1. Negligence--failure to provide adequate security--summary judgment improper--
foreseeability based on numerous criminal acts--proprietor on actual or constructive
notice
The trial court erred by granting summary judgment in favor of defendants on a
negligence claim based upon defendants' alleged failure to provide adequate security at their
motel even though there is no duty on the part of a proprietor to insure the safety of his patrons
unless it is reasonably foreseeable that the conditions on the motel premises were such that its
guests might be exposed to injury by the criminal acts of third persons, because: (1) the criminal
act of armed robbery in this case was foreseeable in light of the one hundred instances of
criminal activity occurring at the nearby I-95, U.S. 301 intersection in the preceding five years;
and (2) it is reasonable to infer that if criminal incidents occurred so close to defendants' motel,
defendants were or should have been aware of those facts which should have prompted them to
take adequate safety measures.
2. Appeal and Error--preservation of issues--failure to specifically name claims or
mention requisite elements--failure to relate listed cases to any argument
Although plaintiffs appeal the trial court's grant of summary judgment in favor of
defendants on claims of negligent misrepresentation, negligent infliction of emotional distress,
bad faith violation of special relationship, loss of consortium, intentional infliction of emotional
distress, fraud, and unfair trade practices, plaintiffs failed to adequately preserve these claims for
review because: (1) plaintiffs neither specifically named their negligence-based claims nor
mentioned the requisite elements of the claims in their argument as required by N.C.G.S. § 1A-1,
Rule 56(c), and have therefore abandoned them under N.C. R. App. P. 28(b)(5); (2) any
argument by plaintiffs as to the existence of an issue of fact on foreseeability of crime at
defendant's motel does not, in and of itself, address reversal of summary judgment on plaintiffs'
remaining negligence-based claims and the claim for bad faith violation of a special relationship;
and (3) plaintiffs listed cases for the remaining claims without relating those cases to any
argument.
3. Damages and Remedies--punitives--willful or wanton negligence not shown--
summary judgment proper
The trial court did not err by granting summary judgment for defendants as to the punitive
damages claim based on willful or wanton negligence allegedly demonstrated by defendants'
failure to make needed security changes at their motel in response to numerous criminal incidents
at the nearby I-95, U.S. 301 intersection, because: (1) the alleged aggravating circumstances
encompassing defendants' failure to provide reasonable and economically feasible measures
standing alone is insufficient evidence; and (2) the motel manager's refusal to refund the modest
room charge after plaintiffs were robbed on the premises is not a basis for submitting the issue of
punitive damages to the jury.
Judge WALKER concurring.
Parker, Poe, Adams & Bernstein, L.L.P., by Jack L. Cozort and
Stephen D. Coggins, for the plaintiff-appellants.
Young, Moore & Henderson, P.A., by John A. Michaels and
Kathryn H. Hill, for the defendant-appellees.
LEWIS, Judge.
This case arose from an armed robbery that took place at the
Family Inn Motel in Rowland, North Carolina ("Family Inn"). On 19
July 1994, plaintiffs Mary Ellen Connelly, her son, Brian Connelly,
and his grandmother, Nellie Lockett, were traveling south on
Interstate Highway 95 en route to Florida for a family vacation
from their home in Pennsylvania. They obtained lodging for the
night at the Family Inn, located at the intersection of Interstate
95 and U.S. Highway 301 ("I-95, U.S. 301 intersection"). The North
Carolina-South Carolina border runs through this intersection. The
commercial area known as "South of the Border" is across I-95, U.S.
301 intersection but is part of the same intersection, although it
is located in South Carolina.
At approximately 2 a.m., while plaintiffs were asleep, two men
entered through the door of plaintiffs' motel room, which contained
only a push lock on the doorknob; there was no evidence of a chain
or deadbolt. One of the men brandished a small handgun, announced,
"This is a wake-up call!" and threatened to shoot plaintiffs ifthey could not find any money. They ordered plaintiffs to lie on
the floor and cover themselves with sheets; they then ripped the
phone wires out of the wall. One of the thieves walked outside to
the parking lot to search Mary Ellen Connelly's car, which was
parked directly outside the motel room. During this time, a local
police officer drove through the parking lot, waving to the
intruder as he drove by. The robbers left with Nellie Lockett's
ATM card and pin number, seventy-five dollars in cash, two gold
rings and two gold watches. The plaintiffs suffered no physical
injuries.
After the intruders left, Mary Ellen Connelly went to the
front office of the Family Inn, where the desk clerk called the
police. The motel refused to refund plaintiffs' money for the
room, but offered them another room in which to stay. After giving
the police a description of the intruders, however, plaintiffs
checked out of the Family Inn in the early morning hours and drove
to Florida.
On 16 December 1996, plaintiffs brought suit against numerous
defendants variously associated with the Family Inn. Plaintiffs
first claimed that their injuries and damage were proximately
caused by, among other things, defendants' negligent failure to
provide adequate security for the protection of its patrons against
intentional criminal acts of third parties and failure to maintain
adequate control over keys to the rooms. In addition, plaintiffs
alleged claims for (2) negligent misrepresentation, (3) negligent
infliction of emotional distress, (4) intentional infliction of
emotional distress, (5) fraud, (6) bad faith violation of specialrelationship, (7) unfair trade practices and (8) loss of
consortium.
On 17 March 1999, the trial court granted summary judgment for
defendants on all claims. The trial court thereafter denied
plaintiffs' motions under Rule 59 to alter or amend the order of
summary judgment and Rule 60 to vacate the summary judgment in its
entirety. Plaintiffs appeal.
[1]The first issue is whether plaintiffs presented a
sufficient forecast of evidence in support of their negligence
claim based upon defendants' alleged failure to provide adequate
security at the Family Inn to withstand defendants' motion for
summary judgment. On appeal, the parties dispute whether
plaintiffs presented sufficient proof on the issue of whether
criminal acts at the Family Inn were foreseeable, which would
create a duty in defendants to provide adequate protection for its
guests.
Plaintiffs have dedicated a large part of their argument to
several alternate theories of determining whether defendants had a
duty to safeguard their patrons from criminal acts of third
parties. In one, plaintiffs contend defendants' duty is
established by N.C. Gen. Stat. § 72-1(a), which provides that
"[e]very innkeeper shall at all times provide suitable lodging
accommodations for persons accepted as guests in his inn or hotel."
Plaintiffs assert the statute's mandate of "suitable lodging
accommodations" sets forth an affirmative requirement which
effectively makes innkeepers insurers of the safety of theirguests, citing Patrick v. Springs, 154 N.C. 270, 70 S.E. 395
(1911).
In analyzing G.S. 72-1(a), this Court has made clear that the
provision "does no more than state the common law duty of an
innkeeper to provide suitable lodging to guests, and carries with
it no warranty of personal safety." Urbano v. Days Inn, 58 N.C.
App. 795, 799, 295 S.E.2d 240, 242 (1982) (emphasis added).
Furthermore, Patrick v. Springs involved neither application of
G.S. 72-1 nor criminal acts of third parties. Rather, Patrick
concerned a hotel guest who was asphyxiated by a leaking gas pipe
in his hotel room, and did not address the issue of criminal acts
by third parties. Patrick, 154 N.C. at 271-72, 70 S.E.2d at 395.
In addition, plaintiffs cite an array of cases in support of
a rule that prima facie liability of negligence is established
where a motel's doorlock system fails to prevent minimal effort
intrusions. We reject this argument. From this jurisdiction,
plaintiffs have cited only Madden v. Carolina Door Controls, 117
N.C. App. 56, 449 S.E.2d 769 (1994). In Madden, the plaintiff was
injured by an automatic door in a supermarket. Id. at 57, 449
S.E.2d at 770. The Court's analysis focused on the doctrine of res
ipsa loquitor. Id. at 59, 449 S.E.2d at 771. The Madden Court did
not even suggest a rule regarding negligence in the instance of an
intrusion by a third party, as is at issue here. We find Madden
and the numerous cases from other jurisdictions set forth by
plaintiffs in this regard inapplicable. We turn now to the necessary issue of foreseeability. It is
well settled in North Carolina that there is no duty on the part of
a proprietor to insure the safety of his patrons. Foster v.
Winston-Salem Joint Venture, 303 N.C. 636, 638, 281 S.E.2d 36, 38
(1981). Rather, such a person owes only the general duty of
ordinary care to maintain the premises in such a condition that it
may be used safely by guests in the manner for which it was
intended. Rappaport v. Days Inn, 296 N.C. 382, 383-84, 250 S.E.2d
245, 247 (1979). Generally, intentional, criminal acts of third
persons cannot be reasonably foreseen by the proprietor, and
therefore constitute an independent, intervening cause absolving
the owner of liability. Foster, 303 N.C. at 638, 281 S.E.2d at 38.
The test in determining whether a proprietor has a duty to
safeguard his patrons from injuries caused by the criminal acts of
third persons is one of foreseeability. Murrow v. Daniel, 321
N.C. 494, 501, 364 S.E.2d 392, 397 (1988). The most probative
evidence on the question of whether a criminal act was foreseeable
is evidence of prior criminal activity committed. Sawyer v.
Carter, 71 N.C. App. 556, 558, 322 S.E.2d 813, 815, disc. review
denied, 313 N.C. 509, 329 S.E.2d 93 (1985). However, certain
considerations restrict us as to which evidence of prior criminal
activity is properly considered. General considerations are the
location where the prior crimes occurred, see, e.g., Murrow, 321
N.C. at 501, 364 S.E.2d at 397 (considering location of prior
crimes as guiding foreseeability analysis), the type of priorcrimes committed, see, e.g., Shepard v. Drucker & Falk, 63 N.C.
App. 667, 670, 306 S.E.2d 199, 202 (1983) (considering type of
prior crime), and the amount of prior criminal activity, see, e.g.,
Urbano, 58 N.C. App. at 798, 295 S.E.2d at 242 (considering number
of prior crimes).
Here, plaintiffs have submitted hundreds of incident reports
as bearing on the question of whether criminal acts at the Family
Inn were foreseeable. These reports relate incidents occurring in
a variety of places, including the premises of the Family Inn,
sites in Rowland and Lumberton, North Carolina, and the South of
the Border area in South Carolina. We will limit our consideration
of these reports to the location in which they occurred.
Clearly, evidence of prior criminal activity occurring on the
subject premises is sufficiently probative on the issue of
foreseeability. Urbano, 58 N.C. App. at 797, 295 S.E.2d at 241.
We first conclude that the incidents of criminal activity occurring
in Lumberton, North Carolina, which is approximately twenty miles
north of Rowland, is too remote to guide our determination of
whether criminal acts were foreseeable in this case. See, e.g.,
Murrow, 321 N.C. at 503, 364 S.E.2d at 398 (indicating evidence of
criminal activity at another highway intersection located just two
miles away from the I-95 and Highway 70 intersection should be
excluded as physically too remote from defendants' motel to be of
probative value).
In regard to which of the remaining off-premises incidents areproperly considered, we turn to Murrow, 321 N.
C. 494, 364 S.E.2d
392 (1988), which involved facts largely analogous to this case.
The plaintiff in Murrow was sexually assaulted and robbed in her
room at defendants' motel, located at the intersection of
Interstate Highway 95 and N.C. Highway 70. Id. at 502, 364 S.E.2d
at 397-98. The Murrow court held admissible evidence of prior
crimes both on the premises of defendants' motel and from places of
business at the surrounding I-95, Highway 70 interchange. Id. at
502, 364 S.E.2d at 398. Accordingly, we consider evidence of
criminal activity occurring at the surrounding I-95, U.S. 301
intersection, including that occurring on the premises of the
Family Inn. This includes criminal activity from the surrounding
South of the Border area, which, although in South Carolina, is
part of the I-95, U.S. 301 intersection.
We next consider the types of criminal activity reflected in
these incident reports. Plaintiffs have presented evidence of
approximately one hundred sixty incidents of criminal activity
occurring at the I-95, U.S. 301 intersection area in the preceding
five years. These reported incidents include an assortment of
criminal activity ranging from minor to serious. We do not agree
that instances of public drunkenness, shoplifting, vandalism and
disorderly conduct indicated by this evidence establish the
foreseeability necessary to create a duty in this case. See, e.g.,
Liller v. Quick Stop Food Mart, Inc., 131 N.C. App. 619, 624, 507
S.E.2d 602, 606 (1998) (refusing to consider shoplifting and "gasdriveoffs" where the subject criminal activity was armed robbery
).
However, we do consider the following criminal activity occurring
at the I-95, U.S. 301 intersection as bearing on the issue of
foreseeability: two armed robberies, eleven assaults (three with
intent to kill), five instances of breaking and entering, thirty-
six instances of breaking and entering and larceny, forty-three
larcenies, one attempted larceny, and two instances of pointing a
firearm. See, e.g., Murrow, 321 N.C. at 502, 364 S.E.2d at 398
(considering incidents of armed robbery, kidnapping, assault,
vehicle theft and breaking and entering and larceny as bearing on
the issue of foreseeability).
We next consider the number of relevant reported crimes
occurring in the I-95, U.S. 301 intersection. The evidence in this
case, when viewed in the light most favorable to the plaintiffs,
indicates that in the five years preceding the armed robbery in
this case, one hundred instances of criminal activity bearing on
the issue of foreseeability occurred at the I-95, U.S. 301
intersection. This number of crimes was sufficient to raise a
triable issue of fact as to the foreseeability of the attack upon
plaintiffs. See also Murrow, 321 N.C. at 502-03, 364 S.E.2d at 398
(evidence of one hundred incidents of criminal activity taking
place at intersection where defendants' motel was located in the
preceding four years raised a triable issue as to reasonable
foreseeability); Urbano, 58 N.C. App. at 798-99, 295 S.E.2d at 242
(evidence of forty-two episodes of criminal activity taking place
on motel premises during three-year period prior to plaintiff'sinjury raised a triable issue of reasonable foreseeability). But
cf. Liller, 131 N.C. App. at 623, 507 S.E.2d at 606 (evidence of
six undisputed incidents of criminal activity in the preceding
three years insufficient evidence of foreseeability to survive
defendant's summary judgment motion); Sawyer, 71 N.C. App. at 562,
322 S.E.2d at 817 (evidence of single robbery of convenience store
five years earlier, coupled with evidence of occasional robberies
of other convenience stores and businesses at unspecified locations
over extended period of time insufficient evidence of
foreseeability to survive defendant's summary judgment motion);
Brown v. N.C. Wesleyan College, 65 N.C. App. 579, 583, 309 S.E.2d
701, 703 (1983) (holding that "scattered incidents of crime through
a period beginning in 1959 were not sufficient to raise a triable
issue as to whether the abduction and subsequent murder of
plaintiff's intestate was reasonably foreseeable" by defendant
college).
However, this does not end our inquiry on the question of
foreseeability. Establishing a duty on the claim of negligence
here is contingent upon notice to the proprietor of that criminal
activity, which notice may be either actual or constructive. The
Restatement (Second) of Torts, § 344 (1965) has been adopted by
this Court in determining whether a duty exists to protect patrons
from the criminal acts of third parties. In regard to notice,
Restatement (Second) § 344, Comment f states:
Since the possessor is not an insurer of the
visitor's safety, he is ordinarily under no
duty to exercise any care until he knows orhas reason to know that the acts of the third
person are occurring, or are about to occur.
He may, however, know or have reason to know,
from past experience, that there is a
likelihood of conduct on the part of third
persons in general which is likely to endanger
the safety of the visitor even though he has
no reason to expect it on the part of any
particular individual. If the place or
character of his business, or his past
experience, is such that he should reasonably
anticipate careless or criminal conduct on the
part of the third persons, either generally or
at some particular time, he may be under a
duty to take precautions against it, and to
provide a reasonably sufficient number of
servants to afford a reasonable protection.
(Emphasis added) (cited in Foster , 303 N.C. at 639-40, 281 S.E.2d
at 38-39).
Plaintiffs' evidence here fulfills the requirement of notice
set forth in the Restatement (Second) of Torts. In addition to the
incident reports indicating significant criminal activity in the
area under consideration, the evidence includes an affidavit from
the Rowland Chief of Police stating that during the course of his
career with the Rowland Police Department (since 1981), he was
aware of a significant crime problem at the Family Inn. Even
though a number of these incidents occurred at South of the Border
and thus, were investigated by the Dillon County Sheriff's
Department in South Carolina, it is reasonable to infer that if
criminal incidents occurred so close to defendants' motel, the
defendants were or should have been aware of those facts which
should have prompted them to take adequate safety measures. See
also Murrow, 321 N.C. at 502, 364 S.E.2d at 398.
We therefore conclude the evidence before the trial court inthis case raised a triable issue as to whether defendan
ts should
have reasonably foreseen that the conditions on its motel premises
were such that its guests might be exposed to injury by the
criminal acts of third persons. Such issues were and still are for
the jury and were not to be determined as a matter of law by the
trial court. Accordingly, we reverse summary judgment as to
plaintiffs' claim for negligence.
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