United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 3, 2008 Decided March 24, 2009

No. 07-7151

MARLIN GODFREY,

APPELLEE

v.

ALLEN IVERSON AND JASON KANE,

APPELLANTS

Consolidated with 07-7152, 07-7157

Appeals from the United States District Court

for the District of Columbia

(No. 05cv02044)

William R. Martin argued the cause for appellants/crossappellees. With him on the briefs was Alan C. Milstein. David

A. Rosenberg entered an appearance.

Gregory L. Lattimer argued the cause and filed the briefs

for appellee/cross-appellant. 

Before: HENDERSON, RANDOLPH and GARLAND, Circuit

Judges.
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Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: In the early hours of July 20,

2005, a brawl erupted at the Eyebar, a Washington, D.C.

nightclub. Among the injured was Marlin Godfrey, a patron in

the Eyebar VIP area that night. He suffered a concussion, a

ruptured eardrum, a burst blood vessel in his eye, a torn rotator

cuff, various cuts and bruises, and emotional injuries. Godfrey

sued Allen Iverson and his bodyguard, Jason Kane, both of

whom were in the Eyebar VIP area that night. The amended

complaint alleged that Kane and Terrance Williams, who also

sometimes acted as Iverson’s bodyguard, attacked him and

directly caused his physical and emotional injuries, and that

Iverson was negligent in failing to stop both men from injuring

Godfrey. After a six-day trial, the jury returned a verdict in

favor of Godfrey against Kane for assault and battery and

intentional infliction of emotional distress, and against Iverson

for negligent supervision of Kane, in the total amount of

$260,000. In response to Iverson’s and Kane’s appeal, Godfrey

filed what may be described as a conditional cross-appeal: if we

order a new trial, he would like us to declare that several of the

district court’s evidentiary rulings were in error. The only issue

warranting discussion is Iverson’s contention that, absent expert

testimony, the evidence was legally insufficient to support the

verdict against him for negligent supervision.

Allen Iverson has played professional basketball since the

Philadelphia 76ers drafted him in 1996. He now plays for the

Detroit Pistons. He often hires bodyguards to accompany him

when he attends public events. Iverson’s manager Gary Moore

was in charge of hiring the bodyguards and telling them when

and where to work. Jason Kane has provided security for

Iverson in the Washington, D.C. area for some time and was

doing so during Iverson’s charity weekend events in July 2005.
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Iverson and several friends entered the Eyebar nightclub

shortly after midnight, with Kane as his bodyguard. They went

straight to the small VIP area of the club, where Marlin Godfrey

and his party already had a table. Although accounts differed

about how the fight started, the evidence indicated that an

argument broke out between Godfrey and Williams, Kane’s

friend who sometimes worked as Iverson’s bodyguard and

happened to be in the club that night. Witnesses said that Kane

and Williams loudly and aggressively ordered patrons, including

Godfrey and his party, to leave the VIP area and make room for

Iverson and his friends. Soon after Curtis Fitzgerald – an

Eyebar security employee and friend of Kane’s and Godfrey’s

– intervened to defuse the situation and move Godfrey’s party

to a different table, Kane shoved Fitzgerald and a group of

others jumped in the attack. When Godfrey, who has significant

martial arts training, walked toward the fracas to “help his

friend” Fitzgerald, he was attacked and beaten until he became

disoriented; he regained his senses in the club’s storage room,

where he had wandered to get away from the fight. Godfrey

received treatment for his injuries that night in the George

Washington Hospital emergency room and was released at noon

that day.

Williams admitted that he took part in beating up Godfrey.

Other witnesses testified that after Kane pushed Fitzgerald, they

saw Kane jump into the fight and attack Godfrey, punching him,

kicking him, and striking him in the head with a bottle. Iverson

stayed out of the fray in the back corner of the VIP area,

standing on a couch or bench and observing. He did not say or

do anything to try to stop Kane or anyone else from fighting.

There was no evidence that any of the club’s patrons or

employees attacked or threatened Iverson.

After the district court disposed of the defendants’ motions

for directed verdict, the case went to the jury with two claims
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against Kane – assault and battery and intentional infliction of

emotional distress – and two claims against Iverson for

negligent supervision of Kane and Williams. The jury found

Kane liable on both claims against him, and it found Iverson

liable for negligently supervising Kane. As to Williams, the jury

found that he was not working for Iverson that night. The jury

awarded Godfrey $250,000 for pain and suffering and $10,000

for medical expenses. The district court upheld the verdict,

rejecting the defendants’ post-trial motions. See Godfrey v.

Iverson, 503 F. Supp. 2d 363, 366 (D.D.C. 2007).

Liability for negligent supervision arises when an

“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.” Brown v.

Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C. 2001) (internal

quotation marks and citation omitted). Iverson argues that the

district court should have granted judgment as a matter of law

on the negligent supervision claim because Godfrey did not

introduce expert testimony to establish the standard of care

Iverson owed in supervising Kane. This argument stems from

a peculiar aspect of common law negligence in the District of

Columbia. A plaintiff has the burden of proving the applicable

standard of care, the defendant’s failure to meet that standard,

and the causal relationship between that failure and the

plaintiff’s injury. Meek v. Shepard, 484 A.2d 579, 581 (D.C.

1984). In the typical negligence case, the standard of care

applicable to a person’s conduct is simply that of a “reasonable

man under like circumstances.” Restatement (Second) of Torts

§ 283 (1965); see also id. § 298. Ordinarily a jury can ascertain

this standard without the aid of expert testimony. But “if the

subject in question is so distinctly related to some science,

profession or occupation as to be beyond the ken of the average

layperson,” D.C. law requires expert testimony to establish the
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pertinent standard of care unless it is “within the realm of

common knowledge and everyday experience” of the jurors.

District of Columbia v. Arnold & Porter, 756 A.2d 427, 433

(D.C. 2000) (internal quotation marks and citations omitted).

The expert testimony requirement originated in professional

malpractice cases. See District of Columbia v. Hampton, 666

A.2d 30, 35 (D.C. 1995) (citing, for example, medical and legal

malpractice cases in which expert testimony was required to

establish the standard of care). Recently, though, the D.C. Court

of Appeals has required expert testimony in a wider variety of

cases, id., even in those that might initially seem to fall within

jurors’ common knowledge. See Briggs v. Wash. Metro. Area

Transit Auth., 481 F.3d 839, 845 (D.C. Cir. 2007) (cataloguing

various non-malpractice cases in which expert testimony was

required to establish the standard of care). And as Briggs

recognized, “expert testimony is routinely required ‘in

negligence cases . . . which involve issues of safety, security and

crime prevention.’” Id. at 845–46 (quoting Varner v. District of

Columbia, 891 A.2d 260, 267 (D.C. 2006)).

Iverson argues that because this case involves security

issues, Godfrey had to establish the standard of care through

expert testimony. He relies on a series of district court cases. In

Edwards v. Okie Dokie, Inc., plaintiffs sued a nightclub and the

District of Columbia for negligently supervising security

personnel and police officers who used allegedly unreasonable

force to stop an altercation outside a nightclub. 473 F. Supp. 2d

31, 35, 45–46 (D.D.C. 2007). In Parker v. Grand Hyatt Hotel,

police officers and hotel security personnel forcibly removed the

plaintiff from a hotel restaurant under suspicion that he

attempted to steal something; he sued the District of Columbia

and hotel management for negligently supervising those officers.

124 F. Supp. 2d 79, 83–84 (D.D.C. 2000). In Farooq v. MDRB

Corp., the plaintiff brought suit against a hotel for negligently
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training and supervising security personnel who failed to find a

knife that a patron carried into a hotel party and used to kill the

plaintiff’s son. 498 F. Supp. 2d 284, 285–86 (D.D.C. 2007).

The district court granted summary judgment in each of these

cases because the plaintiffs failed to present expert testimony

establishing the standard of care applicable to a municipality or

business entity in training and supervising its police or security

officers. Edwards, 473 F. Supp. 2d at 46; Parker, 124 F. Supp.

2d at 90; Farooq, 498 F. Supp. 2d at 287. 

We do not believe these cases stand for the proposition that

expert testimony is always required to establish the standard of

care in cases involving supervision of security personnel, much

less personal bodyguards. Expert testimony was necessary to

establish the standard of care for installation of cushioning under

the monkey bars on a playground, Messina v. District of

Columbia, 663 A.2d 535, 538 (D.C. 1995), but not to establish

whether holes in the side rails of a playground slide created an

unreasonably dangerous condition, District of Columbia v.

Shannon, 696 A.2d 1359, 1365–66 (D.C. 1997). As the court

put it in Shannon, “It takes no expert knowledge of human

behavior to know that children stick their fingers in holes.” Id.

at 1365. As to the need for expert testimony, the factual context

mattered in those cases and it matters in this one too.

The key distinction between what happened at the Eyebar

and the district court cases Iverson cites is that here the

individual with the supervisory authority (Iverson) was present

when his employee (his personal bodyguard Kane) committed

the tortious acts. It was this fact, together with the duration of

the melee, that led the district court to believe that the jury could

find that Iverson had the ability to supervise or control Kane’s

behavior that night, a mandatory element of the negligent

supervision tort. Iverson’s presence during the attack also

affects the standard of care. A jury may need the aid of expert
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testimony to evaluate how a hotel should train and otherwise

supervise its security guards to ensure that they do not

unreasonably use force on some future date. But it is a different

thing altogether to say such expert assistance is needed to

establish the standard of care for an individual who is present

while his personal bodyguard, acting on his behalf in clearing a

room in a nightclub, beats a customer and causes significant

injuries. Iverson has pointed to no case in the District of

Columbia – nor have we been able to locate any – dealing with

the standard of care a person owes in supervising his personal

bodyguard in his presence. The evidence in this case supported

the jury’s finding that Kane attacked Godfrey in a fight that

lasted several minutes, and that Iverson stood and watched

without attempting to do anything to stop the beating. See 2922

Sherman Ave. Tenants’ Ass’n v. District of Columbia, 444 F.3d

673, 679 (D.C. Cir. 2006). We find no error in the district

court’s ruling that the jury did not need the assistance of expert

testimony to determine the standard of care Iverson owed to

Godfrey.

It would serve no purpose to discuss Iverson’s and Kane’s

other arguments. We have considered these contentions and

have concluded that the district court committed no reversible

error. We do not reach Godfrey’s cross-appeal because he

conditioned it on our ordering a new trial.

Affirmed.