Virginia D. v. Madesco Inv. Corp., 64183

• Decision Date: 29 March 1983
• Docket Number: No. 64183,64183
• Citation: 648 S.W.2d 881
• Parties: VIRGINIA D., Plaintiff-Appellant, v. MADESCO INVESTMENT CORP., d/b/a Bel Air Hilton Hotel, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 881

648 S.W.2d 881

VIRGINIA D., Plaintiff-Appellant, v. MADESCO INVESTMENT CORP., d/b/a Bel Air Hilton Hotel,

Defendant-Respondent.

No. 64183.

Supreme Court of Missouri,

En Banc.

March 29, 1983.

As Modified on Denial of Rehearing

April 26, 1983.

Richard E. Schwartz, St. Louis, for plaintiff-appellant.

Lawrence B. Grebel, Donald L. James, St. Louis, for defendant-respondent.

William Edward Taylor, St. Louis, for amicus curiae Women's Self Help Center.

BLACKMAR, Judge.

The plaintiff complained that she had been assaulted and sexually molested by a male intruder in a ladies' restroom of a motor hotel and that the defendant hotel operator was negligent in various respects. ¹ The petition alleged that the defendant knew, or in the exercise of due care should have known, of the possibility that an assailant might conceal himself in the restroom, and that it was therefore dangerous. The plaintiff had a nine-juror verdict for $100,000. The defendant moved for judgment in accordance with its motion for a directed verdict at the close of all the evidence but filed no motion for a new trial. The trial court sustained the motion for judgment, accompanying the order with a thorough opinion analyzing cases from Missouri and other jurisdictions. The Court of Appeals affirmed the judgment for the defendant by a two to one vote, with each member of the panel delivering an opinion, and we accepted transfer. We conclude that the plaintiff made a submissible case of negligence and that the trial court was in error in entering judgment for the defendant notwithstanding the verdict. Since the defendant, following the verdict, raised no point of trial error, of the form of submission, ² or as to the amount of the verdict, we reverse and remand with directions to reinstate the judgment for the plaintiff on the jury's verdict.

Bel Air Hilton is a first class motor hotel located just across the street from Mansion House Center in the easternmost portion of downtown St. Louis, near the two downtown bus stations and Interstate 70. It has 17 stories, with an attached parking garage having access to the hotel elevators on six levels. The hotel has an upper lobby at street level containing the registration and cashiers windows, a small gift shop, and the entrances to the two restaurants. There are two revolving doors on the west side facing Fourth Street, one near the registration area and the other opposite the entrance to Trader Vic's, one of the restaurants in the hotel. Each of the revolving doors has a hinged door on each side. There is also a rear entrance used by employees, and for making deliveries. The lower lobby may be reached by a flight of stairs from the main floor or by elevator from any level of the hotel. The hotel offices are located off the lower lobby, as are men's and ladies' restrooms, the latter being the scene of the events involved in this case. The lower level also contains banquet and meeting rooms.

Besides Trader Vic's, the hotel has a Miss Hullings restaurant. The restaurants are apparently under separate ownership, utilizing leased space, but the evidence would support a finding that they are integral parts of the hotel complex. Both restaurants serve liquor.

After work on September 24, 1976 the plaintiff and some friends went to the Miss Hullings restaurant intending to eat dinner. They arrived before the dinner hour and ordered beer. One of the plaintiff's companions left to use the restroom and returned after about five minutes. Miss Hullings has no public restrooms. Patrons of Miss Hullings could use the restrooms in Trader Vic's or those on the lower level of the hotel. After her companion returned the plaintiff went to the restroom, deciding to use the lower level facilities because Trader Vic's restrooms can be reached only through a noisy bar.

The plaintiff probably visited the restroom at about 5:30 p.m. She testified that she saw nobody in the lower lobby or in the ladies' restroom before entering the cubicle. There had been a meeting on the lower level during the day but it had adjourned and the banquet room was being set up for an evening affair for the same group, with six to eight people working there. The doors from the lower lobby to the banquet room were open. The usual quitting hour for employees in the office was 5:00 p.m. Operations Manager Raymond Baddock was still there, and he testified that three other employees were also. The restroom consists of a toilet room and a lavatory room, separated by walls, with a rather narrow passage. As the plaintiff was leaving the cubicle she was grabbed from behind by a man, threatened, and sexually abused. Since the defendant does not deny the attack, and does not challenge the amount of the verdict, further detail is not necessary. The attacker ran out of the restroom, pursued by a bellhop who had gone to the lower level to move some suitcases and heard the plaintiff's screams. Baddock also heard the screams and joined the chase, as did other employees. The bellhop made the capture and the plaintiff noted the hour as 5:48 p.m.

The assailant was arrested, identified, and eventually sentenced on a plea of guilty. There is some variation in the evidence as to his manner of dress, but all witnesses agreed that nothing in his appearance would have caused any hotel employee to detain or question him if he had been seen to enter the hotel by one of the street level doors and then to enter the elevator or go down the stairs to the lower lobby. Any person who presented a reasonably neat appearance and was not obviously intoxicated or otherwise disorderly would be allowed to enter the hotel for the purpose of using the lower level restrooms. Nor would it be difficult to enter the garage on foot, since there was only one attendant and he would often be involved in checking cars out.

There was substantial evidence that persons having no proper business in the hotel and not scrupulous about respect for law and property entered with some regularity and were a cause of concern to the hotel authorities. Management was on the alert for prostitutes. Former manager Charles Powers testified that they would sometimes take the elevators to the upper floors, while Baddock said that they operated in the restaurants and bars. Vandalism and "burglary" of automobiles occurred in the garage. Young boys created problems by gathering in the lower lobby, sometimes two or three times a week. There had been vandalism in the men's restroom and coins were removed from the "wishing pool" at the foot of the stairs. A person who had worked at the hotel as a security guard expressed concern about thefts from the gift shop. On one occasion an "arsenal" was found in a room, apparently brought in by registered guests. There was, however, no evidence of recent incidents of rape, assault, robbery or other violent crime in or near the hotel. ³ Nor was there any evidence of previous criminal activity or violence in the lower level ladies' room.

No employees of the hotel were regularly stationed in the lower lobby, in positions from which they could observe the lobby and the adjoining restroom area. The four to six women who worked in the hotel offices used this restroom, and it may be assumed that it would have been in heavy use during a banquet or meeting on the lower level. The hotel had no television monitor in the lower lobby but did maintain one at the back door. There was a single security officer on duty 24 hours a day, supplied under contract by a private agency. This agency had recommended that an additional guard or guards be employed. The security officer's regular rounds took him elsewhere at the time the plaintiff was attacked, and he did not regularly visit the lower lobby. There was evidence that the downstairs restrooms had been locked after 5:00 p.m. in the past as a security measure, when there were no evening functions scheduled in the banquet rooms. ⁴ The manager of Miss Hullings complained and the practice was abandoned.

Much of the testimony about security measures came from Charles Powers, former Operations Manager, who was either fired or forced to resign, and who last worked at the hotel approximately five days before the attack took place. He testified that during his tenure as manager he was concerned about security in the lower lobby and about the problems of the gathering there of persons having no proper business. It was his idea to lock the lower lobby restroom doors, and also to install an accordion gate at the head of the stairs in the upper lobby which could be locked when the area was not being used. This latter idea was rejected by Powers' superior because of its adverse effect on the decor of the upper lobby. ⁵ Powers testified that matters of expense figured prominently in decisions about security. Questions of his bias as a disgruntled former employee, and of the security agency's self-interest in recommending additional guards, of course are for the jury. There was testimony about the condition of lighting in the lower lobby and about the substitution, at one time, of bulbs of lower wattage as an economy measure. The plaintiff, however, did not complain about the lighting conditions and we do not believe that evidence of dim lighting contributes substantially to the submissibility of her case.

Baddock, manager of the hotel at the time of the incident and president of the hotel corporation at the time of trial, expressed the opinion that the overall performance of the security system could have been a little more efficient. The management tried to exclude or eject people who did not have legitimate business in the hotel, including drunks, bums, prostitutes, and idlers. Baddock recognized that "anyone could walk into the lobby," and that anyone who could get by the attendant could walk into the garage. He was aware that rape could happen in the hotel and recognized this as a part of the overall security problem. He had considered...