Groh v. Westin Operator, LLC

Decision Date28 March 2013
Docket NumberCourt of Appeals No. 11CA0363
Citation2013 COA 39,352 P.3d 472
PartiesJillian GROH, individually and by and through her guardians and conservators, William and Janelle Groh, Plaintiff–Appellant, v. WESTIN OPERATOR, LLC, Defendant–Appellee.
CourtColorado Court of Appeals

The Law Offices of Alan C. Shafner, Alan C. Shafner, Greenwood Village, Colorado, for PlaintiffAppellant.

The Waltz Law Firm, Richard A. Waltz, John D. Halepaska, Denver, Colorado, for DefendantAppellee.


Opinion by JUDGE WEBB

¶ 1 This personal injury action presents an issue of first impression in Colorado: whether a hotel's duty of care to a guest requires that, in lawfully evicting the guest, the hotel act reasonably. We conclude that a hotel must evict a guest in a reasonable manner, which precludes ejecting a guest into foreseeably dangerous circumstances resulting from either the guest's condition or the environment.

We further conclude that here a reasonable jury could find a breach of this duty on the present record. Therefore, we reverse the summary judgment against plaintiff, Jillian Groh, and in favor of defendant, Westin Operator, LLC (the Westin), in part, and remand for further proceedings, limited to her negligence claim based on the eviction.

I. Facts for Purposes of Summary Judgment
A. The Eviction

¶ 2 Groh planned to spend the night of March 3, 2007, with friends visiting night clubs in downtown Denver. She reserved a room at the Westin's downtown hotel. Although Groh was the only registered guest, two of her female friends checked in with her and the Westin gave each of them a key to the room.

¶ 3 After having consumed alcoholic beverages throughout the evening, Groh, the two girlfriends, and eight other persons gathered in the room. Around 2:45 a.m., a security guard heard loud noises coming from Groh's room. Although no other guests had complained, the guard went to the door and asked for the person in charge. Over the next few minutes, a series of escalating interactions occurred among this guard, a second guard, the hotel manager, Groh, and some of the others in the room. One guard entered the room without Groh's permission, to which she objected.

¶ 4 During these interactions, at least one person told the Westin employees that everyone in the group was “drunk,” “that was the whole purpose” of the room having been rented, and the guard could not expect them to leave because We are drunk. We can't drive.” Ultimately, because Groh was the registered guest, the manager asked that she stay, but would not let the others remain. Groh said that she would leave as well.

¶ 5 During the negotiations between Groh and the Westin employees, several members of her party decided to leave the hotel and were not involved in any of the following events. Shortly after 3:00 a.m., Groh and the remainder of her group were escorted to the front entrance of the hotel by the guards. Although police officers were on the premises investigating an unrelated incident, the Westin did not involve them.

¶ 6 The first security guard blocked the doorframe with his body as the last person exited. One of Groh's friends asked the guard, “Hey, man, it's freezing out here, can we wait in the lobby while we get a cab?” The guard crossed his arms and said, “No, get the f* * * out of here.”1

B. The Accident

¶ 7 Groh and the remaining six persons in the group walked down a ramp into the parking garage below the hotel. They passed several vehicles, including a taxi. Angela Reed offered to drive. Groh handed Reed the keys to her vehicle. Groh and the others entered the vehicle, with Reed behind the wheel.

¶ 8 Around 4:00 a.m., several miles from the hotel in route to Groh's home, Reed rear-ended a vehicle that was traveling well below the speed limit. A toxicology expert estimated that Reed's blood alcohol content was between 0.170 and 0.222 at the time of the accident. Groh sustained severe and permanent injuries.

C. The Trial Court's Ruling

¶ 9 Groh sued the Westin for damages under several negligence and breach of contract claims. The trial court granted summary judgment for the Westin, concluding in relevant part:

[B]ased on [Groh]'s alleged claims for negligence, in order for [the] Westin to be liable for negligence there must be a duty for a hotel, when evicting guests, to ensure that they do not drive away drunk.
This Court holds that hotels do not have a legal duty to prevent injuries subsequent to eviction by preventing drunk driving. To hold otherwise would put hotels in the impossible position of exercising control over others when they have no right to do so.

¶ 10 The court also found that the Westin had the right to evict Groh and the group based on her breach of the contract, and that the Westin had not waived its right to object to the number of persons in the room:

Groh breached her contract by inviting more than three people to stay at her room in the hotel, and this alone is enough to justify [the] Westin's termination of the contract.
Arguably, [the] Westin waived its right to insist that only one person stay in the room when it knowingly and intentionally issued three keys.
However, it did not waive its rights with regard to any persons above that number. Testimony favoring both sides reveals that between seven and eleven people were staying in the room. Therefore, when [the] Westin discovered the breach of contract, it was within its contractual rights to revoke the property right provided by the contract and to evict the guests.
II. Summary Judgment

¶ 11 Appellate review of summary judgment is de novo, Woods v. Delgar Ltd., 226 P.3d 1178, 1180 (Colo.App.2009), informed by the following principles. Summary judgment is appropriate only when the pleadings, affidavits, depositions, answers to interrogatories, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c) ; Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo.1987). The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party. Continental Air Lines, 731 P.2d at 712. The nonmoving party is entitled to the benefit of all favorable inferences reasonably drawn from the undisputed facts, and all doubts are resolved against the moving party. A.C. Excavating v. Yacht Club II Homeowners Ass'n, 114 P.3d 862, 865 (Colo.2005).

¶ 12 Applying these principles to the existing record, the following questions must be resolved in Groh's favor at this stage of the proceedings:

? Whether she was intoxicated;
? Whether she was assaultive or otherwise threatening to other guests while in the hotel;
? Whether the “freezing” outside temperature at the time of the eviction posed a risk to her;
? Whether the request to wait for a taxi in the lobby was made on her behalf.

In addition, for purposes of summary judgment only, the Westin concedes that Groh was evicted.

III. Duties of an Innkeeper

¶ 13 The special relationship between an innkeeper and a guest obligates the innkeeper to exercise ordinary care concerning the guest. See, e.g., Burchmore v. Antlers Hotel Co., 54 Colo. 314, 317, 130 P. 846, 847 (1913). As a corollary of this duty, other jurisdictions recognize that an innkeeper can evict a guest only “in a manner reasonable under the circumstances.” Rodriguez v. Primadonna Co., 125 Nev. 578, 216 P.3d 793, 798 (2009) ; Raider v. Dixie Inn, 198 Ky. 152, 248 S.W. 229, 230 (1923) (innkeeper must remove guest in a reasonable manner). Although the Colorado appellate courts have not addressed the latter principle, we find such cases well-reasoned and follow them here.

A. Scope of the Duty to Evict in a Reasonable Manner

¶ 14 In Dagen v. Marriott International, Inc., 2006 WL 3728344, *4 (N.D.N.Y. No. 1:05CV1593, Dec. 18, 2006) (unpublished memorandum decision denying defendant's summary judgment motion), the court explained, Defendants could reasonably foresee that some type of harm awaited Plaintiff if they expelled him from the hotel. Common sense and common courtesy hold that innkeepers are expected to shelter those who have sought their protection—and have a duty not to inject those same people into obviously dangerous situations.” However, the court did not describe the perils involved.

At a minimum, circumstances such as the guest's condition and the environment outside the hotel will influence the reasonable manner calculus. See McHugh v. Schlosser , 159 Pa. 480, 28 A. 291, 292 (1894) (“The question which the defendants were bound to consider before putting the decedent out in the storm was not whether such exposure ‘would’ surely cause death, but what was it reasonable to suppose might follow such a sudden exposure of the decedent in the condition in which he then was.”).

¶ 15 Our supreme court has treated common carriers like innkeepers for purposes of special relationship analysis. Univ. of Denver v. Whitlock, 744 P.2d 54, 58 (Colo.1987). Hence, common carrier cases involving ejection of passengers are informative.

¶ 16 A common carrier may be liable for injuries caused by exercising its right to eject a passenger “at a time or place which is dangerous.” McCoy v. Millville Traction Co., 83 N.J.L. 508, 85 A. 358, 360 (E. & A.1912) (drunken passenger was ejected into the snow); see also Bragg's Adm'x v. Norfolk & W. Ry. Co., 110 Va. 867, 67 S.E. 593, 595 (1910) (“the condition of the weather and of the place where he was ejected ... would naturally imperil his safety, in addition to his intoxicated condition”); Texas Midland R.R. Co. v. Geraldon, 54 Tex.Civ.App. 71, 117 S.W. 1004, 1007 (1909) (“the right to eject must be exercised in a proper manner and at the proper time and place”), aff'd, 103 Tex. 402, 128 S.W. 611 (1910) ; Brown v. Chicago, Rock Island & Pac. R.R. Co., 51 Iowa 235, 1 N.W. 487, 490 (1879) ( “all the circumstances should be considered, as the physical condition of the person ejected; the time, whether in daylight or late at night; ......

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