Mitchell v. Pearson Enterprises

• Decision Date: 05 February 1985
• Docket Number: No. 18848,18848
• Citation: 697 P.2d 240
• Parties: Barbara F. MITCHELL, et al., Plaintiffs and Appellants, v. PEARSON ENTERPRISES, a Utah Corporation, et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 240

697 P.2d 240

Barbara F. MITCHELL, et al., Plaintiffs and Appellants, v. PEARSON ENTERPRISES, a Utah Corporation, et al., Defendants and Respondents.

No. 18848

Supreme Court of Utah.

Feb. 5, 1985.

J. Douglas Parry, Salt Lake City, Kenneth J. Fishman, Boston, Mass., for plaintiffs and appellants.

Ray Berry, Bruce H. Jensen, Salt Lake City, for defendants and respondents.

HALL, Chief Justice:

Plaintiffs appeal from a summary judgment entered in favor of defendants in an action seeking damages for wrongful death. U.C.A., 1953, § 78-11-7. We affirm.

On July 17, 1979, Donald P. Mitchell, a Delaware businessman and husband and father of the plaintiffs in this action, was murdered in his room at the Salt Lake Hilton Hotel. Mitchell had eaten breakfast with a business associate, Louis Rosenberg, in the coffee shop of the Hilton. Following breakfast, Mitchell had returned to his room on the eighth floor of the hotel to use the bathroom before beginning his business day. When Mitchell did not meet Rosenberg shortly thereafter as arranged and did not answer his phone or door, Rosenberg became concerned and asked a hotel maid to open the door to Mitchell's room. Rosenberg and the maid found Mitchell lying face down on the floor, dead. Mitchell had been shot twice in the back of the head with a .22 caliber weapon. It was generally agreed that the position of the body and the pattern of blood spatters surrounding it indicated that Mitchell had been shot where he was found, lying on the floor.

Both Mitchell's luggage and Rosenberg's, which had been left in Mitchell's room because Rosenberg was checking out, had been rifled. Mitchell's wallet was lying on one of the suitcases with the cash missing. Neither Mitchell's Rolex watch nor his credit cards were taken. There was no sign of forced entry into the room and no sign of a struggle other than scratches on Mitchell's arm in the area of his watch. Mitchell's room key was found lying in front of the bathroom door. The murderer was never apprehended.

Published deposition testimony indicated that local police officers involved with the investigation of the homicide developed several theories as to the circumstances surrounding Mitchell's death. The most prominent among these were:

1. Mitchell surprised a burglar who had entered the room with a passkey. The burglar shot Mitchell to avoid recognition and apprehension.

2. A robbery had taken place, the robber either entering the room with a passkey or surprising Mitchell in the elevator or hallway.

3. Mitchell had been executed gangland style, the killer having gained entrance to the room with a passkey or having accosted Mitchell in the hallway or elevator.

The Salt Lake Hilton Hotel is operated by Pearson Enterprises, a franchisee of the Hilton Hotel Corporation. The building consists of both high-rise and low-rise sections. The high-rise section has 10 floors, where most of the rooms are located. The total area of the hotel consists of 340 plus guest rooms, ¹ 3 restaurants, 3 lounges, a lobby, a convention center, 11 entrances (9 of which were open to the public 24 hours a day), numerous stairwells, ² elevators, and a parking lot. At the time of the murder, there were no electronic devices, cameras, or alarms at any of the entrances, in the stairwells, or on any of the guest floors. One security guard was responsible for patrolling the entire area.

The chief of security for the Salt Lake Hilton had been a Salt Lake City police officer but had had no previous supervisory experience. He set up the security system at the Hilton with no assistance from the franchisor corporation in any form, either through manuals on security procedures or direct guidance. He made no effort to determine crime levels in the immediate vicinity of the hotel in order to tailor security procedures to these levels. Security personnel provided no procedure for controlling access to room keys or master passkeys and did not themselves supervise access to the keys. Management personnel indicated that there was no clear policy with regard to access to master passkeys and that supervision of access to all keys was minimal.

Both security personnel and general employees were hired after filling out standard application forms. Neither military nor police records were checked, and no security experience was required for security personnel. At the time of the homicide, defendants had on their payroll an employee who was on probation after arrest and conviction in connection with an attempted homicide-robbery. ³ The probationer was employed as a maintenance person and, as such, had access to all master keys at his hotel. This individual's wife was the maid on the floor where Mitchell was murdered and was in possession of a passkey to those rooms at the time of the murder.

Deposition testimony indicated that there had been previous instances of crime in the hotel, including attempted rape and theft from guestrooms and the lobby. There were also instances of "street people" entering guest floors through outside entrances and stairwells to sleep in hallways and in rooms.

Plaintiffs brought suit against defendants to recover damages for the wrongful death of Donald Mitchell, alleging that defendants were negligent in failing to provide reasonable security measures to protect the safety of their registered guests while in their rooms and in the common areas of the hotel. Plaintiffs also alleged that defendants breached implied and express warranties of safe accommodation and habitability owed to its registered guests.

Defendants filed a motion for summary judgment, asserting that defendants were not insurers of the safety of the deceased; that defendants did not breach any duty to the deceased since the murder was not reasonably foreseeable and the death was caused by the intervening independent criminal act of a third person; and that Utah does not recognize a cause of action for breach of an implied or express warranty of safe accommodation and habitability.

After a hearing on the defendants' motion for summary judgment, at which thirty depositions were opened and published, the trial court granted summary judgment in favor of defendants, finding only "that there is no genuine issue of any material fact." Plaintiffs appeal, contending that there were material issues of fact to be resolved with regard to whether defendants were negligent in providing security to their guest, Mitchell.

An innkeeper is not an insurer of the safety of its guests but owes to them ordinary care to see that the premises assigned to them are reasonably safe for their use and occupancy. ⁴ In the exercise of ordinary care, the amount of caution required will vary with the nature of the act and the surrounding circumstances. ⁵

In the context of the hotel/guest relationship, it is foreseeable ⁶ that an innkeeper's failure to maintain adequate security measures not only permits but may even encourage intruders to rob, assault, or murder hotel patrons. ⁷ Thus, in meeting its standard of ordinary care, a hotel must provide security commensurate with the facts and circumstances that are or should be apparent to the ordinary prudent person. ⁸ Accordingly, the degree of care that an innkeeper must exercise would vary according to the particular circumstances and location of the hotel. ⁹

The Wisconsin Supreme Court, in Peters v. Holiday Inns, Inc., ¹⁰ set forth what it considered to be relevant factors in deciding whether a hotel has exercised ordinary care in providing adequate security: "industry standards, the community's crime rate, the extent of assaultive or criminal activity in the area or in similar business enterprises, the presence of suspicious persons, and the peculiar security problems posed by the hotel's design." ¹¹

The Peters court went on to say:

A hotel's liability depends upon the danger to be apprehended and the presence or absence of security measures designed to meet the danger. The particular circumstances may require one or more of the following safety measures: a security force, closed circuit television surveillance, dead bolt and chain locks on the individual rooms as well as security doors on hotel entrance ways removed from the lobby area. ¹²

Plaintiffs rely on Peters and on Walkoviak v. Hilton Hotels Corp., ¹³ to support their contention that summary judgment was improper in this case. In Peters, the plaintiff, a motel guest, was assaulted and robbed in his room. At approximately 3:00 a.m., the assailant had entered the motel's lobby where he had asked for a certain employee who was not there. He then entered the motel's kitchen area unobserved, where he stole a Holiday Inn bellboy shirt. He proceeded to the rooms area, which was in a separate building. Outside doors to the rooms area were not locked, entrances were not monitored by closed circuit television, and there were no security guards. It was also not necessary to pass through the lobby to enter the rooms building.

The assailant knocked on Peters' door, informed Peters that his room phone was not working and told Peters there was a message for him. Peters, after looking through the door's one-way viewer and seeing a man in a bellboy shirt, opened the door. He was then robbed and assaulted. The Supreme Court of Wisconsin reversed a summary judgment in favor of the defendant hotel corporation, ruling that material issues of fact existed as to whether the defendant had provided adequate security and whether there was a causal relation between the absence of security measures and plaintiff's assault.

In Walkoviak, a hotel guest brought an action against the hotel for injuries caused by the criminal activities of third persons, alleging that the hotel negligently failed to provide adequate security. The plaintiff had attended a convention at the defendant's hotel and had parked his car in the parking lot owned by, and located directly in front of, the hotel. On leaving the...