Atkinson v. Stateline Hotel Casino & Resort

• Decision Date: 08 March 2001
• Docket Number: No. 991029-CA.,991029-CA.
• Citation: 2001 UT App 63,21 P.3d 667
• Parties: Sonya L. ATKINSON, Plaintiff and Appellant, v. STATELINE HOTEL CASINO & RESORT, Franklin T. Gammon, O. Lee Singleton, Billy R. Rodd, Jay Owens, and John Does Security Officers 1-30, Defendants and Appellees.
• Court: Utah Court of Appeals

21 P.3d 667

2001 UT App 63

Sonya L. ATKINSON, Plaintiff and Appellant, v. STATELINE HOTEL CASINO & RESORT, Franklin T. Gammon, O. Lee Singleton, Billy R. Rodd, Jay Owens, and John Does Security Officers 1-30, Defendants and Appellees.

No. 991029-CA.

Court of Appeals of Utah.

March 8, 2001.

Robert W. Hughes and John F. Bates, Salt Lake City, for Appellant. Stephen G. Morgan, Joseph E. Minnock, Morgan Meyer & Rice LC, and Jerome H. Mooney, Larsen & Mooney Law, Salt Lake City, for Appellees.

Before GREENWOOD, P.J., JACKSON, Associate P.J., and ORME, J.

OPINION

ORME, Judge:

¶ 1 Plaintiff Sonya L. Atkinson brought this action seeking damages for defendants' role in a series of events culminating in her rape by a casino patron. Plaintiff appeals the trial court's grant of summary judgment to defendants Stateline Hotel Casino and Resort, Franklin T. Gammon, O. Lee Singleton, and Billy R. Rodd (collectively, the Stateline). Specifically, plaintiff argues that the trial court erred in concluding the State line owed her no duty of care absent evidence that the Stateline knew or should have known an assault was about to occur and in concluding that no genuine issues of material fact exist. Her appeal is well-taken, and we reverse the summary judgment.

BACKGROUND

¶ 2 "[I]n reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Higgias v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993). We recite the facts in this opinion accordingly. Thus, when confronted with disputed facts in this case, we state them in the manner most consistent with plaintiffs position.

¶ 3 On Saturday, April 8, 1995, plaintiff went with her husband and sonic friends to "Wendover"—two adjoining towns of the same name, one on either side of the Utah-Nevada border. The group had reservations at the Western Motel in Utah and stopped there before taking a courtesy van at about 9:00 p.m. to the Stateline Hotel Casino and Resort in Nevada. During the next four and a half hours while gambling, eating dinner, and watching a lounge act, plaintiff had thirteen mixed drinks, two or three shots of tequila, some wine, and some champagne.

¶ 4 Shortly before 2:00 a.m., a man approached plaintiff at the craps table where her husband was gambling and asked her to teach him how to play craps. Because this individual's name was not known to the parties until long after this action was filed, he was referred to as "John Doe" through much of the proceedings. We will employ that same usage, although it is now known that the man was Jay Owens.

¶ 5 Plaintiff spent the next two to three hours at the craps table talking with John Doe and consuming another six or seven mixed drinks. Around 4:00 a.m., plaintiff left the craps table alone and made her way to a table at a nearby bar. John Doe sat next to plaintiff and said he would like to get to know her better. She replied that she was married, but the two engaged in friendly conversation, showing each other pictures of their children. John Doe then bought plaintiff a drink, in appreciation for her teaching him how to play craps. By this time, plaintiff was severely intoxicated. Her only memory between John Doe's buying her the drink and her later waking up in a strange motel room with John Doe was of getting into a vehicle.

¶ 6 While still at the bar, plaintiff became belligerent and confrontational with several Stateline employees. She put her arms around an off-duty entertainer and an offduty bartender, spoke loudly in their faces, and tried to kiss them. Stateline security officer Todd Gammon observed plaintiff, decided to intervene, and radioed for assistance. Gammon tried to walk plaintiff to the security office, but she was unable to walk and had to be carried. Gammon's shift leader, Billy Rodd, arrived to help Gammon with plaintiff. Security officer Lee Singleton entered the security office just as Gammon and Rodd got plaintiff seated.

¶ 7 Rodd posted Singleton at the office door. Within a few seconds, John Doe came to the door saying, "I'm with her." Neither Gammon, Rodd, or Singleton had noticed John Doe with plaintiff' at the bar. Singleton told John Doe he could not enter, but plaintiff said the man was with her and that she wanted him let in. Rodd then instructed Singleton to let John Doe in. As John Doe tried to calm plaintiff down, she kicked him in the groin. Now skeptical of John Doe's relationship with plaintiff, Gammon "tried to get John Doe to step back so [Gammon] could calm her down and talk to her and find out where she was staying and if she was with anybody else." Plaintiff, however, "was just being ... everywhere else" and "not making any rational sense."

¶ 8 Security detained plaintiff for fifteen minutes trying to get information including her last name, but plaintiff was so drunk that security learned nothing but her first name. During this time, John Doe knelt next to plaintiff, holding her hand and talking quietly with her. However, he never volunteered, and security never asked him, plaintiff's last name or his own name. Although trained that, in medical emergencies, they needed no permission to search a person's belongings, security never looked in plaintiff's purse, which contained her Western Motel room key.

¶ 9 Security asked John Doe if he and plaintiff had a room at the Stateline Hotel. John Doe said they did not but would "be obliged to take [one]." When told there were no rooms available, John Doe said, "I do have a room at the Motel 6."¹ Security then questioned plaintiff about having a room in town. During the whole encounter, plaintiff had "not want[ed] to answer anything [security] asked her." "John Doe would have to get her to talk to [security]," and "[h]er answer[s] would go with his answer[s]." Following that pattern, Gammon asked plaintiff, "[D]o you have a room in town?" John Doe then knelt in front of her for a "couple minutes," and "[a]fter a bit of argument [between John Doe and plaintiff] she finally said `yeah.'" When it became apparent that security wanted to remove plaintiff from the premises, John Doe said, "Please don't arrest her. I can take care of her." Rodd then decided to transport plaintiff to John Doe's room at Motel 6.²

¶ 10 Gammon carried plaintiff, who was "limp" and "dead weight in his arms," outside while Singleton went to get a van. Once outside, plaintiff requested that Gammon set her down, but she could not stand, and Gammon had to catch her. While they drove, plaintiff "propos[itioned Gammon], saying things [like], `I'll do everything you want me to do. I'm the best thing you'll ever have.'" She also tried to climb into the back seat to get at him, and he had to "put her down." As they approached Motel 6 in Wendover, Utah, John Doe directed security to the rear of the building, and plaintiff voiced her concurrence with his directions. At least one other motel—the Western Motel—was in the immediate vicinity of Motel 6.

¶ 11 After getting out of the van, plaintiff fell and "waller[ed] around on the ground." Gammon picked her up and put her over his shoulder and took her to the motel room. By the time they got to the room, plaintiff had "manage[d] to force herself down the front of [Gammon], ... wrap her legs around him, grind[ ] her pelvis against him, and kiss[ ] his neck." John Doe waited at the motel room door. When Gammon "plopped" plaintiff on the bed, she "lunged" at him saying, "Oh, come on," but, Gammon stepped back, and plaintiff fell face first to the floor. John Doe remarked, "don't worry, I'll take care of her," and security returned to the Stateline property in Nevada.

¶ 12 Plaintiff awakened later that morning naked and in bed with John Doe. When she started screaming, John Doe hit her and told her to shut up. He then raped her for what "seemed like forever." Plaintiff recognized John Doe as the man she taught to play craps. John Doe was later identified as Jay Owens. He pled guilty to raping plaintiff and was sent to the Utah State Prison.

¶ 13 On August 21, 1995, plaintiff filed a complaint naming the Stateline Hotel Casino and Resort, Gammon, Rodd, Singleton, and John Doe as defendants. After learning Jay Owens's identity, on June 9, 1997, plaintiff filed an amended complaint identifying him as a defendant. In her amended complaint, plaintiff brought claims against Owens for several intentional torts and claims against the Stateline for negligence, libel, intentional infliction of emotional distress, and punitive damages. The Stateline moved for summary judgment on all claims against it. On February 3, 1999, the trial court granted the Stateline's motion for summary judgment and held, with respect to the negligence claim, that the Stateline had "no duty to protect [plaintiff] ... under these circumstances absent evidence that [they] knew or should have known that an assault was about to occur."

¶ 14 In December of 1999, presumably having determined Owens to be impecunious, and in order to make the trial court's summary judgment on her claims against the Stateline a final appealable order, see Utah R.Civ.P. 54(b), plaintiff voluntarily moved to dismiss her claims against Owens. The trial court granted plaintiffs motion, and plaintiff now appeals from the summary judgment in favor of the Stateline.³

ISSUES AND STANDARDS OF REVIEW

¶ 15 Plaintiff raises two issues on appeal. First, she argues the Stateline owed her a duty of care. "The question of whether a `duty' exists is a question of law, and this Court, which is not bound by the trial court's conclusions, may independently review the issue." Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986). Second, plaintiff' argues. that there remain genuine issues of material fact as to whether the Stateline breached the duty she contends existed. "Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to...