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
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 party. It is in those terms that the proximate cause question must be scrutinized.
Guest Quarters argues that its conduct merely created a condition that made Rountree's death possible and that an intervening force--Rountree's alleged negligence in opening his door and confronting the three young men--broke the proximate cause chain (G.Q. Mem. 8-14). As an initial matter, there is a genuine dispute of fact about whether Rountree contributed to the escalation of violence or had his gun drawn at any point in the confrontation (Norfleet Dep. 30-33, 43; Zaragoza Dep. 7)--a dispute that under Rule 56 principles must be resolved against either of those possibilities. Hence only Rountree's opening the door, speaking to the boys and peacefully escorting them downstairs will be considered for purposes of this Rule 56 motion.
Proximate cause comprises two elements: cause in fact and legal cause. Cause in fact exists where the defendant's conduct "was a material element and a substantial factor in bringing about the injury," and legal cause exists when "the injury is of a type which a reasonable man would see as a likely result of his conduct" ( Lee v. CTA, 152 Ill. 2d 432, 455, 605 N.E.2d 493, 502-03, 178 Ill. Dec. 699 (1992)). Under Illinois law, both facets of the determination of proximate cause in those terms are usually (though not always) matters to be left to a jury ( Suzik v. Sea-Land Corp., 89 F.3d 345, 349-50 (7th Cir. 1996)):
Illinois courts are reluctant to decide proximate cause as a matter of law; and...this reluctance is heightened when the issue of proximate cause turns on whether the plaintiff's conduct was a foreseeable result of a dangerous condition created by the defendant.
* * *