Wassell v. Adams

• Decision Date: 05 January 1989
• Docket Number: No. 88-1118,88-1118
• Citation: 865 F.2d 849
• Parties: Susan WASSELL, Plaintiff-Appellant, v. Wilbur L. ADAMS and Florena M. Adams, doing business as Ron-Ric Motel, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 849

865 F.2d 849

Susan WASSELL, Plaintiff-Appellant, v. Wilbur L. ADAMS and Florena M. Adams, doing business as

Ron-Ric Motel, Defendants-Appellees.

No. 88-1118.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 29, 1988.

Decided Jan. 5, 1989.

Harvey J. Barnett, Harvey J. Barnett & Assoc., Ltd., Chicago, Ill., for plaintiff-appellant.

Bruce L. Carmen, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, Ill., for defendants-appellees.

Before POSNER, COFFEY and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff, born Susan Marisconish, grew up on Macaroni Street in a small town in a poor coal-mining region of Pennsylvania--a town so small and obscure that it has no name. She was the ninth of ten children, and as a child was sexually abused by her stepfather. After graduating from high school she worked briefly as a nurse's aide, then became engaged to Michael Wassell, also from Pennsylvania. Michael joined the Navy in 1985 and was sent to Great Lakes Naval Training Station, just north of Chicago, for basic training. He and Susan had decided to get married as soon as he completed basic training. The graduation was scheduled for a Friday. Susan, who by now was 21 years old, traveled to Chicago with Michael's parents for the graduation. The three checked into a double room at the Ron-Ric motel, near the base, on the Thursday (September 22, 1985) before graduation. The Ron-Ric is a small and inexpensive motel that caters to the families of sailors at the Great Lakes Naval Training Station a few blocks to the east. The motel has 14 rooms and charges a maximum of $36 a night for a double room. The motel was owned by Wilbur and Florena Adams, the defendants in the case.

Four blocks to the west of the Ron-Ric motel is a high-crime area: murder, prostitution, robbery, drugs--the works. The Adamses occasionally warned women guests not to walk alone in the neighborhood at night. They did not warn the Wassells or Susan.

Susan spent Friday night with Michael at another motel. On Saturday the Wassells checked out and left for Pennsylvania, and at the Wassells' suggestion Susan moved from the double room that she had shared with them to a single room in the Ron-Ric. Michael spent Saturday night with her but had to return to the base on Sunday for several days. She remained to look for an apartment where they could live after they were married (for he was scheduled to remain at the base after completing basic training). She spent most of Sunday in her room reading the newspaper and watching television. In the evening she went to look at an apartment.

Upon returning to her room at the motel, she locked the door, fastened the chain, and went to bed. She fell into a deep sleep, from which she was awakened by a knock on the door. She turned on a light and saw by the clock built into the television set that it was 1:00 a.m. She went to the door and looked through the peephole but saw no one. Next to the door was a pane of clear glass. She did not look through it. The door had two locks plus a chain. She unlocked the door and opened it all the way, thinking that Michael had come from the base and, not wanting to wake her, was en route to the Adamses' apartment to fetch a key to the room. It was not Michael at the door. It was a respectably dressed black man whom Susan had never seen before. He asked for "Cindy" (maybe "Sidney," she thought later). She told him there was no Cindy there. Then he asked for a glass of water. She went to the bathroom, which was at the other end of the room, about 25 feet from the door (seems far--but that was the testimony), to fetch the glass of water. When she came out of the bathroom, the man was sitting at the table in the room. (The room had a screen door as well as a solid door, but the screen door had not been latched.) He took the water but said it wasn't cold enough. He also said he had no money, and Susan remarked that she had $20 in her car. The man went into the bathroom to get a colder glass of water. Susan began to get nervous. She was standing between the bathroom and the door of her room. She hid her purse, which contained her car keys and $800 in cash that Michael had given her. There was no telephone in the room. There was an alarm attached to the television set, which would be activated if someone tried to remove the set, but she had not been told and did not know about the alarm, although a notice of the alarm was posted by the set. The parking lot on which the motel rooms opened was brightly lit by floodlights.

A few tense minutes passed after the man entered the bathroom. He poked his head out of the doorway and asked Susan to join him in the bathroom, he wanted to show her something. She refused. After a while he emerged from the bathroom--naked from the waist down. Susan fled from the room, and beat on the door of the adjacent room. There was no response. The man ran after her and grabbed her. She screamed, but no one appeared. The motel had no security guard; the Adamses lived in a basement apartment at the other end of the motel and did not hear her screams.

The man covered Susan's mouth and dragged her back to her room. There he gagged her with a wash cloth. He raped her at least twice (once anally). These outrages occupied more than an hour. Eventually Susan persuaded the rapist to take a shower with her. After the shower, she managed to get out of the bathroom before he did, dress, and flee in her car. To save herself after the rapes, she had tried to convince him that she liked him, and had succeeded at least to the extent that his guard was down. The Adamses' lawyer tried halfheartedly to show that she had consented to the rapes, but backed off from this position in closing argument.

The rapist was never prosecuted; a suspect was caught but Susan was too upset to identify him. There had been a rape at the motel several years previously (a sailor had opened the door of his room to two men who said they were "the management," and the men raped his wife). There had also been a robbery, and an incident in which an intruder kicked in the door to one of the rooms. These were the only serious crimes committed during the seven years that the Adamses owned the motel.

Susan married Michael, but the rape had induced posttrauma stress that has, according to her testimony and that of a psychologist testifying as her expert witness, blighted her life. She brought this suit against the Adamses on January 21, 1986. It is a diversity suit that charges the Adamses with negligence in failing to warn Susan or take other precautions to protect her against the assault. The substantive issues are governed by the law of Illinois. A jury composed of four women and three men found that the Adamses had indeed been negligent and that their negligence had been a proximate cause of the assault, and the jury assessed Susan's damages at $850,000, which was the figure her lawyer had requested in closing argument. But in addition the jury found that Susan had been negligent too--and indeed that her negligence had been 97 percent to blame for the attack and the Adamses' only 3 percent. So, following the approach to comparative negligence laid down in Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886 (1981)--the decision in which the Supreme Court of Illinois abolished the common law rule that contributory negligence is a complete bar to a negligence suit--the jury awarded Susan only $25,500 in damages. This happens to be approximately the midpoint of the psychologist's estimate--$20,000 to $30,000--of the expense of the therapy that the psychologist believes Susan may need for her post-traumatic stress.

Susan's lawyer asked the district judge to grant judgment in her favor notwithstanding the verdict, on the ground either that she had been nonnegligent as a matter of law or that her negligence was immaterial because the Adamses had been not merely negligent but willful and wanton in their disregard for her safety. In the alternative, counsel asked the judge to grant a new trial on the ground that the jury's apportionment of negligence was contrary to the manifest weight of the evidence. There were other grounds for the motion, but they have been abandoned. The judge denied the motion, and Susan appeals.

Had she filed her suit after November 25, 1986, she could not have recovered any damages, assuming the jury would have made the same apportionment of responsibility between her and the Adamses. Illinois' new comparative negligence statute (Ill.Rev.Stat. ch. 110, p 2-1116; see also p 2-1107.1) bars recovery in negligence (or strict liability product) cases in which the plaintiff's "fault ... is more than 50% of the proximate cause of the injury or damage for which recovery is sought." But as her suit was filed before that date, the new statute is inapplicable. See Ill.Rev.Stat. ch. 34, p 429.7 Historical Note.

Susan Wassell's counsel argues that the jury's verdict "reflected a chastened, hardened, urban mentality--that lurking behind every door is evil and danger, even if the guest is from a small town unfamiliar with the area." He takes umbrage at the defendants' argument that Susan's "antennae" should have been alerted when she didn't see anyone through the peephole. He rejects the metaphor, remarking unexceptionably that human beings do not have antennae and that this case is not a Kafka story about a person who turned into an insect (i.e., is not The Metamorphosis ). He points out that a person awakened from a deep sleep is not apt to be thinking clearly and that once Susan opened the door the fat was in the fire--if she had slammed the door in the rapist's face he might have kicked the door in, as had happened once before at this motel, although she didn't know that at the time. The Adamses' counsel argued to the jury (perhaps with the wisdom of hindsight) that Susan's "tragic mistake" was failing to flee when the man entered the bathroom. S...