Brewer v. Roosevelt Motor Lodge

Decision Date17 October 1972
Citation295 A.2d 647
CourtMaine Supreme Court
PartiesBertha BREWER v. ROOSEVELT MOTOR LODGE.

Daviau & Geller, by Jerome G. Daviau, Waterville, for plaintiff.

Robert W. O'Connor, Augusta, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

On October 24, 1968 the female plaintiff, a paying guest and resident at the defendant Roosevelt Motor Lodge since January of that year, had taken a bath about 11:00 o'clock that evening and had retired shortly thereafter. Prior thereto, however, she had left her bathroom window open 'to let the steam out, as it was very warm, as I always did, drawing the curtains.' The defendant's motel had forty rooms all on the ground floor located on either side of a long hallway, at the front of which was a lobby where a clerk was in attendance at all times. Below these guest-rooms and underground were a large dining room, kitchen, bar and larger rooms for private parties. The window which the plaintiff left open could have been locked and the air-conditioning unit with which Mrs. Brewer's room was equipped, if operated, would have removed the vapors from the bathroom. While the plaintiff was asleep, a male intruder gained entrance to the room by removing the half screen on the bathroom window and climbing in through the open window. The bathroom screen had no locking device. Following this intrusion, Mrs. Brewer was assaulted and raped and her diamond wristwatch disappeared in the process.

The plaintiff in the instant action sought damages for her physical and mental injury arising out of the assault and rape and for the consequential losses attributable thereto. She bottoms her right of recovery upon the alleged negligence of the defendant corporation in failing to provide adequate security precautions for the plaintiff's safety, or, alternatively, in failing to give adequate notice of the insufficient security provisions made for guests at the motel. She bases her right to damages for the loss of her watch upon the common law absolute liability of innkeepers.

At the close of the plaintiff's evidence at trial before a jury, both parties presented motions for a directed verdict pursuant to Rule 50(a), M.R.C.P. The Justice below granted the defendant's motion while denying that of the plaintiff. The instant appeal challenges the propriety of that ruling. The appeal must be denied.

We have stated the general policy to be followed by trial Justices when faced with motions for a directed verdict under Rule 50(a). Moore v. Fenton, 1972, Me., 289 A.2d 698 at 700 (footnote 1). We there indicated that the direction of a verdict should be granted sparingly as the exception rather than the rule and only when the correctness of such a ruling is so clear that all reasonable doubts of possible error or uncertainty have been removed in the justice's mind. Undoubtedly, the presiding Justice so felt about his decision on the motion. 1

The plaintiff argues that the defendant's failure to provide locking devices on the screens of its motel rooms or bars on the windows, to fence off its establishment from easy access by members of the general public, to install the most modern television monitoring system inside the hallways of the motel as well as on the outside of the complex, to maintain guards on the adjacent grounds or, in the alternative, its omission to give notice to its patrons of these alleged security inadequacies, was sufficient evidence of conduct which a jury might determine to be negligent conduct which proximately caused the plaintiff's injuries. We disagree with such contention as applied to the evidence in the instant case.

The burden is on the plaintiff to introduce sufficient evidence of actionable negligence on the part of the defendant which would authorize a favorable finding to that effect by the jury. In Torrey v. Congress Square Hotel Co., 1950, 145 Me. 234, 75 A.2d 451, this Court said that it was not negligence per se to have a floor of two levels in a hotel cocktail lounge; so also in this case, it was not negligence per se not to provide locking devices on the half screens with which the motel rooms were equipped.

The common-law test of duty is the probability or foreseeability of injury to the plaintiff. The risk reasonably to be perceived within the range of apprehension delineates the duty to be performed and the scope thereof. Connolly v. Nicollet Hotel, 1959, 254 Minn. 373, 95 N.W.2d 657, 74 A.L.R.2d 1227; Palsgraf v. Long Island R. Co., 1928, 248 N.Y. 339, 344, 162 N.E. 99, 100, 59 A.L.R. 1253.

In Quinn v. Moore, 1972, Me., 292 A.2d 846, at 850, this Court said:

'The reasonable foreseeability of injury to others from one's acts or from one's failure to act raises a duty in law to proceed in the exercise of reasonable care. It is not necessary that the precise type of injury be foreseen nor the specific person injured. The orbit of danger may be undefined in terms of time, space or persons. Nevertheless, if a reasonably prudent and careful person should have anticipated under all the existing circumstances that a person in the situation of the plaintiff would probably be injured as a proximate result of the negligent conduct of the defendant, then such risk of injury reasonably to be apprehended raises the legal duty to proceed in the exercise of reasonable care commensurate with the danger of injury in order to avoid the same.'

This rule has been recognized with respect to liability of the proprietor of a theater or amusement enterprise to his guests, where this Court said that he must guard them not only against dangers of which he has actual knowledge but also against those which he should reasonably anticipate. Hawkins v. Maine and New Hampshire Theaters Co., 1933, 132 Me. 1, 164 A. 628. The same rule has been applied to the operator of tourist or overnight cabins with respect to liability of the operator in the maintenance of the grounds surrounding the cabins. Walker v. Weymouth, 1958, 154 Me. 138, 145 A.2d 90. The scope of the duty was said to encompass wilful or negligent acts of third persons intervening and contributing to the injury, provided such acts should have been reasonably foreseen or anticipated. Hawkins, supra.

We find this rule to be in accord with the prevailing doctrine to the effect that a proprietor of an inn, hotel, motel, restaurant, or similar establishment is liable for an assault upon a guest or patron by another guest, patron or third person where he has reason to anticipate such assault, and fails to exercise reasonable care under the circumstances to prevent the assault or interfere with its execution. Kimple v. Foster, 1970, 205 Kan. 415, 469 P.2d 281; 40 Am.Jur.2d, Hotels, Motels, Etc., § 112, p. 987.

While the proprietor of such an establishment is bound to exercise reasonable care to prevent personal injuries to his patrons by other persons who are in no way connected with the business and the standard of care required is always the conduct of an ordinarily prudent person, nevertheless, the standard of conduct required is graduated according to the danger attendant upon the activities of the business pursued and depends upon the facts and circumstances surrounding each particular case. Hughes v. Coniglio, 1946, 147 Neb. 829, 25 N.W.2d 405.

Actionable negligence is a prerequisite for recovery in an action for personal injury negligently inflicted. To be actionable, negligence must be the proximate cause of the injury complained of. Reasonable foreseeability of injury is the foundational basis for proximate causation. Thus, when the injury for which damages are sought is not reasonably foreseeable, in the exercise of due care, the party whose conduct is under investigation is not answerable for the same.

A review of the evidence clearly shows that the plaintiff did not bring herself within the rule which would permit recovery. She failed to prove actionable negligence. The assault committed upon her by her assailant, a person completely unconnected with the motel, under the instant record permits no other conclusion except that it was a new and intervening cause altogether disassociated with any act of omission or commission on the part of the defendant. Nixon v. Royal Coach Inn of Houston, 1971, Tex.Civ.App., 464 S.W.2d 900.

To secure the protection of the persons of guests at the motel, the defendant had equipped the motel room doors with a chain lock and a lock in the handle. The bathroom window through which the plaintiff's assailant made his intrustion had a plainly visible slide lock on it. An operating air conditioner was available to remove the post-bath vapors in the bathroom or to keep the unit at a comfortable temperature for sleeping purposes without the necessity of having an open and unlocked window through the night.

In this posture of the evidence, the issue was whether the defendant as an ordinarily prudent person had reasonable cause to anticipate that the security measures taken for the plaintiff's protection were inadequate to meet any reasonably foreseeable harm. The only evidence produced at trial relative to the foreseeability of intruders consisted of a single incident when, on a previous occasion the time of which does not appear, two young boys broke into the hallway of the motel for the purpose of rifling the motel's cash box. There was no evidence of any previous attempt to break into any room of the motel, nor into any other motels in the area, nor was there any evidence that the neighborhood was an area where burglaries were prevalent.

We recognize that the plaintiff was the victim of a despicable and extremely painful experience. However, we must conclude that the defendant was under no obligation to anticipate the isolated, wilful and furtive movements of a burglar-rapist whose nefarious tendencies were apparently activated by the plaintiff's failure to secure her premises...

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