Date: 02-07-2018

Case Style:

Case Number: 14-2298

Judge: Torruella

Court: United States Court of Appeals for the First Circuit on appeal from the District of Rhode Island (Providence County)

Plaintiff's Attorney: Jesse Duarte

Defendant's Attorney: Geoffrey W. Millson

Description: During the early hours of
August 24, 2014, an unidentified group of individuals assaulted
Appellant Henry Mu ("Mu") in the lobby of the Omni Providence Hotel
(the "Hotel"), which Appellee Omni Hotels Management Corporation
("Omni") operates. Mu sued Omni for negligence. The district
court granted summary judgment to Omni, finding Mu's claims
deficient with respect to three elements of negligence: duty,
breach, and causation. We, however, conclude otherwise, finding
that Mu's negligence claim was sufficient to withstand summary
judgment. Accordingly, we reverse the district court's order
granting summary judgment to Omni.
I. Background
We view the facts in the summary judgment record in the
light most favorable to Mu, and draw all reasonable inferences in
his favor. See Alt. Sys. Concepts, Inc. v. Synopsys, Inc., 374
F.3d 23, 26 (1st Cir. 2004).
A. Factual Background
During the relevant period of time, Mu lived in "The
Residences," a luxury condominium complex adjoined to the Hotel.
As the owner of a condo at The Residences, Mu enjoyed access to a
number of the Hotel's services and amenities, including its fitness
center and valet parking service. As a result, Mu visited the
Hotel on a near-daily basis.
-4-
On August 24, 2014, at 2:10 a.m., the Hotel's front desk
received a call complaining of a party on the fourth floor.
According to the Hotel's records, the caller expressed his belief
that "the kids are smoking pot in the next room." The caller
further indicated that the room's occupants were "being very loud,"
and that "there are more loud teenagers on the 25th floor." In
response to this call, two Hotel security guards knocked on the
door of room 407 of the Hotel, where they encountered approximately
twenty individuals inside. The room's registered guest was not
among these individuals, and the Hotel does not allow multiple
unrelated people to occupy a room when a registered guest is not
present. Therefore, the two security guards evicted the room's
occupants from the Hotel, escorting them off the premises. The
security guards then returned to the Hotel.
During this time, the Hotel's valet, Danny Lebrón
("Lebrón") was working in front of the Hotel. He observed
"approximately a dozen young people (mostly male) leave the front
door of the hotel with hotel security behind them." Lebrón watched
the group leave the Hotel's property, and walk down the street and
out of his sight. But, according to Lebrón, the group, now having
obtained a case of beer, soon returned to the Hotel's driveway,
where they "were being rowdy." Lebrón watched a fight break out
between members of the group, "with punches thrown and much
-5-
shouting." After the fight had concluded, Mu came down from his
condominium to the Hotel's driveway to wait for his girlfriend,
who was coming to see Mu and intended to valet her car.
Mu chatted with Lebrón while he waited for his girlfriend
to arrive. As he stood in front of the Hotel, Mu observed a "bunch
of kids" coming in and out of the front door to the Hotel's lobby.
He then observed this group -- which he estimated to have roughly
twenty members -- "trying to get into an altercation with [another]
kid." These efforts included the group using racial epithets
against that individual, whom Mu described as African-American.
The target of the group's harassment ultimately walked away from
the group and out of Mu and Lebrón's sight, but the group pursued
him. Mu then told Lebrón to go get help, but Lebrón responded
"[T]hat's not my problem." Next, Mu heard what "sounded like some
type of fight . . . or an altercation going on." Afterwards, the
group of kids "all c[ame] . . . storming out . . . celebrating
. . . like they just beat up some kid." Lebrón then left Mu to
park a car, and Mu, fearing for his own safety, made towards the
Hotel's lobby.
Mu entered the lobby, and the group of kids stormed in
behind him. Mu informed the concierge that the group was fighting
outside, and told her that she needed to eject them from Hotel's
property and call the police. The group then confronted Mu and
-6-
began to punch, shove, and kick him. Mu estimates that between
five and seven members of the group participated in attacking him.
Ultimately, two members of the group held him down, and a third
threw a table at him. The group then fled. Mu remembers one of
Hotel's employees -- either a security guard or a doorman -- urging
him to go home. Though Mu wanted to stay at the Hotel to speak
to the police, whom he believed to be en route, he ultimately
acquiesced and went home. A doctor later diagnosed Mu with a
broken arm.
Mu returned to the Hotel the day after his assault.1
The Hotel's head of security, Shannon Earle ("Earle"), informed Mu
that while the police had come to the Hotel following his assault,
Mu would have to contact the police himself to make a report. Mu
also inquired about the security cameras in the Hotel's lobby,
where the assault occurred. Earle responded that because of
ongoing construction, the cameras had not been working. Indeed,
the security shift report from that date indicates that six of the
Hotel's security cameras were non-functional. The record,
however, does contain some indicia to the contrary. One of the
1 Mu's attack took place between 2:00 and 3:00 a.m. on August 24,
2014, and he went home afterwards. Mu stated in his deposition
that he returned to the Omni "the next day." While not material
to the issues before us, we note that the record is unclear as to
whether Mu returned to the Omni later on the 24th, or on the 25th.
-7-
on-duty security guards at the time of Mu's assault prepared an
incident report on August 24, 2014, which Earle reviewed on
August 29, 2014. That report explains that "[c]amera footage from
DVR 1 from the times stated were [sic] inconclusive as to what
exactly had occurred and was also not able to properly identify
any individuals involved."
B. Procedural History
Mu filed a complaint in Rhode Island Superior Court on
April 14, 2015, alleging negligence against Omni and battery
against his unknown assailants. On May 7, 2015, Omni filed a
notice of removal to federal court in the District of Rhode Island,
based on the parties' diversity of citizenship. See 28 U.S.C.
§ 1332. Mu did not challenge removal. Both parties consented to
jurisdiction by a United States magistrate judge, and Omni then
moved for summary judgment.
After a hearing -- during which Mu indicated that he did
not intend to pursue his battery claim -- the magistrate judge
sitting as the district court granted Omni's motion for summary
judgment. The district court first held that because his attack
was not foreseeable, Omni had no legal duty to prevent the harm
that Mu suffered. According to the court, Mu also failed to
provide sufficient evidence establishing the applicable standard
of care and Omni's breach of that standard. So too, the district
-8-
court added, did Mu fail to "demonstrate that his injury was the
'natural and probable' consequence of any specific act of alleged
negligence."
The district court also dismissed Mu's argument that the
incident report referring to "[c]amera footage from DVR 1,"
combined with Omni's contention that no footage of Mu's assault
existed, suggested that Omni had despoiled that evidence. Rather,
it explained that "[w]hile the record is confusing, Plaintiff's
evidence permits the inference that whatever cameras the [Hotel]
may have had surveilling its premises were not adequate to record
the incident."
After granting summary judgment for Omni, the district
court gave Mu thirty days to show cause as to why summary judgment
would not also be proper against the still-unidentified defendants
to his battery claim. See Fed. R. Civ. P. 56(f). Mu did not
respond to that order. The district court therefore entered a
final judgment dismissing Mu's claims against all defendants. Mu
appeals that judgment.
II. Analysis
We review a district court's grant of summary judgment
de novo, construing the facts and making all reasonable inferences
in favor of the nonmoving party. Borges ex rel. S.M.B.W. v.
Serrano-Isern, 605 F.3d 1, 4 (1st Cir. 2010). "Summary judgment
-9-
is appropriate if there is no genuine issue as to any material
fact and the undisputed facts show that the moving party is
entitled to judgment as a matter of law." Id. (citing Fed. R.
Civ. P. 56(c)(2)) An issue is "genuine" when a rational factfinder
could resolve it either direction. Id. A fact is "material" when
its (non)existence could change a case's outcome. Id. at 5.
Because this is a diversity case, Rhode Island law
provides the substantive rules of decision. See Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938). The law of Rhode Island is not
anomalous in that "[i]n setting forth a negligence claim, 'a
plaintiff must establish a legally cognizable duty owed by a
defendant to a plaintiff, a breach of that duty, proximate
causation between the conduct and the resulting injury, and the
actual loss or damage.'" Berard v. HCP, Inc., 64 A.3d 1215, 1218
(R.I. 2013) (quoting Holley v. Argonaut Holdings, Inc., 968 A.2d
271, 274 (R.I. 2009)).
On appeal, Mu argues that the district court erred in
holding that, for summary judgment purposes: (1) Omni owed him no
legal duty; (2) he failed to make out the relevant standard of
care and show a breach of that standard; (3) he failed to show
causation; and (4) his allegations of evidentiary spoliation did
not warrant a negative inference in his favor.2
2 Mu appeals the district court's entry of judgment on his
-10-
A. Omni's duty towards Mu
We first address the district court's determination that
Omni did not owe Mu any duty of care. In Rhode Island, the
existence of a legal duty is a pure question of law. Volpe v.
Gallagher, 821 A.2d 699, 705 (R.I. 2003) (quoting Kuzniar v. Keach,
709 A.2d 1050, 1055 (R.I. 1998)). Because no "clear-cut formula
. . . exists for making this determination," courts employ an ad
hoc approach to deciding whether a particular duty exists. Id.
(internal quotation marks omitted). The Rhode Island Supreme
Court has highlighted five relevant factors to consider:
(1) the foreseeability of harm to the plaintiff, (2)
the degree of certainty that the plaintiff suffered
an injury, (3) the closeness of connection between
the defendant's conduct and the injury suffered, (4)
the policy of preventing future harm, and (5) the
extent of the burden to the defendant and the
consequences to the community for imposing a duty to
exercise care with resulting liability for breach.
Gushlaw v. Milner, 42 A.3d 1245, 1256-57 (R.I. 2012) (quoting
Ferreira v. Strack, 652 A.2d 965, 967-68 (R.I. 1995)). The
"relationship between the parties" is also relevant, though it is
negligence claim against Omni and his battery claim against his
unidentified assailants. However, Mu indicated before the district
court that he did not intend to pursue the battery claim, failed
to respond to the district court's show cause order, and does not
address that claim in his brief here. We therefore treat Mu's
battery claim as abandoned. See Wilson v. Moulison N. Corp., 639
F.3d 1, 6 (1st Cir. 2011).
-11-
not entirely clear how it interacts with these five factors.3 See
id. at 1256-57 (quoting Selwyn v. Ward, 879 A.2d 882, 887 (R.I.
2005)). Indeed, in cases involving liability for the acts of a
third party, courts take into account whether a "special
relationship" existed either between the defendant and the third
party or the defendant and the victim of the third party's conduct.
Id. at 1256 (quoting Santana v. Rainbow Cleaners, Inc., 969 A.2d
653, 658 (R.I. 2009)).
Among the factors relevant to this analysis,
foreseeability is the "linchpin in determining the existence of
any duty." Splendorio v. Bilray Demolition Co., 682 A.2d 461, 466
(R.I. 1996). And to be clear, "the specific kind of harm need not
be foreseeable as long as it was foreseeable that there would be
harm from the act which constituted the negligence, provided it
was foreseeable that there would be violence toward others."
3 The district court treated finding a special relationship as a
precondition to analyzing the five other factors that Gushlaw sets
out. But, this hierarchy is not particularly clear from Gushlaw
itself, or the cases it cites. See 42 A.3d at 1252-57 (first
discussing a special relationship as a necessary condition for
liability, then discussing the five factors to consider amid the
"ad hoc" duty analysis, and then finally noting that "[t]he
'relationship between the parties' is likewise considered in our
duty analysis" (quoting Selwyn v. Ward, 879 A.2d 882, 887 (R.I.
2005))). We, however, do not need to take up the question of the
correct hierarchy of factors here, because it is undisputed that
Omni had a special relationship with Mu.
-12-
Martin v. Marciano, 871 A.2d 911, 917 (R.I. 2005) (internal
quotation marks omitted).
The district court found that Omni did not have a special
relationship with Mu's attackers that would make it responsible
for their behavior. But, it did find that Omni had a special
relationship to Mu as the "possessor of land that holds the land
open to the public/member of the public," and because Mu was a
member of the public. On appeal, Omni has also conceded as much.
Having found a special relationship, the district court
then turned to the question of foreseeability. It characterized
the relevant inquiry as whether Omni had "a legal duty to protect
[Mu], a member of the public, from an attack spontaneously
committed by third parties who followed him from the [Hotel's]
driveway area into its lobby." Emphasizing that Mu "presented no
competent evidence of any prior criminal activity in or near the
[Hotel]," and that it was similarly unforeseeable that "the
specific rowdy group evicted from Room 407 would spontaneously
attack [Mu] in the [Hotel's] lobby," it declined to find such a
duty. Among other things, the district court explained that
"throughout the time that Omni was aware of this group, the group
committed no crimes or acts of violence resulting in personal
injury." It added that "while the [Hotel's] parking valet watched
-13-
them punching and chasing each other, they did not interfere with
him or any of the [Hotel's] guests he was serving."
In defending the district court's holding, Omni
highlights that "Rhode Island courts have not considered whether
to impose a duty of care on a hotel to protect against spontaneous
criminal conduct by a third party in the lobby." It then cites a
handful of cases illustrating, according to Omni, that Rhode Island
courts "resoundingly have rejected the proposition that a
defendant has a duty to protect persons from harm caused by the
spontaneous criminal acts of an unrelated third party, in the
absence of strong and direct evidence of foreseeability." See
Ouch v. Khea, 963 A.2d 630, 633 (R.I. 2009) (gang-member driver of
automobile had no duty to protect gang-member passenger from the
intentional criminal acts of a rival street gang); Thanadabouth v.
Kongmany, 712 A.2d 879, 879-80 (R.I. 1998) (landlord had no duty
to protect tenants from criminal acts of third parties on premises
located in high crime area, but on which "no prior criminal
activity . . . concerning either party" had taken place); Ferreira
v. Strack, 636 A.2d 682, 685-86 (R.I. 1994) (owner of premises
abutting a public way had no duty to control traffic, including
drunk drivers, on that public way); Banks v. Bowen's Landing Corp.,
522 A.2d 1222, 1225 (R.I. 1987) (owner of wharf did not have duty
to post signs warning of the danger of diving off of that wharf,
-14-
or to erect barriers to prevent individuals from doing so). In
addition, Omni continues, largely for the same reasons the district
court identified, the sequence of events leading up to Mu's attack
similarly failed to make that attack foreseeable. Nothing, Omni
asserts, suggested "that the people that attacked Mr. Mu posed a
threat to hotel guests or other members of the public."
Mu admits that he did not introduce any evidence of
similar attacks in the vicinity predating his own. But, he avers
that evidence of that sort is unnecessary to establish a duty when
the record shows that "at least four of Omni's agents were aware
of the group's violent and illegal conduct during the thirty-five
minute period before the attack." In arguing that this made his
attack sufficiently foreseeable to give rise to a legal duty, Mu
brings three decisions from beyond Rhode Island to our attention.
In Gould v. Taco Bell, 722 P.2d 511, 513-14 (Kan. 1986),
patrons of a fast food restaurant verbally accosted and then
assaulted the plaintiff first inside the restaurant, and then again
in the parking lot. The employee who watched these events unfold
resisted calling the police, and only did so after the altercation
had spilled outside, and a friend of the plaintiff threatened to
jump over the restaurant's counter and call the police herself.
Id. at 514. Evidence also indicated that this employee had
recognized the plaintiff's attacker from a similar incident at the
-15-
same restaurant two weeks earlier. Id. at 518. The court held
that the evidence established a "sequence of conduct" sufficient
to impose a duty upon the restaurant to protect the plaintiff from
the danger that her attacker threatened. Id. at 516.
Similarly, in Cotterhill v. Bafile, 865 P.2d 120, 122
(Ariz. Ct. App. 1993), the court overturned the trial court's
judgment notwithstanding the verdict in favor of the defendant and
ordered a new trial to determine the defendant's liability for an
assault that occurred at the bar he owned. The court observed
that prior to the fight breaking out, "bad feelings" between the
plaintiff and his assailants "persisted for 10 to 15 minutes,
including loud and hostile verbal exchanges among several men."
Id. "However," the court noted, "the bartender did not attempt
to calm the situation, ask anyone to leave, threaten to call the
police[,] or call the police during that time." Id. Thus, a
"reasonable jury could have inferred that the probability of a
fight was evident for several minutes before it occurred, and that
the bartender neglected to take reasonable action to avert
violence." Id.
And finally, in Mills v. White Castle System, Inc., 421
N.W. 2d 631, 632 (Mich. Ct. App. 1988), the plaintiffs parked in
the defendant's parking lot, where they noticed a group of seven
or eight people "drinking alcohol, using obscenities[,] and
-16-
'noticeably acting like disorderly persons.'" Forty minutes
later, that group attacked the plaintiffs upon exiting the
defendant's business. Id. During the attack, one of the
plaintiffs' friends reentered the defendant's business and asked
the manager to call the police. Id. But the manager refused, and
instructed the friend to use a public phone across the street.
Id. at 632-33. The court found that these facts could amount to
"a breach of defendant's duty to exercise reasonable care for its
invitees' protection," emphasizing that "defendant was in a
position to control the unruly patrons' actions or to eject them
from its premises." Id. at 634.
By way of comparison, and as became apparent during oral
argument, our own decision in Woods-Leber v. Hyatt Hotels of P.R.,
Inc., 124 F.3d 47 (1st Cir. 1997), also proves instructive here.
There, a hotel patron claimed negligence after suffering a bite
from a rabid mongoose that had suddenly appeared around the pool
area where she lay sunbathing. Id. at 49. We found that
unfortunate occurrence to have been unforeseeable to the defendant
hotel. Id. at 51. The hotel's staff had never seen a mongoose
on the premises before. Id. Nor was anyone at the hotel aware
of the presence of mongooses in the nearby mangroves or anywhere
else in the vicinity of the hotel.4 Id. Moreover, this was the
4 As in Woods-Leber, we assume without deciding that the plural
-17-
first incident in which a wild animal had bitten a guest of the
hotel. Id. "Finally, there was no evidence either that a nonrabid
mongoose, unprovoked, was likely to bite a supine sunbather,
or that rabies was prevalent in the area." Id. That mongoose
bite at issue, then, was truly spontaneous.
Woods-Leber and the Rhode Island cases that Omni cites
thus pertain to a "past occurrences" theory of foreseeability.
The state court cases that Mu cites, in contrast, illustrate a
"sequence of events" theory of foreseeability. Omni is correct
that Mu's claims would fail under a past occurrence's theory (and
Mu also concedes this point). But, it is incorrect that Mu's
attack was not foreseeable in light of the sequence of events
leading up to it. And, noting the absence of any direct Rhode
Island precedent to the contrary, we are confident in our "Erie
guess," Whyte v. Conn. Mut. Life Ins. Co., 818 F.2d, 1005, 1011
n.22 (1st Cir. 1987), that Rhode Island's Supreme Court would
follow the logic of these cases recognizing that the development
of a particular sequence of events can, without more, render future
harm foreseeable. See Andrew Robinson Int'l, Inc. v. Hartford
Fire Ins. Co., 547 F.3d 48, 51-52 (1st Cir. 2008) (endorsing taking
of "mongoose" is "mongooses." 124 F.3d at 49 n.1 ("[W]hile we use
the term 'mongooses' throughout, we express no opinion on which
plural noun is linguistically preferable.").
-18-
into account "precedents in other jurisdictions" and "any relevant
policy rationales" in predicting "what path the state court would
most likely travel").
Hotel security evicted from the premises a group of
youths whose partying had caused a disturbance. This group then
obtained a case of beer,5 and returned to the Hotel's driveway,
where valet Lebrón could see them. A fight then broke out among
members of the group. Next, the group attempted to pick a fight
with a passer-by, hurling racial slurs at him and apparently
physically attacking him too. During this time, members of the
group -- despite their previous eviction -- circulated in and out
5 While ultimately not dispositive of the question of
foreseeability here, it does bear mentioning that the district
court misapplied the summary judgment standard to Mu's allegations
that his assailants were intoxicated by failing to draw all
reasonable inferences in his favor. In rejecting Mu's arguments
involving Martin, 871 A.2d at 917 ("melee" foreseeable to social
host who served alcohol to underage guests), it concluded that
"there is no evidence suggesting that the Room 407 group was
underage, and nothing beyond mere speculation to suggest that they
were drunk or had been drinking alcohol or that they otherwise
fell into a category that presumptively would become violent."
But, the phone call to the Omni's front desk that set all of these
events in motion complained of a party in Room 407. Additionally,
after security evicted them, the occupants of that room returned
to the Hotel's premises with a case of beer. This is sufficient
to support the inference, for summary judgment purposes, that these
individuals had been drinking alcohol. And, even setting aside
the question of whether Mu's attackers were minors, "who, by virtue
of their tender age and inexperience, are presumed less capable of
handling the deleterious effects of alcohol consumption," id. at
916, Mu's attackers' possible intoxication would seemingly have
the effect of making his injury even more reasonably foreseeable.
-19-
of the Hotel's lobby. The group's unruly behavior ultimately
reached its crescendo when two of its members held Mu down while
a third threw a table at him.
Thus, the events leading up to Mu's injury involve
crucial differences from the facts of Woods-Leber, where the wild
mongoose "[s]uddenly (and without any apparent provocation) . . .
scurried into the pool area and bit [the plaintiff]," and the cases
Omni cites addressing foreseeability in light of past occurrences.
Id. at 49. Analogizing this case's facts to those of Woods-Leber,
it would be as if the hotel had first shooed the mongoose off of
the premises, only for it to return and menace others before
finally biting the plaintiff. While Mu's ultimate injury may have
been unforeseeable at the time of his attackers' eviction, this
certainly changed after a fight broke out within the group and
members of the group then turned on a passer-by. An observer of
this sequence of events would not be shocked to discover that the
group ended up getting in an altercation with someone in the Omni's
lobby -- where members of the group continued to set foot after
their eviction. In sum, the facts here place Mu's foreseeability
argument squarely within the realm of cases in which a sequence of
events unfolded in such a way to make harm foreseeable and thereby
confer a legal duty. See Cotterhill, 865 P.2d at 122; Gould, 722
-20-
P.2d at 516; Mills, 421 N.W. 2d at 634. And we find this conclusion
compatible with Rhode Island law.
Accordingly, contrary to the district court's holding,
on the version of the facts most favorable to Mu, the harm he
suffered was reasonably foreseeable to Omni. And with the
"linchpin" factor of our duty analysis satisfied, see Splendorio,
682 A.2d at 466, we also note that none of the other Gushlaw
factors hedge against finding a legal duty here, see 42 A.3d at
1256-57. For example, the "policy of preventing future harm" to
individuals in situations comparable to Mu's outweighs the "burden
to the defendant and the consequences to the community" that would
result from imposing that duty. See id. at 1257. It is far from
onerous to expect a hotel to prevent a group of recent evictees,
who had demonstrated a propensity for unruly behavior and violence
while just outside the hotel (in front of a hotel employee, no
less), from assaulting someone in the hotel's lobby. We therefore
hold that the district court erred in concluding that the Omni had
no legal duty to protect Mu from his attackers.
B. Standard of care, breach, and causation
Mu also challenges the district court's conclusion that
he provided insufficient evidence to establish the applicable
standard of care and Omni's breach of that standard. "In a
negligence case, a plaintiff must 'establish a standard of care as
-21-
well as a deviation from that standard.'" Morales v. Town of
Johnston, 895 A.2d 721, 732 (R.I. 2006) (quoting Sousa v. Chaset,
519 A.2d 1132, 1135 (R.I. 1987)). In the premise liability context,
an owner or possessor of property must "exercise reasonable care
for the safety of persons reasonably expected to be on the
premises." Habershaw v. Michaels Stores, Inc., 42 A.3d 1273, 1276
(R.I. 2012) (quoting Kurczy v. St. Joseph Veterans Ass'n, 820 A.2d
929, 935 (R.I. 2003)). This includes "protect[ing] against the
risks of a dangerous condition existing on the premises, provided
the landowner knows of, or by the exercise of reasonable care would
have discovered, the dangerous condition." Id. Finally, under
Rhode Island law, expert testimony is not necessary to establish
the relevant standard of care when that standard would be obvious
to a layperson. See Foley v. St. Joseph Health Servs. of R.I.,
899 A.2d 1271, 1277 (R.I. 2006).
The district court appears to have found it unnecessary
to determine whether expert testimony was required,6 concluding
6 It is somewhat difficult to discern the district court's actual
holding on the expert versus lay testimony question. It first
explained that "the standard of care to be imposed on a hotel to
protect against generic crime arising in its neighborhood likely
requires an expert." But, it then stated that "there is also no
question that a premises-liability plaintiff could establish a
standard of care based on lay testimony, if the breach was a matter
of common sense." Finally, the district court "decline[d] to hold
that Rhode Island would treat premises-liability cases as it does
professional malpractice cases, for which expert testimony is
always required to establish the standard of care." How best to
-22-
that, in any event, Mu's "standard of care proffer [was] deficient
as a matter of law." Specifically, the district court stressed
that Mu pointed only to "his own testimony regarding what he thinks
the Omni should have done." That testimony, in turn, was
insufficient, as the "fixes" Mu suggested "are all either measures
that the [Hotel] did have in place (having security guards on the
premises, having adequate communication to summon the security
guards, calling the security guards when the situation became
violent) or are precautions that he concedes would not have
prevented his injury (working surveillance cameras)."
Omni argues before us that expert testimony is necessary
here to establish the proper standard of care. It points to three
cases addressing expert testimony in the context of premise
liability and crime prevention. First, Shadday v. Omni Hotels
Mgmt. Corp., 477 F.3d 511, 512 (7th Cir. 2007), concerned the
negligence claim of a hotel guest whom another guest raped in the
hotel's elevator. In upholding the district court's grant of
summary judgment to the hotel, the Seventh Circuit highlighted
that the plaintiff "did have an expert witness, but [that expert]
didn't substantiate his opinion concerning the amount of care that
construe this passage of the holding, though, is ultimately
inconsequential, as we review this question of law de novo. See
Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 27 (1st Cir.
2006).
-23-
the [hotel] should have taken to protect its guests from criminal
assaults by other guests." Id. at 515. In the second case Omni
cites, Lees v. Carthage Coll., 714 F.3d 516, 517 (7th Cir. 2013),
the Seventh Circuit considered allegations of negligence stemming
from a sexual assault that took place on a college campus. There,
the court cited Shadday in holding that "[p]remises-security cases
like this one fall within the category of negligence claims
requiring expert testimony." Id. at 522. Lastly, in Varner v.
District of Columbia, 891 A.2d 260, 265 (D.C. 2006), the District
of Columbia Court of Appeals considered whether expert testimony
was necessary to make out a wrongful death plaintiff's claim that
a university had been negligent in failing to expel a student with
an extensive record of infractions who ended up murdering two other
students on campus. It concluded that "expert testimony is
required to establish the standard of care in negligence cases
such as this one, which involve issues of safety, security and
crime prevention." Id. at 267.
However, none of these cases are directly on-point, and
we decline Omni's invitation to hold that expert testimony was
necessary here. Similar to Omni's arguments concerning its duty
toward Mu, Omni misstates the relevant inquiry. Unlike the
plaintiffs in Shadday and Lees, Mu does not allege that Omni was
negligent in allowing any crime to occur on its premises. Rather,
-24-
Mu contends that Omni failed to respond adequately to a specific,
known threat of a crime against someone on its premises. Varner,
in contrast, does pertain to a defendant's response to a known
potential threat. However, that case's subject matter is
categorically different from Mu's, making it similarly inapposite.
"[Q]uestions as to the appropriateness and sufficiency of academic
discipline" may well, due to their relative complexity, be "beyond
the ken of a lay jury." Id. at 267. Determining whether or not
the Omni was negligent in reacting to the threat that its recent
evictees posed, however, is a comparatively straightforward
endeavor. We do think that a jury would be capable, without an
expert's assistance, of determining the proper standard of care
and measuring Omni's conduct against that standard.
Furthermore, we disagree with the district court that,
for summary judgment purposes, Mu failed to provide sufficient
evidence for a jury to have made that determination. First, Mu
maintains that after the initial call complaining of a loud party
involving teenagers smoking marijuana, the employee who took that
call should have called the police, rather than merely dispatching
hotel security. Second, after evicting those teenagers, Mu
contends that the security guards should have "st[uck] around to
ensure no further issues arose," rather than returning to the Omni.
Third, Mu argues that Lebrón should have called either hotel
-25-
security or the police -- as Mu urged him to do -- after witnessing
both the fight that broke out among the recent evictees and that
group's aggressions towards a passer-by. Mu also contended before
the district court that the Omni should have had a security guard
stationed in the lobby.
These arguments certainly have the effect of creating a
dispute of material fact as to whether Omni adhered to the proper
standard of care. Contrary to what the district court held, a
jury would have plenty to consider in deciding what Omni "should
have done" and whether it did enough. See Bitgood v. Greene, 108
A.3d 1023, 1025, 1030 (R.I. 2015) (upholding jury verdict finding
defendant bar negligent for failing to call police after initial
altercation between patrons when plaintiff injured in subsequent
altercation occurring ten to fifteen minutes later). Accordingly,
we hold that the district court also erred in finding Mu's claims
insufficient to survive summary judgment with respect to standard
of care and breach.
Finally, we also differ with the district court's
causation analysis. Having found that Omni owed no duty to Mu,
and that Mu had failed to make out a breach of the proper standard
of care, the district court concluded that Mu could not "show that
[Omni's] failure to adhere to some applicable standard of care was
the proximate cause of his injury." We think otherwise.
-26-
"A plaintiff must not only prove that a defendant is the
cause-in-fact of an injury, but also must prove that a defendant
proximately caused the injury." Almonte v. Kurl, 46 A.3d 1, 18
(R.I. 2012). Proximate cause, in turn, requires a finding that
the harm in question would not have occurred if not for the
relevant breach and that the harm was the "natural and probable
consequence" of the breach. Id. (quoting Pierce v. Providence Ret.
Bd., 15 A.3d 957, 964 (R.I. 2011)). As for making that showing,
"[p]roper inferences from other proven facts, when considered in
connection with all of the evidence, may satisfy reasonable minds
that . . . the injury resulted from the defendant's negligent
acts." Kurczy, 713 A.2d at 766.
In light of his arguments as to the standard of care and
the steps Omni should have taken to adhere to that standard, Mu
has brought forth enough to create a dispute of material fact as
to causation. Reasonable minds could be satisfied that were it
not for Omni's alleged negligence, the events of the early morning
in question would not have culminated in the Omni's recent evictees
throwing a table upon Mu inside the Hotel's lobby. Accordingly,
we conclude that the district court committed further error in
granting summary judgment on causation grounds.
-27-
C. Spoliation
Mu also asserts that Omni's representation that none of
the Hotel's security cameras were working during the time of his
assault, combined with the incident report explaining that footage
of the assault was "inconclusive as to what exactly had occurred,"
entitled him to an adverse inference against Omni. See Nation-
Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d 214,
217 (1st Cir. 1982) (Breyer, J.) ("When the contents of a document
are relevant to an issue in a case, the trier of fact generally
may receive the fact of the document's nonproduction or destruction
as evidence that the party which has prevented production did so
out of the well-founded fear that the contents would harm him.").
However, having already determined -- without giving Mu the benefit
of an adverse inference -- that reversal of the district court's
summary judgment order is warranted here, we do not need to reach
this question.
III. Conclusion
We hold that Omni did have a duty to prevent the
reasonably foreseeable harm that Mu suffered. Mu, additionally,
did not need an expert witness to establish the relevant standard
of care, and did bring forth sufficient evidence that Omni breached
that standard. Furthermore, a dispute of fact exists as to whether
that breach was the cause of Mu's injuries. Therefore, because
-28-
Mu's negligence claim against Omni was sufficient to survive
summary judgment, the district court's order is reversed and the
case is remanded to the district court for proceedings consistent
with this opinion.

Outcome: Reversed and remanded.

Plaintiff's Experts:

Defendant's Experts:

Comments: