PITTARD V. FOUR SEASONS MOTOR INN, INC., 1984-NMCA-044, 101 N.M. 723, 688
P.2d 333 (Ct. App. 1984)
Q. LEE PITTARD, as Father and Next
Friend of CODY PITTARD,
and KIM PITTARD, Individually, Plaintiffs-Appellants,
vs.
THE FOUR SEASONS MOTOR INN, INC., and D.B. INVESTMENT
PROPERTIES, INC., its successor in interest,
Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
1984-NMCA-044, 101 N.M. 723, 688 P.2d 333
Appeal from the District Court of
Bernalillo County, Philip R. Ashby, Judge
Petition for Writ of Certiorari Quashed
September 5, 1984
EDMUND J. LANG, Albuquerque, New Mexico,
for Plaintiffs-Appellants.
LARRY D. BEALL, P.A., C. RICHARD BAKER,
JOSEPH WILLIAM REICHERT, Albuquerque, New Mexico, for Defendants-Appellees.
Minzner, J., wrote the opinion. I CONCUR:
THOMAS A. DONNELLY, Chief Judge, C. FINCHER NEAL, Judge (CONCURRING IN PART AND
DISSENTING IN PART)
{1} On the court's own
motion, the prior opinion of this court is withdrawn and the following opinion
substituted therefor.
{2} Plaintiffs Q. Lee and Kim
Pittard brought this action to recover damages suffered when David Leroy
Perales ("Perales") sexually assaulted their son. Perales was an
on-duty employee of the hotel Four Seasons Motor Inn, Inc., at the time of the
incident. D.B. Investment Properties, Inc. is a successor in interest to the
Four Seasons.
{3} Mrs. Pittard and her son
were on the hotel's business premises on January 15, 1978 as guests of Mrs.
Pittard's parents, who were registered guests of the hotel. The hotel was open
to the public for business purposes on that day. In fact, the hotel was
conducting several promotional activities designed to attract customers,
guests, and invitees on January 15, including a special Super Bowl promotion.
{4} Perales was working at
the hotel on January 15 as a steward assisting in the preparation of banquets.
He admitted to being intoxicated when he reported for duty and to further
consumption of alcohol while on duty. Perales left the banquet area while on
duty and encountered the boy near the hotel's swimming pool area. He enticed
the boy into a hotel bathroom, locked the door behind them, and sexually
assaulted the boy. Perales was later apprehended in the hotel's kitchen area
and admitted the sexual assault.
{5} Plaintiffs sought by
pretrial discovery to require the hotel to produce the personnel file it
maintained on Perales. The hotel failed to produce the file, contending that it
had been lost.
{6} Plaintiffs sought
recovery against the hotel under several causes of action: (1)
respondeat
superior; (2) breach of duty to care for the safety of guests and invitees;
(3) failure to provide adequate security; (4) negligent hiring; (5) negligent
retention; and (6) inadequate supervision. Following plaintiffs' presentation
of their case to the jury, the trial court granted directed verdicts on the
negligent hiring and retention claims but denied directed verdicts as to the
others. Plaintiffs moved for discovery sanctions against the hotel for its loss
of Perales' personnel file. The trial court denied plaintiffs' request for a
directed verdict on the negligent hiring and retention claims as a sanction but
refused to allow testimony regarding foreseeability on matters relating to the
lost file. The jury returned a verdict for the hotel on those issues submitted
to it. Plaintiffs raise three issues on appeal:
(1) the trial court erroneously instructed the jury on the
hotel's duty to care for the safety of guests and invitees;
{*727} (2) the trial
court erred in failing to direct a verdict for plaintiffs on the negligent
hiring and retention claims as a sanction for the hotel's loss of the personnel
file; and
(3) the trial court erred in directing a verdict on the
negligent hiring and retention claim.
{7} We affirm the trial court
with respect to issues (1) and (2). We reverse the trial court with respect to
issue (3) and remand the case for a new trial on that issue.
1. Discovery Sanction for Lost Personnel File.
{8} NMSA 1978, Civ.P. Rule
37(B)(2) (Repl. Pamp.1980) authorizes the trial court to impose sanctions
against a party for the failure to obey an order to provide or permit
discovery. When evidence is willfully destroyed or lost, the trial court
may,
in its discretion, direct a verdict against a guilty party.
United Nuclear
Corp. v. General Atomic Co., 96 N.M. 155,
629 P.2d 231 (1980),
appeal
dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Choice
of sanctions imposed under this rule lies within the sound discretion of the
trial court. Only a clear abuse of discretion will warrant reversal of the
choice of sanctions.
Id.
{9} The record reveals that
the hotel's insurance adjuster prepared a report on the incident, using
Perales' personnel file, some ten months after the incident. The report was
given to plaintiffs' counsel on the first day of trial. Plaintiffs learned in
June 1981 that Perales' personnel file had been lost. Plaintiffs requested production
of the file in November 1982, one month before trial. They renewed the motion
the day before trial and filed a motion in limine to restrain the hotel from
arguing the foreseeability of Perales' actions. No written discovery order was
filed with regard to the personnel file.
{10} At trial plaintiffs
renewed their complaint regarding the file and alleged "willful
misconduct." Plaintiffs requested that the trial court preclude the hotel
from raising the defense of foreseeability. The trial court accepted the
hotel's contention that the personnel file had been lost and found no culpable
conduct on the part of the hotel.
{11} Plaintiffs argue on
these facts that the trial court erred when it failed to direct a verdict or
enter default judgment against the hotel on the negligent hiring, retention,
and supervision claims. We disagree.
{12} The facts of this case
do not support a conclusion that the trial court abused its discretion with
respect to discovery sanctions. Severe sanctions such as denying a party the
right to a hearing on the merits should be imposed only where there is a
willful or bad faith failure to comply with a discovery order.
United
Nuclear Corp. v. General Atomic Co. Plaintiffs have failed to point to any
violation of a discovery order here. Moreover, there is sufficient evidence in
the record to support the trial court's finding that loss of the file was not
culpable but inadvertent. The file was lost long before any motion to produce
was served on the hotel. We will not disturb the trial court's ruling.
2. Jury Instruction on Hotel's Standard of Care.
{13} Plaintiffs object to
Instruction 10 given by the trial court on the hotel's general duty of care.
That instruction read:
The proprietor of a hotel is not an insurer of the safety of
its guests against the acts of third persons. Additionally, the obligation of
the proprietor of a hotel does not include an insurance of the guest's person
against the wilful or negligent acts of its employees not acting in the scope
of their employment. The proprietor of a hotel is under a duty only to exercise
reasonable care for the safety of the hotel's guests.
{14} Instructions must
correctly state the law and be based on the evidence. All instructions must be
read together and, if they fairly present the issues and the applicable law,
they are sufficient. A reviewing court must consider the instructions as a
whole.
Blackburn v. State, 98 N.M. 34,
644 P.2d 548 (Ct. App.1982).
{*728} A party complaining of faulty
instructions must show prejudice before reversal is warranted.
Jewell v.
Seidenberg, 82 N.M. 120,
477 P.2d 296 (1970).
{15} Plaintiffs argue that
the instruction prejudiced them in several ways. Their claim of prejudice
primarily concerns a theory of liability that has been recognized in New Mexico
but with respect to which we have little case law. It differs from a claim of
respondeat
superior.
{16} A plaintiff injured by
an employee's assault may sue under a theory of
respondeat superior.
Dessauer v. Memorial General Hospital, 96 N.M. 92,
628 P.2d 337 (Ct.
App.1981). In order to recover under a
respondeat superior theory, the
plaintiff must demonstrate that the employee was acting within the scope of his
employment.
Gonzales v. Southwest Security and Protection Agency, Inc.,
100 N.M. 54,
665 P.2d 810 (Ct. App.1983). Plaintiffs were unsuccessful on their
respondeat superior claim.
{17} Our case law recognizes
that an innkeeper may be liable for an assault upon a guest or invitee by an
employee under a second theory:
Naturally, an innkeeper is not and cannot be an insurer of a
guest or patron against personal injuries inflicted by another person on the
premises, other than his servants or agents. Nevertheless, the proprietor of a
place of business who holds it out to the public for entry for his business
purposes, is subject to liability to guests who are upon the premises and who
are injured by the harmful acts of third persons if, by the exercise of
reasonable care, the proprietor could have discovered that such acts were being
done or about to be done, and could have protected against the injury by
controlling the conduct of the other patron.
{18} Coca cites 2
Restatement
of Torts Section 348 (1934) as authority for the rule. That provision is
now embodied in
Restatement (Second) of Torts Section 344 (1965), which
states:
A possessor of land who holds it open to the public for entry
for his business purposes is subject to liability to members of the public
while they are upon the land for such a purpose, for physical harm caused by
the accidental, negligent, or intentionally harmful acts of third persons or
animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to
be done, or
(b) give a warning adequate to enable the visitors to avoid
the harm, or otherwise to protect them against it.
"Third persons" include servants acting outside the
scope of their employment. Restatement (Second) § 344 comment b.
{19} Plaintiffs first contend
that the instruction was erroneous because there was no set of facts under
which the jury could have found Perales to be a third person within the meaning
of the language quoted from
Coca. They argue that because Perales was on
duty and on the premises at the time of the assault he could not be a third person.
This argument is clearly erroneous. The
Restatement specifically defines
employees acting outside the scope of their employment as "third
persons." The mere fact that an employee is on duty does not mean that
every action he takes is within the scope of employment.
{20} Plaintiffs next contend
that the hotel should be strictly liable for the assault. They claim that the
"other than his servants or agents" language in
Coca means
that an innkeeper is an insurer of a patron for injuries inflicted by a servant.
We disagree.
Coca cites Section 348 of the
Restatement as support
for the proposition. That section has been replaced in the second edition by
Section 344, which holds possessors of land to a "reasonable care,"
not strict liability, standard. Had the supreme court intended in
Coca
to impose a strict liability standard for the acts of servants outside the
scope of employment, it could have done so explicitly. The fact that it did not
is convincing evidence that
{*729} negligence
is the proper standard to be applied.
{21} Even
Tobin v.
Slutsky, 506 F.2d 1097 (2nd Cir.1974), upon which plaintiffs rely, does not
impose strict liability upon innkeepers. Innkeepers are held to a
"reasonable care commensurate with the quality of the accommodations
offered" standard.
Tobin also recognizes that "[n]o matter how
strict the standard, however, the hotel is not an insurer * * *." 506 F.2d
at 1103.
{22} There are cases which
seem to hold innkeepers to a higher standard for assaults by employees acting
outside the scope of duty under a theory of implied breach of a legal or
contractual obligation of an innkeeper to treat guests with due consideration
for their safety and comfort.
See Crawford v. Hotel Essex Boston Corp.,
143 F. Supp. 172 (D. Mass.1956);
Clancy v. Barker, 71 Neb. 83, 98 N.W.
440 (1904),
adhered to on reh'g, 71 Neb. 91, 103 N.W. 446 (1905). We
decline to follow these cases to the extent that they do impose a higher
standard. These decisions draw an analogy which we do not find persuasive
between common carriers and innkeepers. Moreover, New Mexico does not recognize
degrees of negligence but applies in all cases an "ordinary care under the
circumstances" standard. NMSA 1978, UJI Civ. 6.5 (Repl. Pamp.1980) and
Committee Comment thereto.
{23} Plaintiffs finally
contend that the trial court "completely negated" the jury's ability
to impose liability if Perales were found to have acted outside the scope of
employment. We agree that the instruction does not clearly point out that the
hotel could be liable if Perales acted outside the scope of employment
and
if the jury found that the hotel violated its duty to exercise reasonable care
to provide for the safety of business visitors. The instruction might have
tracked the
Restatement provision much more closely.
{24} Plaintiffs waived their
right to raise this particular complaint with regard to the instruction. A
party objecting to a jury instruction must specifically guide the mind of the
trial court to the claimed error. NMSA 1978, Civ.P.R. 51(I) (Cum. Supp.1983);
Poorbaugh
v. Mullen, 99 N.M. 11,
653 P.2d 511 (Ct. App),
cert. denied, 99 N.M.
47,
653 P.2d 878 (1982). Plaintiffs never raised this specific objection to the
trial court. Rather, they argued that Perales could
not have been a
third party, a contention inconsistent with recovery under the business
proprietor theory, and argued that strict liability was the correct standard.
Plaintiffs offered an instruction, which was refused, based on NMSA 1978, UJI
Civ. 13.10 (Repl. Pamp.1980), which is adopted from
Restatement (Second) of
Torts Sections 342, 343 (1965). Plaintiffs never tendered an instruction
which correctly tracks Section 344.
{25} The trial court is
affirmed on the jury instruction issue.
3. Directed Verdict on the Negligent Hiring and Retention
claims.
{26} Negligent hiring and
retention is a second theory which a plaintiff may assert to recover against an
employer for an employee's assault outside the scope of employment.
La Lone
v. Smith, 39 Wash.2d 167, 234 P.2d 893 (1951); 34 A.L.R.2d 372 § 9 (1954).
The trial court granted the hotel's motion for a directed verdict on these
claims, citing
F & T Co. v. Woods, 92 N.M. 697,
594 P.2d 745 (1979).
Plaintiffs argue that
Woods is distinguishable on its facts, and that
there was sufficient evidence of foreseeability to submit the claim to the
jury. We agree.
{27} A directed verdict
should be granted only when reasonable minds cannot differ as to the result to
be reached.
Owen v. Burn Construction Co., 90 N.M. 297,
563 P.2d 91
(1977). In reviewing the grant of a directed verdict the appellate court must
view the evidence in the light most favorable to the non-moving party.
Loucks
v. Albuquerque National Bank, 76 N.M. 735,
418 P.2d 191 (1966).
{28} In
Woods, the
plaintiff was raped by defendant's employee. The employee had delivered a
television set to the plaintiff in the course of the defendant's business.
{*730} The employee returned to plaintiff's
residence five days later while off duty, broke into the residence, and
committed the rape.
{29} Plaintiff sued on a
negligent hiring and retention theory. The court noted that a substantial
portion of the record was directed at the employer's inquiry or lack thereof
into the employee's past and to the employer's actual knowledge of the
employee's past criminal record. The employee was an ex-convict. The
defendant's manager had been visited prior to the rape in question by a
detective who was investigating previous rapes in the area. The manager was told
that a "colored person" was suspected, although the particular
employee was not singled out by the detective as a suspect. The perpetrator was
one of two black employees. The manager was also aware of the fact that a purse
belonging to a previous rape victim had been found in defendant's trash area.
{30} The
Woods court
recognized the negligent hiring and retention cause of action. The court
stated, however, "It is not enough that plaintiff prove that defendant was
negligent in hiring or retaining Sanders. In addition, plaintiff must prove
that the negligent hiring or retention of Sanders was the proximate cause of
the rape." 92 N.M. at 699-700, 594 P.2d at 747-48. The court expressly
equated the proximate cause requirement imposed with a foreseeability requirement.
{31} Proximate cause is that
which in a natural and continuous sequence unbroken by any new independent
causes produces the injury and without which the injury would not have
occurred.
Lopez v. Maez, 98 N.M. 625,
651 P.2d 1269 (1982). Foreseeability
is imposed to preclude a finding of liability where defendant's conduct was
part of the causal chain of the injury but the resulting injury could not have
been reasonably foreseen by the defendant.
F & T Co. v. Woods.
Foreseeability does not require that the particular consequence should have
been anticipated, but rather that some general harm or consequence be
foreseeable.
Gilbert v. New Mexico Const. Co., 39 N.M. 216,
44 P.2d 489
(1935);
Pisel v. Stamford Hospital, 180 Conn. 314, 430 A.2d 1 (1980).
{32} The
Woods court
held as a matter of law that no evidence had been introduced in the case which
would justify submission of the claim to the jury. The employee's criminal
conduct was not foreseeable, given the facts of that case, from the defendant's
hiring or retaining of the employee. The rape occurred off the business
premises while the employee was off-duty. Moreover, no specific indications of
any violent behavior on the part of the employee were brought to the employer's
attention. Knowledge of a past criminal record and unfocused police questioning
did not make the employee's conduct foreseeable.
{33} This case is
distinguishable. Plaintiffs' son was sexually assaulted by defendant's
employee, Perales, on the business premises while Perales was on duty. Perales
admitted to having a drinking problem during the period of employment with
defendant, and of being violent when he drank. Perales also admitted to being
drunk while on duty on the day in question.
{34} There was evidence from
which a jury might find that defendant was aware or should have been aware that
Perales had a drinking problem and a propensity for violence. Two incidents had
occurred on hotel property shortly before the assault which gave rise to this
lawsuit. Perales was terminated from his job as dishwasher for drinking prior
to the incident that gave rise to this lawsuit. Shortly after that termination,
Perales went to defendant's place of business to inquire about reinstatement.
He was drunk, interfered with the kitchen's operation, and became violent when
he was asked to leave the premises. He was forcibly subdued by defendant's
security personnel and he left under threat of criminal prosecution.
{35} Further, defendant later
rehired Perales as a steward. Perales' position as a steward required him to
help in the preparation of banquets. He had some contact with customers and
other invitees in this connection. He was not closely supervised and had access
to alcoholic beverages, which he
{*731} consumed
with some regularity while on duty. Other employees were aware of Perales'
behavior in this regard.
{36} We hold that plaintiffs
have introduced sufficient evidence to entitle them to reach the jury. Notice
of an employee's alcoholism and tendency toward violent behavior may make
sexual assault by that employee foreseeable to the employer. The jury, rather
than the judge, should determine foreseeability on these facts.
Ortega v.
Texas-New Mexico Railway Co., 70 N.M. 58,
370 P.2d 201 (1962);
Hersh v.
Kentfield Builders, Inc., 385 Mich. 410, 189 N.W.2d 286 (1971).
{37} This cause is remanded
to the trial court for a new trial on the negligent hiring and retention claim.
We affirm the trial court with respect to the other issues on appeal.
I CONCUR: THOMAS A. DONNELLY, Chief Judge.
C. FINCHER NEAL, Judge (CONCURRING IN PART AND DISSENTING IN
PART)
NEAL, Judge (Concurring in part and dissenting in part):
{39} I concur in the
disposition of the discovery and instruction issues. I do not agree that the
negligent hiring and retention claim should have gone to the jury. I believe
F
& T Co. v. Woods supports the directed verdict.
{40} In
Woods the
employer knew of the employee's past criminal record. Less than a week before
the plaintiff was raped, the employer was visited by a police detective who
informed him that a "colored person" was suspected in some rapes. The
employee was one of two blacks employed by the employer. Also, the week before
the rape, a purse belonging to a previous rape victim was found in the trash
area of the business and the employer knew this. Despite this evidence the
Supreme Court directed a verdict in favor of defendant, holding that, on these
facts, foreseeability was not a jury issue.
{41} In this case we have
evidence that the employee was drunk and the employer knew it. We have evidence
that, after being terminated previously, the employee came to the hotel to beg
for his job back, became violent, and was forcibly ejected from the hotel. In
my opinion, these facts are less compelling than those in
Woods.
Knowledge of prior drunkenness, of drunkenness on the day in question, and that
the employee became violent after he was previously terminated, goes only to
whether the hotel was negligent in hiring or retaining the employee; it does
not establish foreseeability.
Woods. While I do not necessarily agree
with
Woods we are bound to follow it.
Alexander v. Delgado, 84 N.M.
717,
507 P.2d 778 (1973). Because I cannot agree with the majority's attempt to
distinguish
Woods, I do not join in the disposition of the negligent
hiring and retention claim.