The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Gabriel Bonilla ("plaintiff") commenced this negligence action against Motel 6 Operating L.P. ("Motel 6") claiming it breached an applicable duty of care by failing to take reasonable steps to protect its guests from the criminal acts of third parties, and, as a result of that breach, Motel 6 caused plaintiff to suffer serious bodily harm. Presently before the court is defendant‟s motion for summary judgment. For the reasons set forth below, the motion will be denied.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, Athe pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.@ Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party=s claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant=s initial burden may be met by demonstrating the lack of record evidence to support the opponent=s claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth Aspecific facts showing that there is a genuine issue for trial,@ or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
In meeting its burden of proof, the Aopponent must do more than simply show that there is some metaphysical doubt as to the material facts.@ Matsushita, 475 U.S. at 586. The non-moving party Amust present affirmative evidence in order to defeat a properly supported motion@ and cannot Asimply reassert factually unsupported allegations.@ Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent Amerely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs.@ Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party=s evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to Aturn a blind eye@ to the weight of the evidence).
The record as read in the light most favorable to plaintiff establishes the background set forth below. On June 14, 2008, plaintiff was slashed with a knife from ear to throat in a Motel 6 parking lot at approximately 1:40 a.m., lost four pints of blood, and received extensive medical care thereafter. On the night of the injury plaintiff was a guest at a Motel 6 located in Washington, Pennsylvania ("the motel"). Plaintiff and twenty-five of his co-workers were hired to complete a construction project in the area and had been staying at the motel for several weeks because of its proximity to the job site. Plaintiff was a carpenter on the project and a guest in room 225. Plaintiff‟s Deposition (Doc. No. 43-4) at 14.
On June 13, 2008, plaintiff went to work and returned to the motel around 7 p.m. At some point during that Friday evening he noticed two men, Richard Pruden ("Pruden") and Trey Willis ("Willis"), walking around on the motel sidewalk. Plaintiff‟s Deposition at 11. Pruden and Willis were in room 227 with several women between the ages of 18 and 20. Willis Deposition (Doc. No. 43-7) at 7. They had rented a room to "party" for the night and had arrived at the motel sometime between 5 and 6 p.m. Kowcheck Deposition (Doc. No. 43-8) at 4-5.
Around 9 p.m., after hours of drinking liquor and smoking large amounts of marijuana, the group in room 227 decided to make a pornographic movie. Kowcheck Deposition at 4. While the females were having sex with each other, the group noticed that a large crowd of men had gathered outside their motel room window and were watching their "movie" through the curtains. Wilson Deposition (Doc. No. 43-10) at 7. Realizing that a money-making opportunity had presented itself, the women agreed to offer the men sexual services in exchange for money. Pruden and Willis began setting up the "business transactions" with the men outside. Young Deposition (Doc. No. 43-11) at 4. The women took turns having sex with their customers in room 227 while the others waited for their turn outside in a car. Wilson Deposition at 9; Willis Deposition at 18. The car was located in the motel parking lot and in front of room 227. Wilson Deposition at 9.
Around 9:30 p.m., Pruden approached plaintiff and inquired as to whether he was interested in having sex with one of the women for thirty dollars. Plaintiff‟s Deposition at 12. Plaintiff, a native of Honduras, accepted the offer and paid Pruden. Plaintiff then had sex with one of the women for approximately twenty minutes in room 225. Plaintiff‟s Deposition at 12. At approximately 10 p.m. their session came to an end and plaintiff went to sleep immediately thereafter. Plaintiff‟s Deposition at 12.
Plaintiff arose from his slumber around 1:30 a.m., and walked outside of his room to smoke a cigarette. Plaintiff‟s Deposition at 11. He took a few steps toward the sidewalk which was located only a few feet away from his room and directly in front of the motel parking lot. Id. at 17. Plaintiff lit his cigarette and within seconds was confronted by Pruden. Pruden began instigating a fight, calling plaintiff a "faggot" several times, and asking him if he wanted to fight. Id. at 17-18; see also Willis Deposition at 10. Plaintiff offered no response and did not understand why Pruden suddenly took umbrage with him. Plaintiff's Deposition at 17. Pruden then punched plaintiff in the face and broke his nose. Id.
While plaintiff was attempting to defend himself against further attack, he caught sight of Willis exiting the room that Pruden‟s entourage was occupying. Plaintiff‟s Deposition at 17.
Upon discovering the brawl, Willis joined Pruden and the two men chased plaintiff into his room where they remained for approximately two minutes before plaintiff came running outside. The chase continued into and around the motel parking lot. Id. at 18.
Plaintiff then saw Willis disappear into room 227 and quickly return with a three and a half inch knife-blade in his hand. Plaintiff‟s Deposition at 18. At this point blood was dripping from plaintiff's broken nose. He tried to hide between two cars, but the two men wedged him in by standing on each side. Realizing he had no way of escaping, plaintiff threw himself toward the ground in an attempt to avoid contact with the knife. As plaintiff flung himself to the ground, Willis slashed the side of his neck with the knife. Id. at 17. Plaintiff pulled out his cellphone to call the police, but Pruden grabbed the phone from his hand, causing it to break into two pieces. Preliminary Hearing Transcript (Doc. No. 43-5) at 12-13. Willis ran back into room 227 to gather up the women and their belongings and the group quickly fled the scene. Id. at 12. The motel clerk was asked to call for an ambulance and the police arrived soon thereafter. Approximately fifteen minutes passed between the time Pruden delivered the initial punch to the time plaintiff was stabbed. Plaintiff‟s Deposition at 18.
Defendant's witnesses paint a very different picture. Plaintiff sought to purchase sex much later in the night. After making arrangements with Pruden, plaintiff entered room 227 for that purpose. The door to the room was kept ajar while the transaction was occurring so Pruden and Willis could maintain control. Plaintiff attempted to engage in deviate sexual intercourse and the prostitute resisted and called for help. Pruden and Willis entered the room and warned plaintiff that such conduct was "off the table" and would not be permitted. A short time later plaintiff again attempted to force the prostitute to engage in deviate sexual intercourse. Pruden and Willis reentered the room and forcefully terminated the transaction. Plaintiff became angery, left, began drinking alcohol and thereafter became agitated with and started to antagonize Pruden. A fight between Pruden and plaintiff ensued. Plaintiff was slashed after the fight spilled into the parking lot.
Defendant contends it is entitled to summary judgment on the grounds that plaintiff‟s participation in the prostitution activity: (1) was an obviously dangerous activity that defendant had no duty to protect against, (2) caused him to lose his status as a "business invitee," (3) was a substantial factor in producing his injuries and thus bars him from recovery as a matter of law, and (4) prevented any breach of duty on defendant‟s part from being the proximate cause of plaintiff‟s injury because the attack was "sudden" and "unforeseeable" and any security measures would not have prevented it.
Plaintiff asserts that at the time of his injury he was not involved in criminal activity and as a guest of the motel he enjoyed the status of a "business invitee" at all times. Defendant had a duty to police its premises because it had sufficient prior knowledge regarding extensive criminal activity at the motel. Plaintiff thus contends that defendant‟s failure to provide adequate security was a breach of its duty and a substantial factor in causing his injuries.
It is elementary that a plaintiff in a negligence action must establish the following: "(1) the existence of a duty or obligation recognized by law; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the defendant‟s breach and the resulting injury; and (4) actual loss or damage suffered by the complainant." T.A. v. Allen, 669 A.2d 360, 362 (Pa. Super. 1995); see also Morena v. South Hills Health System, 462 A.2d 680, 684 fn. 5 (Pa. 1983). Defendant's contentions primarily raise issues regarding the elements of duty and causation.
Innkeepers stand in a special relationship with their guests and can owe a duty to take precautionary measures against potential criminal acts of third parties where through prior experience or the exercise of reasonable care the innkeeper should reasonably anticipate such conduct. The Pennsylvania Supreme Court has adopted § 344 of the Restatement (Second) of Torts to determine liability for third party criminal acts committed against an invitee on the business premises. See Moran v. Valley Forge Drive-In Theater, Inc., 246 A.2d 875, 878 (Pa. 1968) (trial court properly applied § 344 in determining that a possessor of land who holds land open to patrons for business purposes has a duty to prevent or warn against the possibility of tortious acts by third parties); see also Donovan v. Strawbridge & Clothier, 1994 WL 1251144, *5 (Comm. Pl. 1994) ("Restatement (Second) of Torts § 344 and comment (f) have long been the law of Pennsylvania.").
A possessor of land who holds it out to the public for entry for his business purposes is subject to liability to members of the public while upon the land for such a purpose for bodily harm caused to them by the accidental, negligent, or intentionally harmful acts of third persons if the possessor by the exercise of reasonable care could have (a) discovered that such acts were being done or were about to be done, and (b) protected the members of the public by: (i) controlling the conduct of the third persons, or (ii) giving a warning adequate to enable them to avoid harm.
Restatement (Second) of Torts § 344 (1965); Moran, 246 A.2d at 878. Moreover, comment (f) to § 344 explains:
(f) Duty to police premises. Since the possessor is not an insurer of the visitor‟s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience that there is a likelihood of conduct on the part of the third persons in general which is likely to endanger the safety of the visitor, even though he had no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience is such that he should reasonably anticipate a careless or criminal conduct on the part of a third person, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
Restatement (Second) of Torts § 344 cm. f. (emphasis added). Thus, to establish liability under § 344, a plaintiff must satisfy three elements: "(1) that plaintiff was injured by the kind of acts described in the section; (2) that such acts were being done, or were likely to be done; and (3) that the defendant failed in one of two duties - either to take reasonable care to discover that such acts were being done or were likely to be done, or to take reasonable care to provide appropriate precautions." Moultrey v. The Great A & P Tea Co., 422 A.2d 593, 598 (Pa. Super. 1980).
Section 344 requires that "reasonable measures be taken to control the conduct of third persons, or to give adequate warning to enable patrons to avoid possible harm." Moran, 246 A.2d at 879. A jury question is created where the evidence demonstrates that the defendant "had notice, either actual or constructive, of prior acts committed by a third person within their premises, which might cause injuries to patrons." Ross v. Sunoco Inc., 56 Pa. D. & C. 4th 358, 364 (Com. Pl. 2002)(citing Moran, 246 A.2d 875). It also is the function of the jury to determine whether "adequate measures were taken to control the conduct of third persons." Id.; see also Bloom v. Dubois Regional Medical Center, 597 A.2d 671, 680-81 (Pa. 1991)("[W]hether an act or failure to act constitutes negligence, of any degree . . . has always been particularly committed to determination by a jury.").
The issue of whether a defendant breached any duty may be removed from the jury only "when the case is free from doubt and there is no possibility that a reasonable jury could find negligence." Emerich v. Philadelphia Center for Human Development, Inc., 720 A.2d 1032, 1044 (Pa. 1998); see also Bloom, 597 A.2d at 681 (same). As the Pennsylvania Supreme Court explained:
The reason is clear; places to which the general public are invited might indeed anticipate, either from common experience or known fact, that places of general public resort are also places where what men can do, they might. One who invites all may reasonably expect that all might not behave, and bears responsibility for ...