dissents.
I respectfully dissent.
The principal opinion cannot be read as doing anything other than imposing strict liability upon the owners of hotels and motels. The principal opinion concedes that nothing about the assailant’s appearance would have given defendant cause to believe that the assailant might accost plaintiff or anyone else in the hotel. Its holding is grounded squarely upon the view that defendant should have foreseen that someone might attack a patron in the ladies’ room at some time. It states:
We agree that the defendant could not be found negligent on the basis of the assailant’s presence in the hotel, but only up to the point at which he entered the ladies’ room. Had his entry there been observed by a hotel employee, an immediate duty to take action would have arisen. But the entry was not observed.
(Emphasis added; footnote omitted.) The gist of that statement is that defendant had a duty to hire a permanent ladies’ room attendant or initiate some other security measure that would effectively have deterred a man from entering the ladies’ room. I find nothing in the facts developed at trial that would cause defendant to owe plaintiff such an extraordinary duty. Plaintiff’s evidence regarding previous incidents at the hotel showed that there had been some prostitution; that young men, not guests of the hotel, had congregated on the lower level; that there had been some vandalism in the men’s restroom on the lower level; that there had been thefts from automobiles in the parking garages; that “undesirables” had come into the hotel from a nearby bus station; and that there had been a bomb threat.
As a theoretical matter, anything is foreseeable. The law, however, must be tempered with a measure of practicality. Lt. Col. Warren testified that the area around defendant’s hotel is one of comparatively low crime. Nothing about previous incidents at the hotel suggests that defendant had a reasonable basis for anticipating the attack of which plaintiff complains. In such a case defendant breached no duty owed to plaintiff.
I would affirm the judgment.