Gordon v. Starwood Hotels & Resorts Worldwide, Inc.

• Decision Date: 26 September 2011
• Docket Number: Civil Action No. 1:09–CV–3493–CC.
• Parties: Jason N. GORDON, Plaintiff, v. STARWOOD HOTELS & RESORTS WORLDWIDE, INC. d/b/a Westin Peachtree Plaza and John Doe and James Doe, Defendant.
• Court: U.S. District Court — Northern District of Georgia

821 F.Supp.2d 1308

Jason N. GORDON, Plaintiff,

v.STARWOOD HOTELS & RESORTS WORLDWIDE, INC. d/b/a Westin Peachtree Plaza and John Doe and James Doe, Defendant.

Civil Action No. 1:09–CV–3493–CC.

United States District Court,N.D. Georgia,Atlanta Division.

Sept. 26, 2011.

Thomas E. Reynolds, Jr., Reynolds Law Group, LLC, Atlanta, GA, for Plaintiff.

Thomas G. Tidwell, Tidwell Law Firm, LLC, Atlanta, GA, for Defendant.

OPINION AND ORDER

CLARENCE COOPER, Senior District Judge.

This premises liability action is before the Court on Plaintiff's Motion for Protective Order [Doc. No. 46] and Defendant's Motion for Summary Judgment [Doc. No. 57]. For the reasons stated herein, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Protective Order as moot.

I. FACTS ¹

For purposes of summary judgment, the following material facts are undisputed. Plaintiff Jason Gordon came to Atlanta in 2007 for the Memorial Day weekend to celebrate his 30th birthday. (Defendant's Statement of Undisputed Material Facts “DSMF” ¶ 1.) During his visit, Plaintiff rented a room for two nights at the Westin Peachtree Plaza Hotel in downtown Atlanta (the “Hotel” or “Defendant”). (DSMF ¶ 1.)

On the night of May 26, 2007, Plaintiff, along with Carl Gordon (Plaintiff's brother), George Bibb (Plaintiff's friend from New Jersey), and Thomas Reynolds (Plaintiff's current attorney), went to the Lotus Lounge nightclub. (DSMF ¶ 3.) Two other friends of Plaintiff, Lamech Darien and Jerrod Graham, were hosting a special fund-raising event for NFL and NBA athletes that night at the Lotus Lounge. (DSMF ¶ 3.) While at the nightclub, Plaintiff and his entourage were seated in a VIP section. (DSMF ¶ 4.) Mr. Graham primarily worked inside the club and made sure athletes were seated in the sections reserved for them, and Mr. Darien primarily worked outside the nightclub. ( Id.)

When the nightclub closed at 3:00 a.m., Plaintiff and his entourage headed back to the Hotel. (DSMF ¶ 5.) Plaintiff rode in the backseat of a car driven by his brother, Carl Gordon. ( Id.) Plaintiff does not remember who was in the driver's side passenger seat. ( Id.)

Mr. Graham and Mr. Darien rode together in a separate car from the nightclub and arrived at the Hotel prior to Plaintiff and his entourage. (DSMF ¶ 7.) When they pulled into the motor lobby of the Hotel, there was a line of cars. ( Id.) The Hotel valet was assisting one of the cars in front of them. ( Id.)

While Mr. Darien waited for the valet's assistance, Mr. Graham got out of the car and started walking towards the entrance of the Hotel. (DSMF ¶ 8.) As Mr. Graham walked towards the entrance, he saw another group of people walking towards the entrance. ( Id.) The group consisted of three to five black males, including the men who started the fight that is the subject of this lawsuit. ( Id.) The group of males looked like they could have been Hotel guests getting out of their cars to head into the Hotel. (DSMF ¶ 9.) There was nothing suspicious about the group of men, and nothing about the group scared or alarmed Mr. Graham or made him think they were about to attack him. ( Id.) The men were not yelling or running, and they did not say anything to Mr. Graham before attacking him. ( Id.) Mr. Graham has no idea why they attacked him. (Deposition of Jerrod Graham “Graham Dep.” at 39:11–12.) Mr. Graham recognized one of the men in the group as “Kerris” from previous events he had put on. ( Id. at 35:2–17.) As Mr. Graham arrived at the entrance, he was hit in the face by the man he recognized as “Kerris” and then other members of the group jumped him from behind. ( Id. at 39:19–40:1–9.)

Plaintiff was getting out of the car driven by his brother, Carl, when he first saw Mr. Graham being attacked. (DSMF ¶¶ 6, 11.) Plaintiff, intending to see what was going on, stepped out of the car and took two steps towards the altercation. (Deposition of Jason Gordon (“Gordon Dep.”) at 66: 2–22.) Plaintiff does not know where the attackers came from. (DSMF ¶ ¶ 6, 11.) Other than his memory of getting out of the car and taking two steps, he has no memory of anything related to the fight. ( Id.)

Meanwhile, as Mr. Darien was walking towards the valet attendant to give him his keys, he noticed the fight involving the group of males and recognized Mr. Graham and Plaintiff. (DSMF¶ 12.) Specifically, Mr. Darien testified:

Q And you got out of the car to try to find a valet person?

A Yes.

Q And what happened after that?

A I remember getting his attention, walking towards him to give him my keys, and then seeing the fight had broken out.

Q The fight being between Jerrod and some guys?

A There were a group of people there. I think Jason was there and Jerrod was there.

Q When you first saw the fight, who was involved that you knew?

A I only recognized Jerrod and Jason.

(Darien Dep. at 23:18–24:6.) Mr. Darien further testified:

Q When you saw the fight break out, what did you do?

A First, I looked around for security, asked the valet for help. When I saw nobody was coming over, I went over and tried to break it up.

Q Did you actually break it up?

A There was kind of a stand-off. There was a point where Jason got hit with a bottle, and he was unconscious. That kind of put everybody in a shock and they went their separate ways after that.

( Id. at 28:12–16.)

Plaintiff was taken by ambulance to Grady Memorial Hospital. (Gordon Dep. at 81:8–20.) Plaintiff's brother, Carl Gordon, rode with Plaintiff to the hospital. ( Id.) Plaintiff returned from Grady Hospital to the Hotel early Sunday morning. ( Id.)

Darryl Jett, the Hotel manager, indicated that it is normal for the Hotel to employ four to five security personnel during the 11:00 p.m. to 7:00 a.m. shift. (Deposition of Darryl Jett (“Jett Dep.”) 21:7–9; PSMF ¶ 25.) As a part of their duties, the security guards are required to perform their normal duties as security staff as well as other non-security-related duties for the Hotel. (PSMF ¶ 25.) Mr. Jett indicated that the Hotel security staff is responsible for monitoring guest areas and other checkpoints throughout the Hotel. (Jett Dep. at 32:9–23.)

Mr. Jett indicated that the Hotel also has cameras located on the outside of the building. (Jett Dep. at 44:14–25.) The cameras located outside were installed and upgraded in 2007. ( Id. at 65:3–16.) The security system and surveillance cameras used by the Hotel have the capability of recording directly to a computer. (PSMF ¶ 26; Jett Dep. at 65:17–25.) Mr. Jett indicated that although there is a camera in the motor lobby that has recording capabilities, on the day in question, the recording system was not working and operational. (PSMF ¶ 28.) In fact, the security recording system had not been working properly since late 2006. (Jett Dep. at 66:12–25.)

According to Mr. Jett, for at least four years prior to the incident involving Plaintiff, there had not been any fights, attacks, assaults or violent crimes of any kind inside the Hotel or in the motor lobby area. (DSMF ¶ 20; Jett Aff. ¶¶ 4, 5.) The Hotel, however, is located in an area where previous crimes have occurred. (PSMF ¶ 23.)

II. STANDARD OF REVIEW

Summary judgment is proper when no genuine issue as to any material fact is present and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In seeking summary judgment, the moving party bears the initial responsibility to demonstrate there is no genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The moving party's burden is discharged merely by showing that there is an absence of evidence supporting an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).

In evaluating the argument of the moving party, the court must view all evidence in the light most favorable to the non-moving party and resolve all facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.1999) (citation omitted). The moving party is entitled to summary judgment when the non-moving party has failed to make a sufficient showing on an essential element of the case with respect to which the non-moving party has the burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

A fact is material when the controlling substantive law identifies it as an essential element of the non-moving party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Additionally, an issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. Id. An issue of fact is not genuine if it is unsupported by evidence or if it is created by evidence that is “merely colorable” or “not significantly probative.” Id. at 249–250, 106 S.Ct. 2505. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247–48 (emphasis in original).

III. DISCUSSION

Plaintiff asserts claims in this action for negligent failure to maintain the premises in a reasonably safe manner, failure to warn of unsafe conditions, and negligent infliction of emotional distress. Plaintiff also asserts assault and battery claims against only John Doe and James Doe, who have never been named or served. Plaintiff finally seeks to recover punitive damages.

The Court need not and does not address the merits of Plaintiff's assault and battery claims against John Doe and James Doe, as these defendants and the claims against them are due to be dismissed without...