Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 24, 2002 Decided February 25, 2003

No. 01-7161

MARYANN WORKMAN, INDIVIDUALLY AND AS PERSONAL AND

LEGAL REPRESENTATIVE OF THE ESTATE OF

DEENA MARIE UMBARGER,

DECEASED,

APPELLANT

v.

UNITED METHODIST COMMITTEE ON RELIEF OF THE

GENERAL BOARD OF GLOBAL MINISTRIES OF THE

UNITED METHODIST CHURCH,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 00cv00616)

Mark London argued the cause and filed the briefs for

appellant.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

William H. Briggs, Jr. argued the cause for appellee.

With him on the brief was Cathlene A. Tharp.

Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: MaryAnn Workman, the mother of

a woman murdered in Somalia while on a mission for the

United Methodist Committee on Relief (UMCOR), sued

UMCOR, alleging that the defendant negligently failed to

prepare her daughter for and protect her from the dangers of

her assignment. We hold that the district court properly

entered summary judgment for the defendant on the ground

that Workman had failed to meet the ‘‘heightened foreseeability standard’’ applicable under the law of the District of

Columbia to a case in which the harm arises from the criminal

act of a third party.

I. Background

Deena Marie Umbarger, a 1994 graduate of the Yale Law

School, left her law practice in 1997 to become a relief worker

for UMCOR. Her first international assignment was to

Kenya, followed by a brief stint in the Republic of Georgia.

In November 1998 she returned to Kenya to live with her

fianc ́e. There UMCOR retained her under a series of shortterm consulting agreements until her death in March 1999.

The agreements defined Umbarger’s role as that of an

independent contractor charged with evaluating UMCOR’s

past relief efforts in Kenya and Somalia and with developing

a plan for the future, possibly to include the opening of an

UMCOR office in Nairobi. Umbarger was UMCOR’s sole

representative in the region; she reported directly to Kemba

Eneas, UMCOR’s Program Director for Africa and the Caribbean, who was based in Virginia.

On March 20, 1999 Umbarger traveled to Somalia. An

UMCOR memorandum contains the following description,

based upon a report from the United States Embassy in

Kenya, of the events of that day:
3

At approximately 3:00 p.m., Deena and Ahmed Hussein [of Somali Community Services/Nairobi] arrived

at Nkokani Airport, NW of Lamu, Kenya. Eight

people in a vehicle with a Somalian license tag

picked her up. Deena and her counterparts registered with the local police at the border to explain

their business with the community. Six of the eight

persons were there on the invitation of SCS, the

other two we[r]e from the Aqwin Militia who were

warlords there to monitor their activities. At 5:00

p.m. they arrived at a restaurant 40 km outside of

Kiangu, on the border of Kenya and Somalia (in the

SW corner of Somalia) where they were to meet five

town elders. At 5:30 p.m. before eating, a gunman

murdered Deena in the restaurant. The elders

caught the gunman; however, other members of the

militia shot in the air which startled the elders and

caused the gunman’s release. The persons that

were with Deena put her back in the vehicle and

drove her to the nearest clinic or hospital in Kenya

whe[r]e she was dead on arrival.

In February 2000 Workman filed a complaint in the Superior Court for the District of Columbia alleging that UMCOR

had ‘‘failed to discharge its duty and obligation to protect

[Umbarger] as she assisted UMCOR in carrying out its

activities in Kenya and Somalia.’’ Workman sought damages

for Umbarger’s death under the District of Columbia Wrongful Death Act, D.C. Code § 16–2701, and under the Survival

Statute, D.C. Code § 12–101, which allows a legal representative to bring a claim on behalf of a person who has died.

UMCOR, invoking federal diversity jurisdiction, removed the

case to the district court. In a ruling not challenged here,

the district court dismissed the wrongful death claim because

the statute applies only to deaths occurring within the District of Columbia.

At the close of discovery, UMCOR moved for summary

judgment on the negligence claim under the Survival Statute

arguing, as relevant here, that because UMCOR could not

have foreseen Umbarger’s murder, it had no duty to protect
4

her from that crime. In support of its motion, UMCOR

submitted declarations from Eneas and from Sam W. Dixon,

the head of UMCOR’s Nongovernmental Organization Unit.

Dixon stated that Umbarger’s duties were ‘‘to determine

whether there were sources of funding for relief projects in

the region and whether the region was safe and secure

enough to justify a permanent UMCOR presence,’’ and that

Umbarger was ‘‘solely TTT responsib[le]’’ for the manner in

which she carried out these duties, including her decision to

travel to Somalia. Dixon characterized Umbarger as

UMCOR’s ‘‘eyes and ears’’ in the region; indeed, ‘‘[t]he

information that UMCOR had about potential security risks

in Somalia came primarily from [her].’’ Dixon also stated:

I did not have, nor was I aware of anyone at

UMCOR who had, any advance knowledge or warning that TTT her travel to Somalia or work in Kenya

would put her at some unique risk beyond the

typical security risks known to anyone — including

Deena — who provides relief to people living in the

most dangerous areas of the world.

Eneas supported Dixon’s description of the relationship

between UMCOR and Umbarger. She stated that although

Umbarger reported to her, Eneas did not ‘‘supervise’’ Umbarger and did not require Umbarger to travel to Somalia.

Eneas stated that Umbarger had gone to Somalia once

before, ‘‘without incident.’’ In addition, Eneas reported that

during her visit to Nairobi about a week prior to the fateful

trip, ‘‘[w]e spent a large amount of time together and Deena

never told me that she feared traveling to Somalia or that she

was concerned that she might be harmed in any way during

that trip. To the contrary, Deena was eager to travel to

Somalia.’’

In opposition to UMCOR’s motion for summary judgment,

Workman submitted the declaration of Michael D. O’Neill, the

Coordinator for Volunteer Safety and Overseas Security for

the Peace Corps. According to O’Neill, even in cases in

which decision-making is left to the aid worker, ‘‘the institution for whom she works also is expected to provide reason-
5

able safety and security support,’’ including ‘‘proper security

assessment of the area in question, appropriate risk reduction

strategies, a security management system, a program for

sharing information, and training.’’ By way of example,

O’Neill noted that the Peace Corps provides 12 weeks of

training to volunteers before they are posted abroad. O’Neill

stated that upon his review of the evidence, he had seen

nothing to indicate that Umbarger received ‘‘proper training

and guidance’’ or that UMCOR maintained a ‘‘reasonable

safety and security support system’’ for its overseas workers.

Workman also produced a February 1999 email from Umbarger to Eneas, in which Umbarger had noted possible

irregularities in the accounting of relief funds earmarked for

Somali Community Services and expressed concern that her

investigation of the issue could render a planned trip to

Somalia particularly dangerous. She wrote:

I need to spend a fair amount of time with Fawzi

[the SCS liaison to UMCOR] getting the particulars

of just what was provided to beneficiaries. The local

SCS guys here are quite concerned that some of

what Fawzi put as outputs in the one final report I

do have was actually not correct. This could be a

very sensitive (not to mention dangerous) issue as

we try to confirm some of these things on the

ground, particularly if the local people begin to

suspect that they never received all of what SCS was

supposed to provide. They have told me that a

hostage/kidnapping situation would not be farfetched, and I am sure you would be as unhappy

receiving a midnight phone call for help as I would

be if I had to make one.

In addition, Workman produced an email to Shelly Sutherland, whom Workman described as ‘‘a long time UMCOR

employee,’’ in which Umbarger wrote: ‘‘I feel like I am at the

breaking point with no support system or release valve. The

way things are going it wouldn’t surprise me if something

happened in Somalia.’’
6

The district court held that Workman’s evidence was insufficient as a matter of law to satisfy the ‘‘stringent showing of

heightened foreseeability required under District of Columbia

law’’ in a case in which the criminal act of a third party causes

injury. On appeal, Workman argues that, in the light of all

the evidence, the district court’s conclusion was erroneous.

II. Analysis

In the District of Columbia, a defendant may be liable for

harm caused by the criminal act of another only if the crime

was particularly foreseeable. See, e.g., Potts v. District of

Columbia, 697 A.2d 1249, 1252 (D.C. 1997) (‘‘Where an injury

is caused by the intervening criminal act of a third party, this

court has repeatedly held that liability depends upon a more

heightened showing of foreseeability than would be required

if the act were merely negligent’’). Courts in the District of

Columbia regularly grant a defendant’s motion for summary

judgment on the ground that the plaintiff’s evidence is ‘‘insufficient TTT to establish that [a] criminal act TTT was reasonably foreseeable.’’ Bailey v. District of Columbia, 668 A.2d

817, 822 (D.C. 1995); Potts, 697 A.2d at 1252–53. We review

de novo the district court’s determination that Workman

failed to present sufficient evidence to preclude summary

judgment. DeGraff v. District of Columbia, 120 F.3d 298,

301 (D.C. Cir. 1997).

How foreseeable must the crime have been for the plaintiff

to get her claim before a jury? The District of Columbia

Court of Appeals has said a ‘‘heightened showing’’ is required,

the requirement is a ‘‘demanding’’ one, and the proof must be

‘‘precise.’’ Potts, 697 A.2d at 1252. Foreseeability cannot be

predicated upon ‘‘generic information’’ such as crime rates,

Bailey, 668 A.2d at 820, or evidence that the defendant’s

employees worked in a ‘‘criminally active environment,’’

Clement v. Peoples Drug Store, Inc., 634 A.2d 425, 429 (D.C.

1993). The plaintiff is not, however, required to show ‘‘previous occurrences of the particular type of harm’’; the requirement ‘‘can be met instead by a combination of factors which

give [the] defendant[ ] an increased awareness of the danger
7

of a particular criminal act.’’ District of Columbia v. Doe,

524 A.2d 30, 33 (D.C. 1987).

Without more specific guidance, we are left to reason by

analogy from D.C. cases, as the district court did here. We

note first that the Court of Appeals has been reluctant to see

a defendant held liable for harm caused by the criminal act of

a third party. See, e.g., McKethean v. Washington Metropolitan Area Transit Authority, 588 A.2d 708, 717 (D.C. 1991)

(evidence regarding rate of collisions at bus stops and high

frequency of traffic accidents involving alcohol and drug

abuse insufficient); Bailey, 668 A.2d at 820 (finding insufficient ‘‘affidavits of witnesses who asserted that the area

around the school was a ‘high drug area’ and that shootings

occurred in that neighborhood’’); Clement, 634 A.2d at 427

(similar); Potts, 697 A.2d at 1252 (summary judgment warranted in light of plaintiff’s failure to provide evidence of any

prior gun-related violence at similar events, ‘‘nor any other

specific evidence bearing directly on the foreseeability of the

shooting incident at issue’’). The Court’s reluctance is not

surprising, because the heightened foreseeability test provides a limited exception to the ‘‘general rule of nonliability’’

for such claims. Romero v. Nat’l Rifle Ass’n of America,

Inc., 749 F.2d 77, 81 (D.C. Cir. 1984).

Workman, naturally, relies upon the few cases in which a

court has found sufficient evidence of foreseeability either to

allow a claim to go to the jury or to uphold a jury verdict for

the plaintiff. In District of Columbia v. Doe, the Court of

Appeals upheld a jury verdict against the District after a

fourth grader was abducted from a classroom and raped.

The plaintiff’s evidence indicated that ‘‘school officials were on

notice of the danger to students from assaultive criminal

conduct by intruders.’’ 524 A.2d at 33–34. That evidence

included: ‘‘crimes against persons in and around the

school — an arson in the school and a robbery on the school’s

playground; sexual assaults and other violent activity in the

surrounding area; and deficient school security — the open

rear gate, broken doors, malfunctioning intercom, and pres-
8

ence of adult males who freely roamed throughout the

school.’’ Id. at 34. In those circumstances it would seem

only a matter of time until one of the District’s charges was

abducted or molested.

In Doe v. Dominion Bank of Washington, 963 F.2d 1552

(1992), a case in which the plaintiff was raped on a vacant

floor of an office building during business hours, this court

reversed the district court’s grant of a directed verdict in

favor of the defendant landlord. In the month preceding the

rape, tenants had lodged a number of complaints about

threatening intruders in the building. Id. at 1555–56. There

had also been reported thefts of personal property from

offices in the building and drug use and sexual activity in a

building rest room. Id. Again, another crime was just

waiting to befall a tenant.

In these cases a good deal of evidence suggested the

defendant was on notice there was a substantial risk of harm

to the plaintiff; in addition, the relationship between the

plaintiff and the defendant suggested the defendant should be

held liable as a matter of policy. For example, in Dominion

Bank the court imposed a duty of protection because the

landlord was in the better position both to know about

security threats and to protect against them. Id. at 1559

(relying upon ‘‘inability of an individual tenant to control the

security of common hallways, elevators, stairwells, and lobbies’’). Similarly, District of Columbia v. Doe involved the

District’s duty of custodial care for schoolchildren — a point

of distinction noted in other cases, including the decision here

under review. See, e.g., Clement, 634 A.2d at 429 (‘‘Implicit in

Doe’s holding was the notion that particular care is required

by school officials when the safety of young children is

involved’’); Bailey, 668 A.2d at 821 (noting that ‘‘victim was

young and she was taken from a place that we would expect

to be a safe haven, i.e., her classroom’’).

From our review of the D.C. cases, we see the requirement

that the defendant have been able to foresee that a third

party would likely commit a criminal act ordinarily has, and

perhaps must have, a relational component. See Romero, 749
9

F.2d at 81 (‘‘The only District cases departing from [the

‘general rule of nonliability’] involved either a special relationship between the parties to the suit TTT or a relationship of

control between the defendant and the intervening criminal

actor’’). Indeed, the cases suggest a sliding scale: If the

relationship between the parties strongly suggests a duty of

protection, then specific evidence of foreseeability is less

important, whereas if the relationship is not of a type that

entails a duty of protection, then the evidentiary hurdle is

higher.

In the case at hand this principle supports the district

court’s grant of summary judgment in favor of UMCOR.

First, the evidence regarding the relationship between the

parties does not suggest that UMCOR should be held responsible for Umbarger’s safety. UMCOR did not send Umbarger to the region; she went there for personal reasons, after

which UMCOR contracted with her to assess factors, including security risks, important to UMCOR’s decision whether to

open an office there. Umbarger decided how best to carry

out her mission, including whether and when to travel to

Somalia. Because UMCOR was in no better position to

provide for Umbarger’s safety than was Umbarger herself,

the relationship between the parties is unlike those in which

the courts have found a duty of protection. See Kline v. 1500

Massachusetts Ave. Apartment Corp., 439 F.2d 477, 483 (D.C.

Cir. 1970) (in general, no duty to take precautions against

foreseeable criminal attack unless ‘‘the ability of one of the

parties to provide for his own protection has been limited in

some way by his submission to the control of the other’’).

Insofar as the relationship between the parties in this case

tilts against holding the defendant liable for the harm caused

by someone else’s criminal act, the plaintiff’s evidence of

foreseeability must be particularly strong to survive summary

judgment — which it is not. Although there can be no doubt

that Umbarger faced far greater risks in Somalia than she

would have in a less volatile part of the world, the local

courts, as the learned district judge noted, give little or no
10

weight to ‘‘generic information’’ regarding the dangerousness

of an area. Bailey, 668 A.2d at 820; Clement, 634 A.2d at

429. The O’Neill declaration, which Workman complains the

district court ignored, is at best evidence of this generic type,

insofar as it reflects at all upon foreseeability.

Workman’s only specific evidence of foreseeability consisted of the email messages Umbarger sent to Eneas and

Sutherland. As for the latter, UMCOR notes, and Workman

does not dispute, that there was no evidence that Sutherland

was an UMCOR employee at the time she received Umbarger’s email, or that its contents were ever conveyed to anyone

at UMCOR. Although Umbarger did in the message to

Eneas describe the possibility of her being kidnapped as ‘‘not

TTT farfetched,’’ there was no evidence that the contingency

Umbarger feared might put her in danger — namely, the

‘‘local people begin[ning] to suspect that they never received

all of [the aid] SCS was supposed to provide’’ — ever materialized. Moreover, again as noted by the district court, Umbarger in the same message sought to extend her contract

and remarked that ‘‘[t]hings seem really positive here, and I

would really like to follow them up.’’ Umbarger later made

an initial visit to Somalia without incident, and did not

reiterate any concern to Eneas when Eneas visited her in

Kenya shortly before Umbarger’s second trip to Somalia. In

these circumstances, all of which were known to UMCOR,

Workman simply asks too much when she says that ‘‘UMCOR

should have read these emails as a plea from a proud woman

asking them to keep her from going to Somalia.’’ The district

court correctly concluded that Umbarger’s message did not

put UMCOR on notice of the danger that materialized.

We recognize that our approach in resolving this appeal —

that is, considering the relationship between the parties in

establishing the degree of foreseeability necessary to support

liability — might offend a doctrinaire. Ordinarily, the relationship between the parties is the key to determining whether the defendant had a legally enforceable duty to the plaintiff (or her decedent), whereas foreseeability is important to

issues of proximate causation and conformity to the standard
11

of care, issues that arise only after a duty has been found.

See, e.g., William L. Prosser, et al., The Law of Torts § 53

(5th ed. 1984) (‘‘[i]t is better to reserve ‘duty’ for the problem

of the relation between individuals which imposes upon one a

legal obligation for the benefit of the other TTT’’); Dominion

Bank, 963 F.2d at 1560 (‘‘Once it is established that duties,

generally, are owed to one party TTT by another TTT the

foreseeability of the risk at issue in a particular case might

seem more applicable to determining whether the standard of

care has been breached’’); cf. id. at 1564 (Williams, J.,

concurring) (foreseeability, ‘‘[t]hough framed as an issue relating to ‘duty,’ [at least in the context of] landlord liability for

criminal acts [of another] TTT merges with the proximate

cause analysis’’).

Sitting in diversity, however, our task is to apply the law of

the District of Columbia as its own courts would apply it, not

to second-guess the analytical framework those courts have

erected. See Dominion Bank, 963 F.2d at 1560. And the

D.C. courts have repeatedly spoken of the heightened foreseeability requirement in terms of duty. E.g., Graham v. M.

& J. Corp., 424 A.2d 103, 105 (D.C. 1980) (‘‘[f]oreseeability is

the key element in establishing the landlord’s duty’’ in case

involving intervening criminal act); Potts, 697 A.2d at 1252

(‘‘the plaintiff has the burden of establishing that the criminal

act was so foreseeable that a duty arises to guard against it’’).

Although the courts did, in early decisions considering liability for harm caused by the criminal act of a third party,

inquire at the threshold into the propriety of imposing a duty

of protection based upon the relationship between the plaintiff and the defendant, e.g., Kline, 439 F.2d at 483, the courts

have in more recent cases tended to leapfrog directly to the

foreseeability issue, with the parties’ relationship, as noted

above, a factor relevant to determining whether the requirement of foreseeability has been satisfied. Although perhaps

not analytically the most obvious approach, neither does it

strike us as imprudent. But even if it did, we would be bound

to apply it.
12

III. Conclusion

Because Workman failed to adduce sufficient evidence to

create a genuine issue of heightened foreseeability, the judgment of the district court is

Affirmed.