Tobin v. Slutsky

• Decision Date: 07 November 1974
• Docket Number: No. 31,D,31
• Citation: 506 F.2d 1097
• Parties: Bernard TOBIN, as father and next friend of Donna Ellen Tobin, a minor, Plaintiff-Appellee, v. Ben J. and Julius SLUTSKY, a partnership doing business as Nevele Country Club, Defendants-Appellants. ocket 74-1179.
• Court: U.S. Court of Appeals — Second Circuit

Page 1097

506 F.2d 1097

Bernard TOBIN, as father and next friend of Donna Ellen Tobin, a minor, Plaintiff-Appellee, v. Ben J. and Julius SLUTSKY, a partnership doing business as Nevele Country Club, Defendants-Appellants.

No. 31, Docket 74-1179.

United States Court of Appeals, Second Circuit.

Argued Sept. 23, 1974.

Decided Nov. 7, 1974.

William F. McNulty, New York City (Anthony J. McNulty, New York City, Leo E. Berson, New York City, on the brief), for defendants-appellants.

Paul Martin Wolff, Washington, D.C. (Williams, Connolly & Califano, Washington, D.C., Layton & Sherman, Stuart Jay Beck, New York City, on the brief), for plaintiff-appellee.

Before LUMBARD, FEINBERG and OAKES, Circuit Judges.

FEINBERG, Circuit Judge:

Once again, at a time when the federal courts of appeals have the highest case load in their history, ¹ we must, because of diversity jurisdiction, devote considerable time to deciding whether a federal district judge correctly determined a difficult question of state law. ² The anomaly is underscored here by an apparent conflict on the precise issue between an opinion of this court and a later, highly-informed commentary by a distinguished group of state judges, discussed below. In the absence of recent definitive state judicial rulings, we feel constrained by our prior decision and uneasily adhere to it. There are two bases for our misgivings: On the issue before us, the state courts should-- and will-- eventually have the last word, which may well be different from ours. ³ Second, no matter what the state courts may later decide, for the litigants before us our decision, correct or not, will likely be final. Aware that such oddities accompany diversity jurisdiction, we turn to the case before us.

Defendants Ben J. and Julius Slutsky, a partnership doing business as Nevele Country Club, appeal from a $30,000 judgment in favor of plaintiff Bernard Tobin, as father and next friend of Donna Ellen Tobin, a minor. ⁴ The case was tried before Judge Richard H. Levet in the United States District Court for the Southern District of New York. Judge Levet directed a verdict for plaintiff on the issue of liability but allowed the jury to determine damages. Defendants appeal, arguing principally that the directed verdict for plaintiff on the question of liability was improper. For reasons given below, we hold that defendants' liability was a question for the jury, and we reverse and remand for a new trial.

I

This lawsuit grows out of an unfortunate incident at the hotel operated by defendants in Ellenville, New York. Mr. and Mrs. Tobin and their 15-year old daughter, Donna, were guests in July 1970. Mr. Tobin paid approximately $500 for a week at what was advertised as 'a family resort' with supervised activities for children and teenagers. ⁵ Despite such claims, four days after the Tobins arrived Donna was assaulted by an employee of the Hotel.

Donna had returned from horseback riding at about 3:00 P.M. and was waiting for an elevator to go to her family's room. Robert Stevens, an employee of the Hotel who had been sitting in the lobby, came over and stood beside her. When Donna entered the elevator, he followed. Stevens then directed the elevator to the top floor, pulled out a knife 7 to 8 inches long and told Donna that if she said anything he would 'slash' her throat. With his knife at her back, Stevens forced Donna down a hallway and toward a door to the roof, which he opened with a key. Once on the roof, Stevens molested Donna, unbuttoning her shirt and unzipping her pants, placing his hands inside her shirt and down into her underwear, and exposed himself. Donna attempted to get away, but Stevens held the knife at her throat and threatened to kill her if she tried to escape. Only after she promised Stevens not to tell anyone about the occurrence did he allow Donna to leave.

Donna testified about the incident, recalling that she cried and shook as it occurred, and was so scared that she could not stop even when Stevens told her he would not let her go until she stopped shaking. Testimony had to be halted as Donna began to cry at the trial while she told of the attack. Mr. and Mrs. Tobin were also trial witnesses, but the judge effectively precluded them from giving much evidence as to the effect of the incident on Donna. ⁶ There was no medical testimony. Various answers to interrogatories established that Stevens was a service employee at the Hotel, who had been hired three days before the incident through the Louis Employment Agency ⁷ and after a brief interview by the Hotel's housekeeper.

At the close of plaintiff's case, defendants moved to dismiss the complaint. The judge reserved decision on the motion, and defendants put in no evidence. Both sides then moved for a directed verdict on the issue of liability. The judge granted plaintiff's motion and submitted the issue of damages to the jury, specifically excluding plaintiff's claim of punitive damages. ⁸ The jury returned a verdict of $30,000 for plaintiff.

II

Defendants' principal claim on appeal is that the district judge erred in taking the issue of liability away from the jury and directing a judgment for plaintiff on that question. Defendants also argue that the judge should have directed a verdict for them because there was no showing that the acts of Stevens were within the scope of his employment or that the Hotel was negligent in any way. Finally, defendants claim that the damage award was excessive.

In assessing the standard of care defendants owed plaintiff, the applicable law is that of New York, as both parties concede. Determining the content of that law, however, is no easy matter. The three leading cases in the New York Court of Appeals bearing on the standard of care due a guest from an innkeeper were written over a half-century ago and their import is far from clear. In DeWolf v. Ford, 193 N.Y. 397, 86 N.E. 527 (1908), a hotel detective entered the plaintiff's room without her consent and inaccurately accused her of immorality. In reversing a dismissal of the complaint, the Court of Appeals said:

One of the things which a guest for hire at a public inn has the right to insist upon is respectful and decent treatment at the hands of the innkeeper and his servants. That is an essential part of the contract, whether it is express or implied. This right of the guest necessarily implies an obligation on the part of the innkeeper that neither he nor his servants will abuse or insult the guest, or indulge in any conduct or speech that may unnecessarily bring upon him physical discomfort or distress of mind. The innkeeper, it is true, is not an insurer of the safety, convenience, or comfort of the guest. But the former is bound to exercise reasonable care that neither he nor his servants shall, by uncivil, harsh, or cruel treatment, destroy or minimize the comfort, convenience and peace which the latter would ordinarily enjoy if the inn were properly conducted, due allowance being always made for the grade of the inn and the character of the accommodation which it is designed to afford. 193 N.Y. at 404, 86 N.E. at 530.

In Stone v. William M. Eisen Co., 219 N.Y. 205, 114 N.E. 44 (1916), plaintiff alleged that when she went to defendant to have braces fitted to her feet, one of defendant's employees attempted to have sexual intercourse with her. In affirming an order that denied defendant's motion for judgment on the pleadings, the Court of Appeals relied upon a seemingly absolute requirement of decent and respectful treatment implied from the confidential relationship, and stated:

The implication arises whenever one person is placed in the control or protection of another. It grows out of peculiar and special relationships. It has been applied between carrier and passenger * * * It has also been applied between innkeeper and guest. DeWolf v. Ford, 193 N.Y. 397 (86 N.E. 527) . . .. 219 N.Y. at 208-209, 114 N.E. at 45.

A few years later, in Boyce v. Greeley Square Hotel Co., 228 N.Y. 106, 126 N.E. 647 (1920), the Court of Appeals had another case of a house detective breaking into the room of a female guest and verbally abusing her. Although the issue there was primarily the extent of damages which plaintiff could recover, in affirming a jury verdict for plaintiff the court returned to the reasonable care language of DeWolf and stated:

The defendant does not question, under the facts of this case, the conclusions: The acts of the servant were violative of its obligation to refrain and to use reasonable care that its servant refrained from unreasonably interfering with the privacy of the plaintiff in the room assigned to her and from abusing or insulting her or indulging in any conduct or speech that might necessarily bring upon her physical discomfort or distress of mind.

228 N.Y. at 109, 126 N.E. at 649. However, later in the opinion, the court compared carriers and innkeepers in a manner reminiscent of the language from Stone, quoted above:

In the instant case the plaintiff asserted the injury of bodily pain. It is not necessary to determine with exact discrimination and accuracy whether the right of action in the case at bar is based upon a violation of a contract between the parties created through implication of the law or upon the infraction of an obligation or duty imposed by the law upon the defendant. The plaintiff was entitled to recover, upon the evidence in her behalf, upon the theory of a tort or a breach of contract by the defendant . . .. Frequently a given state of facts will sustain either theory . . .. As a general rule, mental suffering resulting from a breach of contract is not a subject of compensation. The rule does not obtain, however, as between a common carrier or an innkeeper and an insulted and abused passenger or guest, or the proprietor of a public resort and a patron publicly ejected . . .. Id. at 110-111, 126 N.E. at 649.

These three decisions and others in the lower ...