E-Alert Case Updates

Trial Court Properly Granted Summary Judgment for Nightclub Defendants Where Plaintiffs Injured in Bar Fight Failed to Prove Applicable Standard of Care by Expert

Night and Day Management LLC v. Butler
No. 13-CV-944, District of Columbia Court of Appeals, October 23, 2014
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.dccourts.gov/internet/documents/13-CV-944plus.pdf

In Night and Day Management LLC v. Butler, No. 13-CV-944(District of Columbia Court of Appeals, October 23, 2014), the District of Columbia high court affirmed summary judgment in favor of the Defendants in a case alleging inadequate nightclub security due to the Plaintiffs' lack of expert witness testimony. The case arose out of a fight at a nightclub. Plaintiffs sued the nightclub, its management company, and one of its principals (collectively, “Defendants”), claiming that the lack of proper security caused their alleged injuries. The trial court entered summary judgment for Defendants because Plaintiffs had not proffered the expert testimony regarding the appropriate standard of care that they would need to prevail. The appellate court affirmed.

According to the underlying facts, the Plaintiffs were in the VIP section of the nightclub. One of the Plaintiffs slipped and fell, knocking over another patrons’ drink, which prompted a fight between the Plaintiffs and a second group of patrons. The fight lasted ten to fifteen minutes. There were no security personnel in the VIP room when the fight began, and the security cameras in the room were not working. Club security personnel arrived after the fight was over, but they did not attempt to determine who started the fight. The assaulting patrons left without being identified or questioned. Security personnel escorted Plaintiffs out of the club, but did not offer any medical assistance although Plaintiffs were visibly bleeding. Plaintiffs went to Washington Hospital Center to have their injuries treated.

Plaintiffs filed a Complaint alleging, inter alia, that the nightclub was negligent because it had not provided adequate security. On July 16, 2013, the trial court granted Defendants’ motion for summary judgment. The trial court did not base its decision on any argument raised by the parties, but sua sponte, granted summary judgment for the Defendants on the ground that Plaintiffs could not establish the standard of care for nightclub security without presenting expert testimony. Plaintiffs appealed.

Because Plaintiffs’ Complaint sounded in negligence, the appellate court evaluated whether the applicable standard of care required expert testimony because it was something that was distinctly related to some science, profession, or occupation beyond the ken of the average juror. The Court had previously affirmed trial court rulings that expert testimony was required to establish the standard of care in negligence cases that involve “issues of safety, security, and crime prevention.”

Here, Plaintiffs claimed that the nightclub was negligent because security personnel did not intervene in the fight. But Plaintiffs took no discovery and provided no evidence regarding how many guards were on duty the night of the fight, how they were deployed, or why they did not intervene. This is the type of information an expert would need to formulate an informed opinion on the appropriate standard of care and whether it was breached. Even assuming that there were no security guards or working security cameras in the VIP room when the fight occurred, those facts cannot establish, by themselves, what the nightclub security arrangements should have been. “Such issues are generally beyond the common knowledge of the average juror.” Without expert testimony or some other evidence of the standard of care, a jury could resolve Plaintiffs’ negligence claim “only through pure speculation.”

The Court rejected Plaintiffs’ argument that the standard of care could be inferred from a statute, rather than expert testimony, under the doctrine of negligence per se. The relevant statute, D.C. Code § 25-402, which requires nightclubs to submit a security plan with a liquor license application, which is subject to review by the Alcohol Beverage Control Board. Even though the statute describes in great detail what topics the plan must address, the specifics are left to the discretion of the applicant and the review board, see D.C. Code § 25-403(g), and so a standard of care could not be imported from the statutory requirement that nightclubs submit a security plan with their license applications. Additionally, even if the nightclub’s security plan could provide the standard of care, Plaintiffs did not submit it to the trial court.

The Court also rejected Plaintiffs’ argument that the standard of care could be inferred from the nightclub’s agreement with its neighborhood commission. This agreement also contained a security plan, however, to the Court, it lacked specificity on how the security of the nightclub was to be arranged. The agreement used terms such as “sufficient” and “adequate” which left much of the security specifics to the discretion of the nightclub. Additionally, even if the agreement did contain specific instructions, guidelines such as internal policy manuals cannot provide the standard of care under the doctrine of negligence per se.

Therefore, because Plaintiffs failed to provide evidence of the applicable standard of care, the appellate court determined that the trial court had properly granted summary judgment in favor of the Defendants.