79 Hawai'i 110, Maguire v. Hilton Hotels Corp.

• Decision Date: 26 June 1995
• Docket Number: No. 17544,17544
• Parties: 79 Hawai'i 110, 10 IER Cases 1326 Donna L. MAGUIRE and Robert L. Maguire, Plaintiffs-Appellants, v. HILTON HOTELS CORPORATION, a California corporation, and Prudential Insurance Company of America, a Delaware corporation, Defendants-Appellees, and John Does 1-10, Jane Does 1-10, and Doe Entities 1-10, Defendants.
• Court: Hawaii Supreme Court

Page 393

899 P.2d 393

79 Hawai'i 110, 10 IER Cases 1326

Donna L. MAGUIRE and Robert L. Maguire, Plaintiffs-Appellants, v. HILTON HOTELS CORPORATION, a California corporation, and Prudential Insurance Company of America, a Delaware corporation, Defendants-Appellees and John Does 1-10, Jane Does 1-10, and Doe Entities 1-10, Defendants.

No. 17544.

Supreme Court of Hawai'i.

June 26, 1995.

Leslie S. Fukumoto, on the briefs, Tanaka & Fukumoto, Honolulu, for plaintiffs-appellants.

Nicole B. Jeffers (Robert P. Richards with her on the briefs, Reid, Richards & Miyagi), Honolulu, for defendants-appellees.

Before MOON, C.J., LEVINSON and RAMIL, JJ., CHANG Circuit Judge, in Place of KLEIN, J., Recused, and KOCHI, Circuit Judge, in Place of NAKAYAMA, J., Recused.

RAMIL, Justice.

Plaintiff-appellant Donna L. Maguire (Donna) was assaulted while cleaning the men's restroom at the Hilton Hawaiian Village (the Hilton or the hotel) in Honolulu. Donna was an employee of Hawai'i Care & Cleaning (HCC), which had entered into an agreement with the hotel to provide cleaning services at the Hilton. As a result of the assault, Donna and her husband, plaintiff-appellant Robert L. Maguire (Robert) (collectively Plaintiffs), filed a complaint against Defendants-Appellees Hilton Hotels Corporation and Prudential Insurance Company of America (collectively Defendants), as owners of the Hilton. In their complaint, Plaintiffs alleged that Defendants had breached their duty to Donna.

The circuit court awarded summary judgment in favor of Defendants because it concluded, as a matter of law, that Defendants did not owe a duty to Donna. Because we hold that: (1) Donna was a business visitor of the Hilton; and (2) there are genuine issues of material fact regarding the issue of reasonable foreseeability, we vacate the order awarding summary judgment in favor of Defendants and remand for further proceedings.

I. FACTS

On July 1, 1986, the Hilton entered into a two-year contract with HCC whereby HCC agreed to provide cleaning services at the Hilton. Donna was employed by HCC and assigned to the Hilton. Pursuant to the agreement, certain areas of the hotel were to be cleaned at specific times. For example, the men's restroom on the ground floor of the hotel's Tapa Tower was to be cleaned by HCC employees daily between 11:00 p.m. and 7:00 a.m. unless otherwise advised by the hotel.

On March 27, 1988, while working her normal shift at the hotel, Donna was sexually assaulted by an unknown assailant in the Tapa Tower men's restroom. ¹ Plaintiffs thereafter filed a complaint against Defendants alleging, inter alia, that: (1) Defendants knew or should have known that requiring Donna's services late at night in a high crime area where other attacks had occurred put her at risk; (2) Defendants' failure to exercise ordinary care was a legal cause of her physical, emotional, and economic injuries; and (3) Robert suffered loss of consortium.

Defendants filed a motion for summary judgment on April 5, 1989. The circuit court granted and denied the motion in part. The court ruled, inter alia, that Donna was not: (1) a guest of the Hilton, and, therefore, there was no special "guest-innkeeper" relationship between them; and (2) an employee of the hotel as defined in Hawai'i Revised Statutes (HRS) chapter 386. The court allowed Donna and Robert an additional sixty days from the date of the order to conduct further discovery as to the existence of another "special relationship" that would give rise to a duty on the part of the hotel to protect Donna against criminal acts by third parties.

On August 7, 1989, Defendants filed a second motion for summary judgment and argued that no special relationship existed between the hotel and either the unknown assailant or Donna. The circuit court denied Defendants' motion on the basis that Plaintiffs had a pending motion to compel discovery. However, the circuit court eventually denied Plaintiffs' motion to compel. Thus, on March 2, 1990, Defendants filed a third motion for summary judgment on all counts. Defendants again argued that the hotel did not have a "special relationship" with Donna.

Plaintiffs filed a memorandum in opposition, as well as a supplemental exhibit, which consisted of incident reports from the hotel's security department documenting alleged criminal acts that had occurred on the premises prior to March 27, 1988. The reports included: (1) a March 11, 1988, domestic dispute between non-guests; (2) an armed robbery in a guest room of the hotel's Tapa Tower on March 20, 1988, at 8:30 p.m.; (3) a beating and robbery in the hotel parking lot on April 4, 1984, at 9:30 p.m.; (4) a robbery and assault in the hotel's Rainbow Tower on August 22, 1984, at 8:00 p.m.; (5) a terroristic threatening in a hotel hallway on April 8, 1984, at 8:15 a.m.; and (6) an armed robbery in the Hilton parking lot on March 30, 1984 at 10:25 p.m. ²

The circuit court granted Defendants' motion for summary judgment on September 10, 1990, concluding, on the record before it, that Defendants owed no duty to Donna. Plaintiffs timely appealed.

II. STANDARD OF REVIEW

The issue in this case is whether the circuit court erred when it granted summary judgment in favor of Defendants on the basis that Defendants owed no duty to Plaintiffs. We review the circuit court's award of summary judgment de novo under the same standard applied by the circuit court. Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 104, 839 P.2d 10, 22, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992) (citation omitted). As we have often articulated,

[s]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Id. (emphasis added) (citation and internal quotation marks omitted); see Hawai'i Rules of Civil Procedure (HRCP) Rule 56(c) (1990). "A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982) (citations omitted).

Thus, in order to affirm the lower court, we must determine: (1) that there are no disputed facts in this case that, if proved, would have the effect of "establishing or refuting" the existence of a duty owed by Defendants to Plaintiffs; and (2) that Defendants are entitled to judgment as a matter of law. See Cuba v. Fernandez, 71 Haw. 627, 631, 801 P.2d 1208, 1211 (1990). In making these determinations, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the Plaintiffs. See Bidar v. AMFAC, Inc., 66 Haw. 547, 551, 553, 669 P.2d 154, 159 (1983) ("[O]ur review of [summary] judgments has been governed by the rule that the 'evidence and the inferences drawn therefrom must be viewed in the light most favorable to the party opposing the motion.' "). ³

III. DISCUSSION

"A prerequisite to any negligence action is the existence of a duty owed by the defendant to the plaintiff." Cuba, 71 Haw. 627, 631, 801 P.2d 1208, 1211 (citing Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376 385, 742 P.2d 377, 383 (1987)). Generally, courts have been reluctant to impose a duty on owners and occupiers of land to protect others against the criminal acts of third parties. Doe v. Grosvenor Properties (Hawaii) Ltd., 73 Haw. 158, 162, 829 P.2d 512, 515 (1992) (citations omitted). This reluctance stems from the view that "criminal acts are not reasonably to be expected, and are so unlikely in any particular instance that the burden of taking continual precautions against them almost always exceeds the apparent risk." Id. (citing W.P. Keeton, Prosser & Keeton on Torts § 33 (5th ed. 1984)). Nevertheless, exceptions to the general rule that there is no duty to protect another against the criminal acts of a third party may arise, when justified by the existence of some "special relationship" between the parties. Doe, 73 Haw. at 163, 829 P.2d at 515 (citing Restatement (Second) of Torts § 315 (1965)).

In determining whether such a relationship exists, this court looks to section 314A of the Restatement (Second) of Torts, which sets forth a non-exclusive list of "special relationships" upon which a court may find a duty to protect. See, e.g., Doe, 73 Haw. at 163, 829 P.2d at 515; Cuba, 71 Haw. at 632, 801 P.2d at 1211; Knodle, 69 Haw. at 386-87, 742 P.2d at 384. Section 314A provides:

(1) A common carrier is under a duty to its passengers to take reasonable action

(a) to protect them against unreasonable risk of physical harm, and

(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

(2) An innkeeper is under a similar duty to his [or her] guests.

(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his [or her] normal opportunities for protection is under a similar duty to the other.

(Emphasis added.) The "special relationship" set forth in section 314A(3), i.e., the "invitee exception," is further explained by the Restatement (Second) of Torts § 332 as follows:

(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

In Doe,...