Banks v. Hyatt Corp.

• Decision Date: 09 January 1984
• Docket Number: No. 81-3377,81-3377
• Citation: 722 F.2d 214
• Parties: Philip Aaron BANKS, et al., Plaintiffs-Appellees Cross-Appellants, v. HYATT CORPORATION, Defendant-Appellant Cross-Appellee, Refco Poydras Hotel Joint Venture, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 214

722 F.2d 214

Philip Aaron BANKS, et al., Plaintiffs-Appellees Cross-Appellants, v. HYATT CORPORATION, Defendant-Appellant Cross-Appellee Refco Poydras Hotel Joint Venture, Defendant-Appellee.

No. 81-3377.

United States Court of Appeals Fifth Circuit.

Jan. 9, 1984.

Bienvenu, Foster, Ryan & O'Bannon, Robert N. Ryan, New Orleans, La., for defendant-appellant cross-appellee.

Stephen J. Crimmins, New York City, for amicus curiae American Hotel & Motel Assoc.

Murray, Murray, Ellis, Braden & Landry, Stephen B. Murray, New Orleans, La., for Banks.

Boggs, Loehn & Rodrigue, Charles A. Boggs, New Orleans, La., for plaintiffs-appellees cross-appellants.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before BROWN, WISDOM and RANDALL, Circuit Judges.

WISDOM, Circuit Judge:

This appeal presents the issue whether a landowner or an innkeeper can be liable to a business invitee or guest, respectively, for a criminal assault by a third party that occurs just outside the entrance doors to the hotel on property owned by the landowner but serving as a public sidewalk.

At 9:30 p.m. on April 12, 1979, an armed robber shot Dr. Robert Banks a few feet from the Loyola Avenue entrance to the Hyatt Hotel and the Poydras Plaza Mall in New Orleans. Dr. Banks was a registered guest of the hotel. He and a friend, Dr. John Hakola, were returning from dinner in the French Quarter. They had walked back and were "approximately at the door of the hotel", according to Dr. Hakola, when they were confronted by two young men, one of whom had a gun. Dr. Hakola managed to enter the building, but Dr. Banks was not so fortunate. He was shot and fell dead on the sidewalk, his head thirty feet from the street curb of Loyola Avenue and his feet only four feet from the glass doors at the entrance way to the Hyatt Hotel and the Poydras Plaza Mall.

Dr. Banks's widow and children brought this diversity action for wrongful death against Hyatt Corporation, lessee and operator of the hotel, and Refco Poydras Hotel Joint Venture, owner and operator of the Poydras Plaza Mall and owner of the hotel. The plaintiffs charged the defendants with negligently (1) failing to provide adequate security to protect the decedent from assaults by third persons, and (2) failing to warn him of the danger of being assaulted near the Loyola Avenue entrance to the hotel and mall. After extensive discovery the parties tried the matter from April 27 through May 1, 1981. The jury returned a verdict, on written interrogatories, finding both Hyatt and Refco negligent and awarding damages totalling $975,000 for all the plaintiffs.

Hyatt and Refco filed motions for judgment notwithstanding the verdict or, alternatively, for a new trial. After a hearing, the district court denied Hyatt's motions, but granted Refco's motion for a judgment n.o.v. Hyatt appealed from the judgment in favor of Refco as well as from the judgment in favor of the plaintiffs. The plaintiffs appealed from the judgment in favor of Refco. We affirm.

I. FACTS

On the facts, this case is sui generis. Because we could find no controlling Louisiana decisions and no common law decisions specifically on point, we certified certain questions to the Louisiana Supreme Court. ¹ That Court was "of the opinion that once the relevant facts are determined, the case can be decided on existing, established principles of Louisiana law". It therefore denied the certification. Banks v. Hyatt Corp., La.1983, 436 So.2d 1171.

A. "The Relevant Facts" Are Not in Dispute

The plaintiffs begin their brief with the statement that the "essential facts of this case are undisputed". Hyatt and Refco make the same statement in their briefs, and we agree. The dispute is over the inferences to be drawn from the facts. The troublesome problem is whether the killing occurred in circumstances and at a place in which the jury could properly find Hyatt liable for breach of the innkeeper's duty of care to a guest and Refco liable for breach of a landowner's duty of care to an invitee.

The trial court rejected Hyatt's proposed charge to the jury:

"An innkeeper, such as Hyatt Corporation, has no duty to protect its guests from assaults by third persons committed outside the environs of the hotel and, more particularly, it has no duty to protect its guests from assaults by third parties in areas where such protection is commonly owed by a Municipal Police Department, such as on public sidewalks."

2 Record 338 (emphasis added). In his instructions to the jury, the trial judge did not use the word "premises" nor the broader term "environs" that Hyatt had suggested. As appears from the pertinent charge quoted in the margin, the trial judge did not limit the physical area in which an innkeeper owes a duty of care to a guest for acts of a third person. ²

If the charge is taken literally, Hyatt is correct in arguing that the hotel would be liable to a guest for any harmful act occurring any place, as long as the hotel "could have discovered" the act and protected the guest "by controlling the conduct of the tortfeasor or by giving adequate warning". Such is not the law of Louisiana or of any other state. The instructions must be construed in the light of common sense. As we read the charge and as the jury must have read the charge, the trial judge intended the jury to consider--and apparently the jury did consider--all the physical facts relating to the killing and all the circumstances involving Hyatt's responsibility, and not just that Dr. Banks was killed at a location beyond the legal description of the hotel property and in an area serving as a public sidewalk, title to which was in Refco subject to a public servitude of passage. The instructions imply that an innkeeper's duty of care to a guest extends to the environs of a hotel, that is, an area immediately outside of a hotel's entrance or an area that a reasonable jury might consider to be part of the entrance. Here, the jury undoubtedly inferred that the location of the killing was within an area where Hyatt was responsible for security.

Perhaps because the trial judge considered that an innkeeper owes a higher duty of care to a guest than a possessor of land owes to an invitee, he limited the liability of Refco by charging as follows:

"In order to hold defendant, REFCO, liable, you must first find from the evidence that defendant, REFCO, was the owner of the property at the location of the death of decedent. Should you so find, then you are instructed that an owner must use ordinary care to protect patrons against the wrongful acts of third persons, who may be in or upon the premises, where he has reasonable cause to anticipate the wrongful act and the probability of injury."

2 Record 391 (emphasis added). This charge indicates that the trial judge concluded that the jury could find Refco to be "the owner of the property at the location of the death of the decedent". As in its consideration of Hyatt's liability, and not unreasonably, the jury necessarily inferred that Refco's area of invitation to invitees included the immediate access to the premises. Nevertheless, the trial judge granted the judgment n.o.v. in favor of Refco.

B. The Physical Layout of the Hotel and Mall

Besides the property leased to Hyatt Corporation, Refco owned and operated the Poydras Plaza Shopping Mall. Refco had title to the location where the killing occurred, subject to a servitude of passage. The servitude, which Refco's predecessor in title had granted to the City of New Orleans, extended from the curb of Loyola Avenue through the mall to an elevated walkway to the Superdome.

Poydras Plaza Mall is a two-story rectangular structure with the long sides perpendicular to Loyola Avenue. It is located in the middle of the block between Poydras and Girod Streets. Directly behind it and contiguous to it is the Hyatt Hotel, the residential portion of which is a tall tower. On the front wall of the mall on an overhang that goes straight up for two floors are large letters reading "Poydras Plaza". Three sets of glass doors are recessed under the overhang and lead to the mall, the hotel, and ultimately the Superdome. A person a few feet in front of the doors would therefore be under the second floor of the building and within the entrance way. The photographs admitted into evidence clearly demonstrate this fact. "Hyatt Regency" is lettered on the middle set of doors, "Poydras Plaza" on the left-hand doors, and "Superdome" on the right-hand doors, as one faces the building. On one side of the building next to the doors is a sign saying "Regency Conference Center", and on the other side of the building is a sign saying "Imperial Palace Regency". The hotel is advertised and frequently referred to as the Hyatt Regency Hotel. There is only one other entrance to the hotel, the motor lobby at the rear of the building. The mall now has stores and offices on each of its two levels, but in 1979 the only businesses open to the public were located on the second level.

An unobstructed passageway, subject to the servitude of passage previously mentioned, enables one to walk from the Loyola Street entrance through the Poydras Plaza to the Superdome. Three quarters of a block from Loyola Avenue, the mall divides and passes around a set of elevator banks, a stairwell, and escalators leading to the portions of the hotel tower occupied by Hyatt and the lower level reception and registration area of the hotel. The two halves rejoin and continue in the form of an elevated walkway to the Superdome, one block from the hotel tower.

The street level portion of the passageway ends abruptly behind and beneath the second set of stairs from the Loyola Avenue entrance. The ground level right of passage is blocked by a solid wall. To reach the second level of the shopping mall and to continue through the structure, one must ascend one of two sets of stairs or use escalators adjacent to the set...