UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


    EMMA SANDBERG,
                Plaintiff,

           v.                                               Civil Action No. 18-666 (CKK)

    NATHANIEL VINCENT,

                Defendant.


                                    MEMORANDUM OPINION
                                       (February 26, 2019)

          Defendant Nathaniel Vincent has filed a motion to dismiss one of the two counts in Plaintiff

Emma Sandberg’s Complaint. Upon consideration of the briefing, 1 the relevant legal authorities,

and the record as a whole, the Court finds that Ms. Sandberg has failed to state a claim of

negligence or gross negligence. Accordingly, the Court shall GRANT Mr. Vincent’s [9] Motion

to Dismiss, in Part, Plaintiff’s Complaint and shall DISMISS Count II of that Complaint.

                                         I. BACKGROUND

          Ms. Sandberg’s pertinent factual allegations are relatively straightforward, and the Court

accepts them as true for purposes of this motion. See Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam); see also Mem. Op., Sandberg v. Vincent, 319 F. Supp. 3d 422, 425 (D.D.C. 2018),

ECF No. 15 (summarizing those allegations previously).


1
    The Court’s consideration has focused on the following pleadings:

      •   Mem. in Supp. of Def. John Doe’s Mot. to Dismiss, in Part, Pl. Joel Sandberg’s Compl.,
          ECF No. 9-2 (“Def.’s Mem.”);
      •   Mem. of P&A in Opp’n to Def.’s Partial Mot. to Dismiss, ECF No. 11 (“Pl.’s Opp’n”); and
      •   Def. John Doe’s Reply in Supp. of His Mot. to Dismiss, in Part, Pl.’s Compl., ECF No. 12
          (“Def.’s Reply”).

                                                   1
        According to the Complaint, Plaintiff and Defendant met on the evening of July 22, 2017,

during a gathering initiated by Ms. Sandberg’s roommates at their D.C. apartment. Compl., ECF

No. 1, ¶¶ 11, 14. Both Ms. Sandberg and Mr. Vincent were from other states; each was living in

the nation’s capital only for the summer. Id. ¶¶ 4-6, 9, 10. The evening’s agenda included a

“pregame” for drinking purposes before the ostensible main event of heading to the club. Id. ¶¶ 11-

13, 15. Both Ms. Sandberg and Mr. Vincent drank alcohol during the pregame, to the point that

Ms. Sandberg “became increasingly—and very visibly—intoxicated.” Id. ¶¶ 13, 15, 17.

        As a 17-year-old, Ms. Sandberg planned to skip the clubbing, which she understood was

off limits to her, but evidently she thought Mr. Vincent, a rising college sophomore, would be

among the partygoers departing for that venue. Id. ¶¶ 12, 18, 19. Although Ms. Sandberg had

divulged her phone number to Mr. Vincent, at his request, earlier in the evening, id. ¶ 16, there is

no indication that she made a reciprocal request for his number or invited him to linger. To her

surprise, however, she discovered that Mr. Vincent was in the restroom until after the others had

left. Id. ¶¶ 19, 20.

        Despite Ms. Sandberg’s repeated exhortations that Mr. Vincent then hasten to join the

group, he stayed and repeatedly insisted that she drink more alcohol, namely the remainder of a

tequila bottle. Id. ¶¶ 21-24. “Hoping that it would make him leave her alone,” she reluctantly

complied. Id. ¶¶ 24-27. “As [Ms. Sandberg thereafter] slipped in and out of consciousness, [Mr.

Vincent] carried her to the bedroom, where he proceeded to force sexual intercourse upon her

without her consent.” Id. ¶¶ 28, 29. Only upon her slow realization and yell “in pain and fear, at

the top of her lungs” did Mr. Vincent discontinue, after some time. Id. ¶¶ 30, 31.

        On Ms. Sandberg’s behalf, her father brought this action against Mr. Vincent, seeking

$3,000,000 in compensatory and punitive damages, in addition to interest and costs, for allegations



                                                 2
of sexual assault and battery (Count I), and negligence and gross negligence (Count II). Id. ¶¶ 33-

41. Mr. Vincent has moved to dismiss only Count II.

        While this motion was pending, Ms. Sandberg attained the age of majority and was

substituted for her father as the real party in interest in this case. See Min. Order of Aug. 9, 2018. 2

The Court also denied Mr. Vincent’s motion to proceed in this case under pseudonym. Sandberg,

319 F. Supp. 3d 422. Briefing having concluded, Mr. Vincent’s motion is now ripe for resolution.

                                     II. LEGAL STANDARD

        The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord

Erickson, 551 U.S. at 93. Although “detailed factual allegations” are not necessary to withstand a

Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff

must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a

cause of action.” Twombly, 550 U.S. at 555 (citing, e.g., Papasan v. Allain, 478 U.S. 265, 286

(1986)). Instead, a complaint must contain sufficient factual matter, accepted as true, to “state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 556, 570; Erickson, 551 U.S. at

93. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The complaint must




2
 That substitution occurred after Ms. Sandberg’s father had filed an opposition to Mr. Vincent’s
partial motion to dismiss. Nevertheless, the Court shall refer to the opposition brief as though Ms.
Sandberg herself, the true party in interest throughout, had made these arguments herself.

                                                   3
establish “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing

Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—

‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

                                         III. DISCUSSION

        There is no dispute that Ms. Sandberg properly invokes the Court’s diversity jurisdiction

over her common law claims. See 28 U.S.C. § 1332(a)(1); Compl. ¶¶ 1, 3-5, 33-41 (alleging

diverse citizenship and a sufficient amount in controversy). Both parties cite D.C. standards for

Ms. Sandberg’s common law claims.            See, e.g., Def.’s Mem. at 3 n.1; Pl.’s Opp’n at 3.

Accordingly, the Court finds that Ms. Sandberg has waived any available choice-of-law objection

to applying the tort law standards of the District of Columbia. See, e.g., CSX Transp., Inc. v.

Commercial Union Ins. Co., 82 F.3d 478, 482-83 (D.C. Cir. 1996) (suggesting that choice-of-law

argument can be waived); Plesha v. Ferguson, 725 F. Supp. 2d 106, 111 n.2 (D.D.C. 2010) (Kollar-

Kotelly, J.) (citing Davis v. Grant Park Nursing Home LP, 639 F. Supp. 2d 60, 65 (D.D.C. 2009))

(finding waiver). In any case, the District of Columbia is not only the forum jurisdiction but also

where all of the alleged activity occurred. See Felder v. WMATA, 174 F. Supp. 3d 524, 528

(D.D.C. 2016) (citing, e.g., In re APA Assessment Fee Litig., 766 F.3d 39, 51, 53 (D.C. Cir. 2014);

Restatement (Second) of Conflict of Laws § 145 (Am. Law Inst. 1971)).

        Mr. Vincent challenges Count II on two primary grounds. First, he argues that there is no

gross negligence claim under D.C. law in this context, where no statute specifically provides for

such a claim. Def.’s Mem. at 4-6. Second, Ms. Sandberg purportedly fails to sufficiently plead

the elements of a negligence claim, which would be fatal to both the negligence and gross

negligence claims. See id. at 4, 6-15.



                                                   4
       The Court shall address these arguments in reverse order, for the second argument may be

sufficient to dispose of Ms. Sandberg’s Count II in entirety. Even if the pleading deficiencies in

Ms. Sandberg’s negligence claim are not likewise dispositive of her gross negligence claim,

however, the Court agrees that Ms. Sandberg has failed to show that a gross negligence claim is

available to her.

       For convenience, the Court shall refer to Ms. Sandberg’s negligence and gross negligence

allegations as attempting to plead separate claims. Because the Court shall find that both the

negligence and gross negligence allegations in Ms. Sandberg’s Complaint independently warrant

dismissal, the Court need not reach the issue of whether consolidating them in a single count was

procedurally proper. See Pl.’s Opp’n at 6-7; Def.’s Reply at 7-8. Any of Ms. Sandberg’s other

arguments that the Court does not expressly address below are unavailing.

       A. Negligence Claim

       In this jurisdiction, “a claim alleging the tort of negligence must show: (1) that the

defendant owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the plaintiff that

was proximately caused by the breach.” Poola v. Howard Univ., 147 A.3d 267, 289 (D.C. 2016)

(quoting Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 793 (D.C. 2011)) (alteration and

internal quotation marks omitted). In Count II, Ms. Sandberg pleads that Mr. Vincent “owed [her]

a duty of ordinary care”; that “[t]hrough his actions on the night of July 22, 2017, [he] breached

this duty”; and “[a]s a direct and proximate result of [his] negligent and/or grossly negligent

unconsented physical contact, [she] has sustained numerous physical injuries, as well as pain and

mental anguish, and has incurred medical expenses and other damages.” Compl., ECF No. 1,

¶¶ 38, 39, 41.




                                                 5
        But this is effectively only “a formulaic recitation of the elements of a cause of action,”

which is insufficient to plead a valid claim. Twombly, 550 U.S. at 555. Moreover, the District of

Columbia Court of Appeals has chastised this kind of deficiency specifically in the negligence

context. In Maddox v. Bano, the complaint alleged that police officers “carelessly and negligently”

arrested the plaintiff, but the court found that these “conclusory assertions” alone were not enough

to establish breach of a duty. 422 A.2d 763, 764 (D.C. 1980).

        Perhaps anticipating that difficulty, Ms. Sandberg identifies the formulaic allegations in

her Count II as pled “in the alternative” to the specific factual allegations earlier in the Complaint.

Compl., ECF No. 1, ¶ 37. But Ms. Sandberg makes no effort in her opposition brief to match up

the factual allegations in her Complaint with the duty and breach elements of her negligence claim,

which are the two elements that Mr. Vincent challenges. See Def.’s Mem. at 6. The Court shall

nevertheless consider whether the allegations in her Complaint are sufficient to satisfy the

negligence elements.

        The Court’s inquiry into the negligence elements starts with Mr. Vincent’s duty, if any.

“The foundation of modern negligence law is the existence of a duty owed by the defendant to the

plaintiff. Negligence is a breach of duty; if there is no duty, there can be no breach, and hence no

negligence.” Gilbert v. Miodovnik, 990 A.2d 983, 988 (D.C. 2010) (quoting N.O.L. v. District of

Columbia, 674 A.2d 498, 499 n.2 (D.C. 1996)) (internal quotation marks omitted). “Whether the

facts in the record give rise to a legal duty . . . is ‘an issue of law to be determined by the court as

a necessary precondition to the viability of a cause of action for negligence.’” Newmyer v. Sidwell

Friends Sch., 128 A.3d 1023, 1034-35 (D.C. 2015) (quoting Hedgepeth, 22 A.3d at 810-11).

        To answer this question of law, the D.C. Court of Appeals has sanctioned a “‘foreseeability

of harm test’ that is determined, in large part, by the nature of the relationship between the parties.”



                                                   6
Hedgepeth, 22 A.3d at 794 (quoting Odemns v. District of Columbia, 930 A.2d 137, 143 (D.C.

2007) (per curiam)). But “a determination of whether a duty exists is the result of a variety of

considerations and not solely the relationship between the parties.” Bd. of Trs. of Univ. of Dist. of

Columbia v. DiSalvo, 974 A.2d 868, 871 (D.C. 2009). “Whether a duty exists is not simply a

question of foreseeability [either]. It is ultimately a question of fairness and involves a weighing

of the relationship of the parties, the nature of the risk, and the public interest in the proposed

solution.” Gilbert, 990 A.2d at 995 n.16 (quoting Knippen v. Ford Motor Co., 546 F.2d 993, 1000

(D.C. Cir. 1976)) (internal quotation marks omitted). That said, the various factors to consider

should not obscure what the D.C. Court of Appeals has characterized as “the key to determining

whether the defendant had a legally enforceable duty to the plaintiff,” namely the parties’

relationship, if any. Hedgepeth, 22 A.3d at 794 (quoting Bd. of Trs. of Univ. of Dist. of Columbia,

974 A.2d at 871 n.1).

       Under the foreseeability of harm test, a defendant typically only assumes a duty of care

towards a plaintiff “[o]nce the defendant enters into a relationship.” Id. at 794 & n.3 (recognizing

“minimal duty—if any—owed to a party who is at arms’ length”). In the context of a relationship,

an individual is more likely to be held responsible for observing “foreseeable risks” to one or more

others that could arise from her “failure to complete an undertaking.” Id. at 794. Whether a duty

arises in a particular case, however, requires assessing the “totality of the circumstances.” Gilbert,

990 A.2d at 989-90.

        “In negligence actions the standard of care by which the defendant’s conduct is measured

is often stated as ‘that degree of care which a reasonably prudent person would have exercised

under the same or similar circumstances.” Tolu v. Ayodeji, 945 A.2d 596, 603 (D.C. 2008) (per

curiam) (quoting Morrison v. MacNamara, 407 A.2d 555, 560 (D.C. 1979)). The Court need not



                                                  7
consider more specific standards of care—established by a particular law or professional standard,

for example—because Ms. Sandberg pleads only the “duty of ordinary care” in her negligence

claim. Compl., ECF No. 1, ¶¶ 38, 39; contra, e.g., Casey v. McDonald’s Corp., 880 F.3d 564, 567

(D.C. Cir. 2018) (interpreting standard of care for bars set by D.C. statute, and determining whether

any “national standard of care” applies to security practices at a McDonald’s restaurant); cf.

Gilbert, 990 A.2d at 988 (observing that an articulation of negligence elements that requires

“establishing the applicable standard of care” is “abbreviated” insofar as it “assumes that the

defendant owes the plaintiff a duty of care”). 3 But even if the standard is sometimes articulated

differently, the level of care does not change. “This jurisdiction does not recognize varying

standards of care depending upon the relationship of the parties but always requires reasonable

care to be exercised under all the circumstances.” Pannu v. Jacobson, 909 A.2d 178, 194 (D.C.

2006) (quoting Blumenthal v. Cairo Hotel Corp., 256 A.2d 400, 402 (D.C. 1969)) (internal

quotation marks omitted). Ms. Sandberg does not disagree. She simply argues that the “ordinary

duty of reasonable care” applies to her negligence claim. Pl.’s Opp’n at 3 (emphasis added).

       Yet, even a noteworthy connection between the parties may not establish a tort law duty to

take the precautions of a reasonably prudent person. In Newmyer v. Sidwell Friends School, a

psychologist working at one of a school’s multiple campuses dated the mother of a student at

another campus. 128 A.3d 1023, 1027-30. The psychologist took an interest in the well-being of

the student and made what the D.C. Court of Appeals later characterized as “casual observations”

about the student to the mother, as well as “friendly gestures” in reaching out to a school resource

teacher to pass along the mother’s concerns. Id. at 1035. In the fallout from the mother’s divorce,




3
 “The questions of duty of care and standard of care are separate inquiries under [D.C. Court of
Appeals] case law, but they often overlap.” Gilbert, 990 A.2d at 990 n.5.
                                                 8
the student’s father, on behalf of himself and the student, later sued the psychologist and the school

asserting several types of negligence and other claims. The D.C. Court of Appeals upheld

summary judgment for the psychologist and the school as to the negligence claims because “no

reasonable jury could find that [the psychologist] owed a legal duty to [the student] pursuant to a

physician-patient relationship or his position as a school counselor.” Id. at 1036. Rather, the facts

simply demonstrated “romantically-motivated actions” and “innocuous day-to-day interactions”

that could not support a tort law duty. Id.

       In this case, Ms. Sandberg alleges that she met Mr. Vincent “for the first time” on the night

at issue. Compl., ECF No. 1, ¶ 14. Accordingly, there is no basis on which to find that Ms.

Sandberg and Mr. Vincent were more than acquaintances. The Court is unaware of any specific

duty running between acquaintances, even those involved in a sexual encounter on the first evening

that they meet. The parties essentially remained at the “arms’ length” stage, where this jurisdiction

generally does not recognize a particular duty to foresee harm and prevent that foreseeable harm.

There is less of a relationship here than in Newmyer—and even those facts were insufficient to

trigger applicable tort law duties.

       Nor did the fact that Ms. Sandberg “became increasingly—and very visibly—intoxicated”

during the first part of the party automatically generate a duty on the part of Mr. Vincent. Compl.,

ECF No. 1, ¶ 17. By way of comparison, the Court recalls public-duty doctrine. The District of

Columbia, its emergency first responders, and other public officials lack a privately enforceable

duty to members of the public, “absent a special relationship” with a specific person. See, e.g.,

Woods v. District of Columbia, 63 A.3d 551, 553 (D.C. 2013) (quoting Warren v. District of

Columbia, 444 A.2d 1, 3, 4 (D.C. 1981) (en banc)) (alteration and internal quotation marks

omitted). Even if Ms. Sandberg were to appropriate that precedent, she still could not establish a



                                                  9
special relationship with Mr. Vincent. In one version of the special-relationship test, neither of

two elements would be satisfied here: “(1) a specific undertaking to protect a particular individual,

and (2) justifiable reliance by the plaintiff.” Id. (quoting Morgan v. District of Columbia, 468

A.2d 1306, 1314 (D.C. 1983) (en banc)) (internal quotation marks omitted). And for Ms. Sandberg

to make the argument would miss the point: She offers no precedent to support extending the tort

duties of a government and its officers to Mr. Vincent—a college student whom Ms. Sandberg

first met at a party, and whom she encouraged to leave her apartment when the party ended.

       Turning to secondary considerations in this jurisdiction, there could be some issues of

fairness, risk, and/or public interest lurking in this case of alleged sexual assault and battery. See

generally Hedgepeth, 22 A.3d at 793-94 (recognizing that duty determination reflects policy

assessment). But the Court would have to speculate as to what those specific considerations are

and why they should create a duty. Ms. Sandberg says nothing about these issues, nor does she

offer any precedent suggesting that they amount to a duty. To the extent that Ms. Sandberg has

interests of these kinds, the Court shall assume that they are addressed by her allegations of sexual

assault and battery and subsumed within any such claims. In any case, Ms. Sandberg does not

discharge her burden to show that some accretion of considerations cognizable in this jurisdiction

should result in a duty running from Mr. Vincent to Ms. Sandberg.

       Ms. Sandberg appears not to address the duty element at all, targeting instead Mr. Vincent’s

defense to the breach element, which the Court need not reach. Even so, Ms. Sandberg seems to

rely on a red herring. She maintains her right to plead sexual assault and battery and negligence

claims in the alternative, evidently to help insure against finding in discovery that Mr. Vincent

lacked the requisite intent for an intentional tort. See Pl.’s Opp’n at 4-6 (citing Fed. R. Civ. P.




                                                 10
8(d)(2)). That much is uncontroversial. But she fails to plausibly plead negligence claims rather

than simply the intentional torts.

       It is instructive to consider suits against police officers for allegedly using excessive force.

There, plaintiffs have often sought to recover both on assault and battery and on negligence causes

of action. See, e.g., Scales v. District of Columbia, 973 A.2d 722 (D.C. 2009). Although pleading

these claims in the alternative is acceptable, the negligence claim must stand on its own:

       [I]f, 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 distinctly pled and based
       upon at least one factual scenario that presents an aspect of negligence apart from
       the use of excessive force itself and violative of a distinct standard of care.

Id. at 731 (quoting Smith v. District of Columbia, 882 A.2d 778, 792 (D.C. 2005)) (internal

quotation marks omitted) (emphasis added). In District of Columbia v. Chinn, one such police

case, the D.C. Court of Appeals found that it was error to submit a negligence claim to the jury

where the evidence at trial supported only the assault and battery claims. 839 A.2d 701, 704-05,

711 (D.C. 2003) (“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.”); see also Scales,

973 A.2d at 731 (quoting Smith, 882 A.2d at 793)) (remanding for further proceedings to include

determining whether the plaintiff “present[ed] a basis independent of excessive force to support

his negligence count”) (internal quotation marks omitted).

       Outside of the police force context, that court has likewise recognized that “the same course

of conduct may support both a claim of assault and battery and a claim of negligence, provided

that it is established that the defendant, in the process of engaging in the conduct that included the

intentional tort, was also breaching another recognized duty owed the plaintiff.” McCracken v.

Walls-Kaufman, 717 A.2d 346, 350-51 (D.C. 1998) (emphasis added) (alleged sexual assault by

chiropractor in breach of professional obligations).

                                                 11
         Again, Ms. Sandberg has not established any recognized duty that Mr. Vincent owed to

her. The Court need not speculate what kind of breach could follow. Rather, the Court finds here

that Ms. Sandberg fails to state a claim for negligence.

         B. Gross Negligence Claim

                 1. Elements of a Gross Negligence Claim

         Ms. Sandberg pleads that “[Mr. Vincent’s] conduct on the night in question amounted to

an extreme deviation from the ordinary standard of care and evinced wanton, willful, and reckless

disregard or conscious indifference for the rights and safety of [Ms. Sandberg]. As such, [Mr.

Vincent] was grossly negligent under District of Columbia law.” Compl., ECF No. 1, ¶ 40.

Whereupon, she makes the allegations of injury and causation that the Court quoted above. Id. ¶

41.

         Although neither party specifically briefs the elements of a gross negligence claim under

D.C. law, Mr. Vincent does urge that his arguments about the negligence claim are dispositive of

this claim as well. Def.’s Mem. at 4. Case law suggests that Ms. Sandberg is attempting to plead

a standard for gross negligence that has been recognized in this jurisdiction in an unrelated context.

See District of Columbia v. Walker, 689 A.2d 40, 44 (D.C. 1997) (interpreting the term “gross

negligence” in a provision of the District of Columbia Employee Non-Liability Act, D.C. Code

§ 1-1212, to “require[ ] such an extreme deviation from the ordinary standard of care as to support

a finding of wanton, willful and reckless disregard or conscious indifference for the rights and

safety of others”). 4

         The Court understands that any valid claim of gross negligence would require pleading

what the ordinary standard of care would entail, and how the alleged tortfeasor deviated so



4
    This statute is now codified at D.C. Code § 2-412.
                                                 12
extremely from that standard. See Walker, 689 A.2d at 45 (stating that standard of care for “simple

negligence” is “base point from which the magnitude of deviation can be assessed for purposes of

the gross negligence inquiry”). A gross negligence claim that does not achieve those two

objectives could presumably be dismissed for failure to state a claim. Ms. Sandberg does not

expressly connect any of her specific allegations with either the ordinary standard of care or the

extreme deviation.

       The Court need not decide whether Ms. Sandberg satisfies a gross negligence standard,

however. Rather, the Court shall find below that the gross negligence claim is unavailable to Ms.

Sandberg.

               2. Availability of a Gross Negligence Claim in This Context

       The parties each cite Hernandez v. District of Columbia for the “general rule” that this

jurisdiction “does not recognize degrees of negligence.” Def.’s Mem. at 4 (quoting Hernandez,

845 F. Supp. 2d 112, 115-16 (D.D.C. 2012)) (internal quotation marks omitted); Pl.’s Opp’n at 7

(same). Yet, the parties disagree as to the scope of exceptions to that rule that could permit a gross

negligence claim.

       Interpreting two D.C. Court of Appeals decisions, Hernandez understands a gross

negligence claim to be available “only in limited circumstances where gross negligence is a

specific element of a claim or defense or for equitable reasons.” 845 F. Supp. 2d at 116 (citations

omitted). In the first of those cases, District of Columbia v. Walker, the D.C. Court of Appeals

countenanced a gross negligence claim because the statute at issue provided that no less than gross

negligence would be actionable in an emergency run case. See 689 A.2d at 42, 44 (citing D.C.

Code § 1-1212). And in the equitable example, Carleton v. Winter, that court ruled that an




                                                 13
exculpatory clause in a contract could not limit liability for gross negligence, if any. 901 A.2d

174, 181-82 (D.C. 2006).

       Mr. Vincent points to a number of district court cases in this jurisdiction that dismiss a

gross negligence claim when no applicable statute specifically provides for it. See Def.’s Mem. at

5 (collecting cases). One such case is Hernandez. There, the plaintiff argued that Walker furnished

support for recognizing a gross negligence claim separate from his negligence claim against a

sports complex operator for harms he sustained at an event. Hernandez, 845 F. Supp. 2d at 115.

But the court recognized that Walker had “distinguished gross negligence from ordinary

negligence because the [applicable] statute required such a distinction, not because the tort of gross

negligence is itself a separate basis of liability under District of Columbia law.” Id. at 116. Finding

that no comparable statute—and apparently not equity either—dictated such treatment in the

pending case, the court “dismiss[ed] as duplicative plaintiff’s claim for gross negligence . . . as a

separate basis for liability,” which left the negligence claim in the case. Id. at 116.

       Ms. Sandberg offers a conflicting interpretation of the relevant exception to the general

rule: “[I]t might be said that the law of the District of Columbia does not recognize degrees of

negligence unless it matters,” as she claims it does when punitive damages are at stake. Pl.’s

Opp’n at 7-8 (emphasis omitted). But this argument is flawed for at least two reasons. As

Hernandez and Walker make clear, the standard for a gross negligence claim is not whether it is

sufficiently important, or whether some relief turns upon it, as Ms. Sandberg seems to suggest.

Evidently attempting to rescue her argument, Ms. Sandberg points to case law about the

availability of punitive damages for gross negligence. Pl.’s Opp’n at 8 (citing Spar v. Obwoya,

369 A.2d 173, 180 (D.C. 1977)). But even if case law suffices in lieu of a statute providing for a

gross negligence claim, this argument is still inapposite. Ms. Sandberg does not seek punitive



                                                  14
damages for her gross negligence (or negligence) claims; rather, she seeks those damages only for

her sexual assault and battery claims. See Compl., ECF No. 1 (Counts I & II). Accordingly, that

would not be a basis for finding that a gross negligence claim matters in this case, even if the

import of the claim were the appropriate standard.

       Nor does Ms. Sandberg make the argument that some equitable reason compels the

availability of a gross negligence claim in this context.

       The Court finds no basis for inferring that a gross negligence claim is available to Ms.

Sandberg. Accordingly, the gross negligence claim must be dismissed.

                                       IV. CONCLUSION
       For all of the foregoing reasons, the Court shall GRANT Mr. Vincent’s [9] Motion to

Dismiss, in Part, Ms. Sandberg’s Complaint. Count II of that Complaint is DISMISSED.

       Mr. Vincent shall answer or otherwise respond to the remainder of Ms. Sandberg’s

Complaint by no later than MARCH 12, 2019.

       An appropriate Order accompanies this Memorandum Opinion.

Dated: February 26, 2019

                                                             /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




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