Walkoviak v. Hilton Hotels Corp.

Decision Date04 April 1979
Docket NumberNo. B1923,B1923
Citation580 S.W.2d 623
PartiesJerome Leon WALKOVIAK et al., Appellants, v. HILTON HOTELS CORPORATION, Appellee. (14th Dist.)
CourtTexas Court of Appeals

John Somyak, Stovall & Somyak, Houston, for Jerome Leon Walkoviak.

Jeffrey C. Londa, Butler, Binion, Rice, Cook & Knapp, Houston, for Florists' Mut. Ins. Co.

Larry D. Thompson, Lorance, Thompson & Wittig, Houston, for appellee.

Before J. CURTISS BROWN, C. J., and COULSON and CIRE, JJ.

COULSON, Justice.

This is an appeal by plaintiffs Jerome Leon Walkoviak (appellant) and Florists' Mutual Insurance Company (appellant Insurance Company) from a summary judgment in favor of the defendant Hilton Hotels Corporation (appellee) in a suit for personal injuries caused by the criminal activities of third persons, based upon the alleged negligence of the defendant Hilton Hotels Corporation in failing to provide adequate security. We reverse the judgment and remand the case to the trial court.

In mid-August of 1975 appellant attended a business convention at the Shamrock Hilton Hotel (the hotel), one of appellee's hotels. On the evening of August 17, 1975, appellant arrived by automobile at the hotel, paid a parking fee of $1.00, and parked in a parking lot owned by and located directly in front of the hotel. After attending the evening convention activities in the hotel appellant left the hotel building and went to his automobile in the parking lot at approximately 11:30 P.M. As he reached his automobile he was accosted by two unknown assailants, beaten, stabbed, and robbed. He was rendered unconscious and awoke in his automobile some distance from the hotel in the early hours of the morning of August 18.

Appellant brought suit against appellee to recover damages based upon the alleged negligence of the hotel in failing to supply adequate protection in the form of guards or other security measures, in failing to warn appellant of any possible danger, and in failing to take other necessary steps to protect appellant. Appellant Insurance Company intervened to recover sums it had paid to appellant Walkoviak for medical benefits and workmen's compensation benefits.

Appellee filed a motion for summary judgment asserting that negligence had not been shown in connection with the circumstances producing the injury. Appellee further asserted that the criminal attack by unknown assailants constituted a new and independent intervening cause totally disassociated with any act or omission on its part. Appellee argued that therefore it was absolved as a matter of law from any liability for the injuries to appellant. The trial court granted appellee's motion for summary judgment and this appeal followed.

Appellee's motion for summary judgment first urged that appellant had not shown negligence on the part of appellee in connection with the circumstances which produced the injury. The proprietor of a public business establishment has the duty to exercise reasonable care to protect his patrons from intentional injuries caused by third persons if he has reason to know that such acts are likely to occur, either generally or at some particular time. Liability for injuries may arise from the failure of the proprietor to exercise reasonable care to discover that such acts by third persons are occurring, or are likely to occur, coupled with the failure to provide reasonable means to protect his patrons from the harm or to give a warning adequate to enable the patrons to avoid the harm. Morris v. Barnette, 553 S.W.2d 648 (Tex.Civ.App. Texarkana 1977, writ ref'd n. r. e.); Eastep v. Jack-in-the-Box, Inc., 546 S.W.2d 116 (Tex.Civ.App. Houston (14th Dist.) 1977, writ ref'd n. r. e.); Restatement (2d) of Torts § 344 (1965). See Adams, Security Against Criminal Acts: The Landlord's New Liability, 42 Texas Bar Journal 201 (March 1979). Under Texas law an innkeeper is not an insurer of the safety of his guests. An innkeeper's responsibility to his guests consists of the duty to exercise ordinary or reasonable care in conformity with the principles discussed above. Nixon v. Royal Coach Inns of Houston, 464 S.W.2d 900, 902 (Tex.Civ.App. Houston (14th Dist.) 1971, no writ); Montfort v. West Texas Hotel Co., 117 S.W.2d 811, 812 (Tex.Civ.App. El Paso 1938, writ ref'd).

We have reviewed the summary judgment evidence and have found several respects in which questions of fact exist which are material to the issue of whether the hotel was negligent in connection with the circumstances which produced appellant's injuries:

(1) The deposition of John E. Colacino, who was employed by the Shamrock Hilton as a security guard at the time of the attack on the appellant and was head of that security system when his deposition was taken, states that he made no conscious effort to find out anything about the crime situation in the area immediately surrounding the hotel.

The appellee's answers to interrogatories show that the police were called to the hotel twice in the twelve months preceding the attack on appellant due to robberies in the vicinity of the hotel. In one of these the victim, a guest of the hotel, had been robbed on Holcombe Boulevard, and in the other the victim was assaulted, robbed and injured on Montclair Street and was assisted into the hotel, where hotel employees called the police. A map of the hotel attached to the interrogatories showed that the hotel occupies a triangle of land bordered by Montclair Street, Holcombe Boulevard, and Main Street. The parking lot where appellant was assaulted borders Holcombe and extends close to Main Street. It would be reasonable to infer that if two such incidents occurred in such close proximity to the hotel that the victims came or were brought to the hotel for help, the hotel was then aware of facts which should have prompted it to ascertain the extent of such crimes in the immediate area in order to determine what security measures would be necessary to protect its guests from potential assaults within the perimeters of the hotel's own property.

(2) The deposition of Colacino also states that it was common for off-duty policemen to be hired to bolster the hotel's own security force when large conventions were held at the hotel. He states that the convention attended by appellant was considered a large convention. Colacino had no knowledge of whether any extra security personnel were hired for that convention. Appellee, in its answer to the interrogatory which requested the names, addresses, hours worked, and specific areas of responsibility of "all security personnel of the Shamrock Hilton" on the date of the incident, listed only four men, one for each of the three shifts for the twenty-four hours of that date, and one who was on vacation at the time. There is no evidence to show that any extra security personnel were hired to bolster the hotel's own security force at the time of a large convention in accord with the hotel's own security policy. This establishes facts from which a jury could infer that the hotel was negligent in not following its own established standards of care.

(3) The affidavit of D. A. Miller, an expert by experience and education in the matter of providing security, states that in his opinion, based on his training, education, and experience, it would take more than one guard per shift to adequately patrol a hotel the size of the Shamrock Hilton in the evening hours. Colacino's deposition and appellee's answers to interrogatories show that only one guard per eight hour shift was employed...

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    ...64 (Tex. App.-San Antonio 1983, writ ref'd n.r.e.); and another dealing with both, Walkoviak v. Hilton Hotel Corp., 580 S.W.2d 623, 625, 628 (Tex. Civ. App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.). See Nixon, 690 S.W.2d at The confusion has been perpetuated since Nixon. In Walker v. H......
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