Cook v. Greyhound Lines, Inc.

• Decision Date: 24 February 1994
• Docket Number: Civ. No. 5-91-153.
• Citation: 847 F. Supp. 725
• Parties: Jennifer COOK, Plaintiff, v. GREYHOUND LINES, INC., a Delaware Corporation, Defendant.
• Court: U.S. District Court — District of Minnesota

847 F. Supp. 725

Jennifer COOK, Plaintiff, v. GREYHOUND LINES, INC., a Delaware Corporation, Defendant.

Civ. No. 5-91-153.

United States District Court, D. Minnesota, Fifth Division.

February 24, 1994.

COPYRIGHT MATERIAL OMITTED

Mark R. Kosieradzki and Wilbur W. Fluegel, Sieben, Grose, Von Holtum, McCoy & Carey, and John T. Chapman, Arthur, Chapman, McDonough, Kettering & Smetak, Minneapolis, MN, and John R. O'Brien, Jardine, Logan & O'Brien, St. Paul, MN, for Defendant.

ORDER

ERICKSON, United States Magistrate Judge.

I. Introduction

Before the Court are the following four Motions of the parties:

1. The Defendant's Motion for Leave to Amend its Answer;

2. The Defendant's Motion in limine to Exclude Evidence of Criminal Records;

3. The Defendant's Motion to Compel Answers to Interrogatories; and,

4. The Plaintiff's Motion for Leave to Amend her Complaint.

At the Hearing on these Motions, the Plaintiff appeared by Mark R. Kosieradzki and Wilbur W. Fluegel, Esqs., and the Defendant appeared by John T. Chapman and John R. O'Brien, Esqs.

For reasons which follow, the Defendant's Motion for leave to amend its Answer and the Plaintiff's Motion to amend her Complaint are granted; the Defendant's Motion to exclude certain criminal records is denied, as is the Defendant's Motion to compel answers to certain of its Interrogatories.

II. Factual and Procedural Background¹

The Plaintiff alleges that, on June 27, 1990, she was verbally, physically and sexually assaulted while she was a passenger on a bus that was owned and operated by the Defendant. At the time of the assault, the Plaintiff was en route from Washington, D.C., to Pittsburgh, Pennsylvania, on her return trip home to Minnesota, following a visit with her brother in Fort Eustis, Virginia.

Prior to departing from the bus terminal in Washington, an individual, who has since been identified as Timothy Lamont Walker ("Walker"), boarded the bus and occupied the seat next to the Plaintiff. Ms. Tyonne Bud Eagle Feather ("Eagle Feather"), who was an eyewitness to the events of June 27, has characterized Walker as appearing obviously intoxicated and as looking "like he had been around a while, * * * like he was real street wise, like he lived it rough, city tough and wasn't going to try to hide it."

Shortly after the bus departed, Walker commenced drinking from a bottle of liquor which he had been passing around. According to Eagle Feather, when the bottle was empty, Walker began shouting to the driver to pull the bus over in order that he could retrieve some liquor which was in the baggage compartment. In response to these urgings, the driver told Walker and some other passengers to wait until the bus reached an approaching town, where a liquor store was located, at which they could stop and purchase beer.

In Eagle Feather's view, the driver must have been aware of the drinking that was occurring at the back of the bus. In fact, according to Eagle Feather and the Plaintiff, within a short time thereafter the bus did stop. As Eagle Feather described this occurrence:

I was getting real nervous thinking to myself, "This can't be." * * * I did not think the driver would actually stop for them to get alcoholic beverages. We got to that town, and I was getting very nervous. The Greyhound station was not lit up. Even the parking lot lights were not lit. * * * No one got off; no one got on. The driver did not get off to drop off any packages. No one came out with any packages. He parked and gave directions to the liquor store and waited.

Walker and another passenger gathered money from some of the other passengers, left briefly, and returned with a case or two of bottled beer. On at least two occasions during this segment of the trip, Eagle Feather observed as Walker brought open bottles of beer to the driver. She did not see the driver consume those beers, however.

What then ensued was described by the Plaintiff as follows:

They started passing the beers around, and some guys from the front, some white guys from way up front, came back and bought some and went back to their seats. It was just really loud. There was sic bottles rolling, and Walker started pestering me about having a beer. I didn't want it, and I kept telling him I didn't want it. And finally I just took it so maybe I thought he would leave me alone, you know, because he kept pestering me, you know.

That didn't work. He just kept pestering, and everybody was drinking and smoking.

By Eagle Feather's account, Walker was more insistent than the Plaintiff had recalled. As Eagle Feather recounted, she saw Walker forcibly place a bottle of beer to the Plaintiff's mouth, and then position the bottle so that the beer "would guzzle into her mouth." It was also Eagle Feather's recollection that, before Walker's bottle of liquor had been emptied, he had secretly poured some of its contents into a container of pop that the Plaintiff had brought with her. According to Eagle Feather, at one point the Plaintiff "grabbed her pop and began drinking * * * through the straw and made kind of a funny face like there is something wrong here." Later, when Walker attempted to take the pop from her, the Plaintiff "guzzled the whole thing down and made a very funny face while doing so."

Eagle Feather observed that, shortly after finishing her pop, the Plaintiff began to look intoxicated, as she was "slumping" in her seat. As the beer ran out, things quieted, and the passengers began to fall asleep. At some point thereafter, the Plaintiff rose to use the rest room. As she explained, Walker approached the rest room right behind her. He pushed her inside, followed her in, and locked the door. Once inside, Walker forced the Plaintiff onto the toilet, where he tried to engage her in oral sex. When the Plaintiff did not cooperate, Walker is reported to have grabbed her by her neck and arms and hauled her back to their seats, where he continued his assault. As she resisted his attack, Walker is said to have become angrier, dragging the Plaintiff back into the rest room.

Eagle Feather recalls that she was awakened when the Plaintiff bumped into her, as she was being drawn back into the rest room. According to Eagle Feather, the Plaintiff's "eyes were not even halfway open," and she appeared to be unable to stand on her own. Eagle Feather heard the Plaintiff mumble, "No, let me sleep. * * * Let me go." Again, on this second occasion, Walker locked the Plaintiff in the rest room and attempted to force her to perform oral sex upon him. But, according to Eagle Feather's account, the Plaintiff came bursting out of the rest room, clothes disheveled and crying. Walker's appearance was also one of disarray. As Eagle Feather explained:

He was grabbing her by the arm, trying to pull her back into the bathroom. * * * And she was getting loud, saying "No. Just leave me alone. Just leave me alone. Let me go back to my seat" * * *.

Eagle Feather concluded that the Plaintiff had expressed these statements in a voice that "the driver definitely would have heard." Indeed, Eagle Feather recalled seeing the driver look up when the Plaintiff had informed Walker to leave her alone. As Eagle Feather recounted, when "Walker saw the driver looking up, he stopped pulling the Plaintiff and put his hand over her mouth. * * * And he let her get back into the seat."

When she exited the rest room, the Plaintiff recalls that she was looking around and "screaming and kind of pleading with everybody, and people just sat there like zombies." Eagle Feather's testimony was similar:

She was looking around very panicked and looking in this pleading expression, like somebody help me. Everybody was either asleep or ignoring her.

In fact, Eagle Feather chose to do nothing to help the Plaintiff because she was traveling with her infant daughter and did not know how Walker and the others would have reacted if she tried to assist. Moreover, she testified, since the driver had openly allowed the beer drinking, she did not believe that he would have come to the Plaintiff's assistance if a complaint would have been made. As Eagle Feather explained, very simply, she was scared.

Upon returning to her seat, Walker continued in his effort to persuade her to return with him to the rest room. Eagle Feather recalls that Walker grabbed the Plaintiff by the hair and again forced her to consume some beer. As the Plaintiff continued to resist, Walker finally ceased his demands and, instead, he lifted the Plaintiff out of her seat, forced her onto his lap and, according to the Plaintiff and Eagle Feather, he raped her. In Eagle Feather's words:

The Plaintiff's facial expression was absolutely emotionless. She was dead. * * * Her eyes were watering up, and she kind of half looked around, and that's how I saw her eyes. She kind of looked around, and, like, "Isn't anyone going to stop this?" When she saw everybody was either ignoring her or sleeping, she just kind of hung her head down, and she looked pathetic.

As the bus neared the Pittsburgh station, Walker quit his assault, and he was one of the first passengers off the bus upon arrival at the station. In the words of the Plaintiff:

And he just ran off the bus, and I don't know what I did. I was really screwed up. I was just sitting there trying to pull myself together after having — you know, all the people were watching and nobody did anything.

I'm pretty sure the bus driver could see what was happening because I was making noise. There was a lot of noise going on in the back.

Nevertheless, when the Plaintiff was directly questioned on the subject of the driver's knowledge, the following colloquy occurred:

Q. How do you know that the bus driver could hear you?

A. I just — I don't know for sure. I assume.

Q. Did you ever talk — you never talked to the bus driver at all about this?

A. No, I figured that he was — I figured he knew the other guys on the bus because Walker told me that he was a drug dealer, and he knew this

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