Girden v. Sandals International
| Decision Date | 01 August 2000 |
| Docket Number | PLAINTIFF-APPELLANT,Docket No. 00-7319,DEFENDANTS-APPELLEES |
| Parties | (2nd Cir. 2001) LISA J. GIRDEN,, v. SANDALS INTERNATIONAL, DAVID TITUS, SANDALS GROUP, SANDALS ANTIGUA, ANDREW E. HOLM, LTD., AND DICKENSON BAY HOTEL MANAGEMENT, |
| Court | U.S. Court of Appeals — Second Circuit |
Carol A. Sigmond, New York, New York (Pollack & Greene, Llp, New York, New York, of counsel), for Plaintiff-Appellant.
David B. Newman, New York, New York (Jill L. Abitbol, Sonnenschein, Nath & Rosenthal, New York, New York, of counsel), for Defendants-Appellees.
Before: Cardamone, Parker, and Katzmann, Circuit Judges.
Plaintiff Lisa J. Girden appeals from a judgment entered on February 22, 2000 in the United States District Court for the Southern District of New York (Knapp, J.), dismissing her complaint following an unfavorable jury verdict. In her complaint plaintiff alleged she was sexually assaulted by a hotel employee, defendant David Titus, while on vacation at a Caribbean resort owned and operated by defendants Sandals Resorts International, Sandals Group, Sandals Antigua, Andrew E. Holm, Ltd., and Dickenson Bay Hotel Management. On appeal she contends the district court's jury instruction improperly required that for the jury to impose liability on defendants it had to believe her trial testimony to the exclusion of her contemporaneous accounts of the assault, which described the events quite differently.
For purposes of admissibility it is not required that a witness's account of an event be consistent with the same witness's other accounts of the same event. A witness may say one thing on one occasion and because of human fallibility speak differently about the same event later. Which version is believed is for the jury, not the judge, to decide. The right of the jury to disbelieve an earlier version in favor of a later one, in whole or in part, does not by itself make the earlier version irrelevant. Because the trial court's instruction to the contrary was in error, we vacate the judgment and remand the case for a new trial.
In August 1996 plaintiff Girden went with her then fiance, David Wittenberg (now her husband), to the island of Antigua in the Caribbean for a week's holiday. They stayed at a friend's condominium. Before going on this holiday plaintiff had read about defendant Sandals Resorts International, a hotel chain, in print advertisements in the New York Times and learned that Sandals offered its guests a wide variety of water sports. While in Antigua on August 28, Girden's 37th birthday, plaintiff and her fiance went to spend the day at defendant's resort. They paid $150 for day passes entitling them to use all the resort's facilities from 10 a.m. to 6 p.m. This included water sports, lunch, use of the tennis courts, hot tubs, windsurfing, etc.
After lunch that day, while her fiance was scuba diving, Girden went to take a windsurfing lesson. The resort staff directed her to defendant David Titus, a resort employee on the water staff, who told her the wind was too strong for windsurfing. He said he would teach her instead to sail a sunfish. During the lesson, Titus navigated the small nine-foot long, three-foot wide boat, built to hold two people, out into the open sea. They went far enough so they were out of sight of other people engaging in water sports. At that point, according to Girden, Titus sexually assaulted her.
During the assault Girden complained to Titus of severe cramps due to a pre-existing abdominal condition -- known as ulcerated colitis -- that, she asserted, was triggered by the assault. Girden finally convinced Titus to return the boat to shore by explaining her condition to him and by promising not to report the incident. Once back on shore, Girden waited for her fiance to return from scuba diving, and then reported the incident to Ruth Horsford, a manager at the Sandals Antigua hotel. At management's request, she also faxed the hotel the next day a written account of the incident, just before she left Antigua. A week after the assault, in a letter dated September 5, 1996, Titus was fired by defendant Sandals Antigua for "immoral conduct."
In July 1997 Girden filed the instant lawsuit in New York State Supreme Court against Sandals Resorts International and Titus, seeking $10 million in damages resulting from the alleged sexual assault citing her emotional trauma as well as the exacerbation of her abdominal condition.1 Defendants removed the suit to federal court in the Southern District of New York based on diversity jurisdiction. Plaintiff subsequently filed an amended complaint to include all of the defendants involved in this appeal. Following discovery, the suit went to a jury trial before Judge Knapp from February 7 to February 15, 2000. Defendant Titus did not appear at trial. The sole evidence of his misconduct was Girden's accounts of the incident, as given verbally and by fax to the hotel management immediately after the incident, and in her trial testimony. These accounts are at the heart of plaintiff's appeal.
At trial, Ruth Horsford's written report of Girden's initial complaint of the assault was read into evidence and was paralleled by Horsford's own testimony. According to Horsford, Girden told her that Titus had slowed the boat while out at sea, had tried to kiss her three times, and had tried to put his tongue in her mouth on the third attempt. Horsford also indicated that during her conversation with Girden following the assault, Girden was not crying and appeared to be "very calm."
Girden's written account of the incident, faxed to the hotel the next day, was also produced at trial. According to that account, Titus asked plaintiff to sit closer, told her how pretty she was, slowed the boat, and then hugged and kissed her, put his hand on her thigh, and held her close to him. She grew nervous because of their distance from shore and their inability to be seen. He kissed her twice, and tried to put his tongue in her mouth on the second attempt. Once safely back on land, Girden stayed in the shallow water near the shore to wait for her fiance because Titus kept approaching her to offer her another ride. When her fiance returned from scuba diving, she filed her complaint with Horsford, and she described herself as "very calm but very teary" in telling Horsford her story.
In her testimony at trial, Girden described Titus' conduct in terms more egregious and offensive than she had earlier. According to this account, once out at sea, Titus touched her feet with his, moved to sit next to her (purportedly to fix the sail), and then reached over and kissed her. When Girden pushed him away and asked him to stop, Titus placed his arm around her back, pulled her towards him, and kissed her again, this time placing his tongue in her mouth. Titus then took his left hand from her leg, moved it inside her bathing suit, and held his fingers inside her vagina for about a minute. He also brought his other hand around and inside the top of her bathing suit. She said she could not call for help since she was out of sight and hearing of other people. It was too far to swim for shore, and she was afraid to fight Titus. Even after Girden persuaded him to return to shore, he continued to touch her leg and hold her wrist. Back on shore, Girden ran to the bathroom, where she vomited and experienced rectal bleeding. Because Titus was still following her after she left the bathroom, she went into the shallow water to wait for her fiance to return.
Plaintiff acknowledged at trial that the first time she related the full details of her story to anyone from the Sandals Resorts hotel was upon being asked specific questions at her deposition in this litigation. She also conceded that, when called by another resort manager a few days after her return home and asked if she had anything to add to her statement, she declined. Girden explained, however, that Horsford had asked only general questions to which she gave general answers and that the interview had been conducted in a hotel lobby that afforded little privacy during her recital of the events. She stated further that initially she did not know who would see her complaint or where exactly the inquiry might lead. To bolster her trial testimony, Girden called as witnesses her husband, a close friend to whom she had told the full story of the incident shortly after her return home, her colon rectal surgeon, and an expert psychiatric witness.
In rebuttal, defense counsel pointed out inconsistencies between Girden's various accounts of the incident and between her recollection and Horsford's of the circumstances at the reporting of her initial complaint. The defense noted that Girden waited to see her treating physicians until four or five weeks after her return home. Relying on the testimony of its own expert psychiatric witness, defense counsel also suggested that Girden's symptoms of emotional and physical stress could have been produced by events in her life rather than the alleged assault.
In charging the jury the district judge described the nature of Girden's claim and her burden to establish liability by reading from a prepared interrogatory that was subsequently handed to the jury to guide its deliberations:
The first question that's going to be asked of you: Has the plaintiff established by a preponderance of the evidence --...
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