Night and Day Management, LLC v. Thomas M. Butler & Thomas M. Butler v. Night and Day Management, LLC, 101 A.3d 1033

Background

On Feb. 26, 2010 four patrons (Butler, Glover, Delilly, Short) were assaulted in the VIP area of the Fur Factory Nightclub after Short accidentally knocked over another table's vodka; the attack involved broken bottles and lasted ~10–15 minutes.
At the time there were no security personnel in the VIP room, the room cameras were not working, and club security arrived only after the fight ended and did not identify or question assailants or offer medical aid.
Fur Factory had an agreement with Advisory Neighborhood Commission 6C requiring "sufficient" security, at least two dedicated security personnel, working surveillance, and preservation of tapes for two weeks to maintain its liquor license.
Plaintiffs sued the nightclub and its principal for negligence claiming inadequate security; at summary judgment the trial court sua sponte held plaintiffs needed expert testimony to establish the applicable security standard and entered judgment for defendants; plaintiffs’ motion for reconsideration was denied.
The trial court denied defendants’ requests for sanctions; plaintiffs appealed (after receiving an extension to file their notice of appeal); the court of appeals consolidated defendants’ cross-appeal regarding fees with plaintiffs’ appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
May the trial court grant summary judgment sua sponte on an unraised issue?	Plaintiffs did not contest procedure but argued they were given opportunity to respond.	Defendants relied on the summary judgment ruling in their favor.	Sua sponte grant was permissible because plaintiffs were given notice and a chance to submit more evidence; though preferable procedure would have given earlier notice.
Is expert testimony required to establish the standard of care for nightclub security?	Plaintiffs argued ordinary juror knowledge or statutory/contract sources could supply the standard.	Defendants argued the security standard is specialized and requires expert proof.	Expert testimony was required: security deployment and adequacy are beyond lay common knowledge, so absent expert or equivalent evidence, plaintiffs’ negligence claim rests on speculation.
Can statutory requirements or the ANC agreement supply a negligence-per-se standard of care?	Plaintiffs argued D.C. Code §25-402 (security plan requirement) and the ANC agreement establish specific duties and thus negligence per se.	Defendants argued those sources are discretionary/general and do not set definite behavioral rules.	Rejected: §25-402 only requires submitting a plan and leaves specifics to applicant/board; the ANC agreement uses terms like "sufficient" and "adequate," so neither provides the specific, mandatory standards required for negligence per se.
Were sanctions under Rule 11 warranted?	Plaintiffs maintained their claims had a good-faith basis and were not frivolous.	Defendants sought sanctions for alleged lack of reasonable inquiry.	Denial affirmed: plaintiffs had a good-faith basis; weaknesses arose after discovery opportunities and do not show a Rule 11 violation.

Key Cases Cited

Thomas v. District of Columbia, 942 A.2d 1154 (D.C. 2008) (sua sponte summary judgment may be allowed if losing party had adequate notice)
Hill v. Metropolitan African Methodist Episcopal Church, 779 A.2d 906 (D.C. 2001) (security and crowd-control standards require expert proof; lay jurors would speculate)
Varner v. District of Columbia, 891 A.2d 260 (D.C. 2006) (issues of safety/security/crime prevention often beyond common knowledge, requiring expert testimony)
Clark v. District of Columbia, 708 A.2d 632 (D.C. 1998) (doctrine of negligence per se: statute may provide standard of care only if it sets specific mandatory duties)
Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment standard: nonmoving party must present evidence on an essential element to avoid judgment)