment house. The test is what is reasonable in all the circumstances”).
Briggs and Varner do not overrule prior cases involving a landlord’s duty, and they do not suggest the holdings should be applied outside of their contexts.
Under District of Columbia law, an expert testifying about a standard of care must describe a specific standard rather than refer generally to safety and must show that the standard is accepted in the industry. Novak, 570 F.3d at 313. Other buildings that are by reason of their location and nature “sufficiently similar in character and class” to the building at issue in a case may be considered by the jury and differences in the comparable buildings are presented to the jury and goes properly to the weight of such evidence in determining whether defendants had acted reasonably. See Spar, 369 A.2d at 177-78.
In landlord security cases, an expert who testifies about the standard of care should be permitted to rely on his training, experience, publications in the field, and evaluation of similar properties in D.C. See Novak, 570 F.3d at 313;Dominion Bank, 963 F.2d at 1563. In Dominion Bank, the plaintiff’s security expert was challenged for giving only “vague and general testimony” on the standard of care. 963 F.2d at 1563