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11/26/74 Helen B. Elliott, v. Michael James

November 26, 1974

ESTATE OF DARLENE JULIE ELLIOTT, APPELLANT

v.

MICHAEL JAMES, INC., T/A GENTLEMEN II, ET. AL 1974.CDC.264 DATE DECIDED: NOVEMBER 26, 1974



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

HELEN B. ELLIOTT, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action 1544-69).

APPELLATE PANEL:

Wright and Leventhal, Circuit Judges and Matthews,* Senior United States District Judge for the District of Columbia.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MATTHEWS

Opinion for the Court filed by Senior District Judge MATTHEWS.

MATTHEWS, Senior District Judge:

This is an appeal from a judgment for the defendants in a wrongful death action tried by the District Court without a jury. The plaintiff-appellant (plaintiff), Helen B. Elliott, is the administratrix of the estate of her twenty-year old daughter, Darlene Elliott, whose death was allegedly caused by the negligence of the defendant-appellees (defendants), Michael James, Inc., Michael G. O'Harro and James Michael Desmond.

On June 23-24, 1968, the defendant corporation operated a restaurant-bar, known as Gentlemen II, located at 1800 M Street, N.W., in Washington, D.C. The two individual defendants, Michael G. O'Harro and James Michael Desmond, were then president and vice-president, respectively, of the defendant corporation, and responsible for the day-to-day operations of the restaurant-bar.

Darlene Elliott, plaintiff's decedent, had been hired to work as a bookkeeper in a restaurant to be opened later in Baltimore. In the meantime, until the restaurant opened, she was working as a trainee bookkeeper on Monday through Friday of each week at defendants' restaurant, Gentlemen II. Her hours were from about 9:00 a.m. to 5:00 p.m. She had commenced this work in June 1968 -- about three weeks prior to her death. I

During her last June week end, Darlene Elliott visited her mother in Baltimore, and went to the beach at Ocean City with a young Maryland man she had long known. They reached Washington late Sunday afternoon, June 23, 1968. Expecting to stay with her sister but not finding the sister at home, Darlene Elliott picked up her car in Georgetown and then stopped by the restaurant-bar with her friend for refreshments.

While they were being served as guests, Paul Fleischer, night manager, expressly invited Darlene Elliott to remain after the midnight closing and to drive him home. Accordingly, she remained when her Maryland friend departed about 9:30 p.m. The individual defendants knew that the night manager, who had no car, sometimes asked a guest to remain after hours and drive him home. Thus they were aware that an individual not working at the restaurant-bar might be there after closing hours. The closing duties of the night manager included counting the day's receipts, making the appropriate entries and the like, all of which would take about an hour.

It is undisputed that between midnight and 4:00 a.m. on Monday June 24, 1968, at the restaurant-bar, Stanley Cobb, who was employed by the corporate defendants as a combination night busboy and clean-up man at the restaurant-bar, knifed to death Darlene Elliott during a violent struggle. The body of Miss Elliott was found on the first or main floor. Stanley Cobb was found alive in the kitchen area of the first floor, suffering from superficial wounds. Later, during a general search of the premises by the police, the dead body of the night manager was discovered in the basement.

A United States Park Police officer, driving east on M Street, passed the restaurant-bar at approximately 3:00 a.m. on June 24, 1968. He heard a scream which sounded to him to be that of a woman. He stopped and listened but heard nothing further.

On the same day about an hour later the police arrived at the restaurant-bar in response to a call made to the telephone company (allegedly by Stanley Cobb) of intruders in the resturant-bar. When the police found no evidence of forcible entry and all doors to the restaurant-bar securely locked, they broke into the place to gain admittance.

Once on the first floor of the premises the police discovered "a massive crime scene" and "extensive evidence" of an over-all struggle between Darlene Elliott and Stanley Cobb. The struggle was long drawn out and indicated that Darlene Elliott fought with Cobb in an effort to save her life.

All exits from the restaurant-bar were found by the police securely locked from the inside in such a fashion that they could not be opened from the inside except by a key which was not in any lock.

The restaurant-bar, Gentlemen II, was a Group F-2 Assembly use building as defined by Section 3-209(b) of the 1961 Building Code of the District of Columbia. As a Group F-2 Assembly use building the restaurant-bar was subject to the following requirements of the Building Code:

Section 3-643(j) " All doors used in connection with means of egress shall be so arranged as to be always readily opened from the side from which egress is made. Locks, where allowed, shall not require a ...


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