Shadday v. Omni Hotels Management Corp.

• Decision Date: 20 February 2007
• Docket Number: No. 06-2022.,06-2022.
• Citation: 477 F.3d 511
• Parties: Miranda SHADDAY, Plaintiff-Appellant, v. OMNI HOTELS MANAGEMENT CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

477 F.3d 511

Miranda SHADDAY, Plaintiff-Appellant, v. OMNI HOTELS MANAGEMENT CORPORATION, Defendant-Appellee.

No. 06-2022.

United States Court of Appeals, Seventh Circuit.

Argued November 9, 2006.

Decided February 20, 2007.

James R. Recker, II (argued), Indianapolis, IN, for Plaintiff-Appellant.

Robert B. Thornburg (argued), Locke Reynolds LLP, Indianapolis, IN, for Defendant-Appellee.

Before BAUER, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

This diversity tort suit charges the owner of a hotel in Washington, D.C. with negligence in having failed to prevent the rape of the plaintiff, a guest at the hotel, by another guest. The district judge gave summary judgment for the defendant. The parties agree that District of Columbia law governs the substantive issues.

The plaintiff is a young woman employed in a casket factory. A member of the steelworkers union, she attended a "Women in Steel" union conference at the Omni Shoreham Hotel, a large, high-class hotel in a nice part of Washington (near Connecticut Avenue, Rock Creek Parkway, and the National Zoo). In the bar of the hotel, the first night of her stay, she met and had drinks with a seemingly very respectable Guatemalan lawyer—he was visiting Washington as a member of a delegation that included that country's president. The bar closed at 1 a.m. and the patrons repaired to the lobby, where at 2 a.m., as the plaintiff was waiting in front of a bank of elevators to return to her room, the lawyer accosted her and began kissing and fondling her. She resisted, but didn't cry out, because there was no one in sight. She fought her way free, and, an elevator having arrived, she ran into it, but he followed her and raped her in the elevator. She got out at the next floor and was discovered by a security guard. The rapist was soon arrested. He did not deny the crime, and he was convicted of sexual assault.

At the time of night when the rape occurred, the Shoreham normally had three security guards on duty—one in the lobby, one monitoring the security cameras, and one patrolling other parts of the hotel. On the night of the rape, however, one of the security guards was sick and the other two were patrolling, so there was no guard either in the lobby or monitoring the cameras. Anyway there was no security camera trained on the area in front of the bank of elevators, or in any of the elevators; nor, had all three guards been on duty, would any of them have noticed the initial assault unless they happened to be near the bank of elevators.

A hotel or other innkeeper ("inn" remains the legal term for a hotel, motel, bed and breakfast, or other lodging place) has a duty to use due care to protect its guests against foreseeable hazards, including criminal acts. E.g., Wassell v. Adams, 865 F.2d 849, 855 (7th Cir.1989); McCarty v. Pheasant Run, Inc., 826 F.2d 1554, 1557-58 (7th Cir.1987); cf. Doe v. Dominion Bank of Washington, N.A., 963 F.2d 1552, 1560-61 (D.C.Cir.1992) (D.C.law) (duty of landlord to protect tenant). To state the test in somewhat more practical terms, eschewing legal jargon, the hotel has a duty to take precautions that are reasonable in relation to the likelihood that without them guests will be victims of criminal acts. McAvey v. Lee, 260 F.3d 359, 373-74 (5th Cir.2001); Kveragas v. Scottish Inns, Inc., 733 F.2d 409, 413-15 (6th Cir.1984). The duty is imposed by tort law, but like liability for medical or legal malpractice is most intuitively understood as an implied term in the contract between injurer and victim. Hotel guests, patients, and clients would want to buy, and hotels, doctors, and lawyers would want to sell (as part of the bundles of services for which they charge), that level of protection that confers a value greater than its cost. Tort law codifies their understanding by imposing liability on injurers who, having a contractual relation with their victims, could, in principle, negotiate a standard of care explicitly, along with the other terms of their contractual relation. This codification, sparing the parties the bother of an explicit negotiation, makes particularly good sense in cases such as this (also cases of medical, but not legal, malpractice) in which the injury is nonpecuniary; for it is tort law rather than contract law that has evolved remedies tailored to such injuries.

We can get a better sense of a hotel's duty to protect its guests against crimes by observing that the hotel has much better access to information about the danger than its guests do. McCarty v. Pheasant Run, Inc., supra, 826 F.2d at 1558; Ellen M. Bublick, "Citizen No-Duty Rules: Rape Victims and Comparative Fault," 99 Colum. L.Rev. 1413, 1422-23 (1999). The information enables the hotel to take appropriate precautionary measures; the absence of information makes it difficult for the guests to do so. This is the basis of the rule in some states (but by no means in all, see, e.g., Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 161-63 (4th Cir.1988); Pittard v. Four Seasons Motor Inn, Inc., 101 N.M. 723, 688 P.2d 333, 338-39 (App. 1984)—and not in the District of Columbia) that a hotel or other "innkeeper" has an elevated standard of care toward its guests. McCarty v. Pheasant Run, Inc., supra, 826 F.2d at 1558; Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428, 434-35 (2006); see generally Daniel M. Combs, Casenote, "Costos v. Coconut Island Corp.: Creating a Vicarious Liability Catchall Under the Aided-By-Agency-Relation Theory," 73 U. Colo. L.Rev. 1099, 1136 (2002).

The District of Columbia (along with California, see Wiener v. Southcoast Childcare Centers, Inc., 32 Cal.4th 1138, 12 Cal. Rptr.3d 615, 88 P.3d 517, 523-24 (2004)) goes to the other extreme and requires a "heightened showing of foreseeability" of plaintiffs who seek to impose liability on a third party who failed to prevent a criminal's attack. District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 641-42 (D.C.2005) (en banc); Potts v. District of Columbia, 697 A.2d 1249, 1252 (D.C.1997); Clement v. Peoples Drug Store, Inc., 634 A.2d 425, 428-29 (D.C.1993); Smith v. District of Columbia, 413 F.3d 86, 109 (D.C.Cir.2005) (D.C.law); Workman v. United Methodist Committee, 320 F.3d 259, 263-64 (D.C.Cir.2003) (same); Doe v. Dominion Bank of Washington, N.A., supra, 963 F.2d at 1560 (same). These cases do not involve hotels, however, and they invoke the rather old-fashioned formula that a criminal act, being deliberate, is an "intervening" or "supervening" cause that severs the "causal chain" that would otherwise connect the negligence of the party who failed to prevent the criminal act to the injury to the victim. This is legal mumbo-jumbo. The practical question (and law should try to be practical) is whether the defendant knows or should know that the risk is great enough, in relation to the cost of averting it, to warrant the defendant's incurring the cost. "And so a hospital that fails to maintain a careful watch over patients known to be suicidal is not excused by the doctrine of supervening cause from liability for a suicide, any more than a zoo can escape liability for allowing a tiger to escape and maul people on the ground that the tiger is the supervening cause of the mauling. In both cases there is a foreseeable, in the sense of probable, hazard which precautions can and should be taken in order to lessen." Jutzi-Johnson v. United States, 263 F.3d 753, 756 (7th Cir.2001) (citations omitted).

The invocation of "intervening" or "supervening" cause as a bar to liability is related to the common law's traditional reluctance to impose a duty to rescue a stranger in distress. There is no tort liability for failing or refusing to be a Good Samaritan, as the cases say, and there are reasons for this rule. Stockberger v. United States, 332 F.3d 479, 480-81 (7th Cir. 2003). But the hotel guest is not a "stranger," in any sense relevant to liability, to the hotel any more than the patient is a stranger to the hospital or a zoo's visitor is a stranger to the zoo. See id. at 481-82. The hotel guest entrusts his safety to the hotel; you do not entrust your safety to a bystander, counting on him to protect you from assaults.

So we have our doubts whether the District of Columbia courts would actually require a hotel guest to make a "heightened showing" that the hotel should have foreseen and prevented a criminal attack. A further reason to doubt this is that the District of Columbia cases mainly involve tenants, and a tenant, not being a transient, is likely to have more information than a hotel guest about the risk of crime and a greater ability to protect himself from it. But we shall see that it would not change the outcome if those courts would insist on the heightened showing in this case.

Under any standard (for in any event it is doubtful how much the different articulations of the standard of care in cases of liability for failing to prevent a criminal assault influence the actual outcomes of the cases), the greater the likelihood of a crime against a hotel guest, the more extensive are the measures that the hotel is required to take, because the greater the likely benefits of its doing so. Laura DiCola Kulwicki, Comment, "A Landowner's Duty to Guard Against Criminal Attack: Foreseeability and the Prior Similar Incidents Rule," 48 Ohio St. L.J. 247, 263-64 (1987). Ideally, the hotel should increase its expenditures on security until the last dollar buys a dollar in reduced expected crime costs (the cost if a crime occurs, discounted by the probability that it will occur) to the hotel's guests. Of course, this optimal point can't actually be ascertained by the methods of litigation, or by the hotel industry for that matter— there is too much uncertainty. But with the aid of expert and other testimony, a trier of fact may be able to approximate it, albeit crudely.

The major risk of crime to guests of a hotel, especially guests of a fancy hotel like the...