Illinois Appellate Court squashes "one free rape" argument after guest attacked at Holiday Inn.

I read the opinion in Gress v. Lakhani Hospitality quite some time ago and meant to post about it. But the opinion got buried with other papers and finally resurfaced the other day. The opinion provides much needed clarity to what a plaintiff must show – and perhaps more importantly what a plaintiff is NOT obligated to show – when it comes to hotel liability for the criminal acts of third parties.

The basic facts are pretty awful. Karla Gress was a guest at the Skokie Holiday Inn, which was owned by Lakhani Hospitality Inc.[LHI]. After eating dinner and having a drink in the hotel bar, Gress returned to her room. Unbeknowst to Gress, Alhagie Singhateh, a hotel security guard, placed a narcotic in Gress’ drink while she was in the bar. Singhateh also did some maintenance work around the hotel which afforded him a passkey to rooms. Later that evening, after Gress had returned to her room, Singhateh was directed to enter her room to allegedly fix a faulty air conditioner. Singateh was so instructed even though hotel personnel knew Gress was intoxicated. Once inside the room, Singhateh raped Gress while she was unconscious. When Gress woke up she realized she had been assaulted. DNA was retrieved with a rape kit and police later matched the DNA with Singhateh.

Ms. Gress and her husband sued LHI, alleging in part, that it had failed to insure the safety of its guests. In their complaint, plaintiffs included numerous allegations of unseemly conduct by Singhateh and others employees. Singhateh had previously been arrested for solicitation of prostitution. And he was alleged to have harassed managers and search guest bags without consent. And, prior to his employment at LHI, Singhateh had engaged in creepy behavior while employed at another Holiday Inn. In addition to the allegations directed at Singhateh, there were numerous allegations regarding other criminal activities at the hotel. Guests had repeatedly complained that their property had been stolen from their rooms. Prostitutes allegedly frequented the hotel bar and employees disabled security cameras on multiple occasion. There were also disturbing reports of sexual assaults both before and after the attack upon Gress – although said assaults did not implicate Singhateh.

Despite these facts, LHI moved to dismiss, insisting that LHI could not have known or foreseen that Singhateh would sexually assault a guest in her room. The trial court, in dismissing the complaint, noted that none of the myriad of other incidents included allegations of a sexual assault by Singhateh upon a guest. In effect, the court ruled that LHI had no duty to anticipate Singhateh might assault Gress since plaintiffs were not able to demonstrate he had engaged in a prior similar attack. Legally speaking, if an injury can’t be anticipated or foreseen, one has no duty to protect against it. The trial court ruled since the rape was not foreseeable, LHI had not duty to Gress. That portion of the complaint against LHI was dimissed. The plaintiffs then appealed the dismissal.

The Appellate Court noted at the outset of its opinion that generally, a property owner has no duty to protect guests from the criminal acts of third parties. There is a notable exception to this rule however, where a special relationship exists between the property owner and guest. And the law in Illinois is clear that a special relationship does exist between a hotel and its guest. Hotels must exercise the “highest degree of care” to control a third party to prevent that third party from doing harm to a guest.

The Appellate Court then dispatched the argument that a property owner has to have notice of a prior incident before the law imposes a duty to protect a plaintiff from a third party. Citing Marshall v. Burger King, the Court noted that a special relationship, standing alone, may be sufficient to establish an affirmative duty to protect guests from third parties. The Court went on to note that the special relationship between a hotel and guest encompassed the risk of sexual assault by a hotel employee. The Appellate Court specifically noted that the plaintiffs had alleged that Singhateh had a hand in Gress’ intoxication[by adding a narcotic to her drink]. And LHI then sent Singhateh to her room, knowing that the guest – a female – was intoxicated. LHI, instead of protecting its guest, had facilitated her attack.

The Appellate Court went on to note that crime, including sexual assault, is pervasive in hotels. Consequently, a plaintiff is not obligated to allege a precisely identical previous incident. Instead, the plaintiff need only show that a criminal incident generally similar to prior incidents had occurred. The Appellate Court specifically rejected any assertion that a previous crime of the precise nature suffered by Gress had to be pled. In particularly striking language the opinion noted: “We likewise decline to impose the equivalent of a “one free rape rule” since there is simply no requirement under Illinois law that an innkeeper be on notice of a prior sexual assault before any duty would arise”

Additionally the Court went on to note that while strict notice was not required to establish a duty, the plaintiffs had established constructive notice by alluding to numerous thefts; inappropriate passkey use and Singhateh’s history of disturbing behavior toward women. The Appellate Court held that the allegations in the complaint were sufficient to impose a duty upon LHI to protect Gress against the attack. The ruling of the Trial Court was overruled.

Hats off to the lawyers for Schostok & Pritchard PC for for challenging the trial court decision.