Remembering the Marketplace of the Midsouth

Page 1 1The action originally was brought against Wilson Inns, Inc., Wilson World Hotel - Cherry Road,Inc., EdwardoEugene Wells, Boris Smith, and John Doe. Eduardo Wells was voluntarily dismissed prior to trial. The trial courtdismissed Boris Smith, a Wilson World employee, at the close of plaintiff’s proof. That dismissal is not an issue onappeal. (John Doe was named in the complaint to give notice of a potential claim against any person or entity who mayhave employed Boris Smith at the time of the events complained of if Mr. Smith was not a Wilson World employee.)IN THE COURT OF APPEALS OF TENNESSEEAT JACKSONApril 23, 2003 SessionCHERYL D. PATTERSON-KHOURY, ET AL. v. WILSON WORLDHOTEL-CHERRY ROAD, INC., a Tennessee Corporation, ET AL.Direct Appeal from the Circuit Court for Shelby CountyNo. 57234-4 T.D. Rita L. Stotts, JudgeNo. W2002-00489-COA-R3-CV - Filed July 28, 2003This appeal follows a premises liability action arising from an attack in defendant hotel’s hallwayin which plaintiff suffered multiple stab wounds. The jury found the hotel not negligent. Uponappeal, plaintiff raises issues of admission of evidence, non-exclusion of jury member, and juryinstructions. We affirm.Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; andRemandedDAVIDR.FARMER,J., delivered the opinion of the court, in whichW.FRANK CRAWFORD,P.J.,W.S.,and HOLLY M. KIRBY, J., joined.Frank J. Glankler, Jr. and William L. Bomar, Memphis, Tennessee, for the appellants, Cheryl D.Patterson-Khoury and Naif S. Khoury.Michael L. Robb, John H. Dotson and Bruce A. McMullen, Memphis, Tennessee, for the appellee,Wilson World Hotel-Cherry Road, Inc.OPINIONThis appeal follows a premises liability action commenced byCheryl D. Patterson-Khoury(Mrs.Khoury) and herhusband,NaifS. Khoury(collectively, “Khourys”), against Wilson Inns, Inc.and Wilson World Hotel - Cherry Road, Inc. (collectively, “Wilson World”).1The action arisesfrom an October 20, 1992, criminal attack in which Mrs. Khoury was robbed and stabbed in a


Page 2 -2-hallway of the Wilson World Hotel. Her assailant was apprehended bythe police and identified asEduardo Wells. Khourys submit negligence byWilson World proximatelycaused and/or contributed to Mrs.Khoury’s injuries and damages. They allege that Mrs. Khoury had made a reservation for a non-smoking room near the elevator on the atrium side of the hotel, but that she was assigned to room363, a smoking room at the end of a hall on the non-atrium side. They further allege that Mrs.Khoury was misdirected to her room by the desk agent, Boris Smith, who told her that the closestroute to her room was via an outside stairway. They submit that Mrs. Khoury requested a bellmanto assist her with her luggage and locating her room, but no bellman was available. Mrs. Khouryproceeded alone up the outside stairwell, allegedly as directed by Mr. Smith, but the third flooroutside door was locked. Mrs. Khoury returned to the lobby and took the elevator up to the thirdfloor. Upon entering her room, Mrs. Khoury found it to be unacceptable, and proceeded to returnto the lobby to insist upon a different room. She looked through the peephole, but her vision of thehallway was partially blocked by a wall. Upon exiting her room, she was assaulted by EdwardoWells(Mr. Wells), who apparentlyhad followed her into the hotel. Mr. Wells assaulted and robbedMrs. Khoury, stabbing her multiple times. Her cries for help were heard by another guest. Mrs.Khoury contends this guest came to her assistance; Wilson World submits it was Mr. Smith whoresponded to Mrs. Khoury’s cries for help. Mr. Smith chased Mr. Wells and facilitated hisapprehension by police. In their complaint, Khourys allege, inter alia, that Wilson World was negligent in thesupervision of Boris Smith, that it negligently failed to warn guests that it was located in a highcrimearea, and that it breached its dutyofcare byfailing to provide security for its guests. Khouryssubmit Mrs.Khoury has suffered serious and permanent physical and mental injuries aswell as lossof income and earning capacity as a result of defendants’ negligence. Khourys seek compensatorydamage of $5,000,000 for Mrs. Khoury; compensatory damages of $5,000,000 for Mr. Khoury; andpunitive damages of $2,500,000.In its answer, Wilson World submits that Khourys failed to state a claim upon which reliefcan be granted. Wilson World denies allegations of negligence and submits that all injuries anddamagesto Mrs. Khouryare attributableto the criminal acts of Mr. Wells. In the alternative, WilsonWorld contends criminal acts of Mr. Wells are an intervening, superseding cause of Mrs. Khoury’sinjuries and further pleads contributory negligence of Mrs. Khoury. Wilson World moved for summary judgment, contending there were no genuine issues ofmaterial fact and that it was entitled to judgment as a matter of law. The trial court denied summaryjudgment. The trial court granted Wilson World’s motions in limine to restrict Khourys’ evidenceof criminal activity to a time period before October 20, 1992, and to the area in the immediatevicinity of the hotel, excluding the Mall of Memphis. Thecause was heard bya jury duringan eight daytrial inNovember 2001. The juryreturneda verdict in favor of Wilson World, finding it to be not negligent. Khourys filed a motion for a new


Page 3 -3-trial and/or to alter or amend the judgment, submitting the trial court erred by restricting evidenceof crime in the area to Wilson World-Cherry Road, its parking lot, and the adjacent Wilson Innproperty, and by excluding evidence of crime at the Mall of Memphis. Khourys furthercontend thetrial court erred in restricting the period of criminal activity, in giving a superseding causeinstruction, in not excluding a juror for cause, and in not excluding testimony of Wilson World’sexpert witness. In their motion for a newtrial, Khourys also contend the verdict was contraryto theweight of the evidence. The trial court denied Khourys’ motion for a new trial and Khourys fileda timely notice of appeal to this Court.Issues Raised for ReviewThe issues raised for our review, as we re-state them, are:(1) Admission of Evidence:(A)Whether the trial court erred by restricting evidence ofcriminal activity to that of defendant’s hotel and parking lotand the adjacent propertywithin a period of one year prior tothe attack on Mrs. Khoury.(B)Whether the trial court erred by ruling plaintiff could notexamine the defendant’s general manager regarding hisknowledge of criminal activity in the area and prior to theattack on plaintiff.(C)Whether the trial court erred by not excluding the testimonyof Fred Del Malva, defendant’s expert witness.(2)Whether the trial court erred by not excluding Lisa L. Toldi from the jurypanel for cause. (3)Whether the trial court erred bygiving a supercedingcause instruction to thejury.Admission of EvidenceIt is well-established that to establish negligence the plaintiff must prove: (1) a duty of careowedby defendant to plaintiff; (2) conduct falling below the applicable standard of care that amountsto a breach of that duty; (3) injury or loss; (4) cause in fact; and (5) proximate, or legal, cause.McClung v. Delta Square Ltd., 937 S.W.2d 891, 894 (Tenn. 1996). Duty of care has been definedby the courts as “the legal obligation owed by defendant to plaintiff to conform to a reasonableperson standard of care for protection against unreasonable risks of harm.” Id. The question ofwhether a duty is owed is a question of law to be determined by the court. Id.If the defendant has failed to exercise reasonable care, he has breached his duty to thedefendant. Id. at 895. The determination of what is reasonable care “must be given meaning in


Page 4 -4-relation to the circumstances. Ordinary, or reasonable, care is to be estimated by the risk entailedthrough probabledangers attending the particular situation and is to be commensurate with the riskof injury.” Id. Once the court has determined that the defendant owes a duty to the plaintiff, thequestions of whether the defendant has breached his duty and thereby caused the plaintiff’s injuryare matters to be determined by the trier of fact. See Staples v. CBL & Assoc., 15 S.W.3d 83, 91(Tenn. 2000); Anderson v. City of Chattanooga, 978 S.W.2d 105, 107 (Tenn. Ct. App.1998).Findings of fact by a jury shall be set aside only if there is no material evidence to support theverdict. Childress v. Union Realty Co., 97 S.W.3d 573, 576 (Tenn. Ct. App. 2002); Tenn. R. App.P. 13(d). Upon review, this Court will not re-weigh the evidence, but will take the strongest viewpossible of the evidence in favor of the prevailing party, and discard evidence to the contrary. Id.We will allow all reasonable inferences to uphold the jury's verdict, setting it aside only if there isno material evidence to support it. Id. This standard of review safeguards the constitutional rightto a trial by jury. Id. In McClung v. Delta Square, the Tennessee Supreme Court held that while businesses arenot insurers of their customers safety, they have a duty to take reasonable steps to protect theircustomers from foreseeable criminal attacks by third parties. McClung v. Delta Square Ltd., 937S.W.2d 891, 902 (Tenn. 1996). Inso holding, the Court overruled Cornpropst v. Sloan, 528 S.W.2d188 (Tenn. 1975), which held that businesses had no dutyto protect against criminal acts of a thirdpartyunless theyknew or had reason to know that such acts wereoccurring or about to occur on thepremises, and that conditions in the area were irrelevant in assessing the foreseeability of criminalacts. Id. at 899. In McClung, the Court opined that foreseeability is the critical inquiry indetermining whether a businessowes its customers a duty to protect against criminal acts bya thirdparty. Id. The Court stated that “[i]t makes little sense to ignore the frequency and nature ofcriminal activity in the immediate vicinity of the business, such as the adjacent parking lot” indetermining foreseeability. Id.The McClung Court sought to address both the economic concerns of businesses and thesafety concerns of their customers. Id. at 902. Thus the Court adopted a balancing approach todetermine the duty of care owed to protect against criminal acts. Id. The Court held that the dutyowedmust be determinedbybalancing the foreseeabilityand gravityof harm tothe customer againsttheburden imposedon the business to protect against thatharm. Id. The more foreseeable and gravethe danger to the customer, the greater the duty of the business to protect against it. Additionally,as the gravity of harm increases, the degree of foreseeability necessary to impose a duty decrease.Id. “The degree of foreseeability needed to establish a duty of reasonable care is, therefore,determinedby considering both the magnitude of the burdentodefendant incomplying with the dutyandmagnitude of the foreseeable harm.” Id. In determining the dutyowed, the court must consider:1) the foreseeable probability of the harm or injury occurring; 2) the importance or social value ofthe activity engagedin by defendant; 3) the usefulness of the conduct to defendant; 4) thefeasibilityof alternative, safer conduct and the relative costs and burdens associated with that conduct; 5) therelative usefulness of the safer conduct; and 6) the relative safety of alternative conduct. McClungv. Delta Square Ltd., 937 S.W.2d 891, 901 (Tenn. 1996). The Court emphasized that such anapproach is “consistent with our prevailing principles of fairness and justice.” Id.


Page 5 -5-TheMcClung Court rejected the notion that foreseeabilitycould be established onlyby priorincidents of criminal attacks on the premises. It noted, however, that [a]s a practical matter, the requisite degree of foreseeability essential to establish aduty to protect against criminal acts will almost always require that prior instancesof crime have occurred on or in the immediate vicinity of defendant’s premises.Courts must consider the location, nature, and extent of previous criminal activitiesand their similarity, proximity, or other relationship to the crime giving rise to thecauseof action. To hold otherwise would impose an undue burden upon merchants.Id. at 902 (emphasis added). Theapproach adopted in McClung was reaffirmed in Staplesv. CBL & Associates, wheretheCourt reversed summaryjudgment in favor of the defendant business. Staples v. CBL & Assoc., 15S.W.3d at 91. The Staples Court held that the criminal attack against plaintiff Staples wasforeseeable in light of the numerous incidents of crime on the defendant’s premises in the fourteenmonths prior to the attack. Id. Thus the Court held that defendant business owed a duty ofreasonable care to protect its customers against criminal attacks. The Staples Court “hasten[ed] toadd, however, that [it] express[ed] no opinion on whether the defendants breached their duty ofreasonable care to Ms. Staples.” Id. The Court remanded the case for a jury trial. Id. at 92.Unlike the court in McClung and Staples, we arenot askedto review whether Wilson Worldowed a duty of care to Mrs. Khoury. The trial court determined that there was duty and thereforedenied summaryjudgment and allowed the action to proceed totrial. The action was tried by a jury,which determined Wilson World had not breached its duty of reasonable care. In the appealcurrently before this Court, we are asked to determine whether the trial court erred in limiting theevidence of crime in the area to that of the Wilson World hotel, its parking lot, and the adjacentproperty. We have reviewed the balancing approach adopted in McClung and reiterated in Staples inresponse to Mrs. Khoury’s argument that it was error for the trial court to so limit the scope ofevidence of crimein the “vicinity” in light of the Court’s holding in McClung. We agree with Mrs.Khourythat evidence ofcrime in the vicinity isan element which mayestablish foreseeability, whichmust be considered by the jury in determining whether the defendant has breached its duty of care.According to the approach adopted in McClung, however, the foreseeabilityof criminal acts must,in the first instance, beconsidered bythe court to determine, as amatter oflaw, the scope of the dutyowed. In making this determination, the court must balance the costs of security measures to thebusiness against the likelihood and gravityof harm to the customer based upon what is foreseeablein light of “the location, nature, and extent of previous criminal activities and their similarity,proximity, or other relationship giving rise to the cause of action.” McClung v. Delta Square Ltd.,937S.W.2d 891, 902 (Tenn. 1996). As noted by Justice Holder in her concurring opinion in Staples,this balancing approach adopted in McClung somewhat blurs “the line between the trial court’sfunction in determining duty and the jury’s function in determining negligence.” Staples v. CBL &


Page 6 -6-Assoc., 15 S.W.3d 83, 93 (Tenn. 2000) (Holder, J., concurring). As noted, the Staples Courtspecifically did not opine on whether the defendant had breached its duty. As Justice Holderemphasized, “[d]etermining whether adutyexists shouldnot be confused with determining whethera breach of that duty has occurred.” Id.McClung and Staples held that prior crime in the immediate vicinity may be considered todetermine foreseeability. However, neither case defined the extent of the vicinity which may beconsidered immediate. In both cases, the court considered evidence ofprior crime on the premises,including the parking lot, to determine that a criminal attack was foreseeable and that a duty toprotect may be imposed. In the case a bar, the trial court limited the evidence of prior crime to all types of crime occurring on defendant’s premises, including its parking lot, and the adjacent property during aperiod of one-year prior to the October 1992 attack on Mrs. Khoury. It accordingly excludedtestimonyregarding criminalactivity in a wider area. The court also permitted evidence ofanarmedrobberyof a desk clerk at the adjacent WilsonInn inMarch of1991. Thetrial court specificallydidnot allow evidence of crime at the Mall of Memphis. Generally, a trial court's ruling on theadmissibility of evidence is within the sound discretion of the trial judge. Further, trial courts areaccorded a wide degree of latitude in their determination of whether to admit or exclude evidence,even if such evidence would be relevant. A trial court's evidentiary ruling will be overturned onappealonly upon ashowing of an abuse of discretion. Dickeyv. McCord, 63 S.W.3d 714, 723(Tenn.Ct. App. 2001).Upon review of the record in this case, we cannot say that thetrial court erred in limiting theevidence of prior crime in the immediate vicinity to crime occurring in the hotel, on its parking lot,and on the adjacent propertyduring the one-year period prior to the attack on Mrs. Khoury, plus anarmed robbery occurring in the adjacent property in March 1991. This evidence included thetestimony of plaintiff’s expert witness, John Harris (Mr. Harris). Mr. Harris inspected the hotelproperty, reviewed its incident reports and police incident reports for October 1991- October 1992,and testified that, in his opinion,Wilson World had failed to provide reasonablecare to protectMrs.Khouryfrom a criminal attack, and that its negligence was the proximate cause ofher injuries. Mr.Harrisfurther testifiedthat crime in the defined area duringthe one-year period included 48criminalacts, including assault, burglary, motor vehicle thefts, armed robbery, and other incidents. Hetestified that most of the criminal activity occurred between 8:00 pm and midnight. Mrs. Khourysubmitsthat absent therestriction of evidence by the court,Mr. Harriswould have offered competentevidence of a significant amount of criminal activityin the wider area known as the American WayCorridor.Although evidence of crime in the “immediate vicinity” is relevant and admissible todetermine foreseeability, clearly evidence of crime on the property itself is the best evidence.Neither the McClung nor Staples Courts defined “immediate vicinity,” and we do not seek to limitor define the term here. We believe that determination is best leftto the trial court in considerationof the circumstances of each case. In light of the totality of the evidence admitted in this case, we


Page 7 -7-cannot say the trial court abused its discretion in limiting the scope of evidence regarding priorcriminal acts. Mrs. Khoury also submits that it was error for the trial court to admit the testimony of FredDel Malva (Mr. Del Malva), defendant’s expert witness. She contends that Mr. Del Malva’stestimony regarding the standard practices of hotels is contraryto the holding in McClung that dutymust be established on a case-by-case basis. Questions regarding the admissibility, qualifications,relevancy and competency or an expert’s testimony generally are within the discretion of the trialcourt. Seffernick v. Saint Thomas Hosp., 969 S.W.2d 391, 393 (Tenn. 1998). The Tennessee Rulesof Evidence provide, however, that the court shall disallow testimony in the form of opinion orinference if the underlying facts or data indicate a lack of trustworthiness. Tenn. R. Ev. 703. Mr. Del Marva testified that the attack onMrs. Khoury was a random act ofviolencethat “innoway could have been deterred or prevented.” Hefurther testified regardingthe factors consideredin his evaluation, including the type of hotel, incidents of prior crime, the nature of that crime, thelevel of security, the review of that security, and the foreseeabilityof crime inside a hotel in light ofcrime in the parking lot. Mrs. Khoury does not challenge the trustworthiness of Mr. Del Marva’stestimony regarding industry standards, but contends, essentially, that such standards are notapplicable in light of McClung. Her argument, as we perceive it, is that McClung requires anexamination only of the circumstances of the individual property and disallows considerations ofstandard industry practices. Mrs. Khoury further contends that Mr. Del Marva’s testimony wasconfusing and that its probative value was outweighed by its prejudicial effect.As discussed, McClung and its successor, Staples, addressed the issue of whether defendantowed plaintiff a duty, not whetherdefendant had breached that duty. Neither McClung nor Staplesaddressthe evidence which maybe introduced to establish breach. Further, we find Mrs. Khoury’sargument that onlythe circumstances of the propertyshould be considered in establishing breach tobe inconsistent with her assertion that duty must be considered in light of the incidents of criminalactivityin a much wider area. While not conclusive, evidence of the practices of similarlysituatedproperties is relevant to the determination of the standard of care. We do not believe the trial courterred in admitting Mr. Del Marva’s testimony. The weight of that testimony is a matter to bedetermined by the jury. Non-exclusion of JurorMrs. Khoury submits it was error for the trial court not to exclude Lisa Toldi (Ms. Toldi)fromthe jury for cause because she and members of the Wilson familyattend the same church. Mrs.Khoury did not move for Ms. Toldi to be excused, but submits such a motion would have beenfruitlessas the trial court stated it would refuse to excuse her. Whether ajuror shouldbe disqualifiedbecauseof a personal acquaintance with one of theparties is within the discretion of the trial judge.Carney v. Coca-Cola Bottling Works of Tullahoma, 856 S.W.2d 147, 149 (Tenn. Ct. App.1993)(perm. app. denied). Whether friendship or acquaintance with a party will result indisqualification of a juror depends on the facts of each case. Id.


Page 8 -8-Ms. Toldi stated that she attended church andBible study with someone named “Stephanie”who was married to “a Wilson.” When asked by the court whether that would make her lesscomfortable to hear the case, Ms. Toldi replied, “I don’t know. I realized — I mean, I was in theBible study with her for 10 months. But I just knew her first name. But then, the — Bill T., Ibelieve, died last year, and I just went to the funeral.” Ms. Toldi indicated no further associationwith “Stephanie” or anyother Wilson family member. We note that no Wilson familymember wasa party to or witness in this case. We find no abuse of discretion in the trial court’s refusal todisqualify Ms. Toldi from the jury.Superseding Cause InstructionIf a defendant is found negligent in failing to take adequate measures to guard againstforeseeable harm, then the next question for the jury is whether that negligence proximatelycausedthe harm. See McClung v. Delta Square Ltd., 937 S.W.2d 891, 905 (Tenn. 1996). Although asuperseding,intervening cause maybreakthe chain of causation such thata defendant cannot be heldto have proximately caused the plaintiff’s injury, “[a]n intervening act, which is a normal responsecreatedby negligence, isnot a superseding, intervening causeso as to relieve the original wrongdoerof liability, provided the intervening act could have reasonablybeen foreseen and the conduct wasa substantial factor in bringing about the harm.” Id. (quoting Haynes v. Hamilton County, 883S.W.2d 606, 612 (Tenn. 1994)). Mrs.Khourysubmits it was errorfor the trial court toinstruct the jury on superseding causesin light of McClung. However, in this case, the jury returned a verdict finding Wilson World notnegligent. It was not necessary, therefore, forthe juryto addressthe questionof a superseding cause.Accordingly, any error which may have occurred would be harmless. This issue is pretermitted.ConclusionIn light of the foregoing, the judgment of the trial court is affirmed. Costs of this appeal aretaxed to the appellants, Cheryl D. Patterson-Khouryand Naif S. Khoury, and their surety, for whichexecution may issue if necessary.___________________________________ DAVID R. FARMER, JUDGE


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