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District of Columbia v. Beretta4/21/2005
o tenant, school district to student, employer to employee, and hospital to patient); District of Columbia v. Doe, 524 A.2d 30, 32 (D.C. 1987) (school to student). We are not inclined to extend the rationale of these decisions to the present case. Appellants have alleged no special relationship with the gun manufacturers and have suggested no reasonable way that gun manufacturers could screen the purchasers of their guns to prevent criminal misuse.
Delahanty, 564 A.2d at 762.
Although our rejection of liability in Delahanty rested throughout on the absence of a direct link between the manufacture or distribution of handguns and injuries caused by the criminal misuse of those weapons, it is especially the refusal "to extend the rationale of decisions" to the negligence theory alleged there that the plaintiffs must confront in asserting their claim of negligent distribution here. They first argue that the negligence discussion in Delahanty was dictum given the precise phrasing of the D.C. Circuit's question. The fact, however, that we "expand our inquiry" - as the certifying court foresaw we might - to render "an informed decision" on the reach of "established theories of tort law in the District of Columbia," id. at 760, does not make our analysis of any of those theories advisory. That reasoning would make an entire subset of answers to certified questions - i.e., those in which we exercise the "latitude" given us to "consider non-designated questions and reformulat , if necessary, . . . questions as certified," Penn Mut. Life Ins. Co. v. Abramson, 530 A.2d 1202, 1207 (D.C. 1987) - non-binding dicta, contrary to our law that such answers are "stare decisis of this court." Id.
At bottom, the plaintiffs argue that Delahanty was wrongly decided, because, contrary to its holding, District of Columbia law requires no "special relationship between the parties" (such as that of landlord and tenant) to permit liability in negligence for criminal acts of others, so long as the defendant realized or should have realized the likelihood that his negligent conduct would cause foreseeable harm to the plaintiffs. Sitting en banc, we decline this invitation to overrule Delahanty. And we pass over the question whether a "special relationship" between a plaintiff and a defendant must undergird any claim of negligence in the District based on harm stemming directly from the criminal acts of third persons. But see Workman v. United Methodist Comm., 355 U.S. App. D.C. 131, 135, 320 F.3d 259, 263 (2003) (surveying this court's decisions and concluding that under them "the requirement that the defendant been able to foresee that a third party would likely commit a criminal act ordinarily has, and perhaps must have, a relational component"). We nevertheless conclude that our decisions addressing general tort concepts of duty and foreseeability do not permit recognition of a claim for common-law negligence on the facts alleged here.
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. 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.
Potts v. District of Columbia, 697 A.2d 1249, 1252 (D.C. 1997) (citations and internal quotation marks omitted; emphasis added). In this context, then, the requisite duty of care required for negligence is a function of foreseeability, ar
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