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November 5, 1996

VIVIAN DeMYRICK, etc., Plaintiff,

The opinion of the court was delivered by: SHADUR

 This wrongful death and survival action stems from the fatal shooting of Rhoderick Rountree ("Rountree") on May 25, 1992. Vivian DeMyrick ("DeMyrick"), Rountree's mother and the personal representative of his estate, initially sued Guest Quarters Suite Hotels ("Guest Quarters") in the Circuit Court of Cook County, from which the case was properly removed to this District Court under diversity-of-citizenship jurisdiction. Guest Quarters then filed a third party complaint against Standard Parking Corporation ("Standard"), which was later added as a direct defendant by DeMyrick's Amended Complaint.

 Each of Guest Quarters and Standard has now moved for summary judgment against DeMyrick under Fed. R. Civ. P. ("Rule") 56, and both motions have been fully briefed. For the reasons stated in this memorandum opinion and order, Guest Quarters' motion is denied and Standard's motion is granted.

 Summary Judgment Standards

 Under familiar Rule 56 principles, a party seeking summary judgment bears the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. V. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). This Court is called upon to draw inferences in the light most favorable to the non-moving party, but it is "not required to draw every conceivable inference from the record--only those inferences that are reasonable" ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).

 To assist in resolving Rule 56 motions, this District Court's General Rule ("GR") 12(M) and 12(N) respectively require the submission of factual statements in support of and in opposition to such motions. Each party has complied with those requirements, *fn1" facilitating this opinion's ability to credit the facts asserted and adequately supported by each movant unless controverted by DeMyrick ( Stewart v. McGinnis, 5 F.3d 1031, 1034-35 (7th Cir. 1993)).


 On Sunday May 24, 1992 three youths spent the evening driving around Chicago looking for women and a place to party (G.Q. 12(M) P9). All three were in their early twenties and were friends from high school (S. 12(M) P13; Foley Dep. 5; Copeland Dep. 7). Two of the three, Christopher Babbington ("Babbington") and Christopher Foley ("Foley"), worked as car hikers for the same employer, Standard--Babbington at its Guest Quarters location and Foley (a recent hire) at another garage (S. 12(M) PP4, 7). Neither, however, was on duty that night (id. PP5, 8). Kenneth Copeland ("Copeland"), the third of the trio, had no connection to Standard (id. P11). When Copeland left his home that evening he armed himself with a gun that he had recently obtained from the street (Copeland Dep. 22-24).

 Sometime well after midnight, en route from a nightclub called The Click to the Rainbow Skating Rink, Babbington suggested that they stop by Guest Quarters (G.Q. 12(M) P9). Ostensibly Babbington wanted to check his work schedule for the following day (Foley Dep. 16, 18), but testimony (which must be credited on the current motions) indicates that the young men may have known that the music stars Hammer and Boyz II Men were staying in the hotel and were hoping to find ongoing parties connected to the groups' presence (Copeland Dep. 41).

 Upon their arrival at Guest Quarters, Babbington went to the parking garage booth near the hotel entrance to speak with the sole Standard employee on duty, Lesly Beauzile ("Beauzile") (G.Q. 12(M) P10). About the same time Copeland and Foley went into the hotel lobby, stating their intention either to locate a restroom or to "find out where the party is" or both (id. ; Beauzile Dep. 35). Babbington then also entered the hotel, where he apparently encountered one or more women who were hotel guests (Foley Dep. 19, 80; Copeland Dep. 39). Either at the invitation of the women or upon their own initiative, the three friends took the elevator to the guest floors (Foley Dep. 22-23).

 After a brief detour to another floor, the three went to the 27th floor where they began knocking on doors, looking for the women that they had seen (Foley Dep. 42; Copeland Dep. 23-24). Their knocking first roused Hammer's manager Craig Brooks ("Brooks"), who came to the door and spoke with the young men (G.Q. 12(M) P11). Brooks estimated the time to have been either 3 a.m. or 5 a.m. (Brooks Dep. 41, 87) and said that the three "definitely had been drinking" (id. 87). Brooks says that he was not concerned because they "looked like little kids," except for Copeland who seemed "suspicious" because he was leaning against the wall with his hands hidden (id. 46). Brooks told them that there were no more parties that night and shook Foley's hand before he closed the door (G.Q. 12(M) P11).

 Despite the discouragement from Brooks, the three did not leave the hotel and eventually awoke Rountree by loud talking and laughing outside his door on the 27th floor (G.Q. 12(M) PP13-14). Rountree came to the door wearing only a pair of shorts (Foley Dep. 28). Described by one of Hammer's group as having a "sumo wrestler" build (Norfleet Dep. 72), Rountree was approximately 6 feet 3 inches tall, weighed over 300 pounds (Jones Dep. 32) and was employed as Boyz II Men's road manager, a position that entailed overseeing the group's security (G.Q. 12(M) P8). Rountree asked Babbington to show identification to prove that he worked for the hotel (Copeland Dep. 50-53), and Rountree then told the three to wait outside the door while he got something from his room (G.Q. 12(M) P15).

 As Babbington, Foley and Copeland instead walked to the elevator, Rountree followed and caught up with them just as the elevator doors were closing (id. P16). It is disputed whether Rountree then had an automatic gun drawn (Foley Dep. 30, 95; El-Amin Dep. 135; Norfleet Dep. 43). On the way to the elevator Copeland handed the gun that he had been carrying to Babbington (S. 12(M) P 12), something that Copeland thought might avoid trouble if they encountered security because Babbington knew the security employees and "they probably won't mess with him" (Copeland Dep. 54). Both Copeland and Foley say that immediately upon entering the elevator Rountree hit all three boys with both his gun and fists as they rode to the 26th floor (Foley Dep. 31, Copeland Dep. 58).

 Once they arrived at the 26th floor, Rountree shouted for his assistant, Quadree El-Amin ("El-Amin"), whose room was on that floor (G.Q. 12(M) P17). El-Amin told the woman staying in his room to call security and joined the four men in the elevator (id. P18). According to El-Amin, Rountree told him that the three young men had tried to break into his room, and El-Amin responded that they should escort the boys to hotel security (El-Amin Dep. 127-28, 131). El-Amin also says that he did not notice a weapon in Rountree's hand and that one of the men was kneeling, although none appeared to be bleeding or hurt (id. 131, 135). Copeland and Foley tell a different version, in which Rountree attempted to drag the three boys to the stairwell on the twenty-sixth floor while El-Amin joined in the assault (Foley Dep. 33-40; Copeland Dep. 60-65).

 What is undisputed is that at some point all five men entered the elevator, where a struggle ensued and Babbington shot and killed Rountree (G.Q. 12(M) P19; S. 12(M) P2). Panic-stricken, the three young men raced down 26 flights of stairs and fled the premises in their car (Foley Dep. 41-44; Copeland Dep. 68-69).

 Guest Quarters' Motion

 Under Illinois law *fn2" a plaintiff in tort must establish defendants' duty of care owed to plaintiff, a breach of that duty and an injury proximately caused by that breach ( Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 421, 592 N.E.2d 1098, 1100, 170 Ill. Dec. 418 (1992)). Here, however, Guest Quarters limits its discussion to the issue of proximate cause and to a claim of Rountree's contributory negligence, denying only cursorily that it breached any duty owed to Rountree (G.Q. Mem. 8 and R. Mem. 7). That could well entitle this Court to treat the issues of duty and breach as effectively waived for purposes of this motion.

 For analytical purposes, though, Guest Quarters gets better than it deserves, for in the course of resolving the proximate cause issue this Court must perforce examine just what action or inaction by Guest Quarters may be labeled as "negligent"--that is, as something from which the proximate cause chain could properly extend. Accordingly, this opinion briefly discusses a hotel's duty to its guests under Illinois law in light of the facts of this case, before it turns to the issues of proximate cause and contributory negligence.

 Duty and Breach

 In terms of the hotel-guest relationship in Illinois, "whether or not defendants have a duty to protect plaintiff from independent, intervening criminal acts of third persons depends upon whether such acts are foreseeable" ( Mrzlak v. Ettinger, 25 Ill. App. 3d 706, 709, 323 N.E.2d 796, 798 (1st Dist. 1975)). More specifically, "where an assault upon a guest by a third party is involved...the hotel is held to a high degree of care" ( id. at 712, 323 N.E.2d at 800). Guest Quarters clearly owed Rountree a duty to protect him from foreseeable criminal attack.

 Guest Quarters assumes arguendo that it breached its duty. To flesh out that assumption, this opinion looks to the security measures described in the record, viewed in the light most favorable to DeMyrick as Rule 56 requires. Despite Guest Quarters' knowledge that two famous groups were staying in the hotel (Nichols Dep. 16-17) and that its own employees had requested additional security due to problems the night before (Winn Dep. 17-19), Guest Quarters had only one security employee on duty that night (id. at 16). Indeed, even that employee had no prior experience in security (DeBerry Dep. 14) and had previously requested another employee's company to walk the halls, taking him away from his post (Winn Dep. 28-29). Entrances to the hotel were not continuously monitored either via the surveillance cameras (Benolken Dep. 70-71) or by ensuring that someone was always stationed at the front desk with a view of the lobby (Winn Dep. 46-47). Finally, key checks were not performed to restrict access to guest rooms to persons staying in the hotel (id. 33-35; Brooks Dep. 72).

 For present purposes, then, Guest Quarters' breach of duty may be framed this way: Its inadequate security measures failed to prevent Foley, Babbington and Copeland from gaining access to the upper (guest) floors and further failed to provide intervention when the three of them bothered sleeping guests in their search for a ...

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