Folmar v. Marriott, Inc.

1996 OK CIV APP 51, 918 P.2d 86, 1996 Okla. Civ. App. LEXIS 36, 1996 WL 297450
CourtCourt of Civil Appeals of Oklahoma
DecidedApril 30, 1996
Docket86832
StatusPublished
Cited by9 cases

This text of 1996 OK CIV APP 51 (Folmar v. Marriott, Inc.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Folmar v. Marriott, Inc., 1996 OK CIV APP 51, 918 P.2d 86, 1996 Okla. Civ. App. LEXIS 36, 1996 WL 297450 (Okla. Ct. App. 1996).

Opinions

OPINION

BUETTNER, Judge:

Around 2:00 a.m. on the morning of November 7, 1993, Appellants Robert, Tobe, and Samuel Folmar left Russells, a lounge located inside the Marriott Hotel in Oklahoma City. In leaving, the men walked through the lobby of the hotel and down a hallway to an east door, and out into the parking lot. As soon as the Folmars were out of the hotel, they were immediately, suddenly and without warning, attacked and injured by unknown assailants. Security guards were on duty at the hotel at the time of the assault, but none of the guards were in the parking lot. Upon being informed a fight was going on outside, a hotel security guard immediately ran to the parking lot but the assailants were gone. The Folmars declined medical assistance offered by Hotel staff, drove to a nearby restaurant, and later sought medical attention from area hospitals. The assailants have never been identified.

The Folmars and their spouses (collectively “Folmars”) sued Appellees Marriott, Inc., Host Marriott, Inc., and Marriott Hotel Services, Inc. (collectively “Hotel”) under a negligence theory. The trial court sustained Hotel’s motion for summary judgment finding no issues of material fact existed. Fol-mars filed this appeal pursuant to Rule 1.203, Rules of Appellate Procedure in Civil Cases.

Hotel’s motion and amended motion for summary judgment argued that, as a business invitor, it owed no duty to protect invitees from criminal acts of third parties unless the invitor knows or has reason to know that the intentional or criminal acts of a third party “are occurring or about to occur.” Taylor v. Hynson, 856 P.2d 278 (Okla.1993).

It is uneontroverted that Hotel did not know or have reason to know that the assault was occurring or about to occur. For example, there is no evidence that the assailants were previously in the Hotel lounge, nor were they seen loitering suspiciously in the parking lot. However, Folmars argue that there are certain situations in which an invitor is charged with anticipating and protecting against possible harm.1 Folmars point out that Oklahoma cases dealing with the duty of care owed to business invitees have considered the Restatement (Second) of [88]*88Torts, § 344.2 They focus specifically on that portion of Comment f to § 344 which provides that business invitors may “know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual.” Fol-mars allege Hotel’s past experiences gave rise to a duty of care.

The latter portion of Comment f has not been adopted by the Oklahoma Supreme Court. The law in Oklahoma has been for some time that an invitor is generally not under a duty to protect invitees from criminal assaults by third persons. Davis v. Allied Supermarkets, Inc., 547 P.2d 963 (Okla.1976).3 A review of Oklahoma Supreme Court cases has found that a duty on the part of proprietors only arises when the situation involved an immediate event which the proprietor knew was occurring or about to occur. For example, in Taylor, supra, the manager of a McDonalds restaurant observed three men enter the restaurant and begin harassing and threatening customers with profanity and name calling. The manager asked the men to leave but did not follow up on this request. The manager also did not call police when another customer suggested she do so. The men went outside the restaurant and began making racist comments towards a customer waiting in the drive-through lane. The customer left his car and a fight began. In that ease, the trial court granted summary judgment after find-mg McDonalds did not have notice of the third party attack and did not have time to call police. The Supreme Court reversed the grant of summary judgment, finding “a fact dispute whether McDonald’s employee Tyson knew that the assault was occurring or was about to occur. There is also a dispute whether, if she had such knowledge, she acted reasonably under the circumstances.” 856 P.2d at 281. The Supreme Court limited its analysis to the first portion of Comment f, specifically that portion requiring knowledge that the act of a third party “was occurring or was about to occur.” Indeed, the Supreme Court held “(w)hen an invitor has knowledge that an invitee is in imminent danger, the invitor must act reasonably to prevent injury.” 856 P.2d at 281 (emphasis added).

In Johnson v. Mid-South Sports, Inc., 806 P.2d 1107 (Okla.1991), the Supreme Court found that an usher at a wrestling match, who had earlier called a police officer to deal with rowdy patrons, could not reasonably have foreseen one of those rowdy patrons might return to target another spectator. The Supreme Court indicated that the elapsed time between the rowdy patrons leaving and the attack after the match made the wrestling promoters unaware of any potential attacks. Therefore, despite outbursts from the rowdy fans during the same evening, the Supreme Court implied the threat from third parties must be more immediate — in other words, there must be knowledge the attack is occurring or about to occur.

[89]*89In Davis v. Allied Supermarkets, Inc., 547 P.2d 963 (Okla.1976), a case factually similar to the case at hand, an unknown assailant assaulted the plaintiff and snatched her purse while she walked at night in the parking lot of defendant’s grocery store. The allegation of negligence in that ease was that the grocery store failed to provide adequate lighting and personnel, in particular because the store was in a high crime area. In that case, the Supreme Court refused to hold a business owner liable for criminal acts of third parties, absent special circumstances. The Court referred to an earlier case with a similar holding involving an employer’s duty of care towards his employees. McMillin v. Barton-Robison Convoy, Co., 78 P.2d 789 (Okla.1938). Also see Shelkett v. Hardee’s Food Systems, Inc., 848 P.2d 63 (Okla.App.1993)(no duty found where minimal time between verbal statements and attack provided no opportunity to prevent attack); Edington v. A. & P. Enterprises, Inc., 900 P.2d 453 (Okla.App.1994) (duty found where restaurant employees observed suspicious behavior in parking lot, feared some kind of criminal conduct, and invitee was assaulted).

Our review of Supreme Court ease law indicates a business invitor will not be hable for intentional or criminal acts of third parties unless the invitor has knowledge the act “is occurring or is about to occur.”

In McMillin, plaintiff’s decedent was murdered at work by robbers intent on stealing an automobile from the employer. Plaintiff claimed the employer breached its duty of furnishing a safe workplace by “establishing its place of business in a community infested with criminals, and which was notorious for the number of crimes committed daily.” 78 P.2d at 789. The Court held that employer had no duty to protect employees for criminal conduct asserting:

We are unable to see that an employer has a general duty to protect his employees from the assaults of criminals. We are likewise unable to see that there are any exceptional circumstances in this ease which would give rise to such a duty.

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Folmar v. Marriott, Inc.
1996 OK CIV APP 51 (Court of Civil Appeals of Oklahoma, 1996)

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Bluebook (online)
1996 OK CIV APP 51, 918 P.2d 86, 1996 Okla. Civ. App. LEXIS 36, 1996 WL 297450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/folmar-v-marriott-inc-oklacivapp-1996.