VIRGINIA D., Plaintiff-Appellant, v. MADESCO INVESTMENT CORP., d/b/a Bel Air Hilton Hotel, Defendant-Respondent.
No. 64183.
Supreme Court of Missouri, En Banc.
March 29, 1983.
As Modified on Denial of Rehearing April 26, 1983.
648 S.W.2d 881
Lawrence B. Grebel, Donald L. James, St. Louis, for defendant-respondent.
William Edward Taylor, St. Louis, for amicus curiae Women‘s Self Help Center.
BLACKMAR, Judge.
The plaintiff complained that she had been assaulted and sexually molested by a male intruder in a ladies’ restroom of a motor hotel and that the defendant hotel operator was negligent in various respects.1 The petition alleged that the defendant
Bel Air Hilton is a first class motor hotel located just across the street from Mansion House Center in the easternmost portion of downtown St. Louis, near the two downtown bus stations and Interstate 70. It has 17 stories, with an attached parking garage having access to the hotel elevators on six levels. The hotel has an upper lobby at street level containing the registration and cashiers windows, a small gift shop, and the entrances to the two restaurants. There are two revolving doors on the west side facing Fourth Street, one near the registration area and the other opposite the entrance to Trader Vic‘s, one of the restaurants in the hotel. Each of the revolving doors has a hinged door on each side. There is also a rear entrance used by employees, and for making deliveries. The lower lobby may be reached by a flight of stairs from the main floor or by elevator from any level of the hotel. The hotel offices are located off the lower lobby, as are men‘s and ladies’ restrooms, the latter being the scene of the events involved in this case. The lower level also contains banquet and meeting rooms.
Besides Trader Vic‘s, the hotel has a Miss Hullings restaurant. The restaurants are apparently under separate ownership, utilizing leased space, but the evidence would support a finding that they are integral parts of the hotel complex. Both restaurants serve liquor.
After work on September 24, 1976 the plaintiff and some friends went to the Miss Hullings restaurant intending to eat dinner. They arrived before the dinner hour and ordered beer. One of the plaintiff‘s companions left to use the restroom and returned after about five minutes. Miss Hullings has no public restrooms. Patrons of Miss Hullings could use the restrooms in Trader Vic‘s or those on the lower level of the hotel. After her companion returned the plaintiff went to the restroom, deciding to use the lower level facilities because Trader Vic‘s restrooms can be reached only through a noisy bar.
The plaintiff probably visited the restroom at about 5:30 p.m. She testified that she saw nobody in the lower lobby or in the ladies’ restroom before entering the cubicle. There had been a meeting on the lower level during the day but it had adjourned and the banquet room was being set up for an evening affair for the same group, with
The assailant was arrested, identified, and eventually sentenced on a plea of guilty. There is some variation in the evidence as to his manner of dress, but all witnesses agreed that nothing in his appearance would have caused any hotel employee to detain or question him if he had been seen to enter the hotel by one of the street level doors and then to enter the elevator or go down the stairs to the lower lobby. Any person who presented a reasonably neat appearance and was not obviously intoxicated or otherwise disorderly would be allowed to enter the hotel for the purpose of using the lower level restrooms. Nor would it be difficult to enter the garage on foot, since there was only one attendant and he would often be involved in checking cars out.
There was substantial evidence that persons having no proper business in the hotel and not scrupulous about respect for law and property entered with some regularity and were a cause of concern to the hotel authorities. Management was on the alert for prostitutes. Former manager Charles Powers testified that they would sometimes take the elevators to the upper floors, while Baddock said that they operated in the restaurants and bars. Vandalism and “burglary” of automobiles occurred in the garage. Young boys created problems by gathering in the lower lobby, sometimes two or three times a week. There had been vandalism in the men‘s restroom and coins were removed from the “wishing pool” at the foot of the stairs. A person who had worked at the hotel as a security guard expressed concern about thefts from the gift shop. On one occasion an “arsenal” was found in a room, apparently brought in by registered guests. There was, however, no evidence of recent incidents of rape, assault, robbery or other violent crime in or near the hotel.3 Nor was there any evidence of previous criminal activity or violence in the lower level ladies’ room.
No employees of the hotel were regularly stationed in the lower lobby, in positions from which they could observe the lobby and the adjoining restroom area. The four to six women who worked in the hotel offices used this restroom, and it may be assumed that it would have been in heavy use during a banquet or meeting on the lower level. The hotel had no television monitor in the lower lobby but did maintain one at the back door. There was a single security officer on duty 24 hours a day, supplied under contract by a private agency. This agency had recommended that an additional guard or guards be employed. The security officer‘s regular rounds took him elsewhere at the time the plaintiff was attacked, and he did not regularly visit the lower lobby. There was evidence that the downstairs restrooms had been locked after 5:00 p.m. in the past as a security measure, when there were no evening functions scheduled in the banquet rooms.4 The manager of Miss Hullings complained and the practice was abandoned.
Baddock, manager of the hotel at the time of the incident and president of the hotel corporation at the time of trial, expressed the opinion that the overall performance of the security system could have been a little more efficient. The management tried to exclude or eject people who did not have legitimate business in the hotel, including drunks, bums, prostitutes, and idlers. Baddock recognized that “anyone could walk into the lobby,” and that anyone who could get by the attendant could walk into the garage. He was aware that rape could happen in the hotel and recognized this as a part of the overall security problem. He had considered the installation of an additional TV monitor in the banquet preparation area, which was a private area on the lower level but not near the restrooms.
Lt. Col. Atkins Warren, the third ranking officer of the St. Louis Police Department, was subpoenaed by the defendant and placed on the stand. He said that the area in which the hotel was situated was a low frequency area for crime as compared to other areas of the city as a whole, but that crime occasionally occurs everywhere. If groups of young men hung around in the lower lobby he would recognize the area as a problem area for possible violent crime or purse snatching, and the possibility of violent crime in the restrooms would exist. He testified that the presence of people deters crime.
The plaintiff produced a witness with police training who markets her services as an expert and consultant on security problems for hotels and other businesses. She criticized the design of the ladies’ restroom and expressed the opinion that the plaintiff might better have been able to discover an intruder and to protect herself if there had been modifications in design. The witness criticized particularly the “maze” or corridor between the lavatory and the toilet area, the absence of mirrors which would make it easier to discover an intruder in the toilet area, and the failure to design cubicle doors which would stand open so that a woman entering the stalls could see if any were occupied. She also said that she found it easy to walk into the “non public” areas of the hotel, where only employees were supposed to be present.
There is a special relationship between hotel operators, whom the law has traditionally called innkeepers, and their guests, so as to impose affirmative duties in the protection of persons and property.6
The claimant must establish the elements of a negligence claim—that is, duty, breach of duty, and causation. Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. 1976);
The defendant‘s arguments may be summarized as follows: (1) there was no duty to take special precautions against events of the kind that befell the plaintiff, since nothing of this sort had happened in the relevant past; (2) there was no breach of duty in failing to detect the presence of the assailant or to warn him off the property, since nothing in his appearance or conduct prior to the attack gave any indication that he was a dangerous person; and (3) the element of causation has not been established because there is no assurance that the suggested security precautions, had they been in place, would have inhibited the attack. The trial court and the Court of Appeals appear to accept the first two arguments.
Many lawsuits have been filed against owners of business premises on account of criminal assaults against invitees. There are extensive annotations in 70 A.L.R.2d 628, 10 A.L.R.3d 619, and 43 A.L.R.3d 331. Most claimants have been unsuccessful. Sometimes courts base denial of recovery on principles of foreseeability. Cf. Irby v. St. Louis Cab Co., 560 S.W.2d 392, 395 (Mo. App. 1977); sometimes it is said that the criminal act is an intervening or superseding cause. Ford v. Monroe, 559 S.W.2d 759, 762 (Mo. App. 1977).
The defendant, and the courts below, place strong reliance on Judge McMillian‘s opinion in Irby, supra. There a petition
Any suggestion that crime is not foreseeable is particularly inappropriate when a downtown metropolitan area is involved, especially when the case involves a hotel.13 Our traditional innkeeper statutes, in providing that an innkeeper may provide a safe for valuables and may avoid extraordinary liabilities by posting notice of its availability, recognize that hotels are very public places and that guests may be the victims of crime.
The defendant cites some of the numerous cases holding that a hotel operator, or other owner of premises to which the public is invited, is not liable for the consequences of a sudden and unanticipated assault, committed by a person who has given no prior reason for suspicion.14 We agree that the defendant could not be found negligent on the basis of the assailant‘s presence in the hotel, but only up to the point at which he entered the ladies’ room. Had his entry there been observed by a hotel employee, an immediate duty to take action would have arisen.15 But the entry was not
There is ample evidence that persons on the fringe of the law, and some quite over the border, could enter, remain, and misbehave in the hotel without great difficulty. There were continuing problems with prostitutes. “Burglaries” of cars, and thefts, took place in the garage. We do not agree that incidents in the garage are necessarily insufficient to provide warning with regard to the hotel proper, since persons in the garage could easily enter the hotel and could go to any level on the elevator. See Murphy v. Penn Fruit Co., 274 Pa. Super. 427, 418 A.2d 480 (1980). A former security guard at the hotel testified about thefts in the gift shop, off the upper lobby. Then there were problems with young men or boys who gathered in the lower lobby as often as two or three times a week and who probably vandalized the men‘s room. Colonel Warren testified that persons so assembling would pose potential danger. The jury could find that this evidence of past incidents was sufficient to alert management to the possibility of crime on the premises, so as to invoke the duty of exercising an appropriate degree of care to protect hotel guests from criminal victimization.
Nor can it be said that the duty of anticipation extends only to crimes similar in nature and seriousness to those that have occurred in the past. See Orlando Executive Park, Inc. v. P.D.R., 402 So. 2d 442 (Fla. Dist. Ct. App. 1981), (burglaries sufficient to alert hotel operator to possibility of attack); Mozlak v. Ettinger, 25 Ill. App. 3d 706, 323 N.E.2d 796 (1975); (attempted break-ins at women‘s residence indicated possibility of assault); Jenness v. Sheraton-Cadillac Properties, Inc., 48 Mich. App. 723, 211 N.W.2d 106 (1973), (in which hotel employees allowed a prostitute to loiter and she assaulted a guest who refused her solicitations); Morgan v. Bucks Associates, 428 F. Supp. 546 (E.D. Pa. 1977), (holding that auto thefts on parking lot should alert owner to danger of assaults, citing
In Murphy v. Penn Fruit Co., supra, 418 A.2d at p. 483, the court held that it was proper to instruct the jury that the defendant need not be aware of the exact type of criminal acts that might take place on the premises. There the evidence showed prior non-violent crimes on the defendant‘s premises, and the defendant was held liable for an attack with a knife on the parking lot. The instruction was more detailed than our practice would permit, but the principle is appropriate to indicate what the jury may consider.
The jury might have sensed that the lower lobby was quite a lonely place after 5 p.m. on September 24, 1977. The meeting participants had departed and most of the employees in the office had left. The employees in the large banquet room, setting up for an evening affair, undoubtedly gave very little attention to the lobby area. Former Manager Powers considered the lower lobby an area of concern, and had tried or suggested various security measures. The jury well might have felt that criminal types might enter the hotel from the street, or even take out rooms, and might gravitate to the lower lobby at a time when traffic was at a minimum, creating the potential for severe harassment or violence directed against guests.
The evidence suggests a variety of possibilities for improving security on the lower
It is not for us to decide whether any one or more of these measures would be necessary, practical, or effective. All we need say is that the jury might have concluded that precautions were available which might have increased the chances of dissuading the attacker from entering the ladies’ room, of discovering his entry, or of interrupting him before he caused substantial harm to the plaintiff. The plaintiff is not obliged to prove that the utilization of security measures would surely have prevented the assault. Mayer v. Housing Authority of Jersey City, 84 N.J. Super. 411, 202 A.2d 439, 447 (1964); Orlando Executive Park, Inc. v. P.D.R., 402 So. 2d 442 (Fla. Dist. Ct. App. 1981) (plaintiff does not have the burden of showing that the security measures would necessarily have been effective).
Evidence of feasibility and cost could also have been presented to the jury. The manager testified that there was a program of security training for employees, but the employee who made the capture, although described as having an important position, said that he had no security training. The jury might well have felt that there had been insufficient attention to security, and that added security precautions might have increased the chances for avoiding the incident.
The evidence of the witness claiming to be a security expert, to the effect that the ladies’ room could have been so designed as to increase the possibility that an intruder would have been discovered, was also before the jury. We do not have to decide whether this evidence, in and of itself, would have been sufficient to support a finding of negligent design giving rise to a submissible case. The jury could properly consider her testimony along with the other evidence.
We conclude that the question whether the defendant exercised the proper degree of care under the circumstances, and the question of causation, were issues to be decided by the jury and should not have been preempted by the court. The jury was certainly not obliged to find negligence under the circumstances, but there was substantial evidence on which it could have made this finding. It follows that the judgment must be reversed and the cause remanded with directions to reinstate the judgment on the verdict for the plaintiff.
RENDLEN, C.J., HIGGINS, GUNN and BILLINGS, JJ., concur.
WELLIVER, J., dissents in separate opinion filed.
DONNELLY, J., dissents and concurs in separate dissenting opinion of WELLIVER, J.
HIGGINS, J., withdraws concurrence and joins in separate dissenting opinion of WELLIVER, J., on April 26, 1983.
I respectfully dissent.
The principal opinion cannot be read as doing anything other than imposing strict liability upon the owners of hotels and motels. The principal opinion concedes that nothing about the assailant‘s appearance would have given defendant cause to believe that the assailant might accost plaintiff or anyone else in the hotel. Its holding is grounded squarely upon the view that defendant should have foreseen that someone might attack a patron in the ladies’ room at some time. It states:
We agree that the defendant could not be found negligent on the basis of the assailant‘s presence in the hotel, but only up to the point at which he entered the ladies’ room. Had his entry there been observed by a hotel employee, an immediate duty to take action would have arisen. But the entry was not observed.
(Emphasis added; footnote omitted.) The gist of that statement is that defendant had a duty to hire a permanent ladies’ room attendant or initiate some other security measure that would effectively have deterred a man from entering the ladies’ room. I find nothing in the facts developed at trial that would cause defendant to owe plaintiff such an extraordinary duty. Plaintiff‘s evidence regarding previous incidents at the hotel showed that there had been some prostitution; that young men, not guests of the hotel, had congregated on the lower level; that there had been some vandalism in the men‘s restroom on the lower level; that there had been thefts from automobiles in the parking garages; that “undesirables” had come into the hotel from a nearby bus station; and that there had been a bomb threat.
As a theoretical matter, anything is foreseeable. The law, however, must be tempered with a measure of practicality. Lt. Col. Warren testified that the area around defendant‘s hotel is one of comparatively low crime. Nothing about previous incidents at the hotel suggests that defendant had a reasonable basis for anticipating the attack of which plaintiff complains. In such a case defendant breached no duty owed to plaintiff.
I would affirm the judgment.
WELLIVER, J.
Notes
The defendant has not challenged the giving of this instruction and we are not called upon to approve or disapprove it.INSTRUCTION NO. 2
Your verdict must be for the Plaintiff if you believe:
First, there was a danger that an assailant might attack a person in the ladies restroom and as a result the ladies restroom was not reasonably safe, and
Second, Defendant knew or by using reasonable care should have known of this condition, and
Third, Defendant failed to use ordinary care to make the ladies restroom reasonably safe, and
Fourth, as a direct result of such failure, Plaintiff was injured.