Schultz v. Gould Academy

• Decision Date: 20 February 1975
• Citation: 332 A.2d 368
• Parties: Eve SCHULTZ, by her father, John H. Schultz v. GOULD ACADEMY.
• Court: Maine Supreme Court

Page 368

332 A.2d 368

Eve SCHULTZ, by her father, John H. Schultz v. GOULD ACADEMY.

Supreme Judicial Court of Maine.

Feb. 20, 1975.

Theodore H. Kurtz, South Paris, Drummond, Wescott & Woodsum by John A. Graustein, Portland, for plaintiff.

Preti & Flaherty by John J. Flaherty, John Paul Erler, Portland, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

POMEROY, Justice.

In the early morning hours of April 16, 1971, the plaintiff, a sixteen-year old student at the defendant Academy, was criminally assaulted by an unidentified intruder who had come into her dormitory room while she was sleeping.

The additional minutes spent searching the basement area delayed the watchman's usual time of departure from the building. The jury would have been justified in concluding from his own testimony on cross-examination that it was 3:40 or 3:45 a. m. before he left to continue his rounds.

Plaintiff was unable to fix the exact time when the intruder entered her room, although she believed he was there a total of 25-30 minutes. She left about a minute after he did, going directly to the room of a friend on the floor below. Aroused by plaintiff's knock on her door, the friend observed the time on her bedside clock to be 4:20 a. m. After 10 minutes of conversation, the two girls went downstairs to awaken the housemother. In her roport to the State Detective the housemother set the time of the girls' arrival at her door at 4:30 a. m.

Based upon these facts, the jury was justified in concluding that at 3:15 or 3:20 a. m. defendant's night watchman had reason to believe a male intruder had entered the girls' dormitory, that he had been in a basement area which allowed access to the upper floor sleeping quarters, and that he had not yet left the building. Moreover, the jury could conclude that for a period of 10 or 15 minutes (at the very least), both defendant's night watchman and plaintiff's attacker were inside the building; and that the harm sustained by plaintiff had not yet occurred when the watchman left the building to continue on his rounds. ⁴

Plaintiff, as a student attending the defendant Academy, had the legal status of a business invitee, to whom defendant's employee owned a duty to exercise reasonable care in taking such measures as were reasonably necessary for her safety in light of all then existing circumstances. Isaacson v. Husson College, Me., 297 A.2d 98, 103 (1972); Jay v. Walla Walla College, 53 Wash.2d 590, 335 P.2d 458 (1959).

The jury could infer from the evidence that defendant's employee

(1) had notice of circumstances highly suggestive of an improper intrusion into the dormitory by someone, and

(2) reasonable opportunity to take some action or give some warning to prevent any harm to the girls which reasonably could be expected to flow from such intrusion.

Whether the harm that befell plaintiff was within 'the range of reasonable apprehension' was a question of fact for the jury. Hatch v. Globe Laundry Co., 132 Me. 379, 171 A. 387 (1934).

If, in fact, it was reasonably to be apprehended, failure to use due care to guard against it, was actionable negligence. Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).

That defendant's employee could not have foreseen the exact nature of the injury which in fact occurred, does not relieve him of liability, if some harm was reasonably foreseeable under the circumstances. Quinn v. Moore, Me., 292 A.2d 846 (1972).

This is true even though a wilful or negligent or criminal act by a third person intervened and contributed to the harm. Hawkins v. Maine & New Hampshire Theaters Co., 132 Me. 1, 164 A. 628 (1933); Kimple v. Foster, 205 Kan. 415, 469 P.2d 281 (1970).

In Hawkins, supra, this Court held that the liability of a theater manager turned on whether the injury sustained by a patron, although inflicted by the wilful and malicious act of a third person, should reasonably have been foreseen and averted.

'The obligation which the proprietor of a theatre or amusement enterprise owes to his guests has been clearly set forth. He must guard them not only against dangers of which he has actual knowledge but also against those which he should reasonably anticipate. Morrison v. Union Park Association, 129 Me. 88, 149 A. 804 (1930). The failure to carry out such duty is negligence. A recovery may be had, even though the wilful or negligent act of a third person intervenes and contributes to the injury, provided such act should have been foreseen.' 164 A. at 629.

The same rule has been applied with respect to the liability of a laundry for injuries sustained by one attempting to rescue children caught in a runaway truck negligently parked on a steep grade by the laundry's employee. (Hatch v. Globe Laundry Co., supra.)

'The question whether or not negligence is a proximate cause of an injury is answered, not as a rule by determining that the act of a third person contributing to the result does or does not intervene, but rather by deciding whether the occurrence should have been foreseen or reasonably anticipated.' 171 A. at 390.

In Brewer v. Roosevelt Motor Lodge, Me., 295 A.2d 647 (1972), a female guest brought action against the defendant motel for injuries sustained when she was assaulted by an intruder who gained entrance to her ground floor room through an open bathroom window. We held that, under the circumstances of that case, a verdict was properly...