In the Missouri Court of Appeals Eastern District DIVISION TWO
DANIEL T. HUGHES, ) ED108077 ) Appellant, ) Appeal from the Circuit Court of ) St. Louis County v. ) 18SL-CC00492 ) MARITZ, WOLFF & CO., LLC, and ) Honorable Ellen H. Ribaudo RITZ-CARLTON HOTEL COMPANY ) COMPANY OF DELAWARE, LLC, ) ) Respondents. ) Filed: May 12, 2020
OPINION
Daniel Hughes (“Plaintiff”) appeals the trial court’s grant of summary judgment in favor
of Maritz, Wolff & Co., LLC, and Ritz-Carlton Hotel Company, LLC a/k/a Ritz-Carlton Hotel
Company of Delaware, LLC (collectively “Defendants”). We affirm.
BACKGROUND
Plaintiff was employed by Enterprise Leasing Company (“Enterprise”) as a regional
executive. In March 2011, he attended an Enterprise group sales meeting in Clayton, Missouri
and stayed as a guest at the Ritz-Carlton Hotel (“Ritz”), assigned to room 811. Plaintiff went to
a business dinner with other executives and returned to the Ritz in the early morning hours of March 6, 2011. He requested a replacement key to his room, but mistakenly identified it as room
1611. Plaintiff had to forcibly break the privacy chain engaged inside the room to enter. He
noticed there were individuals sleeping in the room but did not question their presence. Instead,
he proceeded to undress, climb into bed with a sleeping nine-year-old female child (“Victim”)
and initiate inappropriate physical contact with her. He was ultimately confronted by her
parents, who were sleeping in the other bed. After they kicked him out of the room, he went to
the lobby where he was stopped by a security guard. Plaintiff was eventually arrested and
charged with four counts of lewd and lascivious behavior with a minor.1 Enterprise terminated
Plaintiff following the incident. Plaintiff subsequently filed a petition for negligence against
Defendants, claiming they breached their duty to him as a guest by failing to protect him,
resulting in his termination and damages.
Defendants filed a motion for summary judgment and statement of uncontroverted facts.
Plaintiff failed to timely respond to each paragraph of Defendants’ stated facts as required by
Rule 74.04(c)(2). Plaintiff filed a motion to enlarge the time to respond attaching a proposed
response. However, the proposed response failed to controvert any of Defendants’ enumerated
uncontroverted facts nor did it enumerate a single additional material fact.2 The trial court did
not rule on the motion but noted the proposed response was considered in granting summary
judgment in favor of Defendants.
1 He was acquitted of all charges in April 2014. 2 This failure was fatal to Plaintiff’s case because “the trial court’s review is limited to only ‘the motion, the response, the reply and the sur-reply.’” Fid. Real Estate Co. v. Norman, 586 S.W.3d 873, 883 (Mo. App. W.D. 2019) (quoting Rule 74.04(c)(6)). Pursuant to Rule 74.04(c), the trial court is no longer required to pore through the record to include reviewing depositions to determine if the movant made a prima facie case because the burden is now placed upon the parties to identify the true issues in dispute. Id. For each material fact that the non-movant claims is genuinely disputed, the non-movant must direct the trial court to a particular numbered paragraph in movant’s statement of uncontroverted material facts that is denied in the non-movant’s response and support any denial with specifically referenced evidence. Id. When reviewing a summary judgment, our court does not review the entire trial court record; instead, our court may only review the undisputed material facts established by the process set forth in Rule 74.04(c). Fleddermann v. Casino One Corp., 579 S.W.3d 244, 248 (Mo. App. E.D. 2019).
2 DISCUSSION
Plaintiff presents four points on appeal, each of which asserts the trial court erred in
granting summary judgment in favor of Defendants. In his first point, Plaintiff claims the court
erred because Defendants had a duty to protect him as a guest in the hotel. In point two, Plaintiff
claims summary judgment was improper because Defendants breached their duty by giving him
the wrong room key, which caused his entry to room 1611. In his third point, Plaintiff argues the
trial court erroneously granted summary judgment in favor of Defendants because there is a
factual question regarding proximate cause and it cannot be resolved as a matter of law. In his
fourth and final point, Plaintiff contends the trial court erred in granting summary judgment in
favor of Defendants because his forcible entry into room 1611 was not a superseding or
intervening cause to break the chain of causation, but instead a foreseeable consequence of
Defendants’ negligence.
Standard of Review
Our review of the trial court’s grant of summary judgment is de novo. ITT Comm. Fin.
Corp. v. Mid-Amer. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will
affirm the judgment of the trial court if there are no genuine issues of material fact and the
movant is entitled to judgment as a matter of law. Id. at 377; Rule 74.04(c)(6).
When a defendant moves for summary judgment, a right to judgment as a matter of law
can be established by showing: (1) facts that negate any one of the elements of Plaintiff’s claim;
(2) that Plaintiff, after an adequate period of time for discovery, has not and will not be able to
produce sufficient evidence to find the existence of any element of Plaintiff’s claim; or (3) there
is no genuine dispute as to the existence of each of the facts required to prove a properly pleaded
affirmative defense. Garrett v. Impac Hotels 1, LLC, 87 S.W.3d 870, 872 (Mo. App. E.D. 2002);
3 (quoting ITT Comm. Fin. Corp., 854 S.W.2d at 381). Analysis
We need not address each of Plaintiff’s points individually because the summary
judgment record is clear that Defendants are entitled to judgment as a matter of law on Plaintiff’s
negligence claim against them based upon the undisputed facts. To show negligence, Plaintiff
was required to prove Defendants had a duty to protect him from injury, Defendants failed to
exercise their duty, and that failure resulted in damage to Plaintiff. Miller v. South County
Center, Inc., 857 S.W.2d 507, 510 (Mo. App. E.D. 1993). While businesses generally do not
owe a duty to protect invitees, there are two exceptions: the “special relationship” test, and the
“special circumstances” test.3 Id. A “special relationship” exists if an individual entrusts
himself to the protection of another and relies upon that party to provide a safe place. Id. This
includes the innkeeper-guest relationship. Id.
However, such duty must be premised upon foreseeable harm that can occur to the guest.
See id. at 512. The Plaintiff did not dispute Defendants facts showing they could not have
known or should have reason to know Plaintiff would conduct himself in the manner he did once
given the key to the wrong room. More specifically, the undisputed facts are that Plaintiff was
voluntarily intoxicated, and requested the key to room 1611, which was not his room. Once
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In the Missouri Court of Appeals Eastern District DIVISION TWO
DANIEL T. HUGHES, ) ED108077 ) Appellant, ) Appeal from the Circuit Court of ) St. Louis County v. ) 18SL-CC00492 ) MARITZ, WOLFF & CO., LLC, and ) Honorable Ellen H. Ribaudo RITZ-CARLTON HOTEL COMPANY ) COMPANY OF DELAWARE, LLC, ) ) Respondents. ) Filed: May 12, 2020
OPINION
Daniel Hughes (“Plaintiff”) appeals the trial court’s grant of summary judgment in favor
of Maritz, Wolff & Co., LLC, and Ritz-Carlton Hotel Company, LLC a/k/a Ritz-Carlton Hotel
Company of Delaware, LLC (collectively “Defendants”). We affirm.
BACKGROUND
Plaintiff was employed by Enterprise Leasing Company (“Enterprise”) as a regional
executive. In March 2011, he attended an Enterprise group sales meeting in Clayton, Missouri
and stayed as a guest at the Ritz-Carlton Hotel (“Ritz”), assigned to room 811. Plaintiff went to
a business dinner with other executives and returned to the Ritz in the early morning hours of March 6, 2011. He requested a replacement key to his room, but mistakenly identified it as room
1611. Plaintiff had to forcibly break the privacy chain engaged inside the room to enter. He
noticed there were individuals sleeping in the room but did not question their presence. Instead,
he proceeded to undress, climb into bed with a sleeping nine-year-old female child (“Victim”)
and initiate inappropriate physical contact with her. He was ultimately confronted by her
parents, who were sleeping in the other bed. After they kicked him out of the room, he went to
the lobby where he was stopped by a security guard. Plaintiff was eventually arrested and
charged with four counts of lewd and lascivious behavior with a minor.1 Enterprise terminated
Plaintiff following the incident. Plaintiff subsequently filed a petition for negligence against
Defendants, claiming they breached their duty to him as a guest by failing to protect him,
resulting in his termination and damages.
Defendants filed a motion for summary judgment and statement of uncontroverted facts.
Plaintiff failed to timely respond to each paragraph of Defendants’ stated facts as required by
Rule 74.04(c)(2). Plaintiff filed a motion to enlarge the time to respond attaching a proposed
response. However, the proposed response failed to controvert any of Defendants’ enumerated
uncontroverted facts nor did it enumerate a single additional material fact.2 The trial court did
not rule on the motion but noted the proposed response was considered in granting summary
judgment in favor of Defendants.
1 He was acquitted of all charges in April 2014. 2 This failure was fatal to Plaintiff’s case because “the trial court’s review is limited to only ‘the motion, the response, the reply and the sur-reply.’” Fid. Real Estate Co. v. Norman, 586 S.W.3d 873, 883 (Mo. App. W.D. 2019) (quoting Rule 74.04(c)(6)). Pursuant to Rule 74.04(c), the trial court is no longer required to pore through the record to include reviewing depositions to determine if the movant made a prima facie case because the burden is now placed upon the parties to identify the true issues in dispute. Id. For each material fact that the non-movant claims is genuinely disputed, the non-movant must direct the trial court to a particular numbered paragraph in movant’s statement of uncontroverted material facts that is denied in the non-movant’s response and support any denial with specifically referenced evidence. Id. When reviewing a summary judgment, our court does not review the entire trial court record; instead, our court may only review the undisputed material facts established by the process set forth in Rule 74.04(c). Fleddermann v. Casino One Corp., 579 S.W.3d 244, 248 (Mo. App. E.D. 2019).
2 DISCUSSION
Plaintiff presents four points on appeal, each of which asserts the trial court erred in
granting summary judgment in favor of Defendants. In his first point, Plaintiff claims the court
erred because Defendants had a duty to protect him as a guest in the hotel. In point two, Plaintiff
claims summary judgment was improper because Defendants breached their duty by giving him
the wrong room key, which caused his entry to room 1611. In his third point, Plaintiff argues the
trial court erroneously granted summary judgment in favor of Defendants because there is a
factual question regarding proximate cause and it cannot be resolved as a matter of law. In his
fourth and final point, Plaintiff contends the trial court erred in granting summary judgment in
favor of Defendants because his forcible entry into room 1611 was not a superseding or
intervening cause to break the chain of causation, but instead a foreseeable consequence of
Defendants’ negligence.
Standard of Review
Our review of the trial court’s grant of summary judgment is de novo. ITT Comm. Fin.
Corp. v. Mid-Amer. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will
affirm the judgment of the trial court if there are no genuine issues of material fact and the
movant is entitled to judgment as a matter of law. Id. at 377; Rule 74.04(c)(6).
When a defendant moves for summary judgment, a right to judgment as a matter of law
can be established by showing: (1) facts that negate any one of the elements of Plaintiff’s claim;
(2) that Plaintiff, after an adequate period of time for discovery, has not and will not be able to
produce sufficient evidence to find the existence of any element of Plaintiff’s claim; or (3) there
is no genuine dispute as to the existence of each of the facts required to prove a properly pleaded
affirmative defense. Garrett v. Impac Hotels 1, LLC, 87 S.W.3d 870, 872 (Mo. App. E.D. 2002);
3 (quoting ITT Comm. Fin. Corp., 854 S.W.2d at 381). Analysis
We need not address each of Plaintiff’s points individually because the summary
judgment record is clear that Defendants are entitled to judgment as a matter of law on Plaintiff’s
negligence claim against them based upon the undisputed facts. To show negligence, Plaintiff
was required to prove Defendants had a duty to protect him from injury, Defendants failed to
exercise their duty, and that failure resulted in damage to Plaintiff. Miller v. South County
Center, Inc., 857 S.W.2d 507, 510 (Mo. App. E.D. 1993). While businesses generally do not
owe a duty to protect invitees, there are two exceptions: the “special relationship” test, and the
“special circumstances” test.3 Id. A “special relationship” exists if an individual entrusts
himself to the protection of another and relies upon that party to provide a safe place. Id. This
includes the innkeeper-guest relationship. Id.
However, such duty must be premised upon foreseeable harm that can occur to the guest.
See id. at 512. The Plaintiff did not dispute Defendants facts showing they could not have
known or should have reason to know Plaintiff would conduct himself in the manner he did once
given the key to the wrong room. More specifically, the undisputed facts are that Plaintiff was
voluntarily intoxicated, and requested the key to room 1611, which was not his room. Once
given the key to room 1611, he found the door locked from inside with a chain which could not
be unlocked by the key card. Despite this secondary lock, Plaintiff forcibly entered the room,
breaking the chain’s screws off the door frame. Upon entry, Plaintiff saw people sleeping in the
beds, but did not speak to anyone, much less inquire why they were in his room. He undressed
3 If special circumstances exist, it may give rise to a duty to protect an invitee where no special relationship exists. Miller, 857 S.W.2d at 510. A duty may arise if there is an intentional infliction of injury by a known and identifiable third party, or if there are frequent and recent occurrences of violent crimes against individuals on the premises by unknown assailants, which results in such acts becoming foreseeable. Id. The special circumstances exception does not apply to this case.
4 to his underwear, climbed into bed with a person he presumed was a female but did not know the
identity of and initiated physical contact with her. He admitted to the police he “was rubbing her
butt and I could feel her skin,” as he touched her breasts, legs, shoulder, and hands. He also tried
to kiss Victim and pull her on top of his body. As a result of his actions, Plaintiff was criminally
charged and subsequently terminated from Enterprise.
Nothing in the summary judgment record shows Defendants should have or could have
anticipated such behavior by Plaintiff upon being given the key to the wrong room.4 Thus, the
undisputed facts show no duty existed. See Miller, 857 S.W.2d at 513 (no evidence was
presented of prior incidents to establish foreseeability of crime to prove existence of duty on the
part of the defendants). As a result, Plaintiff failed to establish a necessary element of his
negligence claim, and summary judgment in favor of Defendants was proper.
In addition, we find the undisputed facts in the summary judgment record also defeat the
element of causation. To prove the required causation for his claim of negligence, Plaintiff must
show both causation in fact and proximate cause. Heffernan v. Reinhold, 73 S.W.3d 659, 664
(Mo. App. W.D. 2002). Defendants’ actions are the cause in fact of Plaintiff’s damages if the
injury would not have occurred “but for” that conduct. Id. Proximate cause is not causation in
fact, but instead is a limitation imposed by law upon a party’s right to recover for the
consequences of a negligent act. Id. “The requirement of proving proximate cause absolves
those actors whom it would be unfair to punish because of the attenuated relation which their
conduct bears to the plaintiff’s injuries.” Id. The test is whether the negligence is the action of
which the damages were the natural and probable consequence. Id.
4 Plaintiff contends his obvious intoxication serves as justification for imposing a duty upon Defendants to have protected him from himself after receiving the key to room 1611; however, Plaintiff failed to refute Defendants’ statement of uncontroverted fact, and nothing in the summary judgment record supports this contention.
5 As discussed above, the undisputed facts show Plaintiff broke the chain off the door to
enter a locked room, undressed, got into bed with a minor child unknown to him, and admitted
he engaged in inappropriate contact with her. Plaintiff alleges his termination as a result of this
behavior was proximately caused by Defendants’ negligence in giving him the key to the wrong
room. However, there is no genuine dispute of material fact regarding Plaintiff’s conduct
following the alleged negligence of Defendants, nor that such conduct was not a natural or
probable consequence to being given the key to room 1611. Moreover, the undisputed facts
show Plaintiff’s claimed injury, his termination from Enterprise, was not the result of the alleged
negligent act of giving Plaintiff the key to the wrong room. Instead, the summary judgment
record unequivocally establishes he was terminated because he forcibly entered the room and
was criminally charged for his behavior after doing so.5 Thus, the undisputed facts negate
causation and Defendants are entitled to judgment as a matter of law on Plaintiff’s negligence
claim.
As a result of the foregoing, the trial court did not err in granting summary judgment in favor of
Defendants.
CONCLUSION
The judgment of the trial court granting summary judgment in favor of Defendants is
affirmed.
_______________________________ Lisa P. Page, Judge
Philip M. Hess, P.J. and Kurt S. Odenwald, J., concur.
5 The undisputed facts further showed Plaintiff had been previously warned and reprimanded about his inappropriate behavior and was on probation with Enterprise at the time.