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District of Columbia v. Beretta4/21/2005
ising only when foreseeability is alleged commensurate with "the extraordinary nature of [intervening] criminal conduct." Id. And, as we further stated in Potts, " ur opinions have made clear the demanding nature of the requirement of 'precise' proof of a 'heightened showing of foreseeability' in the context of an intervening criminal act involving the discharge of weapons." Id. (citations omitted; emphasis added). The high-water mark, as it were, of a showing of facts sufficient to create a duty to protect against such conduct was in District of Columbia v. Doe, 524 A.2d 30 (D.C. 1987), where the claim was that reasonable protective measures by the District of Columbia could have prevented a child from being raped at a District elementary school. Acknowledging the requirement of a heightened showing of foreseeability in that context, id. at 33, we nonetheless identified evidence specific to that school and surrounding area that "could be viewed by reasonable factfinders as enhancing the foreseeability of danger from intruders, thereby creating a duty on the part of District officials to protect the students from this type of criminal activity." Id. at 34. In three succeeding cases, by contrast, we rejected liability as a matter of law where foreseeability (hence duty) was not limited by any evidentiary reference to a precise location or class of persons.
In Clement v. Peoples Drug Store, 634 A.2d 425 (D.C. 1993), in which an employer was sued for negligence arising from the shooting death of one of its employees in the store parking lot, "the only evidence presented with respect to shooting's foreseeability was an expert's opinion based on police reports of criminal activity in the surrounding area. No evidence was introduced involv any gun-related incidents at the particular shopping mall in which the shooting occurred." Potts, 697 A.2d at 1252 (summarizing basis for Clement's holding). In Bailey v. District of Columbia, 668 A.2d 817 (D.C. 1995), where the plaintiff was shot after attending a cheerleading competition at a junior high school as she was leaving the building, she offered the affidavit of witnesses who asserted that the neighborhood around the school was a "high drug area" and that shootings and other criminal acts had taken place there. Rejecting this showing as insufficient, we explained that " lthough the occurrence of shootings in, and in the vicinity of, the District's public schools is an unhappy reality, . . . such 'generic information,' by itself, does not create a duty on the part of the District to protect against the use of firearms under the circumstances presented here." Id. at 820. Finally, in Potts, supra, the plaintiffs were injured by gunshots from an unknown source as they were leaving the Washington Convention Center (WCC) after attending a boxing event organized by Spencer Promotions, Inc. They sued the organizer and (among others) the District of Columbia for negligence. Relying principally on Bailey and Clement, we sustained a grant of summary judgment because "plaintiffs proffered no evidence of any prior gun-related violence at any other event held at the WCC or promoted by Spencer Promotions, nor any other specific evidence bearing directly on the foreseeability of the shooting incident at issue here." 697 A.2d at 1252.
Potts, Bailey, and Clement were decided on summary judgment rather than a motion to dismiss, but they demonstrate the tight boundaries - requiring "'precise' proof of a 'heightened showing of foreseeability,'" Potts, 697 A.2d at 1252 - within which a claim of common-law negligence must be framed in this jurisdiction "in the context of an intervening criminal act involving the discharge of weapons." Id. The plaintiffs in this case broadly all
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