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Andrews v. Marriott International, Inc.

Court of Appeals of Illinois, First District, Second Division

September 6, 2016

ERIN ANDREWS, Plaintiff-Appellant,
v.
MARRIOTT INTERNATIONAL, INC., a Delaware Corporation; WEST END HOTEL PARTNERS, LLC, d/b/a Nashville Marriott at Vanderbilt University, a Delaware Limited Liability Company; WINDSOR CAPITAL GROUP, INC., a Colorado Corporation; RADISSON HOTELS INTERNATIONAL, INC., a Delaware Corporation; ASREL, INC., d/b/a Radisson Hotel Milwaukee Airport, a Wisconsin Corporation; THE OHIO STATE UNIVERSITY, d/b/a The Blackwell Inn; and MICHAEL DAVID BARRETT, an Individual, Defendants (Preferred Hotel Group, Inc., d/b/a Summit Hotels and Resorts, a Delaware Corporation, Defendant-Appellee).

          Rule 23 order filed Rule 23 order: August 23, 2016

          Rule 23 order withdrawn: September 1, 2016

         Appeal from the Circuit Court of Cook County, No. 10-L-8186; the Hon. Kathy Flanagan, Judge, presiding.

          Power Rogers & Smith, P.C., of Chicago (Sean M. Houlihan, of counsel), and Greene Broillet & Wheeler, of Santa Monica, California (Bruce A. Broillet, Scott H. Carr, Alan Van Gelder, and Tobin M. Lanzetta, of counsel), for appellant.

          Pretzel & Stouffer, Chtrd., of Chicago (Robert Marc Chemers and Scott L. Howie, of counsel), for appellee.

          Panel PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion., Justices Neville and Hyman concurred in the judgment and opinion.

          OPINION

          PIERCE PRESIDING, JUSTICE

         ¶ 1 In 2008, while plaintiff, Erin Andrews, was a guest of The Blackwell Inn (Blackwell), she was secretly recorded on video in the privacy of her hotel room by another guest, Michael David Barrett. Plaintiff filed this action sounding in negligence and invasion of privacy against defendant, Preferred Hotel Group (Preferred), [1] the service provider of Blackwell's online reservation system, for, among other things, Blackwell's disclosure of the details of her hotel stay to Barrett. Plaintiff's theory of liability is that Preferred was either (1) engaged in a joint venture operation of the hotel or (2) voluntarily assumed a duty to protect plaintiff's privacy. Preferred moved to dismiss the complaint pursuant to sections 2-615 and 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619(a)(9) (West 2010)) arguing that it did not owe a duty to plaintiff and was not engaged in a joint venture to operate Blackwell. After two years of discovery, the circuit court granted Preferred's section 2-619(a)(9) motion to dismiss. Plaintiff appeals from the dismissal, which we affirm for the following reasons.

         ¶ 2 BACKGROUND

         ¶ 3 Relevant to plaintiff's claims against Preferred, the following facts are taken from the complaint. On February 4, 2008, Andrews was a guest at Blackwell located in Columbus, Ohio. Blackwell is owned and operated by Ohio State University (OSU). In the days leading up to her hotel stay, Illinois resident Michael David Barrett contacted Blackwell by phone to confirm that Andrews was staying at the hotel and asked to be assigned the room next door to her. Blackwell granted Barrett's requests. After checking into the hotel on February 4, Barrett retrofitted the peephole on Andrew's hotel room door. In doing so, he was able to record video of her activities in the room, including changing and dressing. Eventually, he posted these videos on the Internet.

         ¶ 4 Defendant Preferred is a corporation with its principal place of business in Chicago, Illinois. It provides marketing, sales and reservation services to its network of hotels for a fee. Blackwell is a member of Preferred's network and utilizes Preferred's marketing and Internet reservation services. Andrews alleged that Preferred is liable for Blackwell's staff disclosing her hotel stay and room number to Barrett and assigning him the room next door to her, without her prior consent thereby allowing him to engage in his tortious activities.

         ¶ 5 Plaintiff's theory of liability is that Preferred "owned, operated, controlled, maintained, managed, supervised, handled reservations for and/or were otherwise responsible for The Blackwell Inn" and that Blackwell "was the agent and/or joint venture of Preferred *** acting within the course, scope and authority of said agency and/or venture." Preferred "had a duty to exercise reasonable and ordinary care and action in and about the ownership, management, maintenance, supervision, control and operation of Blackwell and its reservation system, and each of their employees, agents, servants and independent contractors, all to the benefit of the guests." Preferred was "negligent in the selection, hiring, training and supervision of each and every other defendant as an agent and/or joint venturer." Plaintiff also alleged that Preferred and OSU were associated with the purpose of "carrying out a specific enterprise for profit." Preferred and OSU had a community of interest and proprietary interest in Blackwell; Preferred had a right to govern the hotel's policies and share in the hotel's profits and losses. Based on this theory, plaintiff alleged claims against Preferred for negligent infliction of emotional distress and invasion of privacy.

         ¶ 6 In response to the complaint, Preferred filed a hybrid motion to dismiss under section 2-619.1 of the Code, which permits a party to combine a section 2-615 motion to dismiss with a section 2-619 motion to dismiss. 735 ILCS 5/2-619.1 (West 2010). Preferred argued that the claims must be dismissed pursuant to section 2-615 of the Code because plaintiff failed to allege sufficient facts to support the conclusory allegation that Preferred owed plaintiff a legal duty. Preferred also argued dismissal of the claims pursuant to section 2-619(a)(9) of the Code because Preferred did not owe a duty to plaintiff for the acts of Blackwell's staff, there was no principal-agent or joint venture relationship between Preferred and Blackwell and Preferred had no knowledge that Andrews was a guest at the hotel.

         ¶ 7 Attached to Preferred's motion to dismiss was a written agreement governing the relationship between Preferred and OSU. The preamble to the agreement provides that Preferred "is a service organization designed to provide marketing, sales and reservation services to member hotels." In return for these services, Blackwell pays membership and booking fees to Preferred, it agrees to "conform strictly" with Preferred's "Quality Assurance Program" (Standards of Excellence) and allows Preferred "to evaluate the quality of the property and related services rendered at the hotel *** from time to time *** and bear the cost of these evaluations." The agreement explains that Preferred will invoice Blackwell every 30 days for any amounts owed and if any amounts remain unpaid after 60 days, Preferred has the right to suspend all services and charge 1.5% per month on the unpaid sums.

         ¶ 8 The affidavit of Xen Riggs, the associate vice president of administration and planning at OSU, was also attached to Preferred's motion to dismiss. In this affidavit, Mr. Riggs attested that Blackwell is owned by OSU, its operations are governed by OSU's board of trustees and it is managed by OSU's office of administration and planning. Blackwell runs a deficit, but if it were to make a profit, any profit would solely benefit OSU. Preferred does not have any employees at Blackwell, does not handle any phone calls to Blackwell, and does not have any involvement in the operations or management of Blackwell.

         ¶ 9 Also supporting Preferred's motion was the affidavit of Ken Mastrandrea, Preferred's executive managing director of corporate operations. Mr. Mastrandrea averred that Preferred provides online hotel reservation services to Blackwell via Preferred's Internet booking engine (iBook). Blackwell maintains a link to iBook on its website. Preferred's involvement with reservations made with Blackwell are limited to those made through the iBook platform. A guest inputs the reservation information into iBook, which then electronically sends the reservation request to Blackwell's computer system, and if accepted, the guest receives electronic confirmation including the room rate and type. Preferred's involvement with reservations at Blackwell is limited to providing the platform for the electronic transmittal of reservation confirmation to and from the hotel and its guests via the Internet. If room reservations are made other than through iBook, Preferred does not have access to any guest identity or information. Preferred never has had access to Blackwell's guest list or any guest's room number. Preferred has no access to any information regarding guests who booked their rooms directly through the hotel or through any other means. Because Preferred does not have access to guest identities or guest room numbers, if someone called their office requesting this information, Preferred could not give the caller any such information.

         ¶ 10 Mr. Mastrandrea also attested that Preferred has no ownership interest in the hotel and does not share in its profits or losses. Preferred charges Blackwell a fee for membership in the network and for its booking services. Preferred has no involvement in the operation or management of its member hotels, including Blackwell's policies and procedures regarding safety and/or privacy. There are no "Preferred" employees at Blackwell or any of its member hotels and it does not handle phone calls placed to the member hotels. According to Preferred's records, Andrews's reservation was not made through Preferred's system, and therefore, it had no knowledge that Andrews was a guest at the hotel. Barrett made a reservation through iBook on Blackwell's website for which Preferred was paid a service fee. However, Preferred's ...


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