Corinaldi v. Columbia Courtyard, Inc.

²¹² EYLER, JAMES R., J. Jennifer E. Corinaldi and Ronald Corinaldi, parents of Andre D. Corinaldi, decedent, appellants, filed suit in the Circuit Court for Howard County against Columbia Courtyard, Inc., Marriott International, Inc., Courtyard Management Corporation, and Hospitality Properties Trust, appellees. Appellants alleged that, on January 13, 2001, the decedent was shot and killed on the premises of a Courtyard by Marriott hotel, owned and operated by appellees (the hotel), and that appellees negligently caused or contributed to decedent’s death. The circuit court entered summary judgment in favor of appellees. On appeal, appellants’ primary contention is that the court erred in entering summary judgment.

Appellants also raise two other contentions. Prior to the entry of summary judgment, the court ordered that the issue of liability would be tried first with a separate trial on the issue of damages, if necessary, to occur at a time to be scheduled. Appellant contends the court erred in ruling that the damages portion of the trial would occur at a later date and, therefore, before a jury different from the jury that had decided the liability issue. Also, prior to the entry of summary judgment, the court granted appellees’ motion to quash appellants’ discovery request, which sought records from the Howard County Police Department concerning violent criminal activity that had occurred within a three mile radius of the hotel.

Appellants contend the court erred in granting the motion. We conclude that the circuit court erred in granting appel-lees’ motion for summary judgment. We also conclude that the circuit court did not err in its decisions relating to bifurcation and discovery. FACTUAL BACKGROUND There áre disputes of fact, both in terms of conflicting evidence as to some of the underlying facts and conflicting inferences which could be drawn from the known facts.

Ap- ²¹³ pellees contend the disputed facts and inferences are not material and do not prevent the entry of summary judgment. In analyzing the entry of summary judgment, we shall consider the evidence in the light most favorable to appellants and resolve all factual disputes in favor of appellants. While, as part of our discussion, we may identify certain matters in dispute, because of the procedural context, it is not necessary that we identify all matters in dispute, and we have not done so. On January 13, 2001, the decedent attended a surprise birthday party given by Tanette McMillan for Lakecia Mack.

The party was held in two adjoining guest rooms at the hotel. Some of the male attendees got into an argument, and an attendee in one of the guest rooms shot through a closed door, hitting and killing the decedent in the adjoining guest room. There was evidence that, a week before the party, Ms. McMillan, age 19, went to the hotel to inquire about rooms. Ms. McMillan spoke to a relatively new employee of the hotel, George Rock.

Mr. Rock, age 17, knew a friend of Ms. McMillan, who accompanied her to the hotel. Ms. McMillan testified, at her deposition, that she told Mr. Rock about her plan to have a birthday party in the rooms. Mr. Rock showed connecting rooms to Ms. McMillan and offered to procure one of the rooms for her at his employee discount. There was evidence that the hotel had a policy of discouraging parties in guest rooms.

Mr. Rock, at his deposition, testified that he was unaware of the hotel policy discouraging parties, and that he did not know Ms. McMillan was going to hold a party in the guest rooms. On January 13, 2001, between 8:00 p.m., when the first guests arrived, and 10:55 p.m., the approximate time of the shooting, two employees were in the hotel. Kristina Brown, age 19, who had been employed at the hotel for four months, was working at the front desk. Ms. Brown was the person in charge.

The other hotel employee, who we shall refer to as Mr. M., age 43, a long term employee of the hotel, was responsible for maintenance and housekeeping. Mr. M. was ²¹⁴ not aware of a hotel policy discouraging parties in hotel rooms. Neither Ms. Brown nor Mr. M. had received training in hotel safety and security. Mr. M.’s mother testified that Mr. M. was diagnosed as mildly retarded when he was young, but there is no evidence that it interfered with his ability to do his job.

The record contains information from Mr. M.’s personnel file, which indicates that he was disciplined on several occasions during his long term of employment, but there is nothing to connect that information with the events in question. Between the hours of 8:00 p.m. and 11:00 p.m., a party occurred in the two rooms rented by Ms. McMillan. Attendees arrived at various times, either through the front lobby or a side door near the rooms. Most of the attendees arrived after 9:00 p.m.

While the total number of attendees is in dispute, estimates range between thirty and fifty, predominantly male, attendees. The majority of attendees were high school students, between 16 and 18 years of age. There is evidence that some of the attendees had consumed alcoholic beverages before they arrived, and that some consumed alcoholic beverages at the party. The beverages were not supplied by appellees.

Some of the people who attended the party entered through the lobby and walked by the front desk. Ms. Brown and Mr. M. noticed people entering and walking by the front desk. Sometime after 9:00 p.m., one or both of the hotel employees became aware that persons in Ms. McMillan’s rooms were letting other persons in through a side entrance to the hotel, located near the rooms, which was locked from the outside. Several attendees testified, in depositions, that the party was very loud and could be heard in the hallway near the lobby.

Also sometime after 9:00 p.m., an elderly couple, who were guests of the hotel, complained about teenagers “hanging out” around the side entrance door. On two occasions, Mr. M. knocked on the door of one of the rooms and requested the occupants to lower the noise level and stop letting people in through the side door. ²¹⁵ Ms. Brown and Mr. M. called their manager, Maurice Knox, who was not on the hotel premises, two or three times between 9:00 p.m. and the time of the shooting. The conversations were to inform Mr. Knox about the party and the complaint about “kids hanging out by one of the entrance doors.” At 10:30 p.m., apparently in response to being told that persons were entering through the side door, Mr. Knox told Ms. Brown and Mr. M. to ask everyone to leave. There is some evidence that Ms. Brown called the room to request that the party end, and Ms. McMillan agreed that everyone would leave, but more attendees continued to arrive, even after 10:30 p.m.

At some point prior to the shooting, some of the male attendees, including Jeff Thompson and Shamal Chapman, got into an argument, and there were threats of violence. At approximately 10:35 p.m., Ms. McMillan separated the persons who were arguing by placing them in separate rooms. They continued to argue and make threats through the connecting door. At approximately 10:45 p.m., the decedent entered the hotel through the front lobby, accompanied by several friends.

When the decedent entered one of the two adjoining rooms, he saw an individual who appeared to be upset and who was beating on the door separating the two rooms. The decedent pulled him away and tried to quiet him. Someone in the other room discharged a handgun. The bullet passed through the closed door and struck and killed the decedent.

Also, at approximately 10:45 p.m., Ms. McMillan went to the front desk and advised Ms. Brown that there were several people in the rooms she did not know, that the party was getting out of control, and that one of the attendees had a gun. Ms. Brown asked Mr. M. to call the police, and Ms. Brown called Mr. Knox. A few minutes later, another female came running down the hall, screaming that two people had been shot. According to a 911 record, a call from the hotel was connected with the 911 operator at 17 seconds before 10:55 p.m.

The first police officer arrived at the hotel approximately ²¹⁶ three minutes later. The shooting occurred between 10:53-10:55 p.m. There is evidence in the record that the shooter was Shamal Chapman, and that he arrived at the party between 9 and 10:30 pan. 1 On October 23, 2001, appellants filed a complaint against appellees, and on April 25, 2003, they filed an amended complaint. On April 16, 2004, appellees filed a motion for summary judgment on the ground that, as a matter of law, they had committed no acts of negligence proximately causing the decedent’s death.

On July 22, 2004, the court granted the appellees’ motion. For purposes of the motion, the court expressly assumed that the decedent was an invitee of Ms. McMillan. The court held that there was no “special relationship” between appel-lees and the decedent, and that appellees owed decedent only the duty of reasonable care. The court further held that, “[ujnder the facts and circumstances established in this record, reasonable care would not have prevented the unforeseeable act of a second degree depraved heart murder committed by shooting through a closed door at persons unknown on the other side.” In so ruling, the court concluded, as a matter of law, that the harm to decedent was unforeseeable and that, even if the hotel had acted reasonably, the harm to decedent could not have been prevented.

Prior to the entry of summary judgment, the court, by order dated May 17, 2004, granted appellees’ motion to quash appellants’ notice of deposition duces tecum directed to the custodian of records of the Howard County Police Department. The notice requested production of records regarding all violent crimes committed in the calendar years 1999 and 2000 within a five-mile radius of the hotel. 2 ²¹⁷ Also prior to the entry of summary judgment, and after granting appellees’ motion to try the issues of liability and damages separately, the court, by order dated June 22, 2004, provided that, if the jury found in favor of appellants on liability, the court would schedule a settlement conference. If the case failed to settle, a trial on damages would be scheduled. According to appellants, the necessary implication of the order was that the issues of liability and damages would be tried by two different juries.

DISCUSSION The primary issue presented in this case is whether appel-lees, as innkeepers, had a duty to take affirmative action to protect the decedent, an invitee of a guest of the hotel, from the criminal actions of an unknown third party. Appellants contend the court erred in holding that the intentional act that resulted in the decedent’s death was unforeseeable and unpreventable as a matter of law, and in holding that no “special relationship” existed between appellees and the decedent, an invitee of a hotel guest. I. Standard of Review On July 22, 2004, the circuit court granted appellees’ motion for summary judgment. Whether summary judgment was properly granted is a question of law.

Eng’g Mgmt. Servs. v. Md. State Highway Admin., 375 Md. 211, 229-30 , 825 A.2d 966 (2003). Therefore, we review the decision of the circuit court under the de novo standard. Id. at 229 , 825 A.2d 966 .

When reviewing a case in which the trial court granted summary judgment, we first determine if the trial court correctly concluded that there was no genuine dispute as to any material fact. The mere presence of a factual dispute will not render summary judgment improper. See Beatty v. Trailmaster Products, Inc., 330 Md. 726, 738 , 625 A.2d 1005 (1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 247- ²¹⁸ 48, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986)). We view the record in the light most favorable to the non-moving party, construing all facts, and all reasonable inferences from the facts, against the movant.

Jurgensen v. New Phoenix, 380 Md. 106, 114 , 843 A.2d 865 (2004). When we do so, if we conclude that summary judgment was appropriate, we can affirm. See Remsburg v. Montgomery, 376 Md. 568, 579 , 831 A.2d 18 (2003).

II

Negligence A properly pleaded claim of negligence includes four elements. The plaintiff must prove: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual loss or injury, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty. Todd v. Mass Transit Admin., 373 Md. 149, 155 , 816 A.2d 930 (2003) (quoting Muthukumarana v. Montgomery County, 370 Md. 447, 486 , 805 A.2d 372 (2002) (quoting Valentine v. On Target, Inc., 353 Md. 544, 549 , 727 A.2d 947 (1999) (quoting BG & E v. Lane, 338 Md. 34, 43 , 656 A.2d 307 (1995)))). Whether a plaintiff has presented sufficient evidence of the elements of negligence is generally a question for the fact finder, but the existence of a legal duty is a question of law to be decided by the court.

Todd, 373 Md. at 155 , 816 A.2d 930 (citing Valentine, 353 Md. at 549 , 727 A.2d 947 ). When the existence of a legal duty depends on a determination of a dispute of material fact, the facts should first be determined by the fact finder. See Walpert, Smullian & Blumenthal, P.A. v. Katz, 361 Md. 645, 693 , 762 A.2d 582 (2000) (holding that the determination of whether contractual privity existed, giving rise to a legal duty, was a necessary preliminary determination to be made by the jury). The analysis of a negligence action usually begins with the question of whether a duty existed. ²¹⁹ In determining the existence of a duty, we consider, among other things: The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.

Ashburn v. Anne Arundel County, 306 Md. 617, 627 , 510 A.2d 1078 (1986)(quoting Tarasoff v. Regents of Univ. of California, 17 Cal.3d 425 , 131 Cal.Rptr. 14 , 551 P.2d 334, 342 (1976)). Foreseeability is a very important factor, but “its existence alone does not suffice to establish a duty under Maryland law.” Remsburg v. Montgomery, 376 Md. 568, 583 , 831 A.2d 18 (2003). This point is illustrated by the general rule that there is no duty to protect a victim from the criminal acts of a third person in the absence of a statute, contract, or other relationship between the party in question and the third person, which imposes a duty to control the third person’s conduct, or between the party in question and the victim, which imposes a duty to protect the victim. Bobo v. State, 346 Md. 706, 715 , 697 A.2d 1371 (1997); Scott v. Watson, 278 Md. 160, 166 , 359 A.2d 548 (1976); Restatement (Second) of Torts § 314; Restatement (Second) of Torts § 315 adopted in Lamb v. Hopkins, 303 Md. 236, 245 , 492 A.2d 1297 (1985).

The Restatement (Second) of Torts §§ 314-320, addresses the duty to act for the protection of others. It is important to note that the general rule set forth above, which appears in Restatement § 314 and § 315, applies even though the party in question had actual knowledge that harm was imminent or the party had knowledge of facts that made harm foreseeable. The general rule does not apply when a “special relation” exists between the party in question and the third person, or between the party in question and the injured ²²⁰ party. Restatement (Second) of Torts § 315.

Restatement (Second) of Torts § 314A and §§ 316-320 describe special relationships that may give rise to a duty. The term “special relation,” as used by the Restatement, and relevant case law, means simply a relationship that gives rise to a duty to exercise reasonable care. It should not be confused with those instances when the same or similar term is used to describe a greater duty than that of the usual duty to exercise reasonable care. Appellants do not contend that appellees had a duty to control the conduct of the third person in this case, whether the shooter is an unknown invitee at the party, or Shamal Chapman.

Indeed, there is no basis for such a contention. The Restatement (Second) of Torts §§ 316-320 addresses the limited circumstances under which the duty to control the conduct of a third person arises, none of which are applicable in this case. 3 Appellants argue that appellees had a relationship with the decedent, as an invitee of a hotel guest, that gave rise to a duty to protect him from the criminal acts of the unknown shooter. Restatement (Second) of Torts § 314A, adopted in Southland Corp. v. Griffith, 332 Md. 704, 719 , 633 A.2d 84 (1993), sets forth certain relationships which give rise to a duty to protect, including those between a common carrier and its passengers, an innkeeper and its guests, and a possessor of land and its invitees. We must determine whether a duty arose under the facts of this case.

A. Duty of an Innkeeper As indicated above, the relationship of innkeeper and guest is sufficient to give rise to a duty. In early common law, ²²¹ an innkeeper was an insurer of the safety of its guests and was strictly liable for injury to its guests. Lovelace v. Anderson, 366 Md. 690, 719, n. 7 , 785 A.2d 726 (2001). As embodied in the Restatement (Second) of Torts § 314A, the duty of an innkeeper to its guests was later changed to a duty of reasonable care.

See, e.g., Lovelace, 366 Md. at 719 , 785 A.2d 726 ; Roueche v. Hotel Braddock, 164 Md. 620, 622-628 , 165 A. 891 (1933); Treiber v. Burrows, 27 Md. 130, 143-47 (1867); Giles v. Fauntleroy, 13 Md. 126, 137 (1859); Apper v. Eastgate Assocs., 28 Md.App. 581, 586 , 347 A.2d 389 , (1975), modified, on other grounds a,nd affirmed, 276 Md. 698 , 350 A.2d 661 (1976). See also Nalee, Inc. v. Jacobs, 228 Md. 525, 529 , 180 A.2d 677 (1962). We shall assume, as did the circuit court, that the decedent was an invitee of Ms. McMillan, a guest of the hotel. Generally, a property owner owes the same duty to the guest of an invitee as it owes to the invitee himself.

See generally Matthews v. Amberwood Assocs. Ltd. P’ship, Inc., 351 Md. 544, 554 , 719 A.2d 119 (1998) (citing Landay v. Cohn, 220 Md. 24, 27 , 150 A.2d 739 (1959)). Thus, the relationship between appellees and the decedent was such as to give rise to a duty to exercise reasonable care. Having established that the relationship between appellees and decedent was sufficient to support a duty, the question then becomes the extent of knowledge necessary to establish a duty.

Ordinarily, a possessor of land is under no duty to protect an invitee from harm until the possessor knows or should know that the acts of a third party who causes harm are occurring or are about to occur. The duty may be based on knowledge of events, or on past experience that indicates a likelihood of conduct by third persons in general, or conduct by a particular individual who is likely to harm an invitee. Appellees urge us to apply a prior similar crimes test, whereby, in order to impose a duty on an innkeeper requiring the innkeeper to protect individuals on their premises from ²²² the criminal acts of third parties, it must be shown that prior similar crimes against persons had occurred on the premises,