Opposition Brief — Baker v. Booz Allen Hamilton, Inc.

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Supreme Court of the Gnited States

VIARK BAKER,

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BOOZALLIEN HAMILTON, IN¢

IN OPPOSITION

PETITION FOR WRI pie

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Stephen W. Rob

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COUNTERSTATEMENT OF THI

QUESTIONS PRESENTED

OTHER AUTHORITY

CONSTPEPUTIONAL PROVISIONS, TREATI

SPATUTES, ORDINANCES, AND

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information that “would indicate that the defendant

was aware of a severe or documented emotional

disorder of [he alleged perpetrator;}” (4) the Record

lacks any information “that would support a

conclusion that Booz Allen was on notice that

[Davenport] had a prochvity or a high risk of

committing sexual attacks of any nature, much less

violent attacks:” and (5) Baker failed to place any

material fact: in the Record LO establish

foreseeability on the part of BAH. See td.

Qn January 2 2ZOO8, Paker filed a notice of

appeal. JA 550. The Circuit Court had appellate

yurisdiction over this lawsuit pursuant to 28 U.S.C.

8§& 1291 and 1294(1). On December 28, 2009, the

Cureuit Court affirmed the District Court’s decision

that Baker failed to establish his claims under

Maryland law. See Baker, 358 Fed. Appx. at 484. Ir

so doing, the Circuit Court addressed the two issue:

presented in the Petition for Writ of Certiorari

(“Petition”)

; The District Court proceeded to rule that if his first

conclusion regarding the application of Kyrgyz law was

incorrect, and if his secondary assessment of Maryland law was

misplaced, Baker would “fare even worse” under Virginia law

The Circuit Court did not address the appheation of Virginia

law and neither does Baker in his Petition to this Court

furst the Circuit Court decided = to apply

Maryland substantive law to analyze Baker's claims

based solely on Bakers argument that Maryland law

should apply Specifically, the Circuit Court stated

In its decision granting [Booz Allen's]

motion for Summary judgment, the

district court, out of an abundance of

caution, held that Baker could not

prevail under Kyrgyz (the locus of

Baker’s injunes), Maryland (the forum

state), or Virginia (where = decision:

concerning Davenport's employment

were made) law Raker claims that

Maryland law should apply because

[fsooz Allen] failed to meet its burden of

proving Kyrgyz law and, therefore

Maryland law, as the forum state’s law,

applies. In particular, he claims that

the statutes referenced in [Booz Allen’:

Rule 44.1] proof of foreign law] are not

controling and, in any event, do not

fully explain the breadth of Kyrgyz law

We need not decide whether the district

court erred in examining Baker's claim:

under Kyrgyz law. This is so because,

even accepting Baker's invitation to

apply Maryland law, Baker's negligence

claims fail

Baker, 358 Fed Appx at 482 ‘The Circuit

Court clearly did not analyze or otherwise hold that

Kyrgyz law did not apply. Rather, it simply apphed

the law that Baker sought to have apphed

the Circuit Court apphed Maryland

hence law and rejected Bakers claim:

opecihically, the Circuit Court relying principally on

Mittioay Cor; (Collin G73 A.2d Fil (2009)

nceluded thal bO00% Allens employment

upervision ind retention could not be the

Imate cause of baker illeged injuri

Legal causation is the policy-oriented

doctrine che i2nedqa to bye a method for

miting liability The question of

legal causation most often involves a

determination of whether the imyune

Were a 1¢ re eeuble result of the

lefendant s negligent conduct

In our wiew, the injury in this ca:

exual a iult) simply Was not a

reasonably foreseeable injury arising

irom Lhe call ged negligent hiring

retention and/or upervision ol

1) nport

Baker red. Apy it 4

imply stated, the Cireuit Court, agreeing

with the District Court, apphed Maryland proximate

tusation law and determined that Booz Allen

mnol | held liable for Bake PrLypUurit

LZ

IV. Summary of Baker’s Argument on

Petition for Writ of Certiorari.

Baker now seeks this Court’s review of the

Circuit Court’s decision. In his Petition, seemingly

advances three arguments

First, Baker argues that the Circuit Court

incorrectly concluded that Baker's claim fails under

Maryland law. See Pet. at 12-18. This argument is

three-fold Baker first claims that the Franken

Amendment of the Department of Defense

Appropriations Act, Pub. L. No. 111-118 (2009),

contravenes the Circuit Court’s decision because it

simply “shows Federal policy that employer

negligent retention, supervision and hiring hability

for employee sexual assault in harsh foreign

workplaces is a sufficiently common problem that it

must be provided for in U.S. legislation.” Pet. at 14

Baker does not, however, explain how the Franken

Amendment alters the Circuit Court’s analysis of

Baker's claims under Maryland law

Raker then argues that the Circuit Court

misapplied the rules of law contained in Pittway

Corp. because that is a “smoke detector case.” Pet.

at 14-15. Baker does not explain why Pittway

Corp.’s legal principles are flawed or otherwise

inapplicable. Instead, Baker attempts to distinguish

Pittway Corp. on the grounds that Pittway Corp. was

not a case involving sexual assault. Baker seems to

argue that the scope of what constitutes legal cause

should expand depending on the -severity of the

alleged injuries. Baker does not cite any legal

authority for his argument that the Circuit Court

13

misapphed Pittway Corp., or his theory that the

gravity of the injuries allegedly suffered should

somehow expand the number of third-parties

responsible for the ilheit conduct

Minally, Baker complains that the Circuit

Court's deqjision was unfair for equitable reasons.

Pet. at 15-18. Baker argues that federal contractors

should “not get a free pass when compromised

personnel ... severely injure[s] someone the lederal

Contractor knows could be in his path.” Pet. at 15.

fle claims that the expatriate community in Bishkek

was akin to a prison from which he could not escape,

and blames Booz Allen (and not his mother, who

voluntarily moved with Baker to Bishkek to pursue

her professional goals) for the alleged injunes. Pet

at 16-17. He complains that the Circuit Court

decision “shields” federal contractors from lability

even though their security teams are apparently

best-equipped to discover dangerous employees. Pet

at 17-18. Baker does not provide any legal authority

to support his equitable arguments, nor does he

explain how the Circuit’ Court’s decision under

Maryland law was incorrect

Second, Baker maintains that the Circuit

Court decision conflicts with the decision of the

United States Court of Appeals for the Fifth Circuit

in Jones v. Halliburton Co., 583 F.3d 228 (5th Cir.

2009). Pet. at 18-21. Baker interprets Jones to

stand for the proposition that “sexual assault [is]

sufficiently foreseeable and unextraordinary [sic] to

support the victim|'s] ... mght to sue a company for

negligent retention and supervision [fof] its employee

is greater than the Federal proclivity for favoring

14

arbitration over litigation. Vet. at 18. Baker does

not explain how (or even claim that) he was deprived

of his right to sue Booz Allen in a court of law, or

how the arbitrability of the tort claims at issue in

Jones 1s relevant to the Circuit Court’s decision

Third, and contrary to bis position throughout

this lawsuit, Baker now contends that the Circuit

Court should have applhed Kyrgyz law, but not the

law that Booz Allen submitted pursuant to FED. R

Crv. P. 44.1. Pet. at 21-25. Baker contends that he

could establish his claims if the Circuit Court

applied his version of Kyrgyz law. Baker justifies

his late production on the grounds that’ the

applicable 1964 Civil Code of Kyrgyz Soviet Socialist

Republic was “hard to obtain.” Pet. at 22. Ile does

not explain why it was not equally as difficult for

Booz Allen to obtain or why he could not obtain it

during the almost two years between when he filed

suit and the granting of summary judgment

REASONS FOR DENYING THE PETITION

This Court) should deny Baker's’ Petition

because the Circuit Court correctly determined that

Saker failed to establish any claim against Booz

Allen, and because Baker presents no federal issue

for thas Court to review on appeal.

I. Baker Failed to Establish His

Negligence Claims Under Maryland

Law.

The essential elements of a neglhgence claim

under Maryland law are that: (J) the defendant had

a duty to protect the plaintiff from injury, (2) the

defendant breached that duty, (3) the plaintiff

suffered actual injury or loss, and (4) the defendant's

breach of duty proximately caused the loss or injury.

See Rhaney v. Univ. of Md. FE. Shore, 880 A.2d 357,

363-364 (Md. 2005). Negligence cannot exist where

no duty is due and the existence of such a legal duty

is a question of law to be decided by the court. See

id.; Doe v. Pharmacia & Upjohn Co., Inc., 879 A.2d

1088, 1091 (Md. 2005). Only after establishing that

a duty exists must a court consider what that duty 1s

and whether sufficient evidence exists to prove that

a defendant, by action or inaction, breached that

duty. PRhaney, 880 A.2d at 364

The duty of an employer, the Maryland Court

of Appeals explained in Fuans v. Morsell, 395 A.2d

A480, 483 (Md. Ct. App. 1978) QGnternal citations

omitted), is “to use reasonable care to select

employees competent and fit for the work assigned to

them and to refrain from retaining the services of an

16

unfit employee.” However, “|t]he concept that all

persons owe a duty to all other persons to use

reasonable care to protect them from harm must b«

limited if we are to avoid lability for unreasonably

remote consequences.” /lenley v. Prince George’s

County, 503 A.2d 1333, 1840 (Md. 1986) (also finding

that the causation element of a negligence claim

requires proof of an appropriate nexus between the

assignment of the employee’s duties and the injury).

As a threshold” statement, the assault

Davenport is alleged to have committed is, as a

matter of Jaw, not within the scope of his

employment with Booz Allen and, thus, the doctrine

of respondeat superior is not applicable to the Court’s

inquiry. See Wolfe v. Anne Arundel County, 821 A.2d

52, 62 (Md. 2003) (inding that a law enforcement

officer who commits rape is not acting within the

scope of his employment). Moreover, there 1s no

general duty to control the conduct of a third person

so as to prevent him or her from causing physical

harm by criminal] acts or intentional torts, absent a

special relationship. See forridge v. St. Mary’s

County Dept. of Soc. Servus., 854 A.2d 1232, 1239

(Md. 2004). In the present case, Baker neither

alleged nor proved any special relationship between

himself and Booz Allen.

Assuming arguendo that the respondeat

supertor doctrine applied and further assuming the

existence of a special relationship between Baker

and Booz Allen, the undisputed material facts do not

permit a reasonable fact-finder to conclude that the

alleged actions of Dr. Davenport were in any way

reasonably foreseeable. See Henley, 503 A.2d at

1 ‘/

1340 (stating that “|t}he concept that all persons owe

a duty to all other persons to use reasonable care to

protect them from harm must be limited if we are to

avoid hability for unreasonably remote

see also Rhaney, 880 A.2d at 368

(finding that a student’s prior suspension for fighting

consequences. );

and disorderly conduct related to an incident outside

of a school cafeteria insufficient, as a matter of law,

to put school on notice that it was reasonably

foreseeable that the student was lhkely to punch his

roommate).

Indeed, in a case with a strikingly similar

factual predicate, the Maryland Court of Appeals

held that a party who alleges that another party

knew or should have known about a third party's

alleged propensity for violence, without more, 1S not

a sufficient factual allegation from which a duty may

arise. See Pendleton v. State, 921 A.2d 196, 221 (Md.

Ct. App. 2007). In Pendleton, the claimant and his

mother, being homeless, were placed in a temporary

shelter by one of the state representatives.

Thereafter, when the claimant was 10 years old, he

was removed from his mother's custody and placed

in foster care. State officials then placed the

claimant with a lheensed residential child care

provider. He was assigned to shure a room in the

residential group home with a J6-year-old male. The

claimant allegedly was sexually and_ physically

abused, and battered by that male. See id. at 200.

The only allegation of fact the appellant made

with regard to the knowledge the [State Defendants

delete State?| had of the situation of with which it

was charged was

1%

Upon information and behef, the State

and its Foster Care Program officials as

well as Defendants Barnett Carroll and

Ceceha Carroll were aware of (or sbeuld

have been aware of) the sexual

tendencies, deviousness and history of

sexual assaults of Wratchford, and

taken care not to place [appellant] in

danger of being sexually assaulted by

him

Id. (noting that Plaintiff did not allege’ that

Wratchford had committed assaults prior to those

alleged by the appellant or that the State had

knowledge of any sexual tendencies Wratchford may

have had or that he had a history of sexual assaults).

The Maryland Court) upheld the trial court's

dismissal of the claimant’s amended complaint, for

failure to plead facts sufficient to establish a duty on

the part of the State. See id. at 221

In the case at bar, the Circuit Court relied on

Pittway Corp. for the proposition that a defendant’

conduct must be the legal cause of the injuries

sustained. Baker, 358 F.3d at 483. Baker insists

that the Circuit Court's application of Pittwway Corp

is in error, but does not challenge the principles that

the Circuit Court applied. Pet. at 14-15

Pittway Corp. simply stands for the

proposition that a plaintiffs injuries must be a

reasonably foreseeable result of the defendant's

conduct for the defendant to be held hable. Pittway

Corp., 973 A.2d at 787-791. Pittway Corp., citing

well-established Maryland law, reiterated that

iv

In applying the test of foreseeability

it 3s well to keep in mind that it 1:

simply intended to reflect current

societal standards with respect to an

acceptable nexus between the negligent

act and the ensuing harm, and to avoid

the attachment of liability where, in the

language of Section 435(2) of th

Restatement (Second) of Torts (1965). it

appears “highly extraordinary that the

negligent conduct should have brought

about the harm

Pittway Corp., 973 A.2d at 78%

Applying these legal principles, the Cireuit

Court concluded that an alleged sexual assault

occurring outside of business hours at a personal

residence of an employee was not the foreseeabl

result of Booz Allen’s decision to employ” the

employee. Baker offers no authority contrary to thi

Circuit Court's position

In sum, the (jreuit Court correctly applied

Maryland law to Baker’s claim: The undisputed

muterial facts did not permit. Baker's neglgenc

claims to survive because he could not, and did not

prove each of the element olf a nepvlivencs claim

under Maryland Jaw

II. Baker Failed to Present or Establish Hi:

Claims Under Kyrgyz Law

The Circuit Court did not err in its analysis «

the application of Kyrgyz law

Z\)

First, Baker sought the apphecation of the very

law — Maryland law he now contest A-10

Second, even if Kyrgyz law must have been

applied to the case at bar, the presentation of Kyrgyz

law through the Declaration of Tatiana Ivashchenko

accurately and sufficiently demonstrated — that

Baker's claims failed as a matter of Kyrgyz law. See

App. at lda-15a

Third, Baker did not satisfy the procedural

requirements under FED. R. Civ. P. 44.1 with respect

to the presentation of foreign law. Indeed, the only

party that identified Kyrgyz law as applying wa

Booz Allen, as evidenced by the District Court ruling

from the bench. See App. at 13a.‘

kor the foregoing reasons, the Cireuit Court

did not err when it concluded that Baker failed to

establish his neghgence claims under Maryland law

as opposed to Kyrgyz law The Circuit) Court

decision wa correct and th Court should

accordingly deny the Petition

Booz Allen tendered a declaration made pursuant to 2

LJ oy. ( 6 174601), by ‘Tatiana Ivashchenko a member of the

Kyryeyz bar that was properly considered by the District Court

ee Bonstingel v. Maryland Bank, N.A., 662 |] Hupp. 482, ’K4

(1) Md. 1987) (noting that courts may consider affidavits of

{

reipn attorney for analysi Ol 1ISSUue alte Cle d by for =a 8 law)

os

ITI. Baker Presents No Federal Issues For

This Court To Review.

In addition to the reasons stated ahove, this

Court should deny Kaker’s Petition because Baker

docs not present any compelling reasons for which

this Court normally exercises its discretionary night

LO review

fourst, the Circuit Court’s decision does not

conthet with the decision of another United States

court of appeals. See SUP. CT. R. 10(a). The Circuit

Court apphed Maryland procedural and substantive

law to determine whether Baker established a claim

for common law negligence Baker contends that

this case conflicts with the decision of the United

States Court of Appeals for the Fifth Circuit in

Jones, 583 F.3d 228. The issue in Jones, however,

was Whether tort claims arising from a_ sexual

assault by an employee were subject to arbitration

because the plaintiffs employment contract required

all claims “related to her employment” to be

arbitrated. Jones. 583 F.3d at 230

‘The Jones case, contrary to Ksaker:

contention, 1s not in contlict with the Circust Court

decision. ‘The Court in Jones simply determined that

tort claims fell outside the scope of an arbitration

agreement and therefore, the plaintiff could pursue

her remedies in court. Jones has nothing to do with

whether tne conduct alleged constituted the tort:

claimed. Jones did not apply Kyrgyz or Maryland

law Indeed, the plaintiff in Jones was originally

based in ‘Texas, than in Iraq. Neither Maryland nor

Kyrgyz law is imphcated in Jones. In short, Jones 1:

wholly inapposite to this case

Second, the Circuit Courts decision did not

decide any federal question — let alone an important

one —1n away that conflicts with a decision made by

a state court of last resort. See SUP. CT. R. 10(a), (c)

Baker demands that this Court review the Circuit

Court’s decision which applied Maryland procedural

(lex loci delictt) and substantive (negligence) law

Ironically, Baker now requests that this Court

review the Circuit Court's decision to apply

Maryland law — a decision made at Baker’s request

Baker never filed a Rule 44.1 notice of application of

Kyrgyz law at the District Court level Indeed,

Baker requested the application of Maryland law at

the Circuit Court level. In any event, as set forth

above, Baker's claims fail under either Maryland law

or Kyrgyz law. The Circuit Court’s decision did not

rely on or implicate the interpretation or application

of any federal constitutional, statutory, regulatory

provision, or of any rule of civil procedure. This

Court has no reason to review Baker's case because

it does not implicate any federal law.

Third, the Cireuit Court's decision does not

depart from the accepted and usual course of

business in a way that involves this Court's

supervisory power. See SUP. CT. R. 10(a) saker

contends that the Circuit Court “made public policy”

through its decision Instead, the Circuit Court

simply apphed Maryland common Jaw to conclude

that Baker could not establisn that Booz Allen’:

alleged conduct could have proximately caused any

damape. Indeed, Baker does not even allege that the

Circuit Court acted inappropriately

Fourth, Baker's challenge to the decision is

simply that the Circwt Court misapplied properly

stated rules of Jaw, which is not a proper subject of

review. See S. Ct. R. 10 Jaker’s appeal on this

point is essentially twofold Baker challenges the

Circuit’ Court’s application of Maryland lex loc

delictt doctrine, even though the Circuit Court

adopted Baker's position that Maryland substantive

(nevliyence) law applies. Baker then challenges the

Circuit Court’s application of Maryland common law

of proximate causation. Baker does not challenge

the interpretation or characterization of either the

Maryland lex loci delicti rules or the proximate

causation rales apphed by the Circuit Court

This Court will not ordinarily grant certiorari

to review questions of state law decided by federal

courts of appeal. See Haring vo. Prosise, 462 U.S.

306, 314, n. & (1983) (standing alone, a challenge to a

state-law determination by the court of appeals will

rarely constitute an appropriate subject’ of thi:

Court’s review). This is so because lower federal

courts are deemed, by this Court, to be more familar

with the laws of the states of their jurisdictions. See

Granberry v. Greer, 481 U.S. 129, 136, n. 9 (1987)

In essence, this is exactly the nature of review Baker

seeks (tia Court to conduct

In short, Baker presents no compelling reason

or federal issuc for this Court to review the Circuit

(Court . deci: }On

24

CONCLUSION

This case presents no federal issue for this

Court to consider. Instead, Baker requests that this

Court review the Circuit Court’s decision to apply

unchallenged Maryland procedural and substantive

law to conclude that) Baker did not establish a

negligence claim against Booz Allen. ‘There is no

reason for this Court to review the Circuit Court’:

appheation of settled Maryland law. Accordingly,

this Court should deny Baker’s Petition for Writ of

Certiorar).

Respectfully submitted,

BOOZ ALLIEN HAMILTON, INC

By counsel

Anand V. Ramana”

Counsel of Record

stephen W. Ko oinson

David L. Greer.span

Hans P. Riede

MeGuire Woods LLP

1750 ‘Tysons Boulevard

multe 1800

McLean, Virginia 22102-4215

(703) 712-5000 (telephone)

(703) 712-5050 Cacsimile)

Counsel for Respondent

$00z Allen Hamilton, Inc

TABLE OF CONTENTS

Appendix to Brief in Opposition

Page

Hx erpt: of Trans ript ol Motions Hearing before

The Honorable Roger W. Titus

on December 19, 2007

la

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MARYLAND

MARK BAKER

Plaintiff,

Vv: Civil Action: RWT-06-0889

BOOZ ALLEN HAMILTON, INC.,

Defendant

Wednesday, December 19, 2007

Greenbelt, Maryland

The above-entitled action came on for a

Motions Hearing Proceeding before the

HONORABLE ROGER W. TITUS, United States

District Court Judge, in courtroom 2C AT 2:04 p.m.

be j

THIS TRANSCRIPT REPRESENTS ‘THE

PRODUCT OF AN OFFICIAL REPORTER,

KNGAGED BY THE COURT, WHO HAS

PERSONALLY CERTIFIED THAT T

REPRESENTS ‘THE PROCEEDINGS Ads

RECORDED AND REQUESTED SY

COUNSEL.

APPEARANCKES:

On behalf of the Plaintiff:

DAVID L. WOODY, Esquire

KATHLEEN J. WOODY, Esquire

On behalf of the Defendant:

STEPHEN W. ROBINSON, Esquire

DAVID L. GREENSPAN, Esquire

Tracy Rae Dunlap, RPR, CRR

Official Court Reporter

(301) 844-3912

xxx

relationship with that child who is being babysitted.

The employer has no relationship with that invitee

that comes on the premiscs

THE COURT: What would happen if the

gentleman in question had gotten into a cab outside

of the Booz Allen offices and got into a dispute about

a fare and punched the cab driver? Could the cab

driver sue Booz Allen?

MR. WOODY: I don’t know. That cab driver is

a Kazakhstan citizen, number one, and I’m not. here

to argue whether he would have right or not. I only

know we're talking about American citizens who

were there in Kazakhstan where Kazakhstan law

would not apply, but there was a duty for these

particular individuals.

I'm not talking about respondeat superior,

Your Honor. I'm talking about negligent retention.

Neghgent retention deals with notice given to

employers. This was an employee who was the one

who was responsible for giving the notice and who

did give the notice in reference to an employee to

whom a responsibility was owed and a_=e special

relationship existed.

THE COURT: Anything further?

MR. ROBINSON: No, sir, Your Honor.

THE COURT: Okay

On Junuary 9, 2006, the plaintiff, Mark

Saker, filed an action in the Circuit Court for

Montgomery County against the defendant, Booz

Allen Hamilton, Inc. That complaint, which has

since been amended, together with all other

pleadings in that case, was removed to this court by

the defendant, where it was received on April 6,

Z006

Shortly thereafter, Booz Allen filed an answer

to the complaint, and the plaintiff filed a motion to

remand the matter to the state court which was

denied by the court on June 22, 2006.

In January of this year, counsel for the

plaintiff, Henry Wile, entered his appearance, and

on January 25th filed a motion for leave to file an

amended complaint, which the court granted on

March 9, 2007. The amended complamt is the

applicable document that is now before the court

In that amended complaint, Baker alleges

that his mother was employed by Booz Allen, and in

her capacity as an employee of Booz Allen was

dis patched Lo Kyrgy zstan to perform services for the

company. It is alleged then in about March of 1996,

while she was in Kyrgyzstan performing her duties,

the plaintiff, who was then a minor residing with his

mother, was raped and sodomized by an employee of

Booz Allen, and that he threatened the plaintiff not

to tell his mother

4a

{fi is alleged that Booz Allen knew or in the

exercise of reasonable care should have known that

the gentleman in question had a serious emotional

disorder who had previously requested that he be

returned to the United States as a result of said

emotional disorders.

It’s also alleged that Booz Allen was negligent

In a variety of ways enumerated in Paragraph 5 of

the complaint, including failing to consider

adequately the reports of employees that he was

suffering from emotional disorders which were lkely

to result in his actions perpetrated apainst the minor

plaintiff as described in the complaint; that Booz

Allen failed to foresee that its employee’s actions

perpetrated against the minor plaintiff would be

carried out; that it failed to warn or provide

plaintiffs mother with notice of its employee’s

emotional disorder; that 1t failed to provide plaintiff

with adequate security which could have prevented

the acts perpetrated against him by its employee,

and that it was negligent in further ways that would

he shown at trial

Then it’s alleged that the plaintiff suffered

serious and permanent injurics and cause to expend

large amounts of money for ongoing medical care

and treatment, sustained floss of earnings and Joss of

future earnings capacity, and has endured and will

continue to endure great pain and suffering, both

physical and mental; and then there is an addendum

clause demanding judgment for $10 million

The case has proceeded through discovery

with a few bumps in the road with discovery

Da

disputes, but the matter is now before the court on

the defendant’s motion for summary judgment which

was filed by it on July 30 of this year.

The matter before the court is a summary

judgment motion which is) authorized if the

pleadings, depositions, answers to interrogatory, and

admissions on file, together with the affidavits, if

any, show that there is no genuine dispute as to any

material fact and that the moving party’s entitled to

judgment as a matter of law.

lam reguired to and will view the evidence in

the light most favorable to the nonmoving party, and

I will -- and a material fact is one that might affect

the outcome of the suit under governing law

To avoid suinmary judgment, the nonmoving

party may not rest upon mere allegation or denial of

his pleading but must set forth specific facts showing

that there is a genuine issue for trial

The factual record of this case that’s been

developed before me has documented a number of

undisputed facts. One fact that is heavily in dispute

is Whether or not the homosexual rape of the then

minor plammtaff occurred at all. The defendant

vigorously disputes that and indicates that this 1s

someone who has previously reported about making

reported rape allegations that it contends were

false. So, itis a matter of vigorous dispute with Booz

Allen that this ever took place.

Nevertheless Kooz Allen. as it must for

purposes of a Summary judgment motion, ha:

Ga

conceded that for purposes of the motion the court

should assume that the homosexual rape of the then

minor plaintiff took place, but it argues that on the

basis of the uncontroverted facts that are not in

material dispute that it 1s entitled to judgment as a

matter of law, even if the rape occurred which, as |

noted, it disputes does not dispute for purposes of

the motion.

Ive already reported that the complaint

indicates that the plaintiff, when he was ten years

old, went with his mother to Kazakhstan, and that

his mother was responsible for supervising project

staff and reported directly to two persons in the

Virginia office of the defendant named Norman

Kirsch and Sally Kverett

The employment of the plaintiff with the

defendant apparently ended sometime in 1996. The

employee at issue in this case 1s named Davenport,

and he was hired by the defendant in April 1994 and

is still employed by the defendant. At the time of the

alleged homosexual rape, he worked on the same

project as the plaintiff's mother and reported directly

to her. It not controverted that at no time prior to

the alleged rape was he ever disciplined or demoted

Ms. Woody testifed in deposition that she

reported several incidents involving Mr. Davenport

to Kirsch and Everett, and she did report on a car

trip that had been taken by the plaintiff, his mother

and Davenport between two towns in Kazakhstan

and Kyrgyzstan sometime around New Year's Eve in

1995. Apparently, this trip was a lengthy trip

something in the neighborhood of three hours, 1f |

Ta

recall correctly -- and that there was a driver and

Mr. Davenport was in the front seat. Apparently, the

plaintiff, who was a young child, was making noise

that was not to the hking of Mr. Davenport, who

apparently was tired, and it is alleged that he

pointed his finger in the plaintiffs face and said in a

threatening manner, “If 1 don’t get my REM sleep,

I’m going to explode, and the plaintiffs mother

claims that she reported that incident to Booz Allen

immediately.

It's also alleged that -- or there’s information

before me that appears not to be controverted that

Mr. Davenport complained to the plaintiffs mother

that he wanted to Jeave central Asia and go back to

the United States.

She also alleges that she reported to the

defendant that Davenport had told her -- told the

plaintiff to be quiet at a party, and that he was going

to pet him.

Ms. Woody also alleges that she told [Booz

Allen that Davenport should be relieved of his duty

and she wanted him out of there, and that he was a

danger to her and her family.

She’s also alleged that there were incidents

involving Mr. Davenport throwing office supplies at

the plaintiff, or at least that the plaintiff told her

that; that she reported this behavior to officals of

s300z Allen, and she makes allegations of other

threatening conduct by Mr. Davenport. Specifically,

she, Ms. Woody, was told Davenport had thrown

things in the office, and also observed him wag his

finger at staff in clos proximity, ye I} at staff, and

threaten staff with firing

Finally, she claims that Mr. Davenport also

slapped two staff member:

In support of these allegations, the plaintiff

also submits an affidavit of -- [ll spell it. Kh LY U ¢

HNIKOV let Tracy get that and Il just say

“Mr. K” -- purporting to corroborate Ms. Woody

Claims of her reporting of ineident lo her

SUpervisor,

He reports that he overheard M Woody tell

Kirsch and Everett of her concern that Davenport

was becoming erratic and more explosive and acting

in a physically and emotionally abusive manner

towards her stall

fe also reports hearing Woody pleading with

her supervisors to send Davenport back to the

UInited States before he eriously hurt her o1

plaintiff

While the complaint, which I previously

alluded to and paraphrased, specifically alleges that

$907 Allen knew or should have known that M1

Davenport was a person with a serous emotional

disorder, there is nothing in the record to indicat

that in fact he had a serious emotional disorder

There is uncontroverted information about abusive

behavior, but there is no documentation in thi

record indicating that ther a diagnosed,

documented emotional disorder of any nature

whatsoever or at least of any nature that wa

communicated to S007 Allen, other than

communication to Booz Allen of incidents of abuse to

the staff, slapping somebody twice and otherwise

acting in an emotional and obnoxious manner

The plaintiff himself in his deposition, when

asked to address the question of whether it was

foreseeable that Davenport would do something, said

that, “Il suppose Booz Allen had no way of foreseeing

that Davenport was going to perpetrate such a

heious crime against the child. There 1s no way

they could have known.” That's from the mouth of

the plaintiff himself in his deposition.

Ms. Woody has coneeded that she had no

knowledge that Davenport ever sexually assaulted

anyone, whether heterosexual or homosexual, prior

to the incident, or he ussaulted any child. There were

two coworkers who testified that they could not

recall any behavior that indicated Davenport had a

sexual obsession or fascination with the plaintiff or

that he would be violent or commit a sex crime or

assault. I pressed counsel today at argument as to

whether there was any information that any sexual

assault had been committed on anyone or whether in

connection with, for example, the slapping incident

or incidents of that nature anyone had ever received

medical attention, ever been prosecuted, ever made a

claym, and the answer was no

f have a number of miscellaneous motions

before me that all relate to the summary judgment

motion which is the principal motion before me. Ill

bnefly address them.

10a

There were affidavits submitted by plaintiff in

opposition to the motion for summary judgment by

Leo Surla, Irina Zippman, and “Mr. K.” For various

reasons, the defendant argues that | should strike

those affidavits in their entirety. | am not going to go

through these affidavits line by line and parse them

[ will, first of all, tell you that Im well aware of the

standard of what is proper to be considered in a

summary judgment affidavit. If there’s something

that is not based on personal knowledye, | wll not

consider it: if there’s something that is inadmissible

hearsay, I will not consider it; and if there's

something that’s in violation of an order of thi:

court, | won’t consider [ it

With regard to the affidavits of Surla and

Zippman, Judge Connelly of this court, after

refereeing some earler discovery disputes, entered

an order of November 6 stating that the plaintiff

must re-answer and/or supplement interrogatory

answers and responses to requests for production of

requests not later than January 15, 2007. Just to get

the point across, he said, “This deadline is a hard

cutoff date. Information not produced or provided by

January 15 will no be admitted for purposes of this

litigation.”

ls suyvested that I should not consider the

affidavits of Surla and Zippman because it’s in

violation of Judge Connelly’s order. I'm not certain

how important to the overall resolution of this case

those affidavits are, but I'm going to deny the motion

to strike. While these persons were not identified

until June, more than five months after the January

deadline, I have to consider also that Judge

lla

Connelly, thereafter, extended the discovery

deadline to dune 29. So, Pm simply not poing to

stmke those affidavits

With respect to the affidavit of “Mr. KO) First

of all, to the extent that the motion seeks to strike

the entire affidavil, 1m going to deny it. | don’t think

that the affidavit should be stricken in its entirety

Clearly, this gentleman was identified -- perhaps not

to the satisfaction of the defense -- in January of this

year, but I don't beheve that there’s enough here to

completely strike the affidavit

Now, the affidavit of “Mr. K” has contents

which perhaps are on a different footing than the

question of striking the entire affidavit. First of all,

the affidavit contains what the -- is contended 1s

hearsay statements by “Mr. K” about conduct of

Davenport and the reporting of that conduct. It is

clear to me that the purpose of this affidavit 1s to

place before me information from “Mr. K’ that 1s not

provided to me for the purpose of establishing the

truth of the matters but, rather, to simply establish

that there was communication of these facts to Booz

Allen. Therefore, to that extent, in terms of notice to

the defendant, | will deny the motion. The only place

where I have pause for concern is in -- there's some

information in here -- for example, Paragraph 14 is

completely irrelevant to this case. It’s talking about

security issues generally and nothing do with Mr.

Davenport. Paragraph 24 1s simply him saying that

Ms. Woody told him something and that, | don’t find,

would be appropriate to consider. As I said, in

general, m going to consider the affidavit, and [ll

Za

just close my eyes when [| get to something that

doesn’t belong before me

Now, with those preliminary observations

about the discovery disputes and issues in this case,

now let me go to the merits of the case. The first

question before me is what law to apply. This is a

federal court, sitting in diversity jurisdiction. First,

the court will apply the choice of law rules of this

state. Maryland follows the principle of lex loci

deheti. When events giving rise to a tort action Occur

in more than one state, the law of the place where

the last act occurred is defined as the place where

the jnjury occurred

In this case, there is no dispute that any

injury that allegedly was suffered by the plaintiff

was in Kyrgyzstan. Therefore, applying the choice of

Jaw rules of the state of Maryland, I should look to

the laws of Kyrgyzstan, at least initially, and

ascertain the law of that jurisdiction to the extent

that J can

Now, the defendant, when we get to the

application of the laws of the potential sources of law

in this case, argues that there is -- that the plaintiff

must demonstrate that the -- that he was raped by

Davenport, which they're conceding for purposes of

this motion only, and otherwise vigorously dispute it,

but must show that the defendant had some degree

of knowledve or notice that the rape was reasonably

foreseeable, and then it argues that under the laws

of Kyrgyzstan, Maryland, or Virginia, the plaintiff

cannot establish the existence of a duty or breach

l3a

thereof under the facts of this case as viewed in the

light most favorable to the plaintiff.

Now, it's been -- [ve had an affidavit offered

to me from a attorney named Tatiana [vashchenko --

J think I got that close to correct. Its] VAS HICH

ki N K O. She points out, after identifying herself as

a member of the bar and that she has experience of

ten vears in the laws of that country, that this is a

civil code or civil law jurisdiction, unlike the United

States, where all but Louisiana are common law

jurisdictions, and have a system based on case

precedence, rather than on a civil code.

She indicates that a legal entity 1s responsible

for its employee’s actions or inactions if that

employee has caused harm to third parties in the

course of the performance of his or her employment

obligation’s but notes that even if an employee were

to cause harm to a third party in the course of the

performance by that employee of his or her

employment obligations, an employer shall not be

hable for its employee’s actions or inactions, unless

the predicate act, which must have resulted in

criminal sanctions, were completed on the

employer's order and contro]

Now, the plaintaff objects to the timeliness of

the submission of this affidavit under Rule 44.1 and

argues that if is untimely. [ do not agree. ‘The

defendant hus clearly raised it in its motion;

attached, it in an affidavit. If the plaintiff was

unbappy with the content of the affidavit, the

plaintiff could also have submitted an affidavit of

14a

omebody submitting information to me on the law:

of Kyrgyzstan

Anybody applying Maryland law would know

that it would not be a surprising turn of events if a

defendant properly analyzing the law were _ to

suggest to me that that’s the law that should be

apphed. So I therefore reject any notion that the

notice of reliance upon foreign law 1s untimely, and |

will therefore look at the law of Kyrgyzstan to the

extent that I can interpret it

I will point out that if -- that a court 1: may,

but | don’t have any books back in my law library

from Kyrgyzstan may conduct an independent

research to determine foreign law. | have no duty to

do so, and I have the right to insist that the

proponent of the foreign law present evidence on the

question. If insufficient information on the content of

foreign law has been provided, | may presume that

the foreign law is the same as the local law

l have been advised by counsel at argument

today that the Kyrgyzstan lawyer was asked to

advise about the law of employer lability for torts

that harm third persons and that this was the

answer given and that there was no explication of an

alternative basis of lability such as 1s recognized in

some jurisdictions for neglhgent hiring, supervision

or retention. It would appear that the Kyrgyzstan

law has a relatively narrow scope of employer

hability for actions such as the nature alleged in this

case. ] have no reason to dispute that, and it seem:

to me that the law of Kyrgyzstan would not permit

)5a

hability to be imposed upon Booz Allen under the

b j

circumstances of this Case

! will not, however, rest any decision on such a

simply relying solely upon Kyrgyzstan law, and |

will address the question of whether or not there is a

possible basis for liability under cither Maryland law

or under Virginia law which clearly, at least on the

basis of the affidavit supplied to the court, is more

generous 1n imposing hability on an employer on

grounds other than strict respondeat superior.

before | do that, I do note an allegation or

suggestion 1s made that Kyrgyzstan law would be

offensive to Maryland public policy because it

appears to negate employer” lability under

respondeat superior under the unique circumstances

that [just mentioned a moment apo in terms of there

needing to be a criminal sanction and that it must

have been completed upon the employer's order and

control. There's a suggestion made that that violates

Maryland public policy. I have not been referred to

any Maryland case that would reject that law as

offensive to Maryland public policy. And while I!

recognize that Maryland does under some

circumstances decline to apply foreign law's

offensive, Muryland public policy -- merely because

Maryland law is dissimilar to the law of another

jurisdiction docs not render the law the Jatter

contrary to Maryland public policy, and I find

nothing in Maryland public policy that would make

Kyrgyzstan Jaw offensive or sufficiently offensive to

call for this court to reject it.

lGa

Now, if one were to apply Maryland law, |

don’t think that the plaintiff fairs any better. In

order to maintain an action for negligent hiring and

retention under Maryland law, the plaintiff must

prove the existence of an employment relationship,

which clearly is established; the employee’s

incompetence, the employer’s actual or constructive

knowledge of such incompetence, the employer's act

or omission causing the plaintiffs injuries, and the

employers neghgence in hiring or retaining the

employee as the proximate cause of plaintiff's

myuries

Maryland has long recognized an employer's

duty to the public to use care in hiring and retaining

employees. The parties have mentioned, as they

should/ some cases in the Maryland Court of Appeals

that have addressed this tort action, assuming for

the purposes of discussion that Maryland law would

apply and that Kyrgyzstan law either doesn’t apply

or is somehow offensive to Maryland public policy.

In Henley, the Court of Appeals, the highest

court, narrowed the concept of duty to embrace only

those persons or classes of persons to whom harm of

some type might reasonably have been foreseen as a

result of the particular tortious conduct. The court of

appeals in the Pendleton case, handed down this

year, in evaluating that question of whether one

partys entitled to protection of or is under an

obligation of the other party involves consideration

to have following factors: The foresceability of harm

to the plaintiff; the degree of certainty that the

plaintiff suffered the injury; the closeness of the

connection-between the defendant's conduct and the

sa

injury suffered; the moral blame attached to the

defendant's conduct; the pohcy preventing future

harm; the extent of the burden to the defendant; and

the consequences to the Community of imposing a

duty of exercising care with resulting hability for

breach; and the availability, cost and prevalence of

Insurance for the risk involved

In this case | have examined the record with

care, with a view to giving all of the inferences in

favor of the nonmoving party. I have not found

anything in this record that would indicate that the

defendant was aware of a severe or documented

emotional disorder of Mr. Davenport

I’ve received no information in this record that

would support a conclusion that Booz Allen was on

notice that this employee had a prochvity or a high

risk of committing sexual attacks of any nature,

much Jess violent attacks. All 1 do have is some

incidents of obnoxious behavior two instances of

slapping someone, and bitter complaints by the

plaintiffs mother to her employer that this man

should be sent home.

J conclude that under Maryland law, if it were

to apply, the foreseeability of the harm to the

plainuif would be clearly called into serious

question, and | thik the fatal question by the

rulings of the Court of Appeals of Maryland in the

Henley and Pendleton cases

The defendant has also brought to my

attention some cases from other jurisdictions such as

Ilorida, with the K.M. versus Publix Supermarkets,

Inc. case Which involved a seven year-old plaintiff on

Whose behalf an action was brought against his

mother’s employer after she entrusted the child to a

coworker at the coworker’s home, and it was alleged

in this case that the employer knew the coworker

had been convicted of attempted sexual battery, and

the court affirmed the trial court’s finding that the

employer did not have a duty to control an employee

off duty not then acting for the employer's benefit

and not on the employer's premises and not using

the employer's equipment. While that case is_ not

precisely on all fours, that 1s powerful precedent for

the notion that under the circumstances of this case

there is no hability

The plaintiff points out that this was not

simply a grocery store employee but somebody who

was sent to a far distant country and couldn't have

been there but for the authorization of the employer.

| take that into account, but the bottom line is that

this was an act that took place not in the employer's

premises and certainly not authorized by the

employer such that respondeat superior would apply,

and a reasonable employer knowing the information

that has been brought to my attention by the

plaintiff and viewing that lght in the that

evidence in the light most favorable to the plaintiff, J

cannot conclude that under the appropriate

appheation of the summary judgment standard, that

the plaintiff could prevail in this motion

Another case that has addressed some of these

issues is RKRhaney, in which the court reasoned that

its view of foreseeability is not nearly wide enough to

include a possible result but deals more with

Iva

probability of that result, and I conclude, as did the

court in the Rhaney case, that slapping two fellow

employees 1s not sufficient to create a foreseeable

risk of the probability of a sexual assault

Therefore, I conclude ‘that if I were to apply

Maryland law, which | conclude J do not need to

apply but alternatively will apply to the extent that

my analysis of the Kyrgyzstan law issue is incorrect,

! conclude that the plaintiff has failed to meet his

burden of showing that the defendant knew or

should have known that the defendant was:

potentially dangerous. “Dangerous” meaning a

danger of committing a sexual or other violent

assault.

Kinally, to the extent that my analysis of

Kyrgyzstan and Maryland law is incorrect, and ta

the extent that because of the base of employment

being yn Virginia and the hiring decision taking

place in Virginia, the plaintiff does not fair any

better. In fact, 1t fairs worse. Under Virginia law,

ability for neghgent hiring is predicated on the

negligence of an employer in placing a person with

known propensities or propensities which should

have been discovered by a reasonable investigation

in an employment position in which because of the

qircumstances of the employment, it should have

been foreseeable that the hired individual posed a

risk -- a threat of injury to other:

Virginia does recognize a separate claim for

negligent retention in which an employer may be

hiable where it knew or should have known the

employee was dangerous and likely to harm others

20a

ve already concluded that that is not the case here

and that Virginia law is simply not helpful to this

case Lo the extent Jf I were to apply it

The defendant has made some additional

arguments that J will just address briefly, but I don’t

think J need to address these issues at all, in light of

my conclusions on the absence of any basis for

habilty. But to the extent there is any lability, |

conclude that the plaintiff is not entitled to some of

the damapes that he claims. Ile has made claims for

medical expenses, but the medical expenses occurred

before he was 18, which were not pursued by his

parents, and which are now barred by lmitations,

and are not before the court and will not be before

the court in any damage claim; and it is

uncontroverted that since he achieved the age of

majority, he has not had any medical expenses. So, |

conclude that this claim would not be one in which

medical damage recovery could occur

The second question that’s raised by the

defense is that they cannot demonstrate a linkage

between his present emotional problems and the

incident in this case because of an intervening

alleged rape that occurred in 2002 at Washington

Adventist Hospital. J agree with the plaintiff on this,

that this is a question that would not eliminate

damages but would, rather, ca}]l for some sort of

apportionment to the extent that the proof at trial

would allow a finder of fact to apportion it. So, |

would, to the extent that it’s secking to eliminat«

any damages because of the intervening incident ]

do not beheve that the defendant is correct, but |

just make those observations because they are not

relevant any longer because of my conclusion

Therefore, | will enter an order for the reason

that | have just stated on the record which grant

the defendant s motion for summary judgment which

IS paper 56 and denies the motion in opposition filed

by the plaintiff which 1s document 79

bhank VOU very much

(COQtt the record at JU p.m.)