Orlando Executive Park, Inc. v. P. D. R.

• Decision Date: 15 July 1981
• Docket Number: No. 79-1743,79-1743
• Citation: 28 A.L.R. 4th 65,402 So.2d 442
• Parties: ORLANDO EXECUTIVE PARK, INC., and The Howard Johnson Company, Appellants/Cross Appellees, v. P. D. R., Appellee/Cross Appellant. /T4-706.
• Court: Florida District Court of Appeals

Page 442

402 So.2d 442

28 A.L.R.4th 65

ORLANDO EXECUTIVE PARK, INC., and The Howard Johnson Company, Appellants/Cross Appellees, v. P. D. R., Appellee/Cross Appellant.

No. 79-1743/T4-706.

District Court of Appeal of Florida, Fifth District.

July 15, 1981.

Rehearing Denied Aug. 11, 1981.

Ronald M. Owen of Parker, Johnson, Owen & McGuire, Orlando, for appellant/cross appellee Orlando Executive Park, Inc.

Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellant/cross appellee the Howard Johnson Co.

Charles R. Morgan of Morgan, Carratt & O'Connor, P. A., Fort Lauderdale, for appellee/cross appellant.

ORFINGER, Judge.

In an action for damages brought by appellee against the appellants, Orlando Executive Park, Inc. (OEP), and Howard Johnson Company (HJ), the jury returned a verdict for the appellee in the amount of $750,000 as compensatory damages against both defendants jointly, and awarded punitive damages in the amount of $500,000 against each defendant separately. Upon defendants' post-trial motions for directed verdict, the trial judge directed verdicts in favor of the defendants on the punitive damage claims, but denied a motion for new trial, remittitur or directed verdict on the claim for compensatory damages. The defendants have appealed the final judgment for compensatory damages, and the plaintiff has cross-appealed the order directing verdict on the punitive damage claim.

The factual circumstances giving rise to this litigation, viewed in the light most favorable to the plaintiff, follow: Plaintiff a 33 year-old married woman, and the mother of a small child, was employed as a supervisor for a restaurant chain. Her duties required that she travel occasionally to Orlando and because of the distance from her home, she stayed overnight in the Orlando area on those occasions.

On October 22, 1975, she was in Orlando performing the duties of her employment. She telephoned the Howard Johnson's Motor Lodge involved in this action at approximately 9:30 P.M. and made a room reservation. ¹ Approximately ten minutes later she left the restaurant and drove directly to the motor lodge. When she arrived, she signed the registration form which had already been filled out by the desk clerk and was directed to her room which was located on the ground level in building "A", the first building behind the registration office. Plaintiff parked her car, went to her room and left her suitcase there. She then went back to her car to get some papers and when starting back to her room, she noticed a man standing in a walkway behind the registration office. Having reentered the building and while proceeding back along the interior hallway to her room, she was accosted by the man she had seen behind the registration office, who struck her very hard in the throat and on the back of her neck and then choked her until she became unconscious. When consciousness returned, plaintiff found herself lying on the floor of the hallway with her assailant sitting on top of her, grabbing her throat. Plaintiff was physically unable to speak and lapsed into an unconscious or semi-conscious state. Her assailant stripped her jewelry from her and then dragged her down the hallway to a place beneath a secluded stairwell, where he kicked her and brutally forced her to perform an unnatural sex act. He then disappeared in the night and has never been identified.

Plaintiff's action for damages was based on her claim that defendants owed her the legal duty to exercise reasonable care for her safety while she was a guest on the premises. And she alleged that this duty had been breached by, inter alia, allowing the building to remain open and available to anyone who cared to enter, by failing to have adequate security on the premises either on the night in question or prior thereto so as to deter criminal activity against guests which had occurred before and which could foreseeably occur again, failing to install TV monitoring equipment in the public areas of the motel to deter criminal activity, failing to establish and enforce standards of operation at the lodge which would protect guests from physical attack and theft of property, and failure to warn plaintiff that there had been prior criminal activity on the premises and that such activity would or might constitute a threat to her safety on the premises.

There was evidence submitted tending to show serious physical and psychological injury as a result of this assault which was susceptible of the conclusion that within a year following the assault, plaintiff lost her job because of memory lapses, mental confusion and inability to tolerate and communicate with people. There was evidence from which the jury could conclude that this injury was permanent and that she would require expensive, long-term medical and psychiatric treatment, and that she had suffered a great loss in her earning capacity.

The motor lodge is a part of a large complex known as "Howard Johnson's Plaza" located just off Interstate 4. The complex includes a Howard Johnson's Restaurant, the Howard Johnson's Motor Lodge, a pub, an adult theater, and five office buildings. The motor lodge contains approximately three hundred guest rooms in six separate buildings, plus a registration office, and it was owned and operated by defendant Orlando Executive Park, Inc., under a license agreement with the parent company, Howard Johnson Company. The restaurant, the pub and the adult theater on the property were operated by the defendant, Howard Johnson Company. Approximately 75% of the Howard Johnson motor lodges throughout the country are owned and operated by licensees. The Howard Johnson Company never established any standards or procedures to be followed by licensees relating to the matter of guest security, although it has established such procedures for the lodges which it owns and operates. Each licensee handled that problem as it deemed best.

There was no regular security force at the motor lodge, nor were there other security devices such as TV monitors in hallways or other common areas. One security guard was employed from time to time, on a sporadic basis. For the six-month period prior to the incident in question, management of the motor lodge was aware of approximately thirty criminal incidents occurring on the premises. While most of these involved burglary, some of them involved direct attacks upon the guests. Following one of the attacks, approximately ten weeks prior to the incident in question, the motor lodge owners had hired a full-time security guard, but he was terminated a short time later. Anticipating high occupancy, one security guard had been employed for the evening in question commencing at 10:00 P.M. While it is not clear whether the attack occurred during the period this guard was on duty, the jury could have concluded that he was not on duty at the time, although he was on the premises becoming familiar with the layout because he had never been on the property before. Additionally, the evidence indicated that the guard had been employed to patrol the parking areas, and not the motor lodge buildings. The security service which provided the guards from time to time, had recommended the employment of two to three guards on a full-time basis. Plaintiff's security expert testified that three guards on staggered shifts would be necessary to deter criminal activity, although he agreed that there were no industry standards for security guards and that it was impossible to say that the assault would not have occurred if three guards had been on the premises. He did, however, testify that in his opinion, a proper security force would serve as a deterrent to this type of activity and the chance of this happening would be slight.

I. LIABILITY OF ORLANDO EXECUTIVE PARK, INC.

It seems clear in Florida registered guests in a hotel or motel are business invitees to whom the hotel or motel owes a duty of reasonable care for their safety. Phillips Petroleum Company of Bartlesville, Oklahoma v. Dorn, 292 So.2d 429 (Fla. 4th DCA 1974). While recognizing this principle and conceding this duty, appellants say, nevertheless, that there is no evidence of a breach of their duty, since the injury to appellee was caused by the criminal act of a stranger, thus acting as an intervening efficient cause for which they are not responsible.

The evidence clearly shows numerous criminal activities on the premises in the six-month period immediately prior to this occurrence. ² The testimony of a security expert produced by plaintiff indicated adequate security at this motor lodge required the presence of at least three full-time security guards. Thus the question becomes one of foreseeability. Could a jury, under the facts of this case reasonably conclude that the absence of adequate security would lead to the robbery and attack here? ³ Such is ordinarily a question for the jury. Rosier v. Gainesville Inns Associates, Ltd., 347 So.2d 1100 (Fla. 1st DCA 1977).

Several courts in similar or analagous situations have discussed the questions raised here. In Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla.3d DCA 1980), the plaintiff's decedent was raped and murdered while a tenant in defendant's apartment complex. The crime was committed by an intruder, believed to be co-tenant. The basis of plaintiff's action against the landlord was its alleged negligent failure to provide reasonable security measures in the building's common areas. There, as here, the defendants argued that they were not responsible for the results of criminal conduct of third persons. In reversing a summary judgment for the defendant, the court said:

Particularly in view of the evidence concerning the past record, and therefore the future foreseeability of violent crime at its premises, a jury could properly find that a discharge of the landlord's duty to keep the common areas reasonably safe required that a...