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Yamada v. Hilton Hotel Corp.





APPEAL from the Circuit Court of Cook County; the Hon. HARRY G. HERSHENSON, Judge, presiding. MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Carol Ranko Yamada and Mabel Okubo, administrator of the estate of Evelyn Okubo, filed suit to recover for injuries sustained by Carol and for the death of Evelyn resulting from slashings inflicted by an assailant while the women were staying at the Palmer House, a hotel owned and operated by the defendant, Hilton Hotel Corporation. A jury returned general verdicts in favor of the defendant, and the circuit court of Cook County entered judgment on the verdicts. Plaintiffs appeal.

Count I of plaintiffs' second amended complaint, upon which the suit was tried, alleged that it was the duty of defendant to exercise a high degree of care for plaintiffs' safety. It further charged that this duty was breached by defendant's failure to equip its rooms with adequate security devices and its failure to maintain an adequate system of surveillance throughout the common areas of the hotel. Plaintiffs alleged that either or both of these negligent omissions constituted the proximate cause of their injuries. Count II, charging defendant with a breach of express and implied warranties relating to security, was withdrawn by the plaintiffs shortly before the case was submitted to the jury.

In July 1970, Carol and Evelyn came to Chicago as representatives of the Stockton, California, chapter of the Japanese American Citizens League (hereinafter the "JACL") to attend a JACL convention at the Palmer House. Carol, Evelyn and a third JACL member, Patti Iwataki, stayed together in Room 725.

On the day of the occurrence, July 16, Carol gave a 4 1/2 hour presentation to the convention. It dealt, in part, with the bombings of Hiroshima and Nagasaki. That evening Evelyn attended a convention dinner at the Hilton Hotel. She returned to the Palmer House at approximately 9:30 p.m. and went to Room 862. Carol and Patti were there visiting with some friends. Evelyn stayed for a half hour and returned to their room. About 30 minutes later, Carol went to the room to get a radio and to see if Evelyn would rejoin them. Carol had a key to the room, but could not remember whether she had asked Patti for the key. On one prior occasion, Patti had chastised Carol for leaving her key in the door to their room.

Carol knocked on the door of their room but received no answer. She opened the door with her key, entered the room, took the key out of the door and closed it. As she entered the vestibule of the room she saw Evelyn's naked body on the floor. Evelyn was on her back, her hands were tied behind her and she had a pillow over her head. Carol stopped and a man came out from behind the wall on her left side and grabbed her. She described him as tall, black, naked and having a long, uneven messy afro hair style. He forced Carol to lie down and tied her hands behind her back. He cut off her clothes and covered her head with a sheet. He also tied her feet. He turned her on her back. Carol heard a noise and the man arose and began moving around the room. Carol heard him take Evelyn into the bathroom and could hear Evelyn struggling as she was put into the bathtub. Evelyn screamed once and then it was silent. The man dragged Carol to the vestibule opposite the bathroom door. When he came out of the bathroom, Carol heard the rustling of clothes as if the man was dressing. He came over to her, lifted the sheet, and cut her throat. She saw him briefly and then closed her eyes pretending to be dead. She believed he was wearing blue jeans and a dark colored shirt.

After the man left, Carol dragged herself or hopped over to the door. She had managed to partially untie her hands. She locked the door by turning something other than the knob. Defendant's security officer and office manager testified that when the door is closed, it is locked and the only way to double lock it is to use the key on the inside. A photograph taken of the room after the occurrence shows that there was no key in the door and nothing other than the knob to turn.

Carol tried to untie her legs but was unable to do so. She went to the telephone but could not speak to the operator. The operator could not tell from which room the call was coming. Carol began writing notes. Among them were the following: "he's black w/a natural," "it looks gory but there's no pain," and "don't blame him it is not his fault." She testified that she wrote the notes because she thought she was dying and did not want her family to think her death had been painful.

Carol then dragged herself to the door and banged on the wall with a shoe. When no one came, she went to the bathroom to find something to cut the cords binding her ankles. She was in the bathroom holding a razorblade when Patti entered the room. Upon seeing Carol with the blade in her hand and blood streaming down her neck, Patti said, "Why did you do it?" Carol pulled her over to the notes to show her what she had written. Help arrived and Carol was taken to the hospital. The assailant did not rape Carol or Evelyn.

The Palmer House has 24 floors above street level and 2,144 guest rooms. There is an arcade at street level which can be reached through any of three public entrances. Automatically operated elevators at the street level go to all guest room floors. These elevators also go down to a lower arcade. The stores in the arcade level close at 10 p.m., but public access to the arcade continues through the street level entrances.

Frank Lopez, an expert witness for plaintiffs, became chief of security at the Palmer House in July 1970 and left its employ in May 1971. The Palmer House security force consisted of five men in each of three daily shifts. Three of the five men were given stationary positions, none of which were located at the street level entrances. The other two men patrolled all floors of the hotel. During the period between January 1 and July 16, 1970, there were several incidents of illegal entries of guest rooms by "undesirables." Lopez was of the opinion that a black man in jeans and with a messy afro would be considered a potential undesirable and would be challenged if observed by a security officer. Leonard Mackiewicz, a former security officer for the Palmer House, testified that the term "undesirable" would include any person causing a disturbance, prostitutes, and people who were not clothed properly. The term also would include anyone who looked suspicious to the witness.

Lopez recommended to management that additional men and an augmented security program were necessary, given the size of the Palmer House and the number of illegal entries in the recent past. He believed that it would have taken 15 to 20 men per shift to provide adequate security for hotel guests. Prior to the present occurrence, Lopez recommended that the security staff be increased to eight men per shift. He asked for a smaller increase because he felt that management would be more receptive to the proposal. As of July 16, 1970, his request had not been granted.

We shall first consider defendant's contention that, regardless of any error committed in the trial court, the judgment must be affirmed because plaintiffs failed to make out a sufficient case to warrant submission of the issue of defendant's liability to the jury. In support thereof, defendant argues that plaintiffs presented no competent evidence which would support a reasonable inference that the injuries were in any way proximately caused by defendant's negligence. Defendant contends that any verdict finding it liable would be based on speculation and conjecture.

• 1, 2 While we agree with defendant that there are other possible theories as to how plaintiffs' assailant gained access to their room, some unrelated to any negligence on defendant's part, we do not believe the trial court properly could have granted defendant's motion for a directed verdict. When received in the light most favorable to plaintiffs, American National Bank & Trust Co. v. Peoples Gas Light & Coke Co. (1963), 42 Ill. App.2d 163, 191 N.E.2d 628, the evidence presented at trial, including the testimony of Frank Lopez as to the inadequacy of the security and that of Carol Yamada describing the assailant, presented a question of fact for the jury. Particularly in such cases where the presentation of direct evidence is impossible, courts> have been reluctant to conclude that a verdict based upon circumstantial evidence cannot be upheld. This is so even though a contrary verdict could have been reached based upon the same circumstantial evidence. (See Pearson v. Ford Motor Co. (1975), 32 Ill. App.3d 188, 336 N.E.2d 528; Justice v. Justice (1969), 114 Ill. App.2d 254, 252 N.E.2d 493; Olsen v. Pigott (1963), 39 Ill. App.2d 191, 188 N.E.2d 361.) Only when there is a complete absence of probative facts supporting an inference can it be said that such inference is clearly unreasonable. (Justice v. Justice.) A verdict for plaintiffs could be upheld.

Plaintiffs contend that several erroneous evidentiary rulings by the trial court, solely or cumulatively, constituted prejudicial error against them and mandate a new trial. Plaintiffs maintain that defense counsel was in error in examining Patti as a hostile witness at the time of her deposition. After a discovery deposition her evidence deposition was taken in California some time prior to trial. The error was compounded, plaintiffs urge, when defense ...

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