Daniel v. Days Inn of America, Inc.

• Decision Date: 26 January 1987
• Docket Number: No. 0933,0933
• Citation: 356 S.E.2d 129,292 S.C. 291
• Court: South Carolina Court of Appeals
• Parties: Elizabeth DANIEL, Appellant, v. DAYS INN OF AMERICA, INC. and Nadia, Inc., Respondents. . Heard

Page 129

356 S.E.2d 129

292 S.C. 291

Elizabeth DANIEL, Appellant, v. DAYS INN OF AMERICA, INC. and Nadia, Inc., Respondents.

No. 0933.

Court of Appeals of South Carolina.

Heard Jan. 26, 1987.

Decided April 13, 1987.

Certiorari Denied Aug. 26, 1987.

Michael F. Talley, of Talley & Lewis, Greenville, for appellant.

James W. Logan, Jr. and Steven C. Kirven, of Watkins, Vandiver, Kirven, Gable & Gray, Anderson, for respondents.

CURETON, Judge:

Elizabeth Daniel commenced this action against Days Inn of America, Inc., and franchise holder Nadia, Inc., to recover damages for negligence allegedly caused by the hotel's failure to use reasonable security to protect her from a sexual assault. The trial court granted the hotel's motion for summary judgment. Daniel appeals. I would reverse and remand.

Daniel voluntarily went to the hotel on the evening of April 6, 1983. The purpose of her visit was to discuss a paternity suit and child support for her child, who was fathered by Roscoe Brown, a paying guest at the hotel. Daniel had known Brown since 1980 and stated in her affidavit she did not have any fear of meeting Brown at the hotel since he had never shown her any "violent or weird propensities." She also stated she agreed to meet Brown at the hotel because his wife did not know anything of his past relationship with Daniel and of their daughter.

Daniel testified she and Brown discussed the situation amicably for about two hours. Brown then rather jokingly commented he would have to blackmail her if she would not drop the lawsuit. He then admitted into his hotel room two other men, Braxton and Vaughn. The three men proceeded to rape and torture Daniel for approximately six hours. Daniel lost approximately half of her blood supply during this attack and was hospitalized following her ordeal. The occupant of an adjoining room, Eleanor Hyde, testified that loud music, raucous "uncouth" men's voices and a female's "bloody screams" continued on and off for hours from the adjoining room. Mrs. Hyde did not contact the front desk or call law authorities because she feared retaliation from the offenders. Daniel finally prevailed on one of her assailants to assist her. Upon reaching the front of the hotel she received assistance from the "night auditor" on duty at the hotel's front desk. All three men were arrested and pled guilty to criminal sexual assault.

Daniel's suit alleged the hotel had improper and insufficient security and failed to exercise ordinary and reasonable care for her protection. She further alleged the hotel disregarded its duties in a careless, grossly negligent, reckless, willful and wanton manner. The hotel entered a general denial and pled the affirmative defenses of contributory negligence and assumption of risk. It also alleged its registered guests are entitled to privacy and the hotel had no basis on which to reasonably believe rape and torture were taking place. The hotel moved for summary judgment.

The circuit court granted the hotel's motion, concluding there were no genuine issues of material fact. The trial judge found the security provided at the hotel was "adequate and reasonable under all the circumstances." He concluded as a matter of law there was no breach of duty to Daniel. Even if the security was found to be lacking, he concluded such omission was not the direct and proximate cause of the sexual assault upon Daniel; rather, the unanticipated criminal acts of Brown, Vaughn and Braxton were the proximate cause of her injuries.

Daniel argues on appeal that summary judgment was improper in this case because there were genuine issues of material fact regarding the alleged breach of a legal duty owed to her and the proximate cause of her injury. On a motion for summary judgment, the inferences to be drawn from the underlying facts in the record must be viewed in the light most favorable to the party opposing the motion, and summary judgment should be granted only when it is perfectly clear no issue of fact is involved. Dyer v. Moss, 284 S.C. 208, 325 S.E.2d 69 (Ct.App.1985). The evidence supporting the movant is closely scrutinized, while that of the opponent is treated indulgently. Id.

To recover in a cause of action in negligence, the plaintiff must demonstrate: (1) a duty or obligation to conform to a particular standard of conduct toward another; (2) a breach of that duty; (3) proximate causation; and (4) injury. Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E.2d 167 (1977). I first consider what duty the hotel owed to Daniel.

The hotel argues that because Daniel was on the premises for personal reasons of Brown, the registered guest of the hotel, she was a mere licensee. The hotel reasons that as a licensee it owed Daniel no duty except: (a) to use reasonable care to discover her and avoid injury to her in carrying on the activities of innkeeper; and (b) to use reasonable care to warn her of concealed dangerous conditions or activities known to it which may be dangerous to her and which it may reasonably be expected to discover.

I hold that a discussion of the hotel's duty to Daniel is inappropriate on the record before us for the reason that the trial court rejected that argument in granting summary judgment and no issue has been taken with that ruling. In rejecting this argument, the trial court found that "in the final analysis, the issue is whether, under all the circumstances, the innkeeper in this case provided for its guests reasonable protection against injuries from criminal acts." The hotel does not raise as an additional sustaining ground the error of this holding and I think it should not be permitted to do so now. Rule 4, Section 8, Rules of Practice in the Supreme Court of South Carolina; Rental Uniform Service of Florence, Inc. v. Dudley, 278 S.C. 674, 301 S.E.2d 142 (1983); Pinckney v. Orkin Exterminating Company, 268 S.C. 430, 234 S.E.2d 654 (1977); Green v. City of Bennettsville, 197 S.C. 313, 15 S.E.2d 334 (1941).

I.

Having determined the hotel's duty to Daniel is not an issue in this appeal, I will now consider whether, for purposes of summary judgment determination, there was a genuine issue of material fact as to whether the duty was breached. The circuit court relied heavily on Courtney v. Remler, 566 F.Supp. 1225 (D.S.C.1983), aff'd, 745 F.2d 50 (4th Cir.1984), in finding that as a matter of law the security program at the hotel was reasonable under all the circumstances and the hotel did not breach its duty to Daniel. I disagree.

An innkeeper is not automatically exonerated from negligence when a criminal act is the actual cause of the invitee's injuries. Courtney v. Remler, supra. The hotel's acts or omissions may be negligent if the hotel realized or should have realized that its conduct involved unreasonable risks of harm through the conduct of a third person, even though such conduct of the third person is criminal. Id. Our Supreme Court has held in an analogous case that while a storeowner is generally not charged with the duty of protecting its customers against criminal acts of third parties, the intervening criminal act of another may not always relieve the storeowner of liability for his negligence. Shipes v. Piggly Wiggly St. Andrews, Inc., supra. Although a proprietor of a hotel is not an insurer of the safety of his guests against improper acts of other guests or third persons, he is bound to exercise reasonable care in this respect for their safety, and may be held liable on grounds of negligence for failure to do so. 40 Am.Jur.2d Hotels, Motels, and Restaurants Section 111 (1968).

In Courtney the federal district court held that under the circumstances, reasonable measures were taken by the hotel to ensure the safety of the hotel guests. ¹ The trial court analogized this case to Courtney and found similarities in that: (1) only minor vandalism had occurred in the past with no criminal acts against hotel guests; ² (2) both hotels continued ongoing security programs at the time of these incidents; (3) while twenty-four hours a day armed guards would afford more protection, the hotels' security programs were nonetheless adequate; (4) both hotels had, until these incidents giving rise to the lawsuits, done a fine job in keeping the criminal element off the premises; and (5) in both cases, hotel security was in the hands of the hotels' employees. The judge specifically found that in this case the hotel's security program included "maids, maintenance personnel, employees on the premises, equipment (telephones, locks, lights, etc.), a night auditor trained in innkeeper security procedures, who patrolled the premises twice each evening and Deputy Sheriffs of the Anderson County Sheriff's Department." The judge also found this hotel was in a low crime area.

Daniel presented an affidavit from Robert Plummer, a professional security agent who teaches and attends seminars in security procedures, including hotel security systems. Plummer testified that he reviewed all the facts surrounding the attack on Daniel. He stated that the hotel's security manual was a very well written document, but concluded that the hotel's personnel failed, before and at the time of the attack, to implement any of the policies and procedures outlined in the manual to provide any security at the hotel. Specifically, he opined that in a hotel of this size at this location, it would be reasonable for security patrols to be made at least once or twice an hour. He cited the hotel's failure to employ security guards or have specific directives regarding periodic inspections of the hotel premises for the protection of its guests "totally unreasonable," especially in view of the fact that the hotel's own security manual recognizes that the presence of uniformed security guards deters crime.

Plummer also testified that Brown's registration slip, which was completed under an assumed name and for which he was not required to sign or present any...