Thetford v. City of Clanton

The trial court entered a summary judgment in favor of the defendants, the City of Clanton; Holiday Inn, Inc.; Eddie Gore, the manager of the Holiday Inn in Clanton; and Williams Motels, Inc., the operator of the Clanton Holiday Inn, in this wrongful death action. The plaintiff, Mary K. Thet-ford, appeals.

The following agreed summary of the facts was set forth in the pretrial order:

“On or about June 10, 1989, Shirley Ann Banks was a business invitee of the Holiday Inn in Clanton, Alabama. On or about the same date, Eddie Gore, the manager and employee of said Holiday Inn, accompanied [Michael] Banks to Shirley Ann Banks’ room where, in the presence of a representative of the Clan-ton Police Department, the defendant [Gore] sawed through a locked door chain to gain entry to Shirley Ann Banks’ room. Mr. Banks later took Shirley Ann Banks to another location, where he inflicted such severe injuries on her that she died as a proximate result of his beatings.”

Viewing the evidence in the light most favorable to the non-movant, we also note the following additional facts.

On June 6, 1989, Shirley Ann Banks telephoned the Chilton County sheriff’s office to report an incident of domestic violence. The County had no deputies to respond to the call; therefore, the City of Clanton, at the request of the County, responded.

Officer Randy Morris, with the Clanton Police Department, answered the call, and upon his arrival at the Banks home he noted that Shirley Ann showed signs of physical abuse. He asked Michael Banks to leave the home for the night and told Shirley Ann she could file a complaint. Shirley Ann declined to file a complaint, and Morris left. Morris reported the incident to the County, but he did not file a report as required by § 15-10-3(b), Ala. Code 1975.

The following day, Wednesday, June 7, Shirley Ann, with her two-year-old daughter, checked into the Holiday Inn in Clan-ton. She checked in under the name of Shirley Dickens. She told the desk clerk that she was hiding from her husband and requested that the desk clerk not tell anyone she was there. She also requested that her husband not be permitted to enter her room. The desk clerk noticed that Shirley Ann appeared to have been beaten and that she had a bald spot on her head.

On June 8, Michael showed up at the Holiday Inn to take Shirley Ann home. Michael testified that on June 7 he had learned that she was staying at the Holiday Inn by driving around hotels and motels from Montgomery to Birmingham looking for her automobile. He testified that he got her room number from a registration slip on the front seat of her automobile. He testified that he was worried about their child and that he went to the motel on June 8 to take the child away from Shirley Ann. Shirley Ann, according to his deposition testimony, admitted him willingly and willingly allowed him to leave with their child.

Later that day, the motel staff became concerned when they could not get a response from Shirley Ann’s room. Eddie Gore called the City’s police department to send someone. Morris responded to the call; he was not informed that the call concerned Shirley Ann. Shirley Ann admitted Morris to her room. Morris testified in his deposition that he recognized Shirley Ann from the prior call and that she was intoxicated. He also testified that Shirley Ann told him that Michael had beaten her again and that she had checked into the Holiday Inn to hide from Michael. She asked Morris not to tell anyone at the Holiday Inn who she was. Morris promised not to tel] anyone, and he left her room. He told the staff of the Holiday Inn “that everything was okay and that the lady was all right.” Morris did not file an incident report.

According to Michael’s deposition testimony, on June 10 Shirley Ann telephoned him to take her home. Michael testified that he packed some of her things and took them to his car; that when he returned to the room, Shirley Ann asked him to get her a drink from a machine; and that while he was out of the room, Shirley Ann locked and chained the door. Michael said he had her key but could not re-enter the room because of the chain.

Michael went to the front desk and told Gore that he was Shirley Ann’s husband and that she would not let him in the room. He also told Gore that his wife was “sick or crazy.” Gore, after the Clanton police were called and appeared on the scene, went to Shirley Ann’s door and unlocked it with his pass key. When Shirley Ann failed to respond to his call, Gore cut the chain on the door. Officer Peoples of the Clanton Police Department was there to witness the cutting of the chain.

Shirley Ann was on the floor beside the bed farthest from the door. There is conflicting testimony as to whether she was intoxicated. However, she agreed to go with Michael, but asked him to take her to her mother’s house. In front of Gore and Peoples, Michael stated that he was going to kill Shirley Ann. Peoples testified in deposition as follows:

“A. “[After the chain was cut,] I didn’t hear Mr. Gore make no statement as I can remember. No type statement was made by him. Banks went over to the female that was lying on the floor. He got her up and then he started talking to her. She asked him to carry her to her mama’s. He said that he would take her. Then she start[ed] making preparation, combing her hair. They started getting ready to go. We [were] over by the doorway at that time. He said T will carry you to your mama’s.’

“Q. Anything else?

“A. Not until a few minutes later when I made the statement when he said — I don’t know what happened that caused him to say ‘I am going to kill you’ like that. We [Gore and Peoples] looked back and then he changed that statement, and then he started talking to us about it and said T didn’t mean that.’ ”

Later that day, Michael and Shirley Ann went to the Ramada Inn motel in Prattville, where Michael fatally beat Shirley Ann. She died in her sleep in the early morning hours of June 11 of injuries suffered in that beating.

In April 1990, Mary Thetford, Shirley Ann’s sister and her personal representative, filed a wrongful death action against Eddie Gore, Holiday Inn, Inc., and the City of Clanton. The complaint was later amended to add Williams Motels, Inc. Williams Motels, Inc., Holiday Inn, Inc., and Eddie Gore will hereinafter be referred to as the “hotel defendants.” The hotel defendants and the City moved for a summary judgment, which the trial court granted. Thetford appeals.

A summary judgment is appropriate upon a showing that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. In reviewing a summary judgment, this Court will view the evidence in a light most favorable to the nonmovant and will resolve all reasonable doubts against the movant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So.2d 256 (Ala.1991). The present action was filed in April 1990; therefore, the applicable standard of review is the “substantial evidence rule.” See § 12-21-12, Ala.Code 1975. “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Therefore, the issue on appeal is whether substantial evidence was presented to preclude summary judgment in favor of the hotel defendants and the City.

I.

This Court has not specifically addressed the standard of liability for an innkeeper’s wrongful or unauthorized entry into a guest’s room. However, the general rule appears to be as follows:

“After a guest has been assigned a room at an inn or hotel for his exclusive use, he has a right of occupation for all lawful purposes until it is vacated, subject only to the right of the innkeeper or his servants to enter the room at reasonable times and in a proper manner, and for such purposes as might be necessary in the general management of the hotel, or upon the happening of some unanticipated contingency....

“An innkeeper is liable if he or his servant unjustifiably or unreasonably interferes with his guest’s right to privacy and to the peaceful enjoyment of his room.”

40 Am.Jur.2d Hotels, Motels, and Restaurants § 61 (1968). Stated another way, the innkeeper has “an affirmative duty, stemming from a guest’s rights of privacy and peaceful possession, not to allow unregistered and unauthorized third parties to gain access to the rooms of its guests.” Campbell v. Womack, 345 So.2d 96, 98 (La.Ct.App.), cert. denied, 347 So.2d 247 (La.1977).

American Jurisprudence 2d states further concerning innkeeper liability:

“While statements are to be found that innkeepers are responsible for the exercise of a ‘high degree’ of care to prevent injury to their guests, according to a number of cases, the rule is that innkeepers do not owe the same duty to their guests that a common carrier owes to its passengers, and are not insurers of their safety, quiet, and repose; the obligation of innkeepers toward their guests is the exercise of reasonable care for their safety. A boardinghouse or lodging-house keeper, like an innkeeper, is not an insurer of the safety of his boarders or lodgers, but he is only required to exercise reasonable care for their safety....

“Whether a proprietor of an inn, hotel, boardinghouse or lodginghouse or restaurant has exercised reasonable care for the safety of the occupant or patron is to be determined in the light of the circumstances of each case. It has been said that the reasonable care which an innkeeper must exercise for the safety and comfort of his guests varies with the grade and quality of the accommodations that he offers. It is the breach of the duty to exercise reasonable care for the safety of the guests, followed by injury, which creates liability on the part of the innkeeper.”

40 Am.Jur.2d Hotels, Motels and Restaurants § 82 (1968) (emphasis added).

“A proprietor of an inn, hotel, restaurant, or similar establishment is liable for an assault upon a guest or patron by another guest, patron, or third person where he has reason to anticipate such assault, and fails to exercise reasonable care under the circumstances to prevent the assault or interfere with its execution. Conversely, he is not liable for an assault committed under such circumstances that it could not reasonably have been anticipated in time to prevent the occurrence.... An innkeeper who failed to protect a guest after having been expressly warned by him of the possibility of an assault by another guest has been held liable therefor.”

Id. § 112 (emphasis added).

Cases in other jurisdictions have discussed innkeepers’ liability. In Donaldson v. Olympic Health Spa, Inc., 175 Ga.App. 258, 333 S.E.2d 98 (1985), the Georgia Court of Appeals said that a proprietor has a duty to protect an invitee or guest from injury caused by a third person if the proprietor is reasonably aware of the probability or likely possibility of such an injury by a third party and if such an injury could be avoided by the proprietor through the exercise of ordinary care and diligence. The court further stated that, even if the proprietor was negligent in some degree, he would be insulated from liability if the intervention of the illegal act was not foreseeable. In such a case, the negligence of the proprietor would not be the proximate cause of the injury. Id.

In Atlanta Center, Ltd. (A.B.V.I. Corp.) v. Cox, 178 Ga.App. 184, 841 S.E.2d 15 (1986), the Georgia Court of Appeals held that summary judgment was precluded in an action against a hotel for damages based on injuries sustained by a guest in an assault that occurred while the guest was leaving the elevator on the floor on which his room was located. The hotel, the court held, having undertaken a duty to provide security to its patrons using elevators and hallways, was required to perform it in a non-negligent manner. Questions of the adequacy and proper utilization of the hotel’s security were issues for the jury, as was the question of reasonable foreseeability of a criminal act.

In Gurren v. Casperson, 147 Wash. 257, 265 P. 472 (1928), a female guest in a hotel, who was assaulted by another guest after she had expressly warned the hotel telephone operator of the possibility of the assault and had requested protection against the acts of the other guest, was held entitled to recover from the hotel owner because of his failure to heed her warning and to offer her protection. Affirming the plaintiff’s judgment, the Washington Supreme Court noted that the proprietor of any public house owes a duty to those who come to his place to protect them from insult or other annoyances or dangers. Although noting some disagreement as to whether the duty of a hotelkeeper to protect its guests from assault is absolute or is limited to the exercise of ordinary care only, the court explained that nearly all cases seem to agree that the proprietor owes the guest some duty and must furnish some protection. The court emphasized that the hotelkeeper in that case had been expressly warned of the possibility of the event, after the assaulted guest had demanded from the hotel clerk protection against the acts of the wrongdoer.

In Coca v. Arceo, 71 N.M. 186, 376 P.2d 970 (1962), the New Mexico Supreme Court said that the rule as to liability of an innkeeper for injuries to one patron from assault by another does not require a long and continued course of conduct to establish that the proprietor had knowledge of a violent disposition of the assaulting patron; it held that there need only be a sequence of conduct sufficiently long to enable the proprietor to act for a patron’s safety. It is a question of fact whether the hotel manager had knowledge of the plaintiffs wishes, etc.; whether, if he did have, or should have had, such knowledge, he failed to exercise the degree of care commensurate with the danger to be avoided. These are questions that can be determined only upon a trial.

The hotel defendants argue that there is no evidence of proximate cause because, they say, the subsequent actions of Michael Banks constitute an “intervening cause.” We have held that in order to recover against a defendant for harm caused by the criminal actions of a third party, the plaintiff must establish that the defendant “knew or had reason to know of a probability of conduct by third persons that would endanger the plaintiff.” Nail v. Jefferson County Truck Growers Association, Inc., 542 So.2d 1208, 1211 (Ala.1988). Also, a subsequent cause of the plaintiffs injuries is not an “intervening cause,” unless it was unforeseeable.

“ ‘The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such tort or crime, unless the actor at the time of his negligent conduct should have realized the likelihood that such a situation might be created thereby and that a third person might avail himself of the opportunity to commit such a tort or crime.’ ”

Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 188, 100 So.2d 696, 710 (1957) (quoting Restatement (Second) of Torts § 448 (1977)); see also Michael L. Roberts & Gregory S. Cusimano, Alabama Tort Law Handbook § 1.2, at 19 (1990). Proximate cause is an act or omission that in a natural and continuous sequence, unbroken by any new independent causes, produces the injury and without which the injury would not have occurred. The requirement of foreseeability is imposed to preclude a finding of liability when the defendant’s conduct was part of the causal chain of events leading to the injury but the resulting injury could not have been reasonably anticipated by the defendant. Foreseeability does not require that the particular consequence should have been anticipated, but rather that some general harm or consequence could have been anticipated.

A jury may conclude that the fatal beating, seven hours later, was part of an unbroken chain of events, and, therefore, not an intervening act that would exempt the hotel defendants from liability. The affidavit of the clerk who worked at the front desk of the hotel, Beverly Smith-erman, was presented to counter the summary judgment motion. Ms. Smitherman stated in pertinent part:

“I came to work on Friday, the 9th of June, 1989, and Betty Yeargan told me not to put any phone calls through to Room 126 or tell anyone who was in room 126.... Lori Sellers told me when she came in that the woman in Room 126 had told her that her husband had beaten her up and had called several times looking for her, and she did not want her husband or anyone to know she was there.

“... I asked him [Mr. Gore] why Mrs. Banks, who was in room 126, had to leave. Mr. Gore stated the room was in a mess, he did not want her there, and he was glad to get her out of there.

“... The desk personnel receive orders only from Sandra and Eddie Gore. When we get an order from one of the managers, we relay that order to the appropriate department. No one can give any orders except the front desk or directly from Eddie or Sandra Gore. When a circumstance arises that the desk personnel feels needs the attention of the managers, a note is left for them, plus the managers are told by mouth. The Gores live in a trailer on the premises, and they can be, and are sometimes, contacted at night or when the situation dictates it. The situation with Mrs. Banks would dictate an immediate message to the Gores as soon as she arrived. Mr. and Mrs. Gore were told about the problem with Mrs. Banks and her husband when she checked in on Wednesday.... Mr. Gore had to have known about this problem when she checked in on Wednesday, the 7th of June, 1989.”

From this affidavit, it is evident that there is an issue of fact about whether Gore and Holiday Inn knew that Shirley Ann was an abused wife who was hiding in fear from her abuser. Thetford introduced sufficient evidence to entitle her to reach the jury. The fact that Shirley Ann notified the hotel clerk that she had been beaten by her husband and was hiding from him for fear of additional abuse would permit a jury to conclude that the hotel manager could foresee another beating by the husband. Foreseeability is an issue for the jury to resolve.

As we stated in West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), to defeat a properly supported motion for summary judgment, the plaintiff must present substantial evidence, i.e., “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” We conclude that the plaintiff did that.

After a thorough review of the evidence before the trial court on the hotel defendants' motion for summary judgment, we find that questions of material fact exist as to (1) whether Gore’s actions of cutting the chain on Shirley Ann’s door and allowing her husband, Michael, to enter her room were justified and/or reasonable under the circumstances; and (2) if the actions were not justified and/or reasonable under the circumstances, whether Michael Banks’s criminal conduct was foreseeable when Gore cut the chain. Therefore, the summary judgment in favor of the hotel defendants is reversed.

II.

Thetford argues that the failure of the City’s police officers to comply with the mandates of § 15-10-3, Alabama Code 1975, constitutes “statutory negligence” and that the summary judgment was therefore inappropriate as to the City. We disagree. The Family Violence Act, Act No. 89-857, Ala. Acts 1989, was passed on May 17, 1989. The incidents leading up to Shirley Ann’s death began on June 6, 1989, culminating in her death on June 11, 1989.

The four elements necessary to a recovery under the theory of statutory negligence are as follows:

“(1) The trial judge must determine as a matter of law that the statute was enacted to protect a class of persons which includes the litigant seeking to assert the statute. Simpson v. Glenn, 264 Ala. 519, 88 So.2d 326 (1956). See Bentley v. Lawson, 280 Ala. 220, 191 So.2d 372 (1966); McCloud v. Williams, 257 Ala. 611, 60 So.2d 339 (1952).

“(2) The trial judge must find the injury was of a type contemplated by the statute. See Francis v. Imperial Sanitary Laundry & Dry Cleaning Co., 241 Ala. 327, 332, 2 So.2d 388, 391 (1941) (‘[Whether a criminal statutory violation can be the basis of negligence per se] depends upon the nature and purpose of the regulation and whether it was enacted for the benefit of [the injured] individually or as a member of a class.’). See also W. Prosser, Handbook on the Law of Torts § 36, at 195-97 (4th ed. 1971).

“(3) The party charged with negligent conduct must have violated the statute. See Horn v. Smith, 292 Ala. 503, 296 So.2d 719 (1974); Horton v. Mobile Cab & Baggage Co., 281 Ala. 35, 198 So.2d 619 (1967); Mobile Cab & Baggage Co. v. Armstrong, 259 Ala. 1, 65 So.2d 192 (1953); Tindell v. Guy, 243 Ala. 535, 10 So.2d 862 (1942).

“(4) The jury must find the statutory violation proximately caused the injury. Cox v. Miller, 361 So.2d 1044 (Ala.1978); Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976); Allman v. Beam, 272 Ala. 110, 130 So.2d 194 (1961).”

Fox v. Bartholf, 374 So.2d 294 (Ala.1979).

The plaintiff contends that the Clanton police were guilty of statutory negligence in this case because they failed to comply with § 15-10-3(b), which provides “Whenever a law enforcement officer investigates an allegation of family violence, whether or not an arrest is made, the officer shall make a written report of the alleged incident, including a statement of the complaint, and the disposition of the case.”

As noted earlier, this statute, enacted as an amendment to the statute authorizing officers to make arrests without warrants, had been law for only three weeks before the incident involved in this case. It is an expression of growing concern on the part of the legislature about violence in the family. It requires the officer to file a report, but does not say where and does not say what should be done with the report. More pertinently, it does not provide any resources to help the victims of family abuse. Under these circumstances, a jury could not conclude that the officer’s failure to file the report required by the statute proximately caused the death of this victim of abuse. Therefore, we affirm the summary judgment as it relates to the City of Clanton.

For the reasons stated above, the summary judgment is reversed as to the hotel defendants; it is affirmed as to the City of Clanton; and the cause is remanded to the trial court for proceedings in accordance with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HORNSBY, C.J., and SHORES and STEAGALL, JJ., concur.

ALMON, J., concurs specially.

MADDOX, J., concurs as to the City and dissents as to the hotel defendants.

ADAMS, HOUSTON and INGRAM, JJ., concur as to the hotel defendants and dissent as to the City.

KENNEDY, J., concurs in the result as to the hotel defendants and dissents as to the City.

. Holiday Inn, Inc., in its motion for summary judgment, raised an issue regarding the agency relationship between itself and Williams Hotels, which operated the Holiday Inn in Clanton. The trial court did not address this issue in entering the summary judgment in favor of the hotel defendants, and it is not addressed by either party on appeal. Therefore, the issue is not before this Court on appeal.