Opinion
CIVIL ACTION NO: 01-3175, SECTION "R" (4)
September 5, 2002
ORDER AND REASONS
Before the Court is defendant's motion for summary judgment. For the following reasons, the Court grants defendant's motion.
I. Background
This matter arises out of a November 13, 2000 accident in which plaintiff Mark Marzoni slipped and fell in an ice spill. The incident occurred in an elevated walkway that connects the Donald E. Stephens Convention Center (formerly Rosemont Convention Center and O'Hare Exposition Center) to the Hyatt Regency O'Hare in Rosemont, Illinois. Plaintiff was not a guest at the Hyatt but was on his way to the Hyatt for a breakfast meeting when the accident happened.
The elevated walkway was built pursuant to a contract between Hyatt Corporation and the Village of Rosemont. The contract provides that "the Village shall have full ownership and title the walkway." The contract further provides that Hyatt is required only to "maintain and repair (other than structural repairs) the initial ten feet of the Walkway which extend from the south tower of the Hotel," and that "[t]he Village shall maintain and repair the remainder of the Walkway." (Def.'s Mot. for Summ. J., Ex. D Contract, at 5.)
Sometime before plaintiff slipped and fell, Hyatt had been notified that there was an ice spill in the elevated walkway. The hotel's housekeeping department paged a lobby porter to investigate the spill. The porter went to the scene to confirm that there was an ice spill. He then went to the utility closet to obtain a warning sign and clean-up materials. When he returned to the walkway three to four minutes later, he found plaintiff on the floor, with several other people standing around. The porter left the scene to notify hotel management of the accident. When he returned, Hyatt's Security Director was at the scene investigating the accident. The Security Director later prepared an accident report and advised Hyatt's liability insurance carrier of the accident.
Hyatt now moves for summary judgment on the grounds that it owed no legal duty to plaintiff. First, Hyatt asserts that the incident occurred beyond the initial ten feet of the elevated walkway for which it is responsible. Second, Hyatt asserts that it did not otherwise have or assume a duty to maintain the area where Marzoni fell. Plaintiff asserts his own interpretation of the contract between Hyatt and the Village of Rosemont and contends that Hyatt owed a duty to plaintiff as an invitee to take reasonable measures to clear hazards from access routes to premises.
In his opposition to defendant's motion, plaintiff also asserted that further discovery was needed to determine Hyatt's role in the maintenance of the walkway. On July 18, 2002, the Court heard oral argument on this motion and ordered that the parties conduct further discovery to identify that area of the walkway described in the contract as the initial ten feet "which extend from the south tower of the Hotel." Both parties conducted additional discovery and have supplemented their briefs. Plaintiff has not suggested that resolution of defendant's motion for summary judgment remains premature because of outstanding discovery. See FED. R. Civ. P. 56(f). Upon review of the briefs, the supplemental briefs, and the entirety of the record, the Court now grants defendant's motion for summary judgment.
II. Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c) Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551 (1986). The court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact. Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1445 (5th Cir. 1993). A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. See Hunt v. Rapides Healthcare System, LLC, 2001 WL 1650961 (5th Cir. 2001) (citations omitted).
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. Celotex, 477 U.S. at 325, 106 S.Ct. at 2552; Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
B. Conflict of Laws
Plaintiff is a citizen of Louisiana. Defendant is a citizen of Delaware. The accident occurred in Illinois due to the alleged negligence of defendant in Illinois. A federal court sitting in diversity applies the law of the forum state, including that state's conflict of laws analysis. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020 (1941); Roberts v. Energy Development Corp., 104 F.3d 782, 786 (5th Cir. 1997). Louisiana employs a so-called issue-by-issue analysis in deciding what state's law to apply. LA. CIV. CODE ANN. art. 3515 (West 2002). For delictual obligations, the general rule is to apply the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. LA. CIV. CODE ANN. art. 3542 (West 2002). Furthermore, "issues pertaining to standards of conduct and safety are governed by the law of the state in which the conduct that caused the injury occurred, if the injury occurred in that state or in another state whose law did not provide for a higher standard of conduct." LA. CIV. CODE ANN. art. 3543 (West 2002). It is undisputed that both the conduct that caused the injury and the injury itself occurred in Illinois. Therefore, the Court will apply the law of Illinois.
C. Legal Standard for Negligence
Under Illinois law, a cause of action based on common law negligence consists of three essential elements: the existence of a duty owed by defendant to plaintiff, breach of that duty, and injury proximately caused by the breach. Ward v. K Mart Corp., 554 N.E.2d 223, 226 (Ill. 1990). Whether a duty is owed is a question of law. Id.; Curtis v. Cook County, 98 Ill.2d 158, 163 (Ill. 1983).
On this issue, Louisiana law is the same as that of Illinois. Louisiana's duty-risk analysis also requires that defendant owe to plaintiff a duty to exercise reasonable care Hardy v. Bowie, 744 So.2d 606, 613 (La. 1999). Plaintiff must prove "that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached." Id. Under Louisiana law the question of whether a duty is owed is a matter of law. Id.; see also Jones v. Hyatt Corporation of Delaware, XYZ, 681 So.2d 381, 391 (La.Ct.App. 1995) ( reh'g granted, 1996).
D. The Contract
Hyatt asserts that it owed no duty to plaintiff because the accident occurred on the property of the Village of Rosemont and that the Village of Rosemont was obliged to maintain that piece of Village property. The accident occurred in an elevated walkway constructed under a contract between Hyatt and the Village. The contract states that "[t]his agreement shall be governed by and construed in accordance with the laws of the State of Illinois." (Contract, at 6.)
Under Illinois law, the court's "principal goal in construing a contract is to ascertain and give effect to the parties' intent at the time they entered the contract." City of Northlake v. Illinois Fraternal Order of Police Labor Council, Lodge 18, 2002 WL 1786474, *6 (Ill.App.Ct. 2002); Shields Pork Plus, Inc. v. Swiss Valley AG Service, 767 N.E.2d 945, 949 (Ill.App.Ct. 2002). When a contract is unambiguous, extrinsic evidence will not be considered to determine the contract's meaning. Eichengreen v. Rollins, Inc., 757 N.E.2d 952, 956 (Ill.App.Ct. 2001). When, however, a contract is "susceptible to more than one meaning" or is "obscure in meaning through indefiniteness of expression," the contract is to be considered ambiguous. Shields Pork Plus, 767 N.E.2d at 949. The determination of whether a contract is ambiguous is a question of law. Id. If a court determines that a contract is ambiguous, then parol evidence may be considered by the trier of fact in determining the parties' intent. Id.; City of Northlake, 2002 WL 1786474, at *6.
Here, the contract states that "Hyatt shall not have any ownership interest in the walkway." (Contract, at 5.) The contract further provides that "Hyatt shall, however, maintain and repair (other than structural repairs) the initial ten feet of the Walkway which extend from the south tower of the Hotel." ( Id.) The Court finds that the words "which extend from the south tower of the Hotel" are ambiguous because it is unclear where the south tower ends and the walkway begins. The Court will therefore consider extrinsic evidence on this issue to determine the intent of the parties. Shields Pork Plus, 767 N.E.2d at 949.
The contract states that the walkway is to be constructed "in accordance with drawings and specifications to be prepared by Anthony M. Rossi, Ltd." (Contract, at 2.) Defendant has produced a drawing from Anthony M. Rossi, Ltd. which Anthony Rossi asserts was prepared for use with the contract at issue. (Def's Second Supplemental Memorandum in Support of Hyatt's Mot. for Summ. J., Ex. B, Aff. of Anthony Rossi, Architectural Drawing.) The drawing clearly indicates an elevated walkway that extends from the Hyatt crosses a street, and connects to the convention center. The walkway connects to the Hyatt in only one location, at a point along the facade of the Hyatt where the exterior structure of the Hyatt is circular. ( Id.) The drawing, and indeed the entire contract, is silent as to whether this circular structure is in fact the "south tower" of the hotel.
Mr. Rossi, who prepared the architectural drawing, identified the circular structure as the "south tower" of the Hyatt. (Aff. of Anthony Rossi, at 1.) He further testified that as part of the construction of the walkway, a wall of the south tower was knocked down and replaced by doors to the new elevated walkway (the "First Doors"). ( Id.) Harold Handelsman, Hyatt's signatory to the contract, testified that the contract was intended to mean that Hyatt would be responsible for the "initial ten feet" extending from "where the walkway met what was, at the time of the Agreement, the wall, and now the [First Doors] of the South Tower of the Hyatt." (Def.'s Second Supplemental Memorandum in Support of Hyatt's Mot. for Summ. J., Ex. C, Aff. of Harold Handelsman.) It is undisputed that plaintiff's accident occurred in the elevated walkway on terrazzo tiling, which is more than 60 feet from the First Doors. (Def.'s Second Supplemental Memorandum in Support or Hyatt's Mot. for Summ. J. Ex. C, Aff. of Tony Fiore, at 2; Def.'s Second Supplemental Memorandum in Support of Hyatt's Mot. for Summ. J., Ex. F, Dep. of Ronald Deathos, at 102.) This is well beyond the ten feet that Hyatt is obliged to maintain.
Plaintiff challenges this interpretation of the contract. Plaintiff asserts that the "initial ten feet" do not extend from the First Doors, but that they extend from a second set of doors (the "Second Doors"). The Second Doors are located approximately 60 feet down the walkway, or 60 feet away from the south tower as shown on the architectural drawing. (Architectural Drawing.) Plaintiff argues that the portion of the elevated walkway that extends from the First Doors to the Second Doors is actually not part of the elevated walkway but is instead a hallway owned by the Hyatt. Plaintiff notes that the Second Doors are semi-automatic doors identical to other doors within the hotel but unlike doors within the convention center. Furthermore, the Second Doors mark the place where (1) hotel carpeting ends and the convention center's terrazzo tile flooring begins, (2) the Hyatt's electric wiring ends and that of the convention center begins, and 3) the Hyatt's lights and fixtures end and those of the convention center begin. (Pl.'s Supplemental Memorandum in Opp. to Hyatt's Mot. for Summ. J., Ex. 1, Aff. of Mark Marzoni, and Ex. 5, Dep. of Ed Balogh, at 32.) The record indicates that the accident occurred within ten feet of the Second Doors. (Dep. of Ronald Deathos, at 102.) Therefore, if plaintiff's interpretation of the contract is correct, then Hyatt was obliged to maintain that portion of the elevated walkway where plaintiff fell.
The contract, however, expressly provides that Hyatt is obliged to maintain the initial ten feet that extend from the "south tower." The Court finds plaintiff's interpretation of the contract to be contrary to the intent of the parties, for it would require the Court to find that the ten feet in question extend not from the "south tower," but instead from wherever in the walkway Hyatt's carpeting, fixtures and electricity ends, regardless of how far this point is from the south tower. The contract plainly indicates otherwise. During construction of the walkway, a wall to the south tower was removed and replaced by the First Doors. This is the point from which the walkway extends from the south tower. This is the point from which one measures the ten feet that Hyatt is obliged by contract to maintain. It is undisputed that plaintiff's accident did not occur within these ten feet. Therefore, as far as the contract is concerned, Hyatt neither owned nor was obliged by contract to maintain the location of plaintiff's accident.
Plaintiff further points to a statement made by Ed Balogh, Director of Building Operations for the Convention Center, in his deposition that the Second Doors mark the entrance to the Hyatt (Def.'s Second Supplemental Memorandum in Support of Hyatt's Mot. for Summ. J., Ex. H, Dep. of Ed Balogh, at 22.) Mr. Balogh however, was not a signatory to the contract, and later in his deposition Mr. Balogh retracted his statement, indicating that he did not know where the south tower ends and the walkway begins. ( Id. at 60.) In light of the contract's language, the architectural drawing, and the statement made by a signatory to the contract, Mr. Balogh's retracted statement cannot create an issue of fact.
Plaintiff's evidence raises the possibility that Hyatt, rather than simply maintaining the ten feet that extend from the First Doors, is instead maintaining, and perhaps even adversely possessing, the approximately 60 feet of elevated walkway extending from the south tower to the Second Doors. Plaintiff makes no showing, however, that Hyatt either maintains or possesses any portion of the walkway beyond the Second Doors, where the convention center's terrazzo tiling begins and where plaintiff's accident occurred. To the contrary, Karen McGuigan, Rooms Executive at the Hyatt, testified that "no Hyatt Corporation personnel regularly maintain or repair" the portion of the walkway where the accident occurred. (Def.'s Mot. for Summ. J., Ex. C. at 11.) McGuigan further testified that Bomark, a contractor hired by the Village, regularly maintains that portion of the walkway (Def.'s Mot. for Summ. J., Ex. E, at 83.) Mario Terran, Hyatt's Director of Housekeeping, and Ed Balogh also testified that the convention center, and not Hyatt, is responsible for maintaining the area of the walkway where plaintiff fell. (Def.'s Second Supplemental Memorandum in Support of Hyatt's Mot. for Summ J., Ex. G, Dep. of Mario Terran, at 44, and Dep. of Ed Balogh, at 28.) Therefore, Hyatt neither owns nor is contractually obliged to maintain that portion of the walkway where the accident occurred. There being no outstanding issues of material fact, Hyatt is entitled to summary judgment as to these issues.
E. Legal Duties of Non-Owners
It is nevertheless true that under Illinois law, a defendant may not escape liability by the mere fact of his status as a non-owner. Swett v. Village of Algonquin, 523 N.E.2d 594, 600 (Ill.App.Ct. 1988). Negligence, it may be said, stems neither from property ownership nor contract obligations, but rather from a duty that is owed and a breach of that duty. Plaintiff presents two broad theories in support of his argument that defendant, despite its non-owner status, owed to plaintiff a legal duty.
The same is true under the law of Louisiana. Hammons v. City of Tallulah, 705 So.2d 276, 281 (La.Ct.App. 1997); Morales v. Tetra Technologies, 608 So.2d 282, 284 (La.Ct.App. 1992).
1. Duty Owed to Business Invitees
First, plaintiff asserts that hotels maintain a special relationship with business invitees and, as such, have a duty to reasonably maintain routes of access to their premises. Illinois courts have held that businesses have a duty to provide a safe means of ingress and egress for business invitees. Swett, 523 N.E.2d at 600; Brunsfeld v. Mineola Hotel and Restaurant, Inc., 456 N.E.2d 361, 366 (Ill.App.Ct. 1983) Cooley v. Makse, 196 N.E.2d 396, 398 (Ill.App.Ct. 1964).
Under Louisiana law, courts conduct a duty-risk analysis when an owner of property actually knows of conditions on adjacent property used for access to defendant's property when that condition poses a threat to invitees. Hammons, 705 So.2d at 281. The Fifth Circuit has noted that "Louisiana courts take a broad view of the duty of care owed to an invitee by an owner or possessor of land when the danger to the invitee is located on adjacent land, at least when injury occurs on the access to the owner's business." Banks v. Hyatt Corporation, 722 F.2d 214, 225 (5th Cir. 1984).
Courts have recognized the existence of a duty to business invitees on means of access on abutting or adjacent land in two situations. First, under Illinois law, an innkeeper may owe a duty to protect business invitees from the foreseeable criminal acts or third parties. B.C. and C.C. v. J.C. Penney Company, Inc., 562 N.E.2d 533, 535 (Ill.App.Ct. 1990). Second, the law of Illinois (as well as that of Louisiana) holds that businesses are potentially liable for known, hidden conditions that pose a threat to invitees on means of ingress and egress. Swett, 523 N.E.2d at 600 (finding no duty to protect invitees crossing a busy highway that separates the business establishment from its parking lot because such danger was neither "static" nor "hidden"); McDonald v. Frontier Lanes, Inc., 272 N.E.2d 369, 374 (Ill.App.Ct. 1971) (finding a duty where defendant neither fixed nor warned invitees of a substantial hole in the parking lot).
Under Louisiana law, businesses are also potentially liable for foreseeable criminal assaults by third persons. Banks, 722 F.2d at 225 (finding a duty when the defendant was aware of the risk of criminal assaults and failed to protect plaintiff from a fatal criminal assault four feet from the establishment's front door).
See also Hammons, 705 So.2d at 279 (finding a duty where defendant failed to take care of a broken guy wire anchor which had been there for some time); Morales, 608 So.2d at 284 (finding a duty where a pothole in a parking lot caused by defendant's activity posed an unreasonable risk to plaintiff).
Plaintiff is a business invitee of defendant because he was en route to the Hyatt in order to attend a breakfast meeting. elevated walkway is certainly a means of ingress and egress to the Hyatt — indeed that is its purpose. At the same time, the hazard that allegedly caused plaintiff's injuries in this walkway was neither a foreseeable criminal threat nor a known, hidden, static defect. It is one thing to impose a duty upon a merchant to take care of hazards such as potholes that have existed on a means of ingress and egress for quite some time; it is quite another to impose a duty to take care of random, temporary hazards for which maintenance would require regular and routine patrols. Moreover, the ice spill giving rise to plaintiff's injuries was located 60 feet from where the Hyatt's property interest, as determined by its contract with the Village of Rosemont, began. (Aff. of Tony Fiore, at 2.) The Court finds as a matter of law that Hyatt did not owe a duty to regularly and routinely patrol a 60 foot radius of neighboring property in search of isolated and temporary hazards such as ice spills. This is especially true when defendant agreed with the owner of the neighboring property that it, and not Hyatt, would be responsible for such regular maintenance.
While courts have extended a business' duty to entryways, Rozelle v. Employers' Liability Assurance Corporation, 260 So.2d 757, 759 (La.Ct.App. 1972), and, for criminal matters, the area within four feet of the door, Banks, 722 F.2d at 226, 60 feet is well beyond the area of responsibility recognized in the case law.
2. Voluntary Assumption of a Legal Duty
Illinois law recognizes that "in situations in which a duty would not otherwise arise, a duty to act reasonably may be imposed when a defendant negligently performs a voluntary undertaking." Frederick v. Professional Truck Driver Training School, Inc., 765 N.E.2d 1143, 1150 (Ill.App.Ct. 2002); Frye v. Medicare-Glaser Corporation, 605 N.E.2d 557, 560 (Ill. 1992). Public policy dictates that a defendant's voluntary undertaking be subject to a "narrow construction," for individuals must not be discouraged from coming to the aid of others. Frye, 605 N.E.2d at 560. In Frye, Illinois adopted the Restatement of Torts § 323 (1965), which provides that:
"`One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure. to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.'"Frye, 605 N.E.2d at 560 (quoting Rest. 2nd Torts § 323 (1965)); see also Jackson v. Hilton Hotels Corporation, 660 N.E.2d 222, 223 (Ill.App.Ct. 1995).
Illinois has also adopted § 324A of the Restatement (Second) of Torts, which involves the situation in which one party agrees to perform services for another which inure to the benefit of a third party. This provision states:
"`One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.'"B.C. and C.C., 562 N.E.2d at 538 (quoting Rest. 2nd Torts § 324A). This provision does not apply to the lawsuit before the Court because Hyatt and the Village of Rosemont never agreed that Hyatt would clean and maintain the area of the walkway where the accident occurred. Indeed, as previously discussed, the contract between Hyatt and the Village of Rosemont indicates that they agreed to the exact opposite. See discussion, supra.
Plaintiff argues that Hyatt voluntarily assumed a duty to clean up the spill that allegedly gave rise to plaintiff's injuries. Hyatt had been notified of the spill. Hyatt's porter received a page, investigated the spill, and then headed to the utility closet to obtain clean-up materials. (Def.'s Mot. Summ. J., Ex. G, Aff. of Evaristo Mahinay, at 9.) Plaintiff argues that Hyatt failed to use reasonable care, and that the porter should have been trained to first obtain a warning sign before investigating any spill.
For defendant to be held liable, however, plaintiff must prove that defendant's failure to exercise due care in rendering such service either increased the risk of such harm or was relied upon by plaintiff. Frye, 605 N.E.2d at 560. Clearly, Hyatt's conduct did not increase the risk of harm, for Hyatt had not even touched the spill before plaintiff's accident. Therefore, plaintiff must establish reliance upon Hyatt's voluntary undertaking. Reliance requires the plaintiff to forgo other remedies or precautions. Roberson v. J.C. Penney Co., 623 N.E.2d 364, 366 (Ill.App.Ct. 1993). "Reliance is reasonable where (1) there is a deceptive appearance that the expected performance has been rendered, or (2; the defendant represents to the plaintiff that performance has been made, or (3) the plaintiff is prevented from obtaining knowledge or substituting performance." Id. (quoting the Rest. 2nd Torts § 324A, comment e, at 144 (1965)). Plaintiff has made no showing that he relied upon Hyatt's voluntary undertaking. Instead, plaintiff argues, in error, that he need not have relied upon defendant's voluntary undertaking because the case involves misfeasance, as opposed to nonfeasance. Illinois law is clear, however, that in cases of misfeasance and nonfeasance alike, plaintiff must establish either that defendant increased the risk or that plaintiff relied upon defendant's voluntary undertaking N.W. v. Amalgamated Trust and Savings Bank, 554 N.E.2d 629, 699 (Ill.App.Ct. 1990) (explaining that § 323 of the Second Restatement of Torts (1965) incorporated provisions of the first Restatement of Torts that pertained to both misfeasance and nonfeasance). The Second Restatement of Torts further indicates that § 323 "applies whether the harm to the other or his things results from defendant's negligent conduct in the manner of his performance of the undertaking, or from his failure to exercise reasonable care to complete it or to protect the other when he discontinues it." Rest. 2nd Torts § 323, comment (a). Because plaintiff has made no showing either that defendant increased the risk of harm or that plaintiff relied on defendant's voluntary undertaking, defendant is entitled to summary judgment.
Although the Roberson court is discussing the concept of reliance as it pertains to § 324A of the Restatement, the concept of reliance set forth in § 323 is substantially the same. The former requires that "(c) the harm is suffered because of reliance of the other or the third person upon the undertaking." The latter requires that "(b) the harm is suffered because of the other's reliance upon the undertaking." Rest. 2nd Torts § 323, 324A.
III. Conclusion
For the foregoing reasons, the Court grants defendant's motion for summary judgment.