Peters v. Holiday Inns, Inc.

• Decision Date: 01 May 1979
• Docket Number: No. 76-599,76-599
• Citation: 89 Wis.2d 115,278 N.W.2d 208
• Parties: Francis J. PETERS, Plaintiff-Appellant, v. HOLIDAY INNS, INC., Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 208

278 N.W.2d 208

89 Wis.2d 115

Francis J. PETERS, Plaintiff-Appellant, v. HOLIDAY INNS, INC., Defendant-Respondent.

No. 76-599.

Supreme Court of Wisconsin.

Argued March 27, 1979.

Decided May 1, 1979.

Richard Congdon, Brookfield, argued, for appellant; Schalmo & Congdon, S. C., Brookfield, on brief.

Michael J. Cieslewicz, Milwaukee, argued, for respondent; James R. Gass and Kasdorf, Dall, Lewis & Swietlik, Milwaukee, on brief.

COFFEY, Justice.

Appeal is taken from a summary judgment entered in favor of the defendant-respondent Holiday Inns, Inc., a Tennessee corporation. The defendant wholly owns the stock of M.H.I. Inc., a Wisconsin corporation that operates a motel known as the Holiday Inn West located at 201 North Mayfair Rd., Wauwatosa, Wisconsin. In the early morning hours of December 31, 1975 the plaintiff-appellant Francis J. Peters, a motel guest, was assaulted and robbed in his room. Peters commenced this action alleging the motel was negligent in permitting two intruders access to his room that resulted in his being beaten and robbed. The plaintiff and defendant concede the facts leading up to and culminating in the assault on Peters, although the plaintiff presented additional facts to the court at a summary judgment hearing.

Shortly before 3:00 a. m. on December 31, 1975, a car containing four males parked in front of the motel's entrance. The four men sat in the car for a short time before one of the car's occupants entered the motel lobby. The lobby is in the motel's main building, while the plaintiff's room, No. 185, is located in a separate but adjacent structure. The assailant, a former employee of the motel, was known as Elvis to the employees on duty. Upon entering the motel, he asked whether "Uncle George" was working that night and after being told he was not scheduled to work, "Elvis" left the lobby. Rather than exiting the building, the assailant entered the motel's kitchen area where he stole one of the bellboy shirts.

The activities of the four men were observed by a Wauwatosa policeman who was routinely patrolling the defendant's premises in an unmarked squad car. The officer became suspicious after seeing the man who departed earlier from the car return and then observed the auto proceed to the rear of the parking lot near adjacent the motel rooms. The patrolman then entered the motel and questioned the two employees on duty concerning their conversation with "Elvis." The employees informed him that a short time ago the patrons of Room 143 had phoned the desk to report that a man knocked on their door claiming their room phone was out of order and that he had a message for them from the desk. The patrolman, upon receipt of this information, alertly suspecting something unusual, called headquarters and requested the aid of additional squads that arrived at the scene shortly thereafter.

The imposter "messenger," after being denied entrance to Room 143, apparently proceeded to Peters' room, No. 185. The man knocked on the door and repeated the same Modus operendi, informing Peters his phone wasn't working and that he had a message for him from the desk. The plaintiff-appellant explains that he looked through the door's one-way viewer and saw a man in the hallway wearing a bellboy's white shirt, the type worn by Holiday Inn personnel. Peters opened the door, believing the message was the 6:30 a. m. "wake-up call" he had requested. Two men pushed their way into the room and held the plaintiff at gunpoint while one of the assailants searched Peters' pants and room. They found approximately $700 in cash and a set of keys to the plaintiff's bowling alley. The intruders forced Peters to accompany them, apparently intending further criminal activity. The plaintiff was pushed into his own car and at this time the police converged upon the vehicle and the four men were apprehended at the scene.

At the time of the assault, the outside entrance to the separate structure housing Rooms 143 and 185 was neither locked, monitored by closed circuit television, nor manned by motel staff or security personnel. Further, it is not necessary to pass through the lobby before entering the building. The only security provided by the motel was a dead bolt lock on each room as well as a chain lock and a one-way viewer. It is pointed out that the hallway outside Rooms 143 and 185 was well lighted at the time of the assault. It was established by affidavit that the Inn did not employ security guards, as in the past five years there had been few incidents requiring calls to the police for help and that the police routinely patrol the motel entrance and parking lot.

On December 13, 1976, following a hearing on the defendant's motion for summary judgment, the trial court granted the motion based upon the affidavits submitted by the parties and additional evidentiary facts presented to the court at the hearing. The trial court expressed its reasoning for the decision in the following language:

"Now, plaintiff argues that he has a right to present this evidence to the trier of the fact. That is true only if the evidence, if presented to the trier of the fact, drawing all reasonable inferences in favor of it, would sustain a verdict in favor of the plaintiff. I cannot find that it would. I find to the contrary, that it would not, and that under the circumstances present at the time and place, no more diligent or effective circumstances could have existed for the preservation, care and protection of the plaintiff than in fact existed on the occasion in question. Had the police department not been fortuitously on the premises, I could view the plaintiff's complaints with a different point of view. I think unquestionably, absent the presence of the police officers on the occasion in question, and the report of the phone call by the desk clerk to the police department, there would be presented to the jury a question of reasonable diligence."

The presence of the police is described as "fortuitous" as they were on the scene during a routine patrol of the premises. Further, their investigation was not initiated by a report from the motel personnel, but rather because of the suspicious circumstances personally observed by the Wauwatosa patrolman in the parking lot area.

Throughout this opinion we will refer to the residents of the Holiday Inn as guests of a motel or hotel interchangeably.

Issues :

1. What degree of care is required of a hotel or innkeeper in providing security measures to protect the personal safety of its guests?

2. Did the trial court err in granting summary judgment for the defendant based upon the conceded and additional facts presented, as well as the parties' affidavits and briefs presented?

In this case, the court is called upon to establish the standard of care to be imposed upon an innkeeper to provide adequate security measures for the safety of his guests. Prior to this decision, the court considered a restaurateur's duty to protect his customers from bodily injury as a result of a third party's assaultive conduct. In Weihert v. Piccione, 273 Wis. 448, 78 N.W.2d 757 (1956), a restaurant patron was injured when an altercation broke out between other customers. Weihert held that a restaurant owner owes his customers the following duty of care in protecting them against bodily injury:

". . . the proprietor of a place of business who holds it out to the public for entry for his business purposes (including a restaurant) is subject to liability to members of the public while upon the premises for such a purpose for bodily harm caused to them by the accidental, negligent, or intentionally harmful acts of third persons, if the proprietor by the exercise of reasonable care could have discovered that such acts were being done or were about to be done, and could have protected the members of the public by controlling the conduct of the third persons, or by giving a warning adequate to enable them to avoid harm." Supra at 456, 78 N.W.2d at 761.

In our mobile society, travellers carry sums of money because of necessity and the problems caused by the lack of adequate identification for cashing checks in areas away from home. Thus, innkeepers should foresee that necessarily large amounts of monies and credit cards are carried by their guests and consequently increased security is required in these days of rapidly increasing assaultive crimes. Certainly hotel patrons can expect that reasonable security will be provided, combined with the friendliness, hospitality and graciousness so widely advertised by modern hotels.

In Osborne v. Montgomery, 203 Wis. 223, 242-43, 234 N.W. 372, (1971), it was noted that once a legal duty has been imposed, the standard of care to be exercised is defined in the following language:

" . . . the degree of care which the great mass of mankind ordinarily exercises under the same or similar circumstances. A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject him or his property, or the person or property of another to an unreasonable risk of injury or damage." ¹

Thus, the conduct of hotel innkeepers in providing security must conform to the standard of ordinary care. In the context of the hotel-guest relationship, it is foreseeable that an innkeeper's failure to maintain adequate security measures not only permits but may even encourage intruders to rob or assault hotel patrons. Therefore, we hold that a hotel has a duty to exercise ordinary care to provide adequate protection for its guests and their property from assaultive and other types of criminal activity. See: Rosier v. Gainesville Inns Assoc., Ltd., Fla.App. (1st Dist.), 347 So.2d 1100, 1102 (1977); Phillips Petroleum Co. of Bartlesville v. Oklahoma, Fla.App. (4th Dist.), 292 So.2d 429 (19...