MacQuarrie v. Howard Johnson Co.

Decision Date06 December 1988
Docket NumberNo. 88-1544,88-1544
Citation877 F.2d 126
PartiesJ. Conrad MacQUARRIE, Plaintiff, Appellant, v. HOWARD JOHNSON COMPANY, et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

David C. Jenkins with whom Gordon P. Ramsey and Ramsey and Murray were on brief for plaintiff, appellant.

D. Alice Olsen with whom Peter C. Knight, David E. Maglio and Morrison, Mahoney & Miller were on brief for defendants, appellees.

Before COFFIN, BREYER and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

MacQuarrie appeals the decision of the district court granting Howard Johnson's motion for Judgment Notwithstanding the Verdict, reversing a $400,000 award by the jury to appellant in this negligence case. We find that there was sufficient evidence supporting the jury's verdict and therefore we reverse.

I. Background

Appellant had traveled on a Friday evening to Newark, Delaware in order to attend a football game of Colgate University, his alma mater. He had arranged to stay for the weekend in the local Howard Johnson motor lodge, located right off Route I-95, a major highway running from Maine to Florida. After checking in at approximately 6:00 p.m., MacQuarrie drove to the hotel's Building No. 2, in which his room was located. Evidence at trial indicated that the parking lot was illuminated and that the local police occasionally drove through this area. 1 It appears that no other security measures were provided by the hotel in the area of Building No. 2.

MacQuarrie parked his car and was removing his suitcases from the car's trunk when two men approached and robbed him at gunpoint. Appellant followed all instructions, said nothing, and gave the assailants the cash that he was carrying. Nevertheless, one of the perpetrators shot appellant in the back before fleeing. Appellant was hospitalized for fifty days and was forced to undergo two major operations. The bullet had hit his left arm, apparently shattering the humerus bone, and he has been required to undergo physical therapy to this day. MacQuarrie's orthopedic surgeon testified that MacQuarrie will permanently suffer from pain and loss of movement in that arm.

MacQuarrie brought this suit alleging that Howard Johnson was negligent in the security provided. At trial, MacQuarrie presented the following list of sixteen reported crimes that had been committed on the hotel's premises shortly prior to the shooting (which occurred on October 24, 1984):

                11/9/80   Larceny in parking lot
                1/28/81   Larceny in parking lot
                2/28/81   Larceny in parking lot
                3/13/81   Vandalism in guest room
                4/15/81   Cash register shortage
                4/18/81   Cash register shortage
                4/30/81   Robbery attempt in a guest room
                6/24/81   Larceny in parking lot
                6/24/81   Larceny in parking lot
                6/24/81   Larceny in parking lot
                6/26/81   Vandalism to elevator
                9/21/81   Burglary attempt
                10/9/81   Larceny in parking lot
                10/28/81  Theft of vehicle
                3/15/82   Larceny in parking lot
                9/23/82   Robbery of a guest
                

Appellant's security expert ("Somerson") testified that fencing was necessary around the parking lot and that video cameras should have been placed in these areas with viewing screens at the front desk of the hotel. Although the expert admitted that these measures would not have ensured that this crime would not have occurred, he concluded that considering all relevant information, Howard Johnson's existing security measures were inadequate, the recommended changes would have greatly deterred all criminal activities in this area, and they would have made the assault against MacQuarrie much less likely. The testimony of this witness was admitted after two voir dire examinations into his qualifications to testify as an expert on these matters.

After the jury found for appellant, Howard Johnson moved for a judgment n.o.v. and, in the alternative, a new trial. See Fed.R.Civ.P. 50(b). The trial judge granted the motion for j.n.o.v. He concluded that judgment for appellee was required because the evidence was insufficient to support a finding that this crime was forseeable. The court relied primarily on other cases finding liability, in all of which there had been a much greater history of past criminal conduct, including prior violent criminal acts. Although acknowledging that there was additional evidence due to the testimony of appellant's expert, the trial judge discounted this evidence which he found to be not credible. MacQuarrie v. Howard Johnson, No. 84-3375-WD-A (D.Mass. Apr. 29, 1988).

II. The Motion for Judgment N.O.V.

"The exercise of the judicial prerogative to terminate a case must be painstaking." United States v. Articles of Drug Consisting of Following: 5,906 Boxes, 745 F.2d 105, 113 (1st Cir.1984), cert. denied, 470 U.S. 1004, 105 S.Ct. 1358, 84 L.Ed.2d 379 (1985). Thus, the well-established standard within this circuit for granting a motion for judgment non obstentio verdicto (n.o.v.) is very rigorous. As with a directed verdict, a judgment n.o.v. "should be granted only when the evidence, and the inferences to be drawn therefrom, viewed in the light most favorable to the nonmovant (appellant), could lead reasonable persons to but one conclusion." Dopico-Fernandez v. Grand Union Supermarket, 841 F.2d 11, 12 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 164, 102 L.Ed.2d 135 (1988); accord Turner v. Johnson & Johnson, 809 F.2d 90, 100 (1st Cir.1986).

It is the jury's function as finder of fact, and not the role of the judge, to weigh the evidence and determine the credibility of the witnesses presented. Therefore, the district court in considering a motion for judgment n.o.v. must consider all of the evidence properly admitted in the light most favorable to the party opposing the motion. The decision to grant a motion for judgment n.o.v. "must be made without evaluating the credibility of the witnesses or the weight of the evidence and without attempting to resolve conflicting testimony." Conway v. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir.1987).

The court below granted this motion after concluding that reasonable persons, who had considered all of the evidence in the light most favorable to plaintiff, could only conclude that this type of violent act was not forseeable. MacQuarrie relied at trial on two types of evidence in order to establish forseeability. First, he supplied the aforementioned list of prior crimes occurring at the hotel. Also, MacQuarrie presented an expert that testified that in his opinion it was more probable than not that a crime of this type would occur. The expert based this opinion on four factors: 1) the proximity of the hotel to Route I-95, which could provide criminals with easy access and escape, and the general area of the hotel, in which there were numerous gas stations and liquor stores; 2) past criminal activity at the hotel; 3) the heightened activity at the hotel and in the area during the weekend in question because of the football game that was to take place; and 4) the lack of security that existed at the hotel. Although a comprehensive security manual was adopted by the hotel, evidence indicated that the employees were unfamiliar with its guidelines and that the recommended security measures were largely ignored.

The judge below began his analysis by comparing the crimes that had occurred on these premises to those that had occurred in other cases in which forseeability had been found. He relied primarily on Sharpe v. Peter Pan Bus Lines, Inc., 401 Mass. 788, 519 N.E.2d 1341 (1988), Jardel Co. v. Hughes, 523 A.2d 518 (Del.1987), and Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451 (1980). Although forseeability was found in each of these cases, there were fewer crimes reported at the Howard Johnson hotel than there had been at the business locations in these other cases and, of most significance to the judge below, none of the crimes at the Howard Johnson hotel had been violent. Basically, all of the past incidents had been property crimes.

The only evidence supporting forseeability that was presented in this case, and not present in the aforementioned cases considered by the lower court, was the testimony of MacQuarrie's expert. The judge below, however, discounted this testimony apparently because he considered the expert's opinion, that past larcenies could reasonably foreshadow a violent crime, to be so farfetched that it proved only that "experts can be found to testify to anything." MacQuarrie v. Howard Johnson, No. 84-3375-WD-A (D.Mass. Apr. 29, 1988).

The court below erred in ignoring the testimony of MacQuarrie's expert, after it had been duly admitted and properly considered by the jury. There was sufficient evidence as to Mr. Somerson's credentials to establish his expertise. After extensive voir dire on the area of forseeability, he was permitted to testify as to his opinion, and thus, this opinion became part of the evidence for the jury to consider. It is clear from the record that a jury could have reasonably found Mr. Somerson's testimony to be credible. In fact, appellee does not argue that it was error to admit this testimony.

Both parties agree that Delaware's substantive law of negligence is controlling in this diversity case. The seminal case in this area, Jardel Co. v. Hughes, 523 A.2d 518 (Del.1987), establishes that a business owner can be liable for injuries caused by the forseeable acts, even crimes, of third parties. See also DiOssi v. Maroney, 548 A.2d 1361, 1367 (Del.1988). In Jardel, a woman who was an employee of a store within a shopping mall was brutally beaten and raped after she was abducted from the mall's parking lot one evening. The Delaware Supreme Court considered her an invitee of the mall and, like many other jurisdictions, adopted the reasoning enunciated within Section 344 of the Restatement (Second) of Torts (1965). This section states:

A possessor of land who holds it open to the public for entry for his...

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