Shadday, Miranda v. Omni Hotels Mgmt ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2022
MIRANDA SHADDAY,
Plaintiff-Appellant,
v.
OMNI HOTELS MANAGEMENT CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:04-CV-1219—John Daniel Tinder, Judge.
____________
ARGUED NOVEMBER 9, 2006—DECIDED FEBRUARY 20, 2007
____________
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 substan-
tive 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 Shore-
2 No. 06-2022
ham 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 Shore-
ham 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.,
No. 06-2022 3
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 practi-
cal 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 con-
tract 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
4 No. 06-2022
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., 688
P.2d 333, 338-39 (N.M. 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., 626 S.E.2d 428, 434-35 (Va. 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., 88 P.3d 517, 523-
24 (Cal. 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 “inter-
vening” or “supervening” cause that severs the “causal
No. 06-2022 5
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 superven-
ing 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 super-
vening cause of the mauling. In both cases there is a
foreseeable, in the sense of probable, hazard which precau-
tions 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 tradi-
tional 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 fore-
6 No. 06-2022
seen 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 ex-
penditures 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 uncer-
tainty. 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 Washington Shoreham (the
American Automobile Association gives it four diamonds
out of a possible five, and so it rates as a luxury hotel;
it charges $350 to $400 a night for a room) is from intrud-
ers, not from staff or guests. See, e.g., Banks v. Hyatt Corp.,
722 F.2d 214, 225-26 (5th Cir. 1984). That risk places on the
No. 06-2022 7
hotel a tort duty of maintaining a reasonable perimeter
defense to prevent the initial intrusion, and also an inner,
back-up defense in case the intruder manages to get inside
the hotel. Locked outside doors, safes, keycards, a
brightly lit exterior, surveillance cameras, and security
guards both in the lobby and patrolling the hallways are
commonly used methods of protecting the hotel’s guests
from criminals who try to enter the hotel to prey on them.
It might seem that the better the neighborhood in which
the hotel is located, the fewer the precautions against
intruders that it need take. So some cases assume. Doe v.
Dominion Bank of Washington, N.A., supra, 963 F.2d at 1560;
McAvey v. Lee, supra, 260 F.3d at 373-74; Banks v. Hyatt
Corp., supra, 722 F.2d at 225-26. But maybe incorrectly. The
ritzier hotels have wealthier guests, who are juicier tar-
gets for thieves. Thus in Crinkley v. Holiday Inns, Inc., 844
F.2d 156, 161 (4th Cir. 1988), “evidence at trial indicated
that motels with relatively more affluent clienteles,
judged by reference to room rates, were the preferred
targets.” One reason better neighborhoods have lower
crime rates is that they’re better protected because they
are bigger potential targets for criminals.
Did the Shoreham take precautions commensurate
with the danger to its guests from criminals? It is doubtful
that such a question can be answered without the aid of
expert testimony, evidence concerning regulations impos-
ing security standards on hotels, recommendations by
police or by security consultants, or evidence of industry
standards. Although an industry’s standard of care is not
dispositive of due care, Abernathy v. Superior Hardwoods,
Inc., 704 F.2d 963, 967-68 (7th Cir. 1983); Doe v. Cutter
Biological, Inc., 971 F.2d 375, 382-83 (9th Cir. 1992); The T.J.
Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (L. Hand, J.), it is
8 No. 06-2022
highly probative in a case in which the tort plaintiff is a
customer of the defendant, for sellers of products and
services, including hotels, have market incentives to avoid
injury to their customers. Cf. Rodi Yachts, Inc. v. National
Marine, Inc., 984 F.2d 880, 889 (7th Cir. 1993); United States
Fidelity & Guaranty Co. v. Jadranska Slobodna Plovidba, 683
F.2d 1022, 1028-29 (7th Cir. 1982); Keller v. United States,
38 F.3d 16, 25 (1st Cir. 1994). A hotel that gets a reputa-
tion for being dangerous, like a hotel that gets a reputa-
tion for serving tainted food or being infested by bedbugs,
will lose customers, or at least have to lower its rates.
No evidence was presented concerning the safety
precautions customarily taken by luxury hotels in Wash-
ington. It is one thing for a jury unaided by expert testi-
mony, empirical data, or other fruits of exact inquiry to
assess the care with which the defendant in an automobile
accident case drove, for that is something with which
almost all jurors are familiar; it is another thing for a
jury to determine the right standard of care to which to
hold a hotel. The plaintiff did have an expert witness, but
he didn’t substantiate his opinion concerning the amount
of care that the Shoreham should have taken to protect its
guests from criminal assaults by other guests. He did not
compare the Shoreham’s security precautions with those
taken by comparable hotels in comparable neighbor-
hoods (such as Georgetown) in Washington, or elsewhere.
(Compare the testimony of the expert on hotel security
in Crinkley v. Holiday Inns, Inc., supra, 844 F.2d at 161-62.)
Nor, though the amount of care to take is a function of
the danger that care would avert, did he assess the danger
that the Shoreham’s guests faced of being attacked inside
the hotel. There had been intruders into the hotel from
time to time, though how often the record does not indi-
cate. But there had been only one incident in which a
No. 06-2022 9
guest had engaged in unlawful behavior—the guest had
exposed himself to an employee of the hotel and had been
quickly expelled. There had been no reported incidents
at all of crimes committed by staff against guests.
The plaintiff’s expert did testify that within a 2000-foot
radius of the hotel there had been in the three years
preceding the rape a total of 637 criminal acts. But he didn’t
compare the number with the amount of criminal activity
in comparable areas either elsewhere in Washington or
in other cities. He also did not indicate how many of the
637 crimes had occurred in the Shoreham’s immediate
neighborhood. (Manhattan’s Upper East Side is very safe,
but it is only blocks from Harlem.) That is, he did not
justify his choice of a 2000-feet radius. Rock Creek Parkway
is much closer than that to the Shoreham, but it is very
difficult to cross the parkway; the other side is not in the
same neighborhood, though within the 2000-foot radius. (A
sense of the diversity of neighborhoods within 2000 feet
of the Shoreham can be glimpsed, at least by those read-
ers familiar with Washington, in the following satellite
photo; the “thumbtacks” are points on the circumference
of a circle, centered on the Shoreham, having a 2000-foot
radius.) To his credit, he did break down the crimes into
various categories, but they are too broad to enable a
responsible estimate of how many of the 637 incidents
might have imperiled guests of the Shoreham.
10 No. 06-2022
No. 06-2022 11
At most, moreover, crime conditions in the Shoreham’s
neighborhood are relevant to the risk of a criminal intru-
sion into the hotel, not to the risk posed by one hotel guest
to another. If the Shoreham’s experience was typical,
and there is no evidence it was not, the latter risk was
so minuscule that no precautions had to be taken in order
to avoid liability. The assault on the plaintiff was as
unexpected as the attack on the guest at another hotel by
a rabid mongoose. Woods-Leber v. Hyatt Hotels of Puerto
Rico, Inc., 124 F.3d 47, 51 (1st Cir. 1997).
Nor is it clear what precautions against guest-on-guest
crime would be feasible. Obviously a perimeter defense
has no value against a criminal guest. And a hotel could
hardly be required to have security guards watching
every inch of the lobby every second of the day and
night. A security camera trained on the bank of elevators
would have been ineffective to prevent the rape. The
video of the struggle outside the elevators might not
have revealed its involuntary character, and anyway by
the time a security guard had been alerted by the video
and reached the bank of elevators, the plaintiff and her
assailant would have been inside the elevator. Had there
been a security camera there, the rape would have been
completed long before a guard, alerted by what the
camera showed, would have arrived on the scene, though
a video recording of the rape might have assisted in the
prosecution of the rapist or in any civil action brought by
the victim against him.
There is an analogy to employers’ liability under
Title VII of the Civil Rights Act for sexual harassment by
coworkers of the harassed employee. Employers are not
strictly liable for such misconduct because they cannot
feasibly maintain continuous surveillance of their entire
12 No. 06-2022
workforce. They are liable only when they know or have
reason to believe that such harassment is occurring and
they fail to take effective measures to stop it. Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 759 (1998); Erickson
v. Wisconsin Dept. of Corrections, 469 F.3d 600, 606 (7th Cir.
2006). A hotel’s relation to its guests is similar. The
hotel cannot keep them under continuous surveillance—
they would be unwilling to surrender their privacy so
completely. The hotel becomes liable for guest-on-guest
crime only when it has some reason to think such crime
likely. The Shoreham had no reason to think that one of
its guests would rape another one in the hotel’s elevator.
The hotel would probably not be liable even if the
plaintiff had proved that, had it not been for the defend-
ant’s failure to exercise due care, she would not have been
injured. The injury must be of the kind that the duty of care
was intended to prevent. E.g., De Haen v. Rockwood Sprinkler
Co., 179 N.E. 764, 766 (N.Y. 1932) (Cardozo, C.J.); Gauger v.
Hendle, 349 F.3d 354, 363 (7th Cir. 2003); Carter v. United
States, 333 F.3d 791, 797 (7th Cir. 2003), and cases cited
there; Restatement (Second) of Torts § 281 comment f (1965).
In the granddaddy of these cases, Gorris v. Scott, 9 L.R.-
Ex. 125 (1874), the plaintiff’s sheep were washed over-
board in a storm, and the plaintiff sued the owner of the
ship, who had failed to install pens in which to hold the
animals on their journey, as required by the Contagious
Diseases (Animals) Act of 1869. Had the pens been in-
stalled, the sheep would have been saved. But the statute’s
purpose was merely to prevent infection, not to save the
animals from a watery death. So the plaintiff lost. In
deciding how much care to take to comply with the
statute, the shipowner was unlikely to foresee and there-
fore consider the remote possibility that the pens would
No. 06-2022 13
avert a different and highly improbable harm to the
animals. In the present case, similarly, in deciding how
many precautions to take against intruders the hotel
would hardly be thinking about the incremental value of
those precautions to guests endangered by other guests,
since guest-on-guest crime at a hotel like the Shoreham
appears to be vanishingly rare. (Compare that danger
in the special kind of hotel that we call a maximum-secu-
rity prison.)
Of course the precautions against guest-on-guest crime
are not dramatically different from the precautions against
intruder crime, though the latter have a perimeter dimen-
sion that the former do not. But the same was true in
Gorris. The pens were designed to prevent contagion, but
apparently even without being strengthened they could
keep sheep from being washed overboard.
The Second Circuit has suggested that the principle of
the Gorris case should be limited to cases in which, as in
Gorris itself, the standard of care is set by a statute rather
than by a common law doctrine: “At common law, so
long as the plaintiff category is foreseeable, there is no
requirement that the risk of injury to the plaintiff, and the
risk of the harm that actually occurred, were what made
the defendant’s actions wrongful in the first place. With
statutory claims, the issue is, instead, one of statutory
intent: was the plaintiff (even though foreseeably injured)
in the category the statute meant to protect, and was the
harm that occurred (again, even if foreseeable), the ‘mis-
chief’ the statute sought to avoid.” Abrahams v. Young &
Rubicam Inc., 79 F.3d 234, 237 (2d Cir. 1996); see also
Freeman v. United States, 509 F.2d 626, 630 (6th Cir. 1975).
It is unclear why those things should matter. The viola-
tion of a statutory standard of care is negligence; so is a
14 No. 06-2022
violation of a common law duty of care. In either case, the
puzzle of the line of cases that descends from Gorris is
why the defendant, having been negligent, should get
off scot-free just because the harm that would have
been averted had he been careful was not foreseeable. No
doubt the framers of the Contagious Diseases (Animals)
Act made no judgment that the cost of pens was less than
the expected cost of a mass drowning of unpenned ani-
mals, but that seems irrelevant. Given that the ship-
owner was under a legal duty to pen the sheep, why
should he not be liable for a disaster that would have
been averted if only he had complied with his duty?
Like other doctrines that truncate liability for negli-
gence, the doctrine of Gorris seems to reflect judicial
anxiety that negligence liability is potentially too encom-
passing. As people don’t have complete control over
their actions, or firms over their employees (for whose
negligence committed within the scope of their employ-
ment the employer is strictly liable by virtue of the doc-
trine of respondeat superior), much negligence liability
is strict—the careless accident was in fact unavoid-
able—and the risk of an unavoidable liability that might
be crushing gives the courts pause. To visit unpredictable
consequences on negligent behavior is unlikely to make
potential injurers more careful, because by definition of
“unpredictable” they can’t reckon the costs of not taking
more care. So they do nothing, and so safety is unaffected.
But because of the strict-liability element in negligence, a
careful person or firm would sometimes be forced to pay
a judgment, perhaps a very large one, that could not
have been avoided at reasonable cost because, although
adjudged negligent, the defendant had in fact used due
care. The negligence might have been that of an employee
No. 06-2022 15
whom the defendant had carefully screened, supervised,
and monitored, all to no avail.
This analysis is far from a conclusive vindication of
Gorris, but the District of Columbia appears to regard the
case with approval, Rong Yao Zhou v. Jennifer Mall Restau-
rant, Inc., 534 A.2d 1268, 1274-75 (D.C. 1987); Whetzel v. Jess
Fisher Management Co., 282 F.2d 943, 947-48 (D.C. Cir. 1960)
(D.C. law), though how far it would press its doctrine in a
case such as this is uncertain. No matter. For reasons
stated earlier, the plaintiff failed to present enough evi-
dence to establish a genuine issue concerning the suffi-
ciency of the care exercised by the hotel to protect its
guests against the kind of outrage that befell her. The
district judge was therefore right to grant summary
judgment for the defendant.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-20-07