Motel owner 99% liable for murder

by Walter Olson on May 11, 2012

“[An Indiana appeals] court has found that an ever so slightly negligent (2%) business owner needs to pay for 99% of the harm caused by a murderer. Citing the Restatement (Third) of Torts. Section 14, a public policy in favor of adequately compensating the wronged … and the difficulty murderers have in procuring insurance to cover their rampages, the appellate court in Santelli v. Rahmatulla found that the Restatement provides a handy way of escaping Indiana’s reform of its joint and several liability rule.” [David Oliver] More: Point of Law (motel “[adhered] to the non-discriminatory EEOC principle of not performing criminal background checks”).

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PointOfLaw Forum
05.14.12 at 7:22 am

{ 29 comments }

1 Anonymous Attorney 05.11.12 at 9:31 am

Has a defendant ever thought to argue that joint and several liability is simply unconstitutional, because it obliterates due process? I’m not asking rhetorically, I’m asking because I don’t know. I know the Supreme Court has taken up this issue for punitive damages (BMW case), why not here? These seem to be pretty good facts for making the argument.

2 Aloysous A Gruntpuddock 05.11.12 at 10:11 am

I thought it was now illegal to check criminal records before hiring people?

Surely the courts can’t have it both ways!

3 Jason Barney 05.11.12 at 10:33 am

Anonymous,

I was thinking that very same issue myself. The jury, after presumably fair deliberation, came to a 2% allocation of fault–why should we upset that? While it certainly preferable that injured people get full and fair compensation, why at the expense of others in excess of their fault? If we prefer full compensation to all victims why not simply socialize indemnity payments for all harms?

Here the court rules that 2% = 99% (never mind the arithmetic absurdity). If the jury wanted to apportion 99% as it was asked on the jury form, it could have. Seems like a due process violation to me. Of course all I will do is gripe about it while the lawyers making millions from this will have the time and resources to lobby and file briefs to keep this unfair mechanism in place. No wonder our civil justice system is a joke.

4 marco73 05.11.12 at 10:45 am

Cut to the chase: why even have an Indiana legislature when the appeals court can just dole out other people’s money to harmed victims.

5 spo 05.11.12 at 2:13 pm

How wrong is the court here? The hotel owner allowed a criminal to have access to a guest’s room. This isn’t a parking lot mugging–this is an in-room murder by a criminal who had a master keycard. Did the legislature really intend this result? That a commercial enterprise with a duty to prevent criminals from having access to one’s room can disclaim liability simply by pointing to the fault of criminal?

6 spo 05.11.12 at 2:56 pm

Ok, guys, here’s a question: Could the trial judge have given an instruction that the jury could, in apportioning fault, take into consideration the duty owed to prevent the harm caused by third parties? I think the answer to that question is yes. And if so, what’s the problem with the court’s decision.

By the by, the “ever so slightly negligent” phrase is poor legal analysis. The 2% goes to the damages, not the existence of negligence. On the facts as described by the Court of Appeals, it seems that the hotel owner was pretty negligent. Missing master keycards should trigger a change in the locks, which I believe is not hard to do.

7 Jason Barney 05.11.12 at 5:26 pm

There’s no doubt in my mind the hotel owner was negligent for failing to perform a background check, and possibly for failing to timely discover the missing master key–probably more than 2% fault. But is a murder foreseeable just because the maintenance man had a warrant/parole violation? If the maintenance man had a series of theft convictions the hotel negligently (or willfully) ignored and he stole from unoccupied rooms, then I get the theory of imputed fault. Without more information I don’t get it here–not unless he was an axe murderer on the run from the law and the hotel should have known.

I bet the jury had similar discussions and came up with the 2% allocation.

8 spo 05.11.12 at 6:56 pm

“But is a murder foreseeable just because the maintenance man had a warrant/parole violation? If the maintenance man had a series of theft convictions the hotel negligently (or willfully) ignored and he stole from unoccupied rooms, then I get the theory of imputed fault. Without more information I don’t get it here–not unless he was an axe murderer on the run from the law and the hotel should have known.”

A person using a master key to break into rooms IS foreseeable. It’s also foreseeable that the occupants may be there. The hotel owner cannot claim that the specific type of harm flowing from the combustible mix of criminal and occupant is not foreseeable.

9 Jason Barney 05.11.12 at 8:05 pm

Maybe, but should a jury be allowed to balance the negligence and intentional torts and allocate fault as they see fit? I say they should.

10 spo 05.11.12 at 10:05 pm

I think the jury instruction I proposed above would give the jury the right amount of guidance in apportioning fault.

11 William Nuesslein 05.12.12 at 8:12 am

It is much easier to identify the risk of murder after the fact. Thank goodness murder is rare being 4.8 per 100,000. Any screen would be dominated by false positives – fertile ground for enterprising civil right litigators.

12 John Rohan 05.12.12 at 9:44 am

Good God, people. No matter what record this guy had or how “forseeable” this murder was, the primary party to blame for murder is always THE PERSON WHO ACTUALLY COMMITTED IT! Are we so lost in a haze of legal language that we have lost sight of this?

13 spo 05.12.12 at 11:37 am

Mr. Nusselein, the rarity of murder does not excuse allowing people access to hotel rooms.

Mr. Rohan, the issue is not the rarity of murder, child abduction or what have you–the issue is where people have a duty to protect you or your loved ones from that rarity. Should a security company be allowed to claim that the crime is the perp’s fault when it negligently fails to respond to an alarm?

This really isn’t “legalese.” Here, the hotelier, through negligence, gave a guy the opportunity to victimize someone who paid for a room. I would argue that it’s a lot of “legalese” to allow the hotelier to push the blame off on the criminal.

14 gitarcarver 05.12.12 at 6:59 pm

spo,

You keep saying the hotelier had a duty to protect his guests from harm. That is a fair statement.

The question then becomes “what should that duty entail?”

It appears that you believe that a hotelier should not give a master key to an employee. On what are you basing that belief? According to the opinion, how the criminal gained access to the room is not known. Given that electronic locks record what key opened the room, if your belief that it was the criminal’s key that gave him access to the room, that should have been easy to prove, yet it was not.

It also appears that you believe a person that it is foreseeable that a person who commits one crime will commit another, infinitely more violent crime. What are you basing that upon? If one thinks as you do, shouldn’t we strip people who run a stop sigh of their driver’s license because they are likely to commit vehicular homicide while drunk?

It is legalese when the jury says the hotelier is responsible to a minute extent and then a court says the hotelier is on the hook for the whole amount. I guarantee you that is not what the jury understood or wanted to happen.

15 John Rohan 05.13.12 at 3:48 am

Spo,

The point is that to put 99% of the responsibility of the murder on someone who didn’t actually commit the murder, is not only morally wrong, but a complete non-sequitor.

16 spo 05.13.12 at 2:00 pm

John, how does that logically follow? The reality is that we expect people to protect us from criminal behavior all the time. For example, stranger abductions are as rare as hen’s teeth–yet a day care center is expected to take reasonable precautions, is it not? And if it does not, does it get to escape liability by arguing that the blame is the criminal’s?

Gitarcarver, you agree that there’s a duty. So why does that duty get to be diminished by the wrongdoing of the third party–i.e., the very subject of the duty?

As for the foreseeability of the murder–in most jurisdictions, the tortfeasor doesn’t get judgment as a matter of law because the specific harm is not foreseeable–it only matters that the class of harm is. In other words, if the guy had the key, then entry into occupied rooms is foreseeable, as are the harms that flow therefrom.

“It appears that you believe that a hotelier should not give a master key to an employee.” I think you have it wrong. The issue is the lack of accountability for the key once the guy left employment (putting aside the issue of the background check).

In any event, I think that the jury instruction I proposed is unobjectionable, and would allow the competing issues to be resolved. It isn’t too much to ask, in my opinion, that a hotelier be careful when it doles out master keycards and what it does when they don’t come back.

17 gitarcarver 05.13.12 at 8:35 pm

Gitarcarver, you agree that there’s a duty. So why does that duty get to be diminished by the wrongdoing of the third party–i.e., the very subject of the duty?

The duty has to be in play. Once again, the opinion states entrance to the room was gained by “unknown means.”

Even you say “In other words, if the guy had the key, then entry into occupied rooms is foreseeable, as are the harms that flow therefrom. ”

How you get from “he had a key” to “using that key” is unknown to me.

18 John Rohan 05.14.12 at 1:47 am

Spo,

I never said the motel should “escape liability”, so I don’t recognize myself in your statement. But assigning 99% responsibility to the hotel means that the killer is only 1% responsible. Would you allow the killer to use that defense in court? “It’s not my fault I killed him, your honor, it was the motel’s fault for giving me a key“. Right.

That excuse wouldn’t fly in a criminal court so it certainly shouldn’t apply in a civil one. What you are perpetuating is the abdication of all personal responsibility which is one of the biggest problems in our society today.

19 James Swede 05.14.12 at 1:57 am

Was it 2% of $50 million ? From the English perspective (and we have enough problems of our own with compensation culture) damages in the USA are insane – where is the idea of proportionality ?!

20 Yeaah 05.14.12 at 5:25 am

@spo Day care centers overreact to that very small abduction risk, because our society overreacts to any highly unlikely potential danger against kids. That fear driven overreaction makes them more expensive, more inconvenient for parent and adds very little to kids security.

We should not export the irrational behavior and fears from day care business into the hotel business. It would be much better, if we would bring more common sense into the day care business.

Crimes happen in hotels, streets and homes. A hotel should provide a reasonable level of protection, not absolute one. The hotel should not have to pay the full price unless it had reasons to suspect that the guy is planning a murder. It is simply unfair.

Otherwise said, if the law really requires what you say it requires from the side of the hotel, then the law needs to be changed.

21 spo 05.14.12 at 8:24 am

gitarcarver, the jury’s determination is somewhat opaque. It’s certainly possible for the jury to have concluded on these facts that the owner’s conduct facilitated the entry.

Once again, I think my proposed jury instructions get the job done. And while I certainly agree that day care centers have overreacted generally to the child abduction phenomenon, everyone will note that I said “reasonable” precautions. (Of course, in practice, reasonable may mean overreaction, but there’s not much that can be done about that.) My point is that if there’s a duty to protect against the harms inflicted by third parties–it’s not entirely logical to then say that the duty is mitigated by the fault of the third party.

As for the EEOC and criminal background checks–I agree that the EEOC is beyond insane on that point.

22 gitarcarver 05.14.12 at 10:35 am

spo,

You have stated that the hotel is on the hook for the murder because of the key. As stated in the opinion, how the guy gained entrance into the room is unknown.

Even taking your argument at face value, the jury ascribed 2% of the blame at the foot of the hotelier yet you want that to be ramped up to 100%.

That’s the real issue here, spo. You want to hold onto the jury’s findings for blame, but dismiss the jury’s finding for the amount of the blame.

As John Rohan points out the idea that the hotel is now on the hook for the murder and actions of another means the actual murderer is off the hook. That is unconscionable.

23 spo 05.14.12 at 12:02 pm

gitarcarver, if you want to argue allocation of burden of proof issues (i.e., with respect to the access), that’s fine. That wasn’t the point of the original post, and I think it’s an idiosyncracy that avoids the larger issues that we have been discussing. Do I think it’s a problem–yes, but I don’t know what was argued. Maybe the plaintiff had a “res ipsa” type theory that wasn’t seriously challenged by defendant.

And the issue is not me taking the jury for one bit, but ignoring the other. My point is that if there’s a duty to protect against third party harm that is breached, then the position you advocate obviates that duty. You’re certainly entitled to have that point of view, but I don’t think it’s too much to ask to have you forthrightly admit that you’re giving with one hand and taking with the other. Once again, the daycare hypo seems apt.

As for leaving the actual murderer off the hook being unconscionable, that’s simply hyperbole. It’s easy to flip it around and say that it’s unconscionable to allow defendants who breach a duty to protect others from the predations of third parties to escape liability for that duty simply by pointing to the fault of the predator. Yes, the predator is at fault–but the defendant undertook to take reasonable steps to prevent that predator from hurting the plaintiff. Should a daycare center get to disclaim liability if it is negligent in handing a kid over to a child molester? After all, the daycare center didn’t molest the kid.

24 gitarcarver 05.14.12 at 4:49 pm

spo,

You are completely missing the argument.

If the jury holds the hotelier 2% responsible for the death, then why are they on the hook for the whole enchilada? That seems to be the point of the original post here and it is a point that you fail to address.

I am not putting aside the duty at all. What I am saying is that when a jury says “the hotelier is liable for 2% of the responsibility,” and then the hotelier gets hit with 100% of the responsibility, that is unconscionable.

Your contention that I am giving in one hand and taking with the other is factually wrong. What I and others are saying is that you “take” in accordance with the jury’s verdict – not some legal garbage of which the jury was most likely unaware. After all, why assign any percentage to the damages if it doesn’t matter in the long run?

(As for the “burden of proof” issues, I brought that up simply because you keep saying the guy got in the room via the key. You are putting forth something that is not true.)

25 spo 05.14.12 at 9:59 pm

There is only 100% of harm to go around. In comparative fault jurisdictions, it must be allocated. But there’s a problem–how do you deal with the fact that sometimes, as you concede, people have duties with respect to the harm caused by third parties. (This, I suspect is why you don’t deal with the daycare hypo.) The “why” according to the court is obvious–you don’t agree with it, but it’s still obvious–namely that the hotelier has a duty to take reasonable measures to prevent this thing from happening–if he does not, then, as the court held, it doesn’t lie in his mouth to point to what the third party did to mitigate his responsibility for preventing the third party from doing it. That’s not “legal garbage.”

As for the entry, I am not really concerned with that. Were I the defendant, I’d sure try to figure out if he did use it to gain entry. If he didn’t, then it’s possible that the victim left his room unlocked (which would increase his fault) or that the murderer pretended to be room service or something.

Once again, I think my proposed jury instruction deals with the competing issues. Allowing a defendant whose responsibility it is to deal with third party wrongdoers to point to an intentional tortfeasor’s wrongdoing seems to allow a decision based on dislike of the murderer, rather than an assessment of how well the defendant performed its duty to prevent the murder.

26 John Rohan 05.14.12 at 10:50 pm

Long term readers of Overlawyered have probably come across the term “attractive nuisance” before (here for example: http://overlawyered.com/2008/07/suit-your-milkcrates-were-an-attractive-nuisance/).

Maybe some people believe the killer saw the hotel guest as an “attractive nuisance” and no reasonable person could possibly resist robbing and killing the man. That’s the only explanation I could see for putting the hotel on the hook for the entire award.

27 Bill Alexander 05.14.12 at 11:15 pm

Unless we know if the killer actually used the master key, I can’t help but believe it has only to do with who has the deepest pockets and nothing else. If the murderer was Bill Gates, they wouldn’t bother with the hotel.

28 gitarcarver 05.15.12 at 9:57 am

spo,

Of course you don’t want to deal with the entry issue because it shows the weakness of your position even further.

As for the “day care example,” are you really trying to say that a provable, overt act of a day care center (ie handing a kid over to a non-custodial individual) is the same thing as what happened in this case? A non-overt act that was not even shown to be the cause of the killer gaining access to the victim? That is not an apples to apples comparison. That is an apples to plastic meat comparison.

I agree the hotel has a duty. The point you seem to be missing is that just because the hotel has a duty does not mean that duty was broached. In this case, you have said you don’t want to look at the background check which means that you believe the hotel did not broach their duty in that regard. The opinion states the method of entry was not known, so there is no proven broach of duty there either.

In other words, there is nothing proven that the hotel did wrong.

Once again, the jury, for whatever reason, took that “100%” and assigned only 2% of the blame to the hotelier. That is the blame that was assessed. The idea that the 2% grew by 5000% because the hotel has the deep pockets is unconscionable.

29 Jason Barney 05.15.12 at 10:22 am

Contrast the daycare hypothetical with this one: say you leave your apartment and inadvertently leave the door partly ajar and unlocked. A thief happens along and takes advantage–burglarizing your apartment. Your roommate wakes and confronts him, only to be shot to death in the process.

While the entire share of responsibility might be 1% you and 99% thief, is is equitable to hold you responsible for the entire judgment and the acts of the intentional tortfeasor caused by your mistake, or should the jury be allowed to consider the context of the situation that led to the damage and apportion fault without such apportionment later being invalidated by the Court of Appeals?

File this under, “Laws Written by Lawyers for Lawyers”.

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