February 9, 2019
Foreseeability and Hotel Premises Liability; Cosgray v. French Lick Resort & Casino
Category: Indianapolis Law Club | Author: | Share:
Three years ago, the Indiana Supreme Court “redrew the premises liability landscape” in two decisions: Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016) and Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016). Since these decisions were issued, the Court of Appeals has dealt with their ramifications. This is one such case, arising from the rape of a hotel guest.
Cosgray and her employer, Pomasl, attended a work-related Christmas party at the French Lick Resort. Each room at the hotel was equipped with three separate locking devices: (1) an automatic lock opened with a key card; (2) a deadbolt; and (3) a rasp safety lock. Cosgray was given a key card when she checked in.
After checking in, Cosgray joined her coworkers for a night of drinks, dinner, and dancing. At about 2:00 am, Cosgray walked to her hotel room. She expected Pomasl to join her after he cashed in his chips, so she propped her door open. Cosgray fell asleep while waiting for Pomasl. About two hours later, Cosgray awoke while being raped by an unknown man. The man was later identified as Uribe.
Uribe was not a guest at the hotel. Instead, a hotel employee had met Uribe at a local bar. The employee was staying overnight at the hotel due to inclement weather and invited Uribe back to her room. But the employee rebuked Uribe’s advances after arriving at the hotel, and she left him alone near Cosgray’s room.
Cosgray sued the hotel, and it moved for summary judgment. The trial court granted the hotel’s motion, and Cosgray appealed.
On appeal, the Court noted that the question of whether the hotel owed Cosgray a duty depended on the foreseeability of the injury to “the broad type of plaintiff and harm involved.” Cosgray argued that the injury was foreseeable because of the “ongoing history of assaults and batteries involving injury and a prior reported rape” and the specific security measures to impose a duty on French Lick Resort. But the Court found that this type of argument, which incorporated the totality of the circumstances, was “no longer applicable since our Supreme Court decision in Goodwin and Martin.” Instead, the Court found the injury here was not foreseeable.
Here, Cosgray’s injuries resulted from the conduct of a third person. Under the foreseeability test outlined in Goodwin and Rogers—examining the broad type of plaintiff and the broad type of harm, without consideration of the actual facts—we find that the sexual criminal attack on Cosgray by another invitee in a room left intentionally unlocked was not normally to be expected, and thus not foreseeable, and therefore French Lick Resort did not owe a duty to Cosgray.
Plaintiff’s attorneys dealing with premises liability claims really need to look hard at this line of cases before taking them on. This shows that these cases are much riskier for a plaintiff than they may have been in the past.
- Indiana’s premises liability landscape was redrawn in 2016.
- A hotelier will not normally expect that an invitee will criminally attack another invitee if a room is left unlocked.