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             DISTRICT OF COLUMBIA COURT OF APPEALS

                        Nos. 16-CV-1211 & 16-CV-1212                         08/2/2018


                         WALTER BLAIR, II, APPELLANT,

                                        v.

          DISTRICT OF COLUMBIA & THADDEUS MODLIN, JR., APPELLEES.

                        Appeals from the Superior Court
                          of the District of Columbia
                        (CAB-4815-12 & CAB-3271-14)

                    (Hon. Jeanette Jackson Clark, Trial Judge)

(Argued February 28, 2018                                Decided August 2, 2018)

        Jack A. Gold, with whom Ronald A. Karp and Zachary King were on the
brief, for appellant.

       Lucy E. Pittman, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at
the time the brief was filed, and Loren L. AliKhan, Deputy Solicitor General at the
time the brief was filed, were on the brief, for appellee District of Columbia.

      Anthony Graham, Sr., for appellee Thaddeus Modlin, Jr.

      Before FISHER and THOMPSON, Associate Judges, and FERREN, Senior
Judge.

      FERREN, Senior Judge: This case arises from a lawsuit against the District of

Columbia (“District”) and an off-duty Metropolitan Police Department (“MPD”)
                                         2

officer claiming assaultive and negligent conduct that injured the plaintiff-

appellant during a melee. The officer, Thaddeus Modlin, allegedly kicked Walter

Blair II several times in the head outside a nightclub in June 2011, causing him

severe personal injuries. Blair appeals the trial court‟s order granting summary

judgment for both the District and Officer Modlin. We affirm the trial court‟s

grant of summary judgment for Officer Modlin.           We also affirm summary

judgment for the District on Blair‟s claim alleging negligence in hiring, training,

and supervising Modlin. We discern error, however, in the trial court‟s grant of

summary judgment for the District on Blair‟s claim for assault and battery based

on respondeat superior. To resolve that issue, we must reverse and remand the

case for further proceedings.



                                  I. Background



                                 A. The Incident



      Blair‟s complaint alleges that in the early hours of June 10, 2011, he left the

Lotus Lounge nightclub at 1420 K Street, N.W., as it was closing. After he left, a

quarrel broke out near him in front of the club. As the fight began, Blair was

surrounded by a group of (what he believed to be) Lotus Lounge bouncers clothed
                                          3

in black. Some of these individuals, he alleged, “were D.C. police officers.”

During the altercation, Blair fell to the ground. As he lay there, the bouncers

struck him in the eye, head, face, shoulders, and chest, causing Blair eventually to

lose his right eye. Officer Modlin, one of the officers in the group that surrounded

Blair, later pled guilty to one count of simple assault, as well as one count of

possession of a prohibited weapon, for his role in the affray.



      Pretrial discovery revealed Officer Modlin‟s understanding of the events

leading up to the incident. On June 10, 2011, according to Modlin‟s deposition, he

had gone to the Lotus Lounge to meet a fellow officer, Kenneth McRavin. Both

officers were in civilian clothing. When the club closed at approximately 2:30

a.m., all patrons departed and began standing outside. Officer Modlin was part of

one cluster of patrons, along with officers McRavin and Keith Goins, while Blair

and his friends made up another group.



      While outside the nightclub, Blair and Officer Modlin got into a verbal

dispute, although it is unclear how their conversation began.         During their

exchange, according to Modlin‟s deposition, he identified himself as a police

officer, saying, “Hold on, Brother; we‟re the police.” He then displayed his badge

“that was sitting on [his] hip,” and instructed Blair to calm down and leave the
                                         4

premises.1 Officer Modlin gave these instructions more than once, he added, and

“everyone out there knew we were . . . the police.”



      While Officer Modlin was telling Blair to leave, there was (according to a

Blair interrogatory response) “an altercation developing between an acquaintance

of [Blair] and a Lotus Lounge bouncer and/or police officer.” 2 As the altercation

continued to develop, said Modlin, “Blair leap[ed] across [Officer] Goins‟ shoulder

and punche[d] Officer McRavin in the face.” Officer Modlin was then “struck in

the back of the head by one of Mr. Blair‟s friends, and that‟s when the melee

occurred.” “After [Officer Modlin] recovered from being struck in the head,” the

attacker attempted to strike him again but was stopped by a bouncer. Modlin

explained that, “[f]rom there, I started looking around to try to find Officer

McRavin and Officer Goins” and saw Blair on top of a nightclub bouncer. Officer


      1
         Officer Modlin was also carrying his service revolver but did not display it
at any time during the incident.
      2
         Detective Robert Saunders testified on deposition that an investigation had
ascertained that the altercation had begun because “Officer Lampkin was trying to
get out into the traffic. Some girls were blocking the alley. [Officer Lampkin]
couldn‟t get out. An argument ensued and there came a time when Officer
McRavin intervened. And I‟m told that he may have identified himself to the girls,
the disorderly girls that‟s trying to get at Lampkin as being a police officer.”
Officer Modlin also testified about the incident involving a female patron. He
explained, “[W]e‟re still trying to get the girl to leave, she‟s still jumping in our
way, making threats.”
                                             5

Modlin “[a]t that point . . . went over, . . . used [his] foot and . . . tried to . . . kick

the guy off of the . . . bouncer, like three — three times.” According to Modlin,

Blair “eventually escaped my grip and started running eastbound on K Street,

towards 14th, as the other police units were pulling up.”              The incident was

recorded on the Lotus Lounge “surveillance equipment.”



       Continuing on deposition, Officer Modlin explained that, as a police officer,

he was always on duty, even when he was not formally scheduled. While the

tension was beginning to brew, according to Modlin, he did not attempt to make an

arrest “[b]ecause that would have been like sticking a stick into a bee hive,

knowing that all these guys out there are drunk; as soon as we put our hands on

them . . . we‟re going [to] get into a fight.” He clarified that “when Mr. Blair

began — and his compatriots started making threats, no, we didn‟t immediately go

hands-on and try to arrest one of them or detain them, because . . . all of them were

already hostile, and they were all drunk, so to avoid a fight,” Modlin and the other

officers attempted “verbally” to get them to comply. Modlin further explained that

“it wasn‟t feasible,” “it was total chaos,” and “[t]o sit there and try to detain one

[of] them would have meant that we would have subjected ourselves to possibly

being assaulted while trying to hold him there, as we didn‟t have handcuffs.” In

essence, Modlin elucidated, “the altercation was thrust upon us by Mr. Blair,” and
                                          6

“the only thing we had was survival instincts to, one, protect Officer Goins and

Officer McRavin and, secondarily, to protect the bouncers who came out to assist

us with the other 14 individuals that decided they wanted to jump on us too.”



                               B. Procedural History



      On June 5, 2012, less than a year after the incident, Blair filed his first

lawsuit (Blair I) seeking damages from both the District and the Lotus Lounge. As

to the District, he sought damages based on: (1) vicarious (respondeat superior)

liability for negligence, alleging failure “to take reasonable measures” to protect

Lotus Lounge patrons, including Blair; (2) vicarious liability for assault and battery

by “D.C. police officers,” who allegedly punched and kicked Blair “within the

scope of their employment”; and (3) negligent hiring, training, and supervision of

District police officers. Blair did not name Officer Modlin as a defendant in this

complaint. On December 11, 2012, the trial court granted the District‟s motion to

dismiss Blair‟s complaint pursuant to Super. Ct. Civ. R. 12 (b)(6) for failure to

state a claim. 3 On appeal, we reversed and remanded Blair I, reinstating all counts


      3
         Blair v. Lotus Lounge, No. 13-CV-779, Mem. Op. & J. at 2, 7 (D.C. Sept.
30, 2014) (trial court dismissed all three counts against the District, finding Blair
had failed to allege sufficient facts showing that District police officers were acting
within the scope of their employment at the time of the assault).
                                        7

pled against the District.4



      While Blair I was pending on appeal, Blair filed a second complaint (Blair

II) on May 29, 2014, just shy of three years after the melee, this time seeking

damages from Officer Modlin on two grounds: negligence and gross negligence. 5

Specifically, Blair alleged that “[i]nstead of acting to [defuse] the situation and

keep individuals from harm, [Officer] Modlin joined the melee which was taking

place in front of Lotus Lounge.” The injuries he suffered, Blair continued, were

caused by Officer Modlin‟s negligence, because the officer “had a duty to use

reasonable care to protect individuals from harm,” “had a duty to take reasonable

steps to restrain [Blair],” and “had a duty to act reasonably in the use of force.”

According to the complaint, Officer Modlin also “negligently failed to stop the

altercation or make any attempt to calm the situation,” “negligently engaged in

conduct which created a grave risk of serious bodily injury to [Blair],” failed “to

act as a reasonably prudent police officer would have acted in such a situation,”




      4
        See id. (remanding all three counts in the complaint against the District,
concluding that “[f]urther development of the facts” was necessary to determine
whether MPD officers were acting within the scope of their employment).
      5
       The complaint also sought damages from Lotus Lounge bouncer Timothy
Brown on counts not before us on this appeal.
                                          8

and failed “to follow normal and accepted practices and procedures.”6



      On February 25, 2015, Officer Modlin filed a motion for summary judgment

in Blair II, seeking dismissal of both negligence claims against him as a matter of

law. He argued that, pursuant to the public duty doctrine, he was “shielded from

liability because he was performing a public service.”         In opposing Officer

Modlin‟s motion, Blair replied that the public duty doctrine was inapplicable, as he

was “not simply alleging that [Officer] Modlin failed to protect him from harm

caused by a third party.” Rather, stressed Blair, Officer Modlin was “directly

responsible for negligently injuring [Blair], i.e., joining a melee in front of the

Lotus Lounge nightclub and kicking [Blair].”        Such conduct, he argued, fell

outside protection of the public duty doctrine.



      In a written order on March 17, 2015, the trial court granted summary

judgment for Officer Modlin in Blair II, concluding that, as a matter of law based

      6
         Blair‟s allegations against Officer Modlin for gross negligence are almost
identical to those for negligence. In paragraphs 25 through 27 of the complaint
relating to gross negligence, Blair contends that his injuries “were caused by the
recklessness” of Officer Modlin because Officer Modlin had “acted with reckless
disregard and created a grave risk of serious bodily injury” to Blair. Throughout
the pleadings, neither party nor the trial court distinguishes between the counts for
negligence and gross negligence.           Accordingly, our references to Blair‟s
negligence claims against Officer Modlin hereinafter encompass both the count for
negligence and the one for gross negligence.
                                         9

on the pleadings and discovery, neither of Blair‟s claims could proceed for two

reasons. First, according to this court‟s Woods decision,7 Officer Modlin owed no

duty “to provide general services to the public,” meaning that the “public duty

doctrine” — absent an exception — protected Modlin (as well as his District

employer) from liability. 8   The trial court then rejected the only recognized

exception to the doctrine, concluding it was “clear from the record that no special

duty was owed to Plaintiff,” for he was neither a member of “a particular class of

persons” expressly protected by statute against harm, nor was he in “direct or

continuing contact” with the District government with “justifiable reliance” on

government protection.



      Second, even without regard to the doctrinal bar, the trial court found sua

sponte that, based on his proffered facts, plaintiff Blair had “not raised any

negligence cause of action against Defendant Modlin”; rather, he was attempting,

unpersuasively, to convert an obvious assault into a claim for negligence, in order

to avoid the expired one-year statute of limitations for intentional torts. The court

stressed that, in relying on Officer Modlin‟s criminal conviction for simple assault


      7
          Woods v. District of Columbia, 63 A.3d 551 (D.C. 2013).
      8
         Id. at 553 (noting that officers owe no duty to provide general services to
the public).
                                          10

to support his claims based on negligence, plaintiff Blair was manifestly premising

his case on “intentional conduct, not negligent conduct” and thus was barred by the

limitation period from going forward.



      On July 1, 2015, almost four months after granting Modlin‟s motion for

summary judgment, the trial court consolidated what was left of Blair II (Blair‟s

allegations against Lotus Lounge bouncer, Timothy Brown) with Blair I (Blair‟s

allegations against the District and Lotus Lounge).



      On December 1, 2015, the District filed a motion in Blair I to dismiss all

claims against it premised on Officer Modlin‟s conduct, arguing that they were

barred by res judicata (claim preclusion) based on the trial court‟s March 17, 2015,

summary judgment for the District in Blair II.            Basically the District was

contending that if Modlin‟s conduct did not justify his own liability, then a fortiori

his conduct could not justify the District‟s vicarious (derivative) liability. The trial

court agreed and granted the District‟s dismissal motion on January 6, 2016, ruling

that Blair had “not stated a cause of action against [the District] because the

principle of res judicata bars his claims.” Blair and the District agreed at the time,

however, that the trial court‟s preclusion ruling in Blair I was unclear as to whether

it extended to all its negligence counts, as well as to the count for assault and
                                           11

battery. As a result, the trial court granted the District leave to file a motion for

summary judgment on claims it deemed outstanding, an invitation the District

accepted by addressing each of Blair‟s claims on the merits, forgoing reliance on

res judicata.




      On April 25, 2016, the District filed a motion for summary judgment in

Blair I alleging that, as a matter of law, it could not be held liable for injuries that

Blair had sustained as a result of Officer Modlin‟s conduct because Modlin was not

acting within the scope of his employment. Shortly thereafter on June 10, 2016,

the trial court heard argument and orally granted summary judgment for the

District on Blair‟s two claims based on vicarious liability (respondeat superior), as

well as on his claim for negligent hiring, training, and supervision.



      The trial court implicitly withdrew its January 6, 2016, ruling that dismissed

Blair I based on res judicata. As to vicarious liability for both negligence and

assault and battery, the trial court concluded that



                reasonable jurors could not find that participating in an
                altercation    would      have   been    part    of    his
                duties/responsibilities. Kicking the individual with his
                shoe several times on the ground to the point where the
                plaintiff has lost sight would not have been a part of his
                                            12

             duties and responsibilities.



Thus, in rejecting Blair‟s theory that Officer Modlin had been acting, at least in

part, to serve the District‟s interests, the trial court observed that criminal acts are

the antithesis of police work, and so it was not “foreseeable/expectable” that

Officer Modlin would use excessive force. In sum, Officer Modlin‟s actions did

not fall within the scope of his employment.



      On the negligent hiring, training, and supervision claim, the trial court was

dissatisfied with Blair‟s proffered expert on the national standard of care for

“hiring, training, or retaining the police officer.” The court elaborated:




             With respect to training, what is the specific training at
             issue? What is the training that is required by a national
             standard and then how the defendant breached that
             particular standard? Did they require training on crowd
             control once a year and the District did not have this
             individual trained once a year? Did they have training on
             excessive force and what is the national standard for
             police officers on the issue of excessive force, and the
             District did not have that training in place for this
             particular officer? . . . And with the retention and
             supervision, what would be the . . . national standard to
             retain and to supervise an individual in this particular
             officer‟s position? The allegations by the plaintiff that he
             had problems on his job; that he engaged in other
             misconduct. Well, but what‟s the standard? How many
                                          13

             infractions does it take? What‟s the nature of the
             infractions in terms of police departments across the
             country? That has not been articulated in this opposition
             filed by the plaintiff.



Based on the evidence of record, the trial court found that Blair would be unable to

prove negligent hiring, training, and supervision “mainly because he hasn‟t

established what a national standard [of care] is.” As a jury is not permitted to

“engage in guesswork,” said the court, the District was entitled to judgment as a

matter of law.



                                    II. The Issues



      Blair asserts four grounds for reversal:



      1. The trial court erred in ruling that the “public duty doctrine” barred

recovery against Officer Modlin (Blair II) for actions outside the Lotus Lounge.



      2. The trial court further erred in concluding that Blair‟s claims against

Officer Modlin (Blair II), characterized as negligence actions, were actually

intentional tort actions barred by the one-year statute of limitations.
                                         14

      3. The trial court also erred in ruling as a matter of law (Blair I) that Officer

Modlin was acting outside the scope of his employment at the time of the alleged

assault on Blair, and thus that the District could not be held vicariously liable for

his actions under the respondeat superior theory of recovery.


      4. Finally, the trial court abused its discretion (Blair I) by requiring Blair to

present expert testimony explaining the national standard of care as the predicate

essential to proving his claim that the District had negligently hired, trained, and

supervised Officer Modlin.



               III. Standard of Review for Summary Judgment



      “The question whether summary judgment was properly granted is one of

law, and we review de novo.”9 Summary judgment should be granted only if a

party demonstrates that “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a




      9
         Johnson v. District of Columbia, 144 A.3d 1120, 1125 (D.C. 2016)
(quoting William J. Davis, Inc. v. The Tuxedo LLC, 124 A.3d 612, 617 (D.C.
2015)).
                                         15

judgment as a matter of law.”10 In independently assessing the record, “[w]e view

the facts in the light most favorable to the non-moving party to determine „(1)

whether any genuine issue of material fact exists, and (2) whether appellees are

entitled to judgment as a matter of law.‟”11



      While the moving party bears the burden of demonstrating that there is no

genuine issue of material fact, “conclusory allegations by the nonmoving party are

insufficient to establish a genuine issue of material fact or to defeat the entry of

summary judgment.”12 Any doubt, however, “about the existence of a factual

dispute must be resolved in favor of the non-moving party.”13



                         IV. Alternate Rulings in Blair II



      In Blair II the trial court issued two alternate rulings. The court (1) applied

      10
           Steele v. Salb, 93 A.3d 1277, 1281 (D.C. 2014) (quoting Franco v.
District of Columbia, 39 A.3d 890, 894 (D.C. 2012)).
      11
        Parcel One Phase One Assocs., L.L.P. v. Museum Square Tenants Ass’n,
146 A.3d 394, 398-99 (D.C. 2016) (quoting West End Tenants Ass’n v. George
Wash. Univ., 640 A.2d 718, 725 (D.C. 1994)).
      12
         Johnson, 144 A.3d at 1125 (quoting Hamilton v. Howard Univ., 960 A.2d
308, 313 (D.C. 2008)).
      13
           Klock v. Miller & Long Co., 763 A.2d 1147, 1150 (D.C. 2000).
                                         16

the “public duty doctrine” to immunize Officer Modlin from liability for alleged

simple and gross negligence that resulted in Blair‟s injuries outside the Lotus

Lounge, and (2) rejected sua sponte Blair‟s two “negligence” claims against

Modlin for failure to file suit within the one-year limitation period applicable to

“assault and battery.” As explained below in part V., we sustain the trial court‟s

statute of limitations ruling that bars all recovery against Officer Modlin. Thus, we

need not reach the court‟s initial, merits ruling in Blair II that interposed the

“public duty doctrine” to bar recovery against Officer Modlin for his allegedly

negligent conduct against Blair.



      Moreover, the District has not relied on the public duty doctrine in Blair I

even as a fallback argument, for good reason: Our limitations ruling in Blair II

precludes Blair‟s vicarious liability claims against the District based on the alleged

negligence of Officer Modlin, and the public duty doctrine only permits recovery

for negligent breach of a duty of care — specifically, breach of a duty to protect14


      14
          See Taylor v. District of Columbia, 776 A.2d 1208, 1214 (D.C. 2001) (in
wrongful death and survival action alleging District‟s negligent “failure to protect”
police informant murdered by “known dangerous criminal,” court sustained
summary judgment for District, holding plaintiff had failed to proffer evidence
sufficient to raise genuine issue that decedent had established the “special
relationship” with District police detectives required for recovery under public
duty doctrine); Powell v. District of Columbia, 602 A.2d 1123, 1126 (D.C. 1992)
(“This court has adopted the public duty doctrine to limit the District‟s liability in
                                                                      (continued…)
                                         17

— not for an intentional tort such as assault and battery, the only claim remaining

in Blair I.

                             V. Statute of Limitations



       We begin with the trial court‟s dispositive ruling in Blair II. Blair disputes

the trial court‟s sua sponte ruling that his claims against Officer Modlin for gross

and simple negligence were not sufficiently distinct from assaultive conduct to

fend off dismissal under the one-year statute of limitations for intentional torts.

We cannot agree with Blair; the court ruled correctly.



       Blair brought his simple negligence claim against Officer Modlin based on

Modlin‟s actions leading up to, as well as during, his civil (and criminal) assault on

Blair. In paragraphs 17 through 24 of his complaint Blair alleges that Officer

Modlin failed “to [defuse] the situation” outside the Lotus Lounge, failed “to act as

a reasonably prudent police officer would have acted,” failed “to follow normal

and accepted practices and procedures,” and failed to “respond [] properly to the

situation as it existed.” Blair‟s gross negligence allegations in paragraph 26 focus

(…continued)
negligence cases where sovereign immunity is not a bar to suit.”); id. at 1133
(“There is no allegation in the present case that the District owed Ms. Powell a
duty to rescue or protect her from some pre-existing peril.”) (Schwelb, J.
concurring).
                                           18

on the officer‟s use of force, while stressing that before Officer Modlin had exerted

that force, he had failed to “take reasonable measures” to protect Blair and other

patrons, as well as to “take reasonable steps to restrain” Blair — i.e., to effectuate

his arrest — rather than join the melee.



      The question presented is whether these allegations of negligence, premised

on asserted violations of police regulations as well as the common law, plead

claims, occurring prior to any assault, that the trial court should have entertained

on this record, unaffected by the one-year statutory limitation on civil actions for

assault and battery.



      Confusion about the relationship between intentional torts and negligence in

police brutality suits is not new to this court.15 We have confirmed that “[a]n

individual who has been injured by a District police officer may sue under one or


      15
           Holder v. District of Columbia, 700 A.2d 738, 742 (D.C. 1997)
(“Although we have at times remarked on the similarities and differences of these
causes of action [battery and negligence], we have never precisely delineated them
from one another. . . . That we have previously remarked upon the similarities of
these causes of action is unsurprising because they all fundamentally involve an
inquiry into the reasonableness of the police officer‟s actions.”); see District of
Columbia v. Chinn, 839 A.2d 701, 706 (D.C. 2003) (noting that prior decisions
have “recognized the perhaps somewhat confused and overlapping legal principles
relating to police use of force”) (quoting Holder, 700 A.2d at 742) (internal
quotation marks omitted).
                                            19

more common law theories of legal liability such as assault and battery or

negligence.”16 But “in order to go to the jury, [these claims] must be separate and

distinct from each other, even though related, and each of the two counts must be

supported by the necessary evidence. 17 We have also emphasized that these causes

of action are “mutually exclusive grounds for liability.” 18



      In our Chinn decision, we elaborated upon this “separate and distinct”

requirement. First, we observed that when a police officer‟s privileged use of force

“escalates in an unbroken manner into excessive force, the cause of action is a

battery alone, with the privilege having ended at the point where excessive force

began.”19    In other words, as a general rule, evidence reflecting an unbroken

escalation from permissive to excessive force preempts a lesser negligence claim

based on the same evidence. As we stressed in Chinn, “a plaintiff cannot seek to

recover by „dressing up the substance‟ of one claim, here assault, in the „garments‟


      16
           Chinn, 839 A.2d at 705.
      17
           Id. at 707.
      18
           Id. at 706 (citation omitted).
      19
          Id. at 707; see also Holder, 700 A.2d at 742 (“[E]xcessive force is a term
of art denoting an act of assault or battery by law enforcement officials committed
in the course of their duties”) (quoting District of Columbia v. Tinker, 691 A.2d 57,
64 (D.C. 1997)) (internal quotation marks omitted).
                                         20

of another, here negligence.”20 Indeed, to instruct the jury “on a separate and

distinct tort of negligence” in such circumstances would be not only “doctrinally

unsound,” but also “a potential source of jury confusion.” 21



      This general rule, however, is premised on the parties‟ common

understanding of what happened. We acknowledged in Chinn the possibility that

the evidence in some police brutality cases might be interpreted to tell two,

fundamentally different stories. “[I]n certain circumstances the events surrounding

the application of excessive force may lend themselves to a theory of negligence

. . . involving an independent breach of a standard of care . . . apart from the

intentional tort of battery and the defense of privilege.” 22 We cautioned, however,

that each of our cases which had “upheld submitting both negligence and battery

counts to a jury have common characteristics.” 23 Of the four characteristics we


      20
         Chinn, 839 A.2d at 708 (quoting Sabir v. District of Columbia, 755 A.2d
449, 452 (D.C. 2000)).
      21
           Id. at 707. We added that a separate instruction on negligence applicable
to the same evidence would “raise[] the risk that even where no excessive force is
used, the jury will conclude that some undefined negligence was present for which
relief of some sort is justified.” Id.
      22
           Id.
      23
          Id. at 710. We described four common characteristics of civil actions
against the police in which we had permitted submission of both negligence and
                                                                 (continued…)
                                         21

specified, the one required to justify Blair‟s negligence claims here is the third:

there must be evidence that supports two, “alternate scenarios” explaining what

happened — a scenario that evidenced intentional action (Officer Modlin‟s alleged

battery upon Blair), and a second scenario that manifested “a distinct act of

negligence” by Officer Modlin based on “a misperception of fact” that undermined

any intent to harm Blair but “may have played a part” in Modlin‟s decision to act

with the challenged force. 24



      The civil actions on which we relied in Chinn to justify dual instructions, for

assault and battery and for negligence, were cases involving police shootings in

which the victim and the officer told different stories. For example, in each the

plaintiff claimed that the officer had shot him (or plaintiff‟s decedent) while the


(…continued)
assault and battery claims to the jury: “[1] Each involves the use of deadly force.
[2] Each invokes a police regulation establishing a standard of care with respect
thereto that is arguably distinct from the excessive force standard. [3] Each
involves alternate scenarios in at least one of which a distinct act of negligence, a
misperception of fact, may have played a part in the decision to fire. [4] Each
involves a negligent act that precedes the application of the relevant force of resort
to firearms, i.e., prior to the pulling of the trigger.” Id. at 710-11 (emphasis
added). We have not said that in every case all four characteristics are required to
justify dual instructions for assault and battery (excessive force) and negligence.
Moreover, in this case we need not consider any but the third characteristic.
      24
           Id. at 711.
                                         22

victim was standing still, hands empty. To the contrary, in each case the officer

testified that he had believed the victim had a gun and “turn[ed] around to face” the

officer,25 or had a gun and disobeyed an order “to freeze,”26 or “had a knife” and

came at the officer.27 And thus in each case, the officer allegedly shot in self-

defense — at worst negligently, in violation of police firearm regulations.



      We do not have “alternate scenarios” here. Blair‟s allegations of negligence

leading up to Officer Modlin‟s civil (and criminal) assault on him reflect legal

theories separate and distinct from assault and battery, premised on violation of

police regulations28 and the common law duty of reasonable care.29 But Blair‟s


      25
           District of Columbia v. White, 442 A.2d 159, 162 (D.C. 1982).
      26
           Etheredge v. District of Columbia, 635 A.2d 908, 914 (D.C. 1993).
      27
           District of Columbia v. Evans, 644 A.2d 1008, 1020-21 (D.C. 1994).
      28
          White, 442 A.2d at 163 (“[T]he police regulation on an officer‟s safe use
of firearms established a duty owed decedent, a breach of which would constitute
evidence of negligence”) (footnotes omitted); id. ([“V]iolation of an ordinance
intended to promote safety can give rise to a negligence action.”) (citation and
internal quotation marks omitted); see, e.g., 6-A DCMR § 200.6 (2018) (“On the
occurrence of a disturbance it is the duty of the police to restore order and disperse
the crowd by moderate efforts or persuasion, if possible. If those efforts fail,
[reasonable] force shall be used and the principals arrested.”).
      29
           Woods, 63 A.3d at 553 (“[T]he elements of a cause of action for
negligence are a duty of care owed by the defendant to the plaintiff, a breach of
that duty by the defendant, and damage to the interests of the plaintiff, proximately
                                                                       (continued…)
                                           23

allegations do not rely on a factual scenario different from the one evidencing the

officer‟s escalating conduct, beginning with his verbal dispute with Blair outside

the Lotus Lounge and ending with assault and battery. In fact, Blair claims no

injury traceable to Officer Modlin‟s “negligent” actions that were “separate and

distinct”30 from Modlin‟s assaultive conduct. He does not dispute that all the

evidence is “intertwined with and dependent on” the melee. 31          Thus “[a]ny

„negligence‟ was inherent in the battery itself.” 32




      We summarized in Chinn that “if, in a case involving the intentional use of

force by police officers, a negligence count is to be submitted to a jury, that

negligence must be [1] distinctly pled[,] [2] based upon at least one factual

scenario that presents an aspect of negligence apart from the use of excessive force




(…continued)
caused by the breach.”) (quoting Taylor, 776 A.2d at 1214).
      30
           Chinn, 839 A.2d at 707-08.
      31
          Stewart-Veal v. District of Columbia, 896 A.2d 232, 235 (D.C. 2006)
(upholding trial court‟s dismissal of negligence count because “it [wa]s not
separate and distinct from the false arrest claim”).
      32
           Chinn, 839 A.2d at 711.
                                          24

itself[,] and [3] violative of a distinct standard of care.” 33 Blair has failed to meet

the second, alternate factual scenario requirement. Thus, he has pled no separate,

legally cognizable claim of negligence against Officer Modlin individually. 34 In

sum, the evidence supporting Blair‟s negligence counts against the officer —

mirroring his assault and battery count against the District based on respondeat

superior — supports only an assault and battery claim, preempts a negligence

claim, and thus runs afoul of the one-year statute of limitations applicable to

intentional torts. 35


       33
          Id. at 708, 711 (“In other words, a plaintiff cannot seek to recover by
„dressing up the substance‟ of one claim, here assault, in the „garments‟ of another,
here negligence.”) (quoting Sabir, 755 A.2d at 452).
       34
          See id. at 711 (“The crux of Chinn‟s claim is that the officers deliberately
inflicted excessive force upon him, and the evidence he presented at trial was that
officers continuously assaulted him without provocation. Chinn did not argue that
the officers mistakenly or negligently thought Chinn was armed; Chinn did not
allege that the officers misperceived him as a threat.”).
       35
            The federal courts in this jurisdiction also have applied the alternate
scenario approach to permitting dual jury instructions, for negligence and assault
and battery, in police brutality lawsuits. See Moore v. District of Columbia, 79 F.
Supp. 3d 121, 147 (D.D.C. 2015) (within jury‟s purview to determine whether
excessive force negligence claim was sufficiently pled given “disputed versions of
the event,” where “plaintiffs allege[d] that the defendant MPD officers exchanged
signals as part of [an officer‟s] coordinated plan to tackle, intentionally, both
plaintiffs,” compared to defendant‟s assertion that plaintiff “initiated contact with”
officers) (internal quotation marks omitted); Dormu v. District of Columbia, 795 F.
Supp. 2d 7, 30-31 (D.D.C. 2011) (plaintiff‟s “evidence, viewed in a light most
favorable to him, can support [two] scenarios—that is, that [the officer] either
intentionally applied the handcuffs tightly and deliberately failed to lock the
                                                                        (continued…)
                                          25

                              VI. Vicarious Liability



      Although we affirm summary judgment for Officer Modlin individually on

Blair‟s negligence claims against him in Blair II, that judgment does not affect

Blair‟s vicarious liability claim against the District based on the officer‟s

acknowledged (criminal) assault and battery on Blair, as that assault and battery

claim was filed against the District of Columbia (but not against Officer Modlin)

within the one-year limitation period for intentional torts.



      The District maintains, nonetheless, that summary judgment was properly

granted in Blair I because the undisputed facts show, as a matter of law, that

Officer Modlin was not acting within the scope of his employment when he

criminally assaulted Blair. In Blair‟s complaint against the District, he alleges two

theories of vicarious liability: assault and battery and negligence. We address

(…continued)
handcuffs, or that he recklessly believed that he had properly applied the
handcuffs. In this sense, [plaintiff‟s] claim is similar to other cases in which
plaintiffs have been allowed to submit both [negligent and assault and battery]
theories of liability to a jury.”); Austin v. District of Columbia, No. 05-CV-2219,
2007 WL 1404444, at *5 (D.D.C. May 11, 2007) (evidence established
“conflicting accounts of the facts” — one where plaintiff believed the officer
“struck him without provocation” and the other where the officer believed plaintiff
was swinging at him — which indicates “some similarity between this suit and the
line of cases in which both battery and [excessive force] negligence claims have
properly been submitted to the jury”).
                                         26

only Blair‟s assault and battery claim because, absent the negligence claimed

against Officer Modlin (as we rejected above), there is no employee negligence for

which the District can be held vicariously liable.



      “Respondeat superior is a doctrine of vicarious liability” that imposes

liability on employers for tortious and negligent “acts of [their] employees

committed within the scope of their employment.” 36        Generally, “whether an

employee is acting within the scope of his employment is a question of fact for the

jury.”37 It becomes a question of law, however, “if there is not sufficient evidence

from which a reasonable juror could conclude that the action was within the scope

of the employment.” 38 Thus, the precise question before us is whether Officer


      36
         Schecter v. Merchants Home Delivery, Inc., 892 A.2d 415, 427 (D.C.
2006) (quoting Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 29 (D.C. 1979));
see also Holder, 700 A.2d at 741-42 (noting that respondeat superior applies to
both negligent and intentional torts of Metropolitan Police Department officers
who are acting within the scope of their employment).
      37
           Brown v. Argenbright Sec., Inc., 782 A.2d 752, 757 (D.C. 2001).
      38
          Id. (quoting Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C.
1984)); accord Schecter, 892 A.2d at 428 (“Further, when all reasonable triers of
fact must conclude that the servant‟s act was independent of the master‟s business,
and solely for the servant’s personal benefit, then the issue becomes a question of
law, and the master is entitled to judgment.”) (emphasis in original) (internal
citation and quotation marks omitted); Penn Cent. Transp. Co., 398 A.2d at 29
(“The words „scope of employment‟ have no precise legal meaning and thus, the
determination of scope of employment is dependent upon the facts and
                                                                     (continued…)
                                         27

Modlin‟s allegedly tortious conduct outside the Lotus Lounge was wholly outside

the scope of his employment, or instead was committed — at least in part —

within that scope. Contrary to the trial court, we conclude as a matter of law that a

reasonable jury could find that Officer Modlin‟s actions came within the scope of

his employment.



      “To be within the scope of employment, the tortious activity „must be

actuated, at least in part, by a purpose to further the master‟s business,‟ and this

„intent or purpose excludes from the scope of employment all actions committed

solely for the servant‟s own purposes.‟”39 Thus, to come within that scope, an

employee‟s actions need not be wholly in furtherance of the employer‟s business.

Indeed, “if the employee acts in part to serve his employer‟s interest, the employer

will be held liable for the intentional torts of his employee even if prompted

partially by personal motives, such as revenge.” 40 While the conduct need only be


(…continued)
circumstances of each case.”).
      39
            District of Columbia v. Bamidele, 103 A.3d 516, 525 (D.C. 2014)
(quoting Weinberg v. Johnson, 518 A.2d 985, 990 (D.C. 1986)) (brackets and
alterations omitted).
      40
          Id. (quoting Hechinger Co. v. Johnson, 761 A.2d 15, 24 (D.C. 2000)); see
also Weinberg, 518 A.2d at 991 (“As the law has evolved, the intent or purpose
criterion has become broad enough to embrace an intentional tort arising out of any
                                                                     (continued…)
                                         28

in part to serve the employer‟s interests, the employee‟s “tortious conduct must . . .

be foreseeable to the employer, meaning that it is „a direct outgrowth of the

employee‟s instructions or job assignments.‟”41



      The District relies primarily on two judicial decisions to convince us that

this case, too, presents a situation similar to those in which assaults committed by

off-duty police officers were outside the scope of each officer‟s employment. In

District of Columbia v. Coron,42 the victim of an assault by two off-duty police

officers based liability for his injuries upon regulations that “require officers

always to be „on duty‟ and to carry their service revolvers, badges, and

identification cards” — assertedly evidence sufficient to show that each officer‟s

actions were within the scope of his employment. 43 In rejecting this argument, we


(…continued)
dispute that „was originally undertaken on the employer‟s behalf.‟”) (quoting Int’l
Distrib. Corp. v. Am. Dist. Tel. Co., 569 F.2d 136, 139 (D.C. Cir. 1977)).
      41
         Bamidele, 103 A.3d at 525 (quoting Herbin v. Hoeffel, 886 A.2d 507, 509
(D.C. 2005)).
      42
           515 A.2d 435 (D.C. 1986).
      43
           Id. at 438. In Coron, a pedestrian kicked a police officer‟s personal
automobile after the officer almost struck the pedestrian in a crosswalk. Id. at 436-
37. The officer and his friend, a fellow officer, then left the car and began
repeatedly punching the pedestrian. Id. at 437. While assaulting the pedestrian,
the officer exclaimed, “who the hell do you think you are, kicking my car. I‟m a
                                                                       (continued…)
                                           29

explained that a scope of employment defined exclusively by reference to such

regulations would be too broad.



       For example, we do not “interpret such regulations as imposing liability on

an employer for the intentional torts of its employee” when, as we held in Coron,

“the employee‟s conduct was motivated solely by personal reasons.” 44 Otherwise,

we said, the District would be vulnerable to liability “regardless of the nature of an

officer‟s conduct.”45 Accordingly, courts assess, as best they can, the facts relevant

to discerning the motivation underlying an officer‟s conduct. We began in Coron,

for example, with evidence that the allegedly offending officer 46 was “dressed in

civilian clothing and driving his own automobile on a purely personal venture at

the time of the incident.” 47 Although the officers had displayed their badges after


(…continued)
policeman.” Id. As the officers were leaving, the pedestrian questioned whether
“they were really police officers.” Id. Both officers then displayed their badges
and one of them said, “we both have guns and we know how to use them.” Id.
       44
            Id. at 438.
       45
            Id.
       46
            The case against the second officer was dismissed before trial. Id. at 437
n.2.
       47
            Id. at 438.
                                          30

the assault and identified themselves as police officers, we declined to find that the

officer on trial was acting within the scope of his employment based on those mere

actions alone.48 We concluded instead that the officer‟s “entire behavior during

this incident reflected that of an individual bent on personal vengeance for a

perceived personal affront.” 49



      Similarly, in District of Columbia v. Bamidele,50 we revisited the question

whether off-duty police officers were acting within the scope of their employment

after officers assaulted a couple (the Bamideles) at a restaurant. 51 Concluding that

the evidence was insufficient to hold the District vicariously liable for the officers‟


      48
           Id.
      49
           Id.
      50
           103 A.3d 516 (D.C. 2014).
      51
           In Bamidele, for purely personal reasons, three off-duty and out-of-
uniform officers went to a local restaurant where a confrontation erupted between
the officers and a group of unidentified men arising from an attempted sexual
assault on one of the officers. Id. at 519. As part of the altercation, the officers
and unidentified men engaged in a food fight where they tossed both food and
objects at one another across the restaurant. Id. While tossing objects, one of the
officers threw a plate toward the unidentified men, and it shattered against the wall
near Mrs. Bamidele‟s head, although neither she nor her husband had been
involved in the initial altercation. Id. When confronted by Mr. Bamidele about the
plate‟s almost striking his wife, one of the officers (who did not throw the plate)
punched Mr. Bamidele. Id. at 520. The “officers then viciously assaulted” the
couple. Id.
                                           31

assaultive actions, we explained that, although “at least initially, [the officers]

intended to take police action against the unidentified men in response to an

assault” on one of the officers, “they did not intend to take police action against”

the Bamideles.52 “[N]or did the Bamideles become accidentally entangled in the

officers‟ scuffle with the unidentified men.”53 Rather, the assault on the Bamideles

“seem[ed] to have been precipitated by Mr. Bamidele‟s comment” to one of the

officers regarding a plate almost striking his wife. 54    The officers‟ assaultive

conduct against the Bamideles, therefore, was in no way connected to, or in

furtherance of, their duties as police officers.



      Unlike in Coron and Bamidele, the evidence here reveals that Officer

Modlin‟s professional and personal motives for his actions toward Blair were

significantly intertwined. In his deposition testimony, Officer Modlin attested that

before the altercation erupted, he and Blair had an exchange outside the Lotus

Lounge concerning Blair‟s drunken behavior. Officer Modlin identified himself as

a police officer, displayed his badge “that was sitting on [his] hip,” and directed



      52
           Id. at 525-26.
      53
           Id. at 526.
      54
           Id.
                                            32

Blair to calm down and leave the area. 55 Officer Modlin considered himself “on

duty . . . as the events were unfolding.”



      At a certain point, moreover, Officer Modlin began to react to an assault on

fellow officers, as well as on bouncers from the Lotus Lounge — as was his duty.56

Officer Modlin testified on deposition that he “didn‟t enter the altercation; the

altercation was thrust upon” him, and that “the only thing [he] had was survival

instincts to, one, protect Officer Goins and Officer McRavin and, secondarily, to

protect the bouncers who came out to assist us.” When questioned about his

decision not to “interven[e] as a police officer to effect an arrest” after the assault

on one of his fellow officers, he explained “it wasn‟t feasible”; “it was total

chaos”; and “[t]o sit there and try to detain one of them would have meant that we

would have subjected ourselves to possibly being assaulted while trying to hold

him there, as we didn‟t have handcuffs.”57 We believe that a jury could reasonably


      55
           Cf. Coron, 515 A.2d at 437-38 (after leaving his car and approaching the
plaintiff for personal reasons, officer displayed his badge and identified himself as
a police officer after assaulting plaintiff).
      56
           See D.C. Code § 5-115.03 (2012 Repl.) (“If any member of the police
force shall neglect making any arrest for an offense against the laws . . . committed
in his presence, he shall be deemed guilty of a misdemeanor . . . .”).
      57
            Officer Modlin described his thought-process the night of the assault. He
attested:
                                                                        (continued…)
                                         33

infer from this testimony that Officer Modlin‟s eventual assault on Blair was an

“outgrowth of the [District‟s] instructions or job assignment” or “an integral part of

the [District‟s] business activity, interests, or objectives” pursuant to D.C. Code §

5-115.03.58



      The District argues, however, that Officer Modlin‟s additional testimony —

that he had been struck in the back of the head just before entering the melee — is

evidence that his actions were driven only to satisfy a personal vendetta. To be

sure, this is evidence that Officer Modlin may have been motivated to join the

melee, in part, because he was struck in the back of the head. But evidence of

partial motivation is not conclusive as to whether an employee‟s conduct is outside

the scope of employment. To reinforce the rule identified earlier, we stress that an


(…continued)

              Now, you may ask yourself, why didn‟t we lock him up
              at that point? Because that would have been like sticking
              a stick into a bee hive, knowing that all these guys out
              there are drunk; as soon as we put our hands on them,
              seeing that he doesn‟t — has no care or respect — that
              we‟re the police, that we‟re going to get into a fight.
      58
         Penn Cent. Transp. Co., 398 A.2d at 32; see also Brown, 782 A.2d at 758
(summary judgment for employer improperly granted on ground that conduct was
not within scope of employment, where employee (security guard), who searched
customer with “reason to believe that his employer‟s interests had been affected,”
then sexually assaulted the customer).
                                          34

employee‟s conduct will be outside that scope only if the employee‟s actions are

“entirely disconnected from the work of the master, or the actions . . . were done

solely for the accomplishment of the independent . . . mischievous purpose of the

servant.”59 The District has not identified any evidence, nor can we discern any of

record, that demonstrates Officer Modlin was engaged in a purely personal venture

unmotivated in any way by furthering the interests of the Metropolitan Police

Department.60



      Viewing the evidence presented (in particular, both Blair‟s and Officer

Modlin‟s deposition testimonies) in the light most favorable to Blair, as we must,

we conclude that a reasonable jury could find that Officer Modlin‟s conduct was,

at least in part, actuated in furtherance of the District‟s interests. Accordingly, the


      59
           Bamidele, 103 A.3d at 530 (Reid, J. concurring in part and dissenting in
part) (quoting Great A&P Tea Co. v. Aveilhe, 116 A.2d 162, 165-66 (D.C. 1955))
(internal quotation marks omitted).
      60
          Compare id. at 525-26 (officers‟ conduct outside scope of employment
where officers assaulted an innocent bystander while engaged in a food fight with
unidentified restaurant patrons); Boykin, 484 A.2d at 562 (no vicarious liability for
teacher‟s sexual assault of student at school during school day as teacher‟s assault
“was in no degree committed to serve the school‟s interest, but rather appears to
have been done solely for the accomplishment of [the teacher‟s] independent,
malicious, mischievous and selfish purposes”); Penn Cent. Transp. Co., 398 A.2d
at 32 (employee‟s assault on cab driver was outside scope of employment where
altercation was in no degree connected to employment or employer‟s interests but
rather was done solely to achieve employee‟s personal motives).
                                           35

District was not entitled to summary judgment. Whether Officer Modlin‟s assault

on Blair during the melee outside the Lotus Lounge was motivated in part by his

desire to serve the District as a police officer, or was entirely motivated by his

desire for vengeance upon being struck, are questions of fact for a jury to answer.



                VII. Negligent Hiring, Training, and Supervision



      Blair asserts, finally, that expert testimony was not required to establish the

standard of care governing his negligent hiring, training, and supervision claim

because, he says, “common sense alone suggests the District failed in its duty to

properly supervise — or terminate — a police officer such as Modlin, who already

had been disciplined on ten separate occasions prior to the underlying incident.”

We conclude, to the contrary, that although there conceivably could be negligent

supervision claims for which lay jurors would be able to “grasp the issues without

expert assistance,”61 the trial court did not abuse its discretion in ruling that Blair‟s

claim was not one of them.



      In an action against an employer for negligent supervision, liability is


      61
           District of Columbia v. Tulin, 994 A.2d 788, 795 (D.C. 2010).
                                         36

“predicated upon the employer‟s direct negligence, rather than under a theory of

vicarious liability based on the employee‟s negligence.” 62 “To establish a cause of

action for negligent supervision, a plaintiff must show: that the employer „knew or

should have known its employee behaved in a dangerous or otherwise incompetent

manner, and that the employer, armed with that actual or constructive knowledge

failed to adequately supervise the employee.‟”63       Negligent supervision and

retention claims therefore require “proof that the employer breached a duty to

plaintiff to use reasonable care in the supervision or retention of an employee

which proximately caused harm to plaintiff.”64



      For a plaintiff to satisfy the applicable standard of care, we have often,

      62
          Phelan v. City of Mount Rainier, 805 A.2d 930, 937 (D.C. 2002) (“When
the employer itself breaches a duty of care which proximately results in injury to a
third party, „the employer may be liable even though the injury was brought about
by the willful act of the employee beyond the scope of his employment.‟”)
(quoting Fleming v. Bronfin, 80 A.2d 915, 917 (D.C. 1951)).
      63
           Id. at 937-38 (quoting Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C.
1985)).
      64
          Id. at 940; accord Schecter, 892 A.2d at 431 (“One dealing with the
public is bound 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 unfit
employee. When an employer neglects this duty and as a result injury is
occasioned to a third person, the employer may be liable even though the injury
was brought about by the willful act of the employee beyond the scope of his
employment.”) (quoting Fleming, 80 A.2d at 917).
                                          37

though not always, required expert testimony. 65 “The decision whether to admit or

require expert testimony on a particular state of facts is confided to the sound

discretion of the trial court, and we have described that discretion as „broad.‟” 66



      Thus, the question here is whether the trial court abused its discretion in

requiring expert testimony to establish the standard of care. We have frequently

“affirmed trial court rulings that expert testimony is required to establish the

standard of care in negligence cases that involve „issues of safety, security and

crime prevention.‟”67 Consistent with those rulings, we can find no basis for

upsetting the trial court‟s determination that expert testimony was required because

      65
           See Clark v. District of Columbia, 708 A.2d 632, 634 (D.C. 1997).
      66
          Varner v. District of Columbia, 891 A.2d 260, 266 (D.C. 2006); accord
Tulin, 994 A.2d at 795.
      67
           Night & Day Mgmt., LLC v. Butler, 101 A.3d 1033, 1039 (D.C. 2014)
(citations omitted); see also District of Columbia v. Peters, 527 A.2d 1269, 1273
(D.C. 1987) (“Here, the question whether the District was negligent in failing to
train its police officers adequately with regard to dealing with mentally disturbed
persons or persons under the influence of drugs could be answered only if the jury
was made aware of recognized standards concerning such training.”); White, 442
A.2d at 164-65 (“[Q]uestions of adequate weapons safety training and evaluation
are technical questions not sufficiently within the common experience of jurors to
obviate the need for expert testimony” at trial before jury); cf. Tulin, 994 A.2d at
795-97 (no expert testimony concerning applicable standard of care was required
where sergeants authorized arrest of plaintiff, without questioning the detective
making the arrest as to her reckless driving prior to arrest, because violation of
standard of care in this case was within realm of common knowledge and every
day experience).
                                           38

the activities at issue here — training, supervision, and retention of police officers

— are not within the common, everyday experiences of laypersons.68



      Nonetheless, says Blair, the testimony of his two experts, who “are familiar

with the applicable standard of care,” satisfied the requirements for expert

testimony and created a genuine dispute of material fact as to the District‟s

liability. Thus, “any perceived deficiency,” he says, “goes to the weight of the

experts‟ testimony, not the admissibility of the experts‟ testimony.”



      We do not agree. In a case such as this one, where “the plaintiff must

depend on expert testimony, it is not sufficient for the expert to explain what he or

she would have done under similar circumstances, or to declare that the District

violated the national standard of care.” 69 To the contrary, “the expert must clearly

articulate and refer to a standard of care by which the defendant‟s actions can be

measured.”70 The present case is no different. Both experts testified in deposition


      68
         See Holder, 700 A.2d at 741 (requiring expert testimony to establish
whether officer violated standard of care when he shot an individual).
      69
          Pannell v. District of Columbia, 829 A.2d 474, 479 (D.C. 2003) (quoting
Phillips v. District of Columbia, 714 A.2d 768, 773 (D.C. 1998)).
      70
           Id. (quoting Phillips, 714 A.2d at 773).
                                          39

in conclusory terms that, in their opinions, the District‟s supervision of Officer

Modlin fell below “the national standard of care,” and that the District should have

taken stronger disciplinary action against Officer Modlin, “a troubled employee”

with a history of excessive force complaints. But, as the trial court explained at

length, the record contains no elaboration as to what the national standard requires

for training, retention, and supervision of police officers, or how the District‟s

actions were deficient. Such conclusory statements are insufficient to establish a

standard of care.71



      Discerning no abuse of discretion in the trial court‟s findings, we conclude

that summary judgment for the District was appropriately granted on Blair‟s claim

for negligent supervision and training.        That said, we reiterate the concerns

articulated in our prior decision in this case: “The allegation that appellant, a mere

bystander to an altercation, was attacked as he lay on the ground raises serious

questions regarding the District‟s training of its officers,” particularly in light of

the record evidence of Officer Modlin‟s pattern of excessive force, both in and out


      71
          See Etheredge, 635 A.2d at 917-18 (“[Plaintiff] introduced no evidence as
to the circumstances under which Officer Paige was hired, or as to the nature and
the sufficiency of the training and supervision provided to Paige. The plaintiff‟s
expert witness testified in conclusory terms that, in his opinion, the „training in this
case was improper,‟ but the record contains no factual elaboration of the respect in
which this was true.”).
                                       40

of uniform. 72



                               VIII. Conclusion



      We affirm summary judgment for Officer Modlin on Blair‟s claims for

negligence and gross negligence, as well as for the District on Blair‟s claims for

negligence and for negligent hiring, training, and supervision.       We reverse

summary judgment for the District on Blair‟s claim for assault and battery based

on respondeat superior. We remand the case for further proceedings consistent

with this opinion.



                                      So ordered.




      72
          See Blair v. Lotus Lounge, No. 13-CV-779, Mem. Op. & J. at 7 (D.C.
Sept. 30, 2014); supra note 3.
