Groh v. Westin Operator, LLC

• Citation: 2012 COA 189
• Decision Date: 01 November 2012
• Docket Number: Court of Appeals No. 11CA0363
• Parties: Jillian Groh, individually and by and through her guardians and conservators, William Groh and Janelle Groh, Plaintiff-Appellant, v. Westin Operator, LLC, Defendant-Appellee.
• Court: Court of Appeals of Colorado

2012 COA 189

Jillian Groh, individually and by and through her guardians and conservators,

William Groh and Janelle Groh, Plaintiff-Appellant,

v.Westin Operator, LLC, Defendant-Appellee.

Court of Appeals No. 11CA0363

COLORADO COURT OF APPEALS

Announced November 1, 2012

City and County of Denver District Court No. 08CV1389

Honorable R. Michael Mullins, Judge

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE FURMAN

Russel, J., concurs

Webb, J., dissents

The Law Offices of Alan C. Shafner, Alan C. Shafner, Greenwood Village, Colorado, for Plaintiff-Appellant

The Waltz Law Firm, Richard A. Waltz, John D. Halepaska, Denver, Colorado, for Defendant-Appellee

¶1 Plaintiff, Jillian Groh, was evicted from the Westin Hotel in downtown Denver, owned and operated by defendant, Westin Operator, LLC (Westin). Tragically, she was later injured in an accident while riding as a passenger in a car driven by an intoxicated driver. She now claims that the Westin was negligent in not preventing her from riding in that car.

¶2 We conclude the Westin did not owe a duty of care to Groh because (1) after she and her companions were evicted, the innkeeper-guest special relationship, which has been recognized by Colorado courts for the purpose of imposing a duty of care, no longer existed and (2) the Westin did not, through its affirmative acts or a promise to act, undertake a service that was reasonably calculated to prevent the type of harm that befell Groh. Thus, we affirm the district court's granting summary judgment in favor of the Westin.

I. The Eviction and the Accident

¶3 Groh and a group of her friends decided to spend one evening visiting several bars and nightclubs in Denver, consuming alcoholic beverages. After the bars closed, Groh and the group – eleven in all – gathered in a room on the seventeenth floor of the Westin. Planning to stay overnight, Groh had reserved the room in advance using her sister's employee discount. (The room had two double beds.) Although Groh was the only registered guest, two of her friends had also been given keys to the room.

¶4 Around 2:45 a.m., a Westin security guard patrolling the nineteenth floor heard noise coming from lower floors through the elevator shaft. Though the Westin had not received any complaints, the guard decided to investigate the noise and rode the elevator down to the seventeenth floor, where he heard loud noises coming from Groh's room. The guard went to the door and asked for the person in charge to come out of the room. Groh stepped out.

¶5 The guard told Groh that she and the others in the room needed to quiet down. Groh acquiesced, but the guard believed the others were not cooperating and were still being too loud. Without asking Groh, the guard entered the room and told the others they needed to quiet down. As the guard exited the room, Groh became upset and started to argue with him. Groh told him that she thought he was being rude because, in her view, he was not supposed to walk into the room without her permission, and that she wanted to see his manager.

¶6 The guard then reentered the room and said everyone would have to leave. After the guard said this, various people protested that they had been drinking, that the room had been rented so that the group could avoid having to drive after drinking, and that the guard could not expect them to leave. In addition, one of Groh's male friends became involved in the argument between Groh and the guard. The guard radioed for the manager. Unable to personally respond at that moment, the manager sent a second security guard upstairs.

¶7 The second guard asked Groh if she could come across the hall, away from the room, to discuss the situation with him; she complied in a polite and respectful manner. The second guard and Groh negotiated an agreement wherein the two friends who had been given keys could stay with Groh but all of the others would have to leave. Groh then returned to the room and relayed the agreement to the others. Some of the others did not like it, and so Groh asked the second guard to come in and explain the agreement, which he did.

¶8 The group reiterated their protests that they were intoxicated and that they could not be expected to leave. One friend then stepped out of the room and loudly informed the guards that he refused to leave, despite the agreement. Another friend tried to intervene, pushing him away from the guards and into an open elevator. The second guard then radioed for the manager, who responded.

¶9 The manager and Groh discussed changing the agreement and letting the others stay. Because Groh was the registered guest, the manager asked that she stay. When it became clear that the manager would not modify the agreement to let the others stay, Groh said that, if her friends would have to leave, she would leave as well. That would turn out to be the first in a series of tragic decisions that led to tragic consequences. For purposes of summary judgment only, the Westin conceded that Groh was evicted.

¶10 Throughout this entire process, only the friend who loudly informed the guard that he refused to leave appeared to Westin personnel to be "a little tipsy"; Groh and the rest of the members of the group, despite their protestations, did not appear drunk to Westin personnel.

¶11 Several members of Groh's party decided to leave the hotel and were not involved in any of the subsequent events.

¶12 Shortly after 3:00 a.m., Groh and the remainder of her group left through the front entrance of the Westin. The first security guard accompanied Groh and the group to the door and blocked the doorframe with his body as the last of them exited, to prevent them from reentering.

¶13 Once outside, Groh used her cell phone to call her brother and inform him of the situation; he advised her to take a taxi home. During this time, one of Groh's friends was looking for a taxi. He asked the first security guard if the group could wait in the lobby until a cab was procured because of the cold temperatures outside, but the guard crossed his arms and said, "No, get the f*** out of here."

¶14 Groh and the rest of the group then walked along the front of the Westin's building and down a ramp into a parking garage. As Groh and the group walked, they passed several vehicles, including a taxi, but Angela Reed (who had joined the group earlier in the evening shortly after they had checked in) offered to drive. Groh then gave Reed the keys to her PT Cruiser – a vehicle with five seatbelts. Groh and the group (seven persons in all) got into the automobile, and Reed got behind the wheel. Reed was the only person in the car wearing a seatbelt.

¶15 Around 4:00 a.m., on northbound I-225, Reed encountered a vehicle that was driving well below the speed limit because it was towing a vehicle with a flat tire. Without braking, she crashed into this vehicle. One passenger died; the others sustained injuries, and Groh sustained severe injuries resulting in a persistent vegetative state. (A toxicology expert later estimated that Reed's blood alcohol content (BAC) was between 0.170 and 0.222 at the time of the accident. The legal BAC limit for driving under the influence is .08.) Reed was subsequently charged with several felonies associated with her driving Groh's vehicle while intoxicated.

¶16 Although the accident occurred fifteen miles from the Westin, Groh brought negligence and breach of contract claims against the Westin. The district court, however, granted summary judgment for the Westin:

[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.

¶17 The district 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 individuals staying in the room. In the words of the district court,

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.

¶18 Groh appeals the district court's entry of summary judgment.

II. Summary Judgment

¶19 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). "In considering whether the moving party has ultimately established its entitlement to summary judgment, we must grant the nonmoving party all favorable inferences that reasonably may be drawn from uncontested facts and resolve any doubt as to whether a triable issue of material fact exists against the moving party." Ludlow v. Gibbons, ___ P.3d ___, ___ (Colo. App. No. 10CA1719, Nov. 10, 2011)(cert. granted July 30, 2012)(citing Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 570 (Colo. 2008)).

¶20 We review a trial court's entry of summary judgment de novo. Woods v. Delgar Ltd., 226 P.3d 1178, 1180 (Colo. App. 2009).

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