 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 3, 2017              Decided January 26, 2018

                         No. 16-7124

 PAUL D. CASEY, INDIVIDUALLY AND AS ADMINISTRATOR OF
 THE ESTATE OF PATRICK D. CASEY, AND ABIGAIL O. CASEY,
                      APPELLANTS

                              v.

            MCDONALD’S CORPORATION, ET AL.,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:13-cv-01452)


     Brendan J. Klaproth argued the cause and filed the briefs
for appellants.

    Joseph J. Bottiglieri argued the cause for appellees
McDonald’s Corporation, Inc., et al. D. Stephenson Schwinn
argued the cause for appellee RAH of Washington, D.C., Inc.
With them on the brief were Andrew Butz, Michael L. Pivor,
and Dominic G. Vorv.

    Before: ROGERS, KAVANAUGH, and WILKINS, Circuit
Judges.
                               2
    Opinion for the Court filed by Circuit Judge KAVANAUGH.

    Concurring opinion filed by Circuit Judge WILKINS.

     KAVANAUGH, Circuit Judge: This case arose out of a
drunken brawl, a not-uncommon occurrence late at night
outside of D.C. bars. But this fight had an uncommon and
tragic ending: someone died.

     The parents of the victim sued under D.C. tort law and
named a variety of defendants, including as relevant here:
(i) two bars that served alcohol to the assailant even after he
allegedly was already visibly intoxicated; and (ii) the fast-food
restaurant (McDonald’s) where the altercation began. The
District Court dismissed the claims against the bars and granted
summary judgment to McDonald’s.

     Based on D.C. precedent, we conclude that the allegations,
if true, state a claim against the bars under D.C. law. We
therefore reverse the District Court’s dismissal of the Caseys’
claims against the two bars. We conclude that the claims
against McDonald’s are unavailing as a matter of law. We
therefore affirm the District Court’s grant of summary
judgment to McDonald’s. We remand for further proceedings
consistent with this opinion.

                                I

    The McDonald’s fast-food restaurant at 19th and M
Streets, N.W., in Washington, D.C., is open 24 hours a day.
Like many fast-food restaurants and diners, that McDonald’s
serves an influx of sometimes drunk customers on Friday and
Saturday nights.
                                3
     After a Friday night of bar hopping in September 2011,
two groups of men began exchanging words with each other at
the M Street McDonald’s. Jason Ward was in one group, and
Patrick Casey was in the other. The men eventually ended up
just outside the restaurant, on the sidewalk. At that point, Jason
Ward punched Patrick Casey. Casey fell to the ground and hit
his head on the sidewalk. Casey was taken to a local hospital.

    Four days after the fight, while still in the hospital, Casey
died.

     Patrick Casey’s parents sued. They brought D.C. tort
claims against Ward and two of his friends who were part of
the fight at McDonald’s; against several bars that served Ward
and his friends on the night of the fight; and against Kyung
Rhee (the owner of the M Street McDonald’s) and the
McDonald’s Corporation.

     At this point, the only remaining defendants are: (i) two
bars, Ozio and Camelot, and (ii) Kyung Rhee and the
McDonald’s Corporation, whom we will refer to collectively
as McDonald’s.

     As to the two bars, the Caseys argue that the bars violated
D.C. Code § 25-781 and therefore were negligent per se. That
provision of D.C. law prohibits serving alcohol to already
intoxicated persons. The Caseys allege that the bars served
Ward and his friends even though the men were already visibly
intoxicated. The Caseys further allege that the bars’ negligence
caused Patrick Casey’s death. The District Court dismissed the
tort claims against the bars on the ground that the plaintiffs did
not plead sufficient facts to establish proximate cause under
D.C. law.
                                4
     As to McDonald’s, the Caseys contend that the restaurant
should have done more to protect customers from other
customers who were drunk and unruly. In the District Court,
the Caseys’ claims against McDonald’s survived motions to
dismiss and proceeded to discovery. The District Court later
granted summary judgment to McDonald’s on the ground that
the evidence was insufficient to show that McDonald’s acted
negligently.

     Because this is a diversity jurisdiction case and is governed
by D.C. law, our task “is to achieve the same outcome we
believe would result if the District of Columbia Court of
Appeals considered this case.” Novak v. Capital Management
and Development Corp., 452 F.3d 902, 907 (D.C. Cir. 2006).
We review the decision of the District Court de novo.

                                II

    We first address the claims against the two bars.

     To recover in a negligence action, a plaintiff in D.C. must
establish three elements: “the applicable standard of care, a
deviation from that standard by the defendant, and a causal
relationship between that deviation and the plaintiff’s injury.”
Convit v. Wilson, 980 A.2d 1104, 1123 (D.C. 2009).

     Here, D.C. statutory law establishes the standard of care
for bars: Bars may not serve alcoholic beverages to an
“intoxicated person, or any person who appears to be
intoxicated.” D.C. Code § 25-781. A violation of that law
“constitutes negligence per se.” Rong Yao Zhou v. Jennifer
Mall Restaurant, Inc., 534 A.2d 1268, 1275 (D.C. 1987).

    The Caseys contend that the bars deviated from that
standard by serving Ward when the bars knew that Ward was
                                5
already intoxicated. In particular, the Caseys allege that the
bars “served and continued to serve alcoholic beverages to”
Ward and his friends while the three men “all visibly appeared
to be intoxicated, and were in fact intoxicated.” Complaint
¶ 24. The Caseys further allege that an employee of one of the
bars (Ozio) stated that the three men “were already ‘drunk’
when they arrived” at the bar. Complaint ¶ 28.

     On a motion to dismiss, we must assume that the
allegations of the complaint are true. Taking the allegations as
true, we must assume that the bars served Ward when the bars
knew that Ward was already intoxicated.

     To recover from the bars, the Caseys must also show that
the bars’ actions caused Patrick Casey’s death. To establish
causation under D.C. tort law, the plaintiffs must show both
but-for causation and proximate cause.

     Here, the parties dispute the applicability of the
foreseeability prong of the proximate cause analysis: whether
the bars could reasonably foresee that over-serving Ward and
his friends when they were already visibly intoxicated could
cause harm to others after the men left the bar.

     A trio of D.C.-law cases have already addressed that kind
of scenario. Those cases control our analysis.

     In Rong Yao Zhou, two persons were seriously injured in
a car accident caused by a drunk driver named Joray. Earlier
in the evening, Joray had been served alcohol at a restaurant.
The injured parties sued the restaurant, alleging that the
restaurant had served alcohol to Joray even after Joray was
already visibly intoxicated. The D.C. Court of Appeals ruled
that those allegations stated a claim against the restaurant under
D.C. tort law. As to proximate cause, the court said that
                                      6
plaintiffs must simply show the injury’s “proximity in time,
place and circumstances” to the restaurant’s serving of alcohol
to the visibly intoxicated patron. Rong Yao Zhou, 534 A.2d at
1277 (internal quotation omitted). The court concluded that the
allegations in the complaint met that standard.

     In so ruling, the D.C. Court of Appeals expressly agreed
with this Court’s prior decision applying D.C. tort law in
Marusa v. District of Columbia, 484 F.2d 828 (D.C. Cir. 1973).
In Marusa, a police officer was very drunk at a bar and,
immediately after leaving, shot someone with his service
revolver. The injured victim sued the bar, alleging that the bar
had served the officer even after he was visibly drunk. The
Court held that those allegations stated a claim against the bar
under D.C. law. The Court ruled that the bar could be liable
for serving a customer when the bar knew that the customer
was already drunk.

     In a more recent D.C. Court of Appeals case, an underage
man left a bar and was killed when he walked into traffic. The
man’s parents sued the bar, alleging that the bar had served the
man even after he was visibly intoxicated. Although that case
did not involve an injury to a third party, the court concluded
that the same basic tort-law principle applied: A bar may be
liable when it serves alcohol to a customer who is visibly
intoxicated and the customer then injures himself or herself, or
others. The court ruled that the facts stated a claim against the
bar under D.C. tort law. See Jarrett v. Woodward Brothers,
Inc., 751 A.2d 972 (D.C. 2000). 1

     1
        Ordinarily, D.C. tort law requires a heightened showing of
foreseeability when an intervening criminal act causes the plaintiff’s injury.
See District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 641 (D.C.
2005). But as then-Judge Scalia explained, that doctrine does not apply
under D.C. tort law when a bar or similar establishment serves alcohol to a
visibly intoxicated customer. In those circumstances, as a matter of D.C.
                                      7
     The Caseys alleged that the bars served alcohol to the
visibly intoxicated Ward in the hours before and a few blocks
away from where Ward assaulted Patrick Casey. Under the
precedents, the facts alleged by the Caseys state a claim under
D.C. tort law. The claims against the two bars therefore survive
a motion to dismiss and may proceed. 2

                                     III

     Next, we consider the Caseys’ claims against McDonald’s.
On the McDonald’s motion for summary judgment, we take the
facts in the light most favorable to the Caseys. The Caseys
argue in essence that McDonald’s had a general duty to protect
its patrons from harm caused by other patrons. In particular,
the Caseys contend that McDonald’s acted negligently in three
ways: McDonald’s failed to have a security guard on duty, no
McDonald’s employee called 911 during the fight, and
McDonald’s failed to properly train its employees to prevent or
break up the fight.

     First, the Caseys argue that McDonald’s should have had
a security guard on duty. Under D.C. law, a tort-law plaintiff
in a negligence case must show that the defendant violated a
national standard of care. See Robinson v. Washington
Metropolitan Area Transit Authority, 774 F.3d 33, 39 (D.C.
Cir. 2014); Novak v. Capital Management and Development
Corp., 570 F.3d 305, 313 (D.C. Cir. 2009); Briggs v.


public policy, the bar may be liable for injuries caused by the drunk patron
after he or she leaves the bar. See Romero v. National Rifle Association of
America, Inc., 749 F.2d 77, 83 (D.C. Cir. 1984).
      2
        At this stage, we do not address whether the plaintiffs must show that
the bars knew – or merely should have known – that Ward was intoxicated
when he was served. We also do not address what level of visible
impairment suffices to put bars on notice that they must stop serving alcohol
to someone. Those questions of D.C. law are not before us.
                                    8
Washington Metropolitan Area Transit Authority, 481 F.3d
839, 846-47 (D.C. Cir. 2007); Clark v. District of Columbia,
708 A.2d 632, 635 (D.C. 1997). A “national standard of care
must describe a specific standard” that has been “accepted in
the industry.” Novak, 570 F.3d at 313. In Novak, this Court
concluded that a nightclub “violated a national standard” of
care when it did not follow a standard that was “widespread”
and was also the “normal practice” of nightclubs in the District
of Columbia. Id. 3

     The Caseys’ expert failed to identify a specific national
standard of care that required McDonald’s to have a security
guard on duty. The Caseys’ expert noted that security guards
can help to maintain a safe environment, deter unsafe behavior,
and intervene in fights. That is no doubt true, but that truism
alone does not establish a national standard of care for tort
cases. The expert also cited McDonald’s own security manual
and claimed that the manual required a security guard. But the
McDonald’s security manual states that its suggested policies
are merely advisory. Furthermore, applying D.C. law, we have
stated that internal manuals may not, “on their own, establish
the national standard.” Robinson, 774 F.3d at 39. The Caseys’
expert further pointed to local McDonald’s restaurants that
have hired security guards. But the fact that a few local
McDonald’s restaurants decided to hire security guards is not
evidence that the practice is sufficiently widespread to establish
a national standard of care for fast-food restaurants. The
Caseys say that their motion to compel further evidence should
have been granted. But the evidence that they sought related
only to a few other local McDonald’s restaurants and thus still

     3
       The cases applying the national standard of care requirement employ
a variety of formulations describing how a plaintiff may establish the
requisite standard of care. In this opinion, we do not purport to alter or
affect pre-existing law on that question. Under any formulation of the
requirement, the Caseys’ expert testimony fell far short.
                               9
could not establish a national standard of care for fast-food
restaurants.

     Second, the Caseys allege that McDonald’s employees
should have called 911 at some point during the altercation.
But again, the expert relied only on McDonald’s own policy.
That policy alone does not establish a national standard of care.
It also bears mention that the physical altercation did not
escalate until the men were outside of the McDonald’s on the
sidewalk.

     Third, the Caseys allege that McDonald’s failed to
properly train its employees on how to handle drunk and unruly
patrons, and to stop these kinds of altercations. That argument
fails because the Caseys have not provided any evidence
suggesting a national standard of care that requires fast-food
restaurant employees to break up or prevent fights between
drunk patrons (potentially endangering the employees’ own
lives by doing so).

    We have considered all of the plaintiffs’ arguments against
McDonald’s (against the corporation and against the owner of
the McDonald’s at 19th and M). McDonald’s was entitled to
summary judgment, as the District Court concluded.

                               IV

     One final bit of housekeeping. When, as here, a
defendant’s allegedly negligent conduct results in death,
plaintiffs in D.C. may pursue two independent claims:
wrongful death claims and survival claims. See Strother v.
District of Columbia, 372 A.2d 1291, 1295 (D.C. 1977). In a
wrongful death action, the next of kin of the decedent may
recover pecuniary losses resulting from the death of the loved
one. See D.C. Code §§ 16-2701, 2702. In a survival action, a
                               10
representative of the decedent may bring a tort cause of action
that the decedent could have pursued if he or she had survived.
See D.C. Code § 12-101.

    Under our ruling so far, the Caseys may pursue both their
wrongful death and survival claims against the bars. The
District Court held, however, that the wrongful death claims
were filed too late and were outside the statute of limitations.
We disagree.

     The Caseys’ claims accrued on September 27, 2011, when
Patrick Casey died. See Estate of Chapelle v. Sanders, 442
A.2d 157, 158 (D.C. 1982). The D.C. Wrongful Death Act that
was in force when Casey died required plaintiffs to file
wrongful death claims within one year of the decedent’s death.
See D.C. Code § 16-2702 (1981). The Caseys did not file until
September 23, 2013, almost two years after the incident.

     The Caseys presumably waited that long to file because,
on March 30, 2012, the D.C. Council enacted the Wrongful
Death Emergency Act, which extended “the time period that a
plaintiff has to bring a claim against a defendant in a wrongful
death suit from one year to 2 years.” D.C. Act 19-338, 59 D.C.
Reg. 2567 (enacted Mar. 30, 2012).

     In this case, however, the District Court ruled that the new
D.C. statute of limitations did not apply to the Caseys’
wrongful death claims. The District Court reasoned that the
new statute of limitations did not apply to torts that occurred
before the date of enactment of the new law. In so concluding,
the District Court relied on U.S. Supreme Court precedent
establishing a presumption against retroactivity of federal
statutes. In general, courts presume that a law does not apply
retroactively unless it is sufficiently clear that the legislature
intended to give the statute retroactive effect. See Landgraf v.
                              11
USI Film Products, 511 U.S. 244, 272-73 (1994). The parties
here assume that the D.C. law of statutory interpretation
mirrors federal law with respect to the presumption against
retroactivity. We accept that assumption for purposes of this
case.

     The D.C. Wrongful Death Emergency Act overcomes the
presumption against retroactivity. The D.C. Council made the
change to the statute of limitations so that the new two-year
statute of limitations would apply to acts that occurred before
the date of enactment. We know as much because on March
20, 2012, before passing the Emergency Act, the D.C. Council
passed a Resolution, which declared “the existence of an
emergency” and a “need to amend” the Wrongful Death Act.
D.C. Resolution 19-405, 59 D.C. Reg. 2410 (enacted Mar. 20,
2012). The emergency was that the one-year statute of
limitations had already run for families of the victims of the
South Capitol Street shootings. Id. The D.C. Council extended
the statute of limitations precisely so that those claims would
not be barred by the one-year statute of limitations. In other
words, the D.C. Council enacted the Wrongful Death
Emergency Act with the express intent that a two-year statute
of limitations would apply retroactively to torts that occurred
before the date of enactment.

     Under D.C. law, the Caseys therefore had until September
27, 2013 – two years after Patrick Casey’s death – to file their
wrongful death claims. They met that deadline by filing their
suit on September 23, 2013. The Caseys’ wrongful death
claims are timely.

                             ***

    We reverse the District Court’s dismissal of the Caseys’
claims against the two bars. We affirm the District Court’s
                         12
grant of summary judgment to McDonald’s. We remand for
further proceedings consistent with this opinion.

                                           So ordered.
     WILKINS, Circuit Judge, concurring: I concur with the
Court’s decision in full. I write separately to point out the
District Court appeared to believe that the requisite standard of
care could not be established with expert testimony regarding
local, comparable facilities, because the plaintiff must proffer
evidence of practices “across the nation.” See Casey v. Ward,
211 F. Supp. 3d 107, 116 (D.D.C. 2016) (emphasis in original))
(citing Beckwith v. Interstate Mgmt. Corp., LLC, 82 F. Supp.
3d 255, 263-64 (D.D.C. 2015) (expert testimony of security
practices of several hotels in Baltimore and Washington, D.C.,
areas “cannot be the basis of a ‘nationally recognized’ standard
of care”)). Because the evidence in this case was inadequate
for several reasons, we have no need to reach the question, but
I note that the evidentiary burden may not always require
evidence from around the nation, as expressed by the District
Court. See Novak v. Capital Mgmt. & Dev. Corp., 570 F.3d
305, 313 (D.C. Cir. 2009) (plaintiff’s expert could opine that
the standard of care required a nightclub to have a security
guard posted outside at closing time, where he testified that
four D.C. nightclubs followed that practice, and a former
manager of the defendant club “was unable to name a single
professionally run nightclub in the District that does not
position security personnel outside”); Bell v. Jones, 523 A.2d
982, 988 (D.C. 1986) (notwithstanding the requirement of a
“national standard of care” for surveyors, finding no error in
admitting expert testimony where “there was no evidence that
the standard of care in the District was different in any respect
from that which might be applicable nationwide” and where
“all of the pertinent events in this case occurred in the District
of Columbia”).
