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Crinkley v. Holiday Inns, Inc. JAMES DICKSON PHILLIPS, Circuit Judge:This is a civil action in which various defendants associated with the Holiday Inns enterprise appeal from jury verdicts finding them liable for personal injuries inflicted by third persons upon the plaintiffs Crinkley, while the Crinkleys were guests in a Holiday Inn Motel. The defendants raise several issues on appeal, principally that the district court erred in denying their motion for judgment notwithstanding the verdict and in refusing to set aside the jury's verdicts as excessive and the product of improper considerations. We find no reversible error and affirm.
ISometime before the weekend of February 27, 28, 1981, the Crinkleys decided to attend a function being held during that weekend at the Charlotte, North Carolina Civic Center. They tried to reserve a room at the Holiday Inn-Charlotte, close to the center, but found that it was fully booked. Looking for alternate lodging, they consulted a Holiday Inn directory that they had obtained during a previous stay at a Holiday Inn. From it they selected the Holiday Inn-Concord and reserved a room for the nights of February 27 and 28. The Holiday Inn-Concord is located some twenty-odd miles north of Charlotte, just off Highway 29, which runs directly south into downtown Charlotte, and Interstate 85, which runs to and around the northern edge of Charlotte.
During the approximately two weeks preceding the weekend of February 27, guests at several Charlotte area motels had been assaulted and robbed on the premises by a group later dubbed the “Motel Bandits” in media reports. The motels involved were located throughout the metropolitan Charlotte area, and many of them were located close to Interstate 85. The assistant manager of the Holiday Inn-Concord, Brian McRorie, was aware of the Motel Bandits from the various news media. He was contacted by several unidentified members of the local County Sheriff's Office who wanted to know if McRorie was aware of the Motel Bandits and what plans he had for security at the motel while the Motel Bandits were at large. Some of these officers also offered to serve for a fee as security guards during their off duty hours, a security measure that the motel had used in the past, but did not avail itself of in this instance.
As a result of this information, McRorie contacted Jim Van Over about the possibility of hiring security guards to patrol the motel. Van Over was the manager of the Holiday Inn on Woodlawn Road in Charlotte, and had some supervisory responsibility over the Holiday Inn-Concord as an employee of defendant Travelers Management Corporation (TRAVCO), the entity in operational control of the Holiday Inn-Concord. Van Over was also the president of the Metrolina Innkeepers Association and had been interviewed for a newspaper story covering the Motel Bandits. In that article, he noted that his hotel had added security personnel for night patrols. As to McRorie's requests for additional security at the Concord property, however, Van Over concluded that extra security measures were not justified. McRorie did instruct his employees to be particularly alert for anything suspicious and he periodically patrolled the premises on February 27, the last time being sometime between 8:00 and 8:30 p.m. The motel also continued its program to encourage local law enforcement personnel to frequent the premises by offering a free snack tray and discount meals in the restaurant though it did not employ any as security guards.
At approximately 8:00 p.m. on February 27, the Crinkleys arrived at the Holiday Inn-Concord. After spending a short time checking in, they parked their car in front *159 of their room and began unloading their baggage. As James Crinkley was bringing in the last of their items, Sarah Crinkley, who was standing in the doorway to their room, noticed a man come around the corner of the motel and begin walking toward them. When the man reached the Crinkleys' room, he stopped and asked to speak with James Crinkley. Almost immediately, the man began trying to push the Crinkleys into their room. Despite James Crinkley's efforts to resist him, the man succeeded in getting the Crinkleys into their room. The man was armed with a gun, and once inside he beat James Crinkley, turned on the television and called for his accomplices. He was joined in the room by two men who again beat James Crinkley, bound and gagged him, and put a mattress on top of him. After going through the Crinkleys' possessions, the men approached Sarah Crinkley. They pushed her down and asked for her money and her engagement ring. When she told them that the ring would not come off, one of the men put a gun to her head and told her that if she did not take it off, he would “blow her brains out.” She got the ring off and gave it to the men. They then bound and gagged her before fleeing. She was able to free herself after a short time. She removed the mattress and gag from her husband and called the front desk for help. The desk clerk notified the Cabarras County Sheriff's Office and a deputy arrived at the Crinkleys' room within minutes.
The Crinkleys were taken to an area hospital for emergency medical care. James Crinkley sustained multiple bruises to his head and upper body region, as well as a severely broken jaw. His broken jaw was wired, a condition which lasted approximately six weeks. Sarah Crinkley's subsequent condition was more complicated. Before the assault she was under a doctor's care for hypertension and obesity. In April of 1982-approximately fourteen months after the assault-she suffered a heart attack. A balloon angioplasty was performed in an effort to clear the blockage in her arteries, but was not successful. After consulting with her doctors, she opted for heart by-pass surgery to treat her condition. In addition to her cardiac problems, friends and family noted that Sarah Crinkley's personality changed drastically after the assault. She became fearful, anxious and withdrawn. Her activities also were observed to be much more restricted. In early 1984, she began seeing a psychiatrist who diagnosed her as suffering from post-traumatic stress disorder and major affective disorder.
The Crinkleys brought suit against several defendants variously associated with the Holiday Inn-Concord alleging, inter alia, that the defendants were negligent by providing them inadequate security and that such negligence was the proximate cause of their injuries. After pre-trial rulings, Holiday Inns, Inc., TRAVCO, American Health Home, Inc., Frank Schilage, and Roger Harris remained as defendants. The last three were alleged to be liable as the actual owners of the motel. TRAVCO was alleged to be liable as the entity in actual day-to-day control of the operation of the motel, which was managed under a franchise agreement with Holiday Inns. Holiday Inns was alleged to be liable on the theory of actual authority or, alternatively, apparent agency. The basis of both agency theories was a franchise agreement, which gave Holiday Inns the right to control certain aspects of the motel's operation.
At trial, the Crinkleys relied primarily on the testimony of Brian McRorie to show that the assault was reasonably foreseeable. They introduced testimony from a security expert that the measures in effect at the Holiday Inn-Concord were inadequate to deal with the potential threat. The main deficiencies identified were inadequate fencing around the perimeter of the property, and the lack of no trespassing signs and of any security patrols. Medical experts opined that both Sarah Crinkley's heart attack and her psychological problems were due to the stress she continued to experience in the wake of the assault.
Following the denial of motions for directed verdict, the jury returned verdicts in favor of the Crinkleys against all the defendants above identified, finding in special *160 verdicts that the criminal acts were reasonably foreseeable by the motel owners and TRAVCO, that those defendants were negligent in providing inadequate security, and that such negligence caused the Crinkleys' injuries. Holiday Inns was found vicariously liable on the basis of apparent agency. The jury awarded Sarah Crinkley $400,000 and James Crinkley $100,000 in compensatory damages.
Following the verdict, defendants moved for judgment notwithstanding the verdict or, conditionally, for a new trial. The motions were denied and this appeal followed.
IIWe first consider defendants' contention that the district court erred in denying their motion for judgment n.o.v.
In a diversity case, the standard for assessing the sufficiency of the evidence to establish a submissible case under state substantive law is governed by federal law, Owens ex rel. Owens v. Bourns, Inc., 766 F.2d 145, 149 (4th Cir.1985) (citation omitted).
Under the federal standard, applied alike at trial and on review, the evidence and all reasonable inferences from it are assessed in the light most favorable to the non-moving party, Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 243 n. 14 (4th Cir.1982), and the credibility of all evidence favoring the non-moving party is assumed. Tights, Inc. v. Acme-McCrary Corp., 541 F.2d 1047, 1055 (4th Cir.1976). Assessed in this way, the evidence must then be “of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment could reasonably return a verdict for the non-moving party....” Wyatt v. Interstate & Ocean Transp. Co., 623 F.2d 888, 891 (4th Cir.1980). A “mere scintilla of evidence” is not sufficient to withstand the challenge, Gairola v. Virginia Dept. of Gen. Services, 753 F.2d 1281, 1285 (4th Cir.1985) (citation omitted).
In North Carolina, as generally, the elements of the prima facie negligence claim are the familiar ones: (1) a duty by defendant to conform his conduct to a particular standard of care, (2) breach of that duty, (3) proximate causation, and (4) injury. Plyler v. Moss & Moore, Inc., 40 N.C.App. 720, 254 S.E.2d 534, 537 (1979) (citation omitted).
Applying the federal standard of sufficiency of evidence, we believe the evidence was sufficient to withstand the motion for judgment n.o.v. on all these elements.
The duty here in issue is that of a landowner or lessee to business invitees on his premises. In North Carolina, as generally, there is no duty on such a person's part to insure the safety of his invitees. Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 281 S.E.2d 36, 38 (1981). Rather, such a person owes only the general duty of exercising reasonable or ordinary care for their safety. Murrow v. Daniels, 85 N.C.App. 401, 355 S.E.2d 204, 207 (1987), rev. granted, 320 N.C. 514, 358 S.E.2d 522 (1987); Foster, 281 S.E.2d at 38. While this duty does not ordinarly extend to protecting invitees from the intentional, criminal acts of third persons, Brown v. North Carolina Wesleyan College, Inc., 65 N.C.App. 579, 309 S.E.2d 701, 702 (1983), it may in appropriate circumstances. Foster, 281 S.E.2d at 38-39. Specifically, such a duty of care may in appropriate circumstances be found owed by the operators of places of public accommodation to their guests. See Murrow (motel owner); Urbano v. Days Inn of America, Inc., 50 N.C.App. 795, 295 S.E.2d 240 (1982) (same). See also Brown (duty owed by college); Sawyer v. Carter, 71 N.C.App. 556, 322 S.E.2d 813 (1984) (duty owed by convenience store owner).
[1]
 Foreseeability determines “whether a duty to protect [his] business invitees against criminal acts of third persons will be imposed upon a particular landowner in a particular case.” Sawyer, 322 S.E.2d at 814. Foreseeability may be shown by all relevant evidence, including that of prior criminal activity on the premises involved, or in the general area in which the premises is situated. Sawyer. Defendants contend that the evidence of prior criminal activity here was insufficient in and of itself to make it reasonably foreseeable that “Motel*161 Bandits” operating in Charlotte would threaten the Holiday Inn-Concord thereby giving rise to a duty to protect against that particular risk. We disagree.While the evidence of prior criminal activity at the Holiday Inn-Concord might alone be insufficient to establish the foreseeability of criminal activity on the premises, compare Brown (evidence of sporadic incidents of crime over several years found insufficient to impose a duty on the defendant-landowner to make its premises safe), we think that the evidence in its totality sufficed here to permit a jury finding of duty to take reasonable precautions.
In the two weeks just before the attack on the Crinkleys, seven motels within the general area had been victimized by what the police and press had identified as the same group of assailants. At times, the group struck at more than one motel in a single night. The systematic nature of the attacks, their apparent perpetration by a single group, and the fact that the group continued to operate even after law enforcement efforts had focused on them and Charlotte motels were alerted to their presence make it reasonably foreseeable that the attacks would continue.
The prior incidents were not confined to any particular, narrow section within Charlotte. Many of the reported sites there were separated by several miles. Interstate 85 and Highway 29 provide both convenient access to Concord from Charlotte and a ready escape route out of Concord. Commuting between the two cities was regular and substantial. The Crinkleys themselves decided to stay in Concord though their ultimate destination was Charlotte, and even the new general manager of the motel at the time commuted to work there from his home in Charlotte.
Finally, the evidence is sufficient to establish that it was reasonably foreseeable that the Holiday Inn-Concord might be a target. The premises was a motel near a major highway, making it similar to several of the motels victimized in Charlotte. Evidence at trial indicated that motels with relatively more affluent clienteles, judged by reference to room rates, were the preferred targets. The Holiday Inn-Concord was in this category. That relatively lax security measures necessarily enhance the attractiveness of a particular motel as a potential target is manifest. Urbano, 295 S.E.2d at 242 (“[D]efendant ... should have reasonably foreseen that the conditions on its motel premises were such that its guests might be exposed to injury by the criminal acts of third persons....”).
In addition to the circumstantial evidence of foreseeability, there was evidence of actual notice of the specific threat. McRorie, the motel's assistant manager, testified that he was aware of the “Motel Bandits” depradations. He also testified that he was contacted by local law enforcement officers who wanted to make sure that he was aware of the situation and would make adequate security arrangements. Some of these officers offered their services as security guards for hire, on the specific basis of this particular threat. McRorie himself took the threat seriously enough to ask his superiors about the possibility of hiring patrol guards. And though he was told that the threat did not justify taking such action, he warned his employees to be alert to suspicious circumstances and patroled the premises the night the Crinkleys were attacked.
We believe that this evidence sufficed to create a jury question on the issue of foreseeability and that a jury could reasonably conclude that because an attack on its guests was reasonably foreseeable, a duty of taking specific protective measures was imposed by the circumstances upon the defendants.
[2]
To prove that the special duty of care created by the circumstances was breached, the Crinkleys relied primarily on the testimony of an expert in hotel-motel security, Kenneth Prestia.Prestia testified that security at the Holiday Inn-Concord was inadequate in several respects. The motel had widespread access from several directions, a security problem exacerbated by the fact that the front desk did not provide employees with a view of all points of access. Existing fencing was *162 of inadequate height adequately to deter access to the premises and there were no “no trespassing” signs around the perimeter. He opined that these obvious physical measures have a deterrent effect on crime by conveying the impression that the motel maintained a heightened security posture, and that their absence therefore increased the risk of criminal activity on the premises.
Prestia also opined that there were inadequacies apart from these physical measures. The motel had not instituted a formal security plan specifically tailored to the premises and did not employ security patrols. Prestia testified that security patrols are again particularly important where there is widespread access to the motel and limited observation from the employees. On this same point, he noted that more security patrols could be added during a period of higher crime activity or an increased threat of crime, a measure that could be taken by hiring off-duty law enforcement personnel.
The defendants did not introduce any expert evidence of their own to counter Prestia's assessment of lax security at the motel. Through cross-examination, they attempted to impeach Prestia's contention that security at the motel was lax and that many of the measures he suggested would have the effect of increasing security. The defendants also attempted to portray the Holiday Inn-Concord as a quiet, safe motel that did not require the extreme security measures urged by Prestia.
Considering Prestia's testimony and the fact that Holiday Inn's own Loss Prevention Manual suggests some of the same security measures whose absence he emphasized, we think there was enough evidence for the jury reasonably to conclude that the defendants breached their duty to provide adequate security to protect their guests against the specific, known foreseeable risk created by the circumstances.
The defendants contend that, even if they breached any special duty of care owed their guests by reason of the circumstances their negligence in doing so was not the proximate cause of the assault on the Crinkleys. They make several arguments in support. First, focussing on some of the proposed security improvements-such as “no trespassing” signs and additional fencing that still left open entranceways onto the property-they argue that there is no reasonable probability that these measures would have deterred the specific assault. They point out that the Crinkleys proved no specific facts about the method of the assault that show that any of the proposed security measures might have made a difference. Finally they argue that the specific facts of this case-particularly Sarah Crinkley's admission that the first assailant did not appear suspicious and the fact that McRorie looked about the premises throughout the day of the assault, including sometime between 8:00 and 8:30 p.m.-belie the claim that added security measures, specifically patrol guards, might have detected the assailants and prevented the assault.
[3]
Defendants' argument would be persuasive if the stringent rule of proximate causation in cases of this type necessarily implied by their arguments were the rule in North Carolina. Under the rule they suggest, proximate causation between a landowner's failure to provide particular protective measures and an invitee's injury could only be established by proof that the particular measures would have prevented the particular injury. Such a rule has indeed been espoused by some able judges concerned that the alternative is effectively to convert landowners into insurers of their guests' safety from all criminal assaults. See Orlando Executive Park, Inc. v. P.D.R., 402 So.2d 442, 451-52 (Fla. 5th Distr.Ct.App.1981) (Cowart, J., dissenting); Reichenbach v. Days Inn of America, Inc., 401 So.2d 1366, 1367-71 (Fla. 5th Distr.Ct.App.1981) (Cowart, J., concurring specially) (same). Whatever there may be to commend such a rule as a matter of policy, we do not understand that it is now the rule in North Carolina. There, we believe, the rule is a much less stringent one which would permit a jury to infer proximate causation from a much less ironclad link between specific security deficiencies and a *163 specific criminal assault upon a guest. As the parties apparently agree, the question of proximate causation seems not to have been addressed as a separate element in any of the relevant North Carolina decisions recognizing and applying this general theory of recovery against landowners. Rather, the causation question seems generally to be subsumed in the courts' analyses within the general issue of foreseeability. FN1 Certainly the most relevant decisions assume a right to recover on evidence that would not support recovery under the stringent proximate causation requirement urged by appellants. See Murrow, 355 S.E.2d at 207-08; Sawyer, 322 S.E.2d at 814 (“foreseeability ... the standard for liability”); Urbano, 295 S.E.2d at 241-42.FN1. Whether foreseeability more properly relates to duty or to proximate causation is of course one of tort law's most ancient and persistent conceptual problems. Equally persistent are courts' interchangeable uses of the concept for both purposes. See generally Prosser, Law of Torts 236-70 (4th ed. 1971). As a respected commentator on North Carolina law has noted and illustrated, the North Carolina courts make this dual use of the concept. R. Byrd, Proximate Cause in North Carolina Tort Law, 51 N.C.L.Rev. 951, 955 (1973). Under the less stringent test which we understand the North Carolina cases to apply, there was sufficient evidence to support the jury finding of proximate causation. The jury was entitled to accept the expert Prestia's opinions that criminals typically assess the risk of apprehension presented by the security measures in place, frequently by on-site surveillance of practices; and that the measures taken on the premises here in issue would not have acted as an effective deterrent. Having accepted this conclusion, the jury could reasonably have inferred-though surely it need not have-that the Crinkleys' assailants were indeed emboldened by the lax security measures to come on the premises, size up the situation, and plan their assault. The fact that it took some time to get the Crinkleys into their room supports the inference that the assailants were aware that security patrols were not in place.
While we think the issue a close one, we cannot disagree with the district court's assessment that the question of proximate causation was one for the jury.
IIIDefendants challenge the damage awards in two ways. First, they contend that there was insufficient evidence to prove the necessary causal link between the assault and Sarah Crinkley's heart attack and psychological problems and her related medical expenses, so that these should not have been submitted to the jury as potentially compensable items of damage. Second, they contend that the damage awards were so excessive that they should have been set aside. We take these in order.
A“The doctrine of proximate cause which determines the existence of liability for negligence is equally applicable to liability for particular items of damage.” Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753, 759 (1965). To impose liability, “the defendant's negligence must have been a substantial factor, that is, the proximate cause of the particular injuries for which plaintiff seeks recovery.” Id. (citations omitted) (emphasis in original). This principle is expressed in the “thin skull plaintiff” rule under which, if the defendant's “misconduct amounted to a breach of duty to a person of ordinary susceptibility, he is liable for all damages suffered by plaintiff notwithstanding the fact that these damages were unusually extensive because of peculiar susceptibility,” Lockwood v. McCaskill, 262 N.C. 663, 138 S.E.2d 541, 546 (1964) (citations omitted). Stated differently, a defendant is “liable only to the extent that his wrongful act proximately and naturally aggravated or activated plaintiff's condition.” Potts v. Howser, 274 N.C. 49, 161 S.E.2d 737, 742 (1968).
[4]
We are satisfied that there was sufficient evidence of a causal link between the assault and Sarah Crinkley's heart attack and psychological condition to permit the jury to award damages related to those *164 conditions.FN2FN2. Our dissenting brother would disallow all compensation related to the heart attack. With all respect, it is difficult to understand the legal basis upon which he thinks we properly could do so. While as laymen to medical science we might have intuitive doubts about a causal connection between events so separated in time, our doubts, like his, could only be the doubts of laymen, and those will not suffice to reject this portion of the jury award. Obviously we are in no position to exercise independent medical judgment on the issue, though there seems a bit of that in our brother's discussion. And our function as appellate judges is certainly not to substitute our lay perceptions for those of the authorized lay finders of fact. We ask only whether the favorable evidence bearing on the issue sufficed to allow the jury reasonably to find the connection. On the record we review, all the relevant evidence overwhelmingly supports the finding of causation. Aside from the testimony establishing the bald events and their sequence, that evidence consisted solely of the expert opinion testimony of two medical doctors that causation existed. The qualifications of each to give expert opinion on the issue were not disputed, as indeed they could not have been. Each was a well-qualified treating physician, one a long time family doctor, the other a board cardiologist. Both were natives of the region, with local reputations therefore on the line, rather than roving experts from afar hired only for litigation purposes. Each gave it as his considered medical opinion, with supporting reasons, that the trauma of the motel assault was a proximate cause of the heart attack. J.A. 293 (Bennett); J.A. 387 (Harris) (“prime cause”). One gave the ultimate opinion on causation only after specific admonition by the district judge that the opinion given must involve “probabilities” not “possibilities.” J.A. 293. See Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241-42 (4th Cir.1982). Each gave the opinion as being “to a reasonable medical certainty” that there was, not that there might be, the requisite connection. Cf. Ralston Purina Co. v. Edmunds, 241 F.2d 164, 167-68 (4th Cir.1957). Dr. Silverman, Sarah Crinkley's psychiatrist, testified that based on patient history and examination, it was his reasoned medical opinion that Sarah Crinkley suffered from post-traumatic stress disorder-chronic type-and major affective disorder with melancholia. He described the factors necessary to make a diagnosis of each disease and testified that Sarah Crinkley fully met the diagnostic criteria for post-traumatic stress disorder, and that the narrative evidence supported his explanation of both diagnoses. Dr. Silverman also testified that it was his reasoned medical opinion that her complaints-which served as a partial basis for diagnosis-were genuine and that the motel assault caused her diagnosed mental illness.
Dr. Bennett, a cardiologist who treated Sarah Crinkley following her heart attack, testified that he had noted a marked fear and anxiety in Sarah Crinkley 48-72 hours following her heart attack-a time when patients usually exhibit a relaxing of tension, and even euphoria, based on the realization they have survived a life threatening event. On inquiry, he discovered the assault and its effect on the patient. He explained that stress causes the release of certain hormones which medical research has linked to the acceleration of atherosclerosis-hardening of the arteries-which was the direct cause of the patient's heart attack. He compared Sarah Crinkley's situation to that of policemen or firemen, groups that medical learning indicates have an increased risk of atherosclerosis due to the constant stress they function under. He concluded that based on his education, training and evaluations of Sarah Crinkley, it was his reasoned medical opinion that the motel assault caused Sarah Crinkley's heart attack.
Dr. Harris, her family doctor, testified to his observation of the patient's stressful and fearful state following the assault. In *165 response to variously phrased questions he testified in succession that it was his reasoned medical opinion that: (1) the assault contributed to the heart attack; (2) the assault was a cause of the heart attack; and (3) the assault was the prime cause of the heart attack. His conclusion was based on the stress caused by the incident, which in turn led to the heart attack.
Finally, numerous witnesses testified that Sarah Crinkley showed marked personality and emotional changes following the assault. Observations included notable anxiety, fearfulness, withdrawal, sadness, lack of activity, and an inability to work. This evidence is corroborative of the medical testimony that Sarah Crinkley was suffering from a significant amount of stress caused as a result of the assault.
The Crinkleys presented expert testimony that it was medically and scientifically plausible that significant stress could produce or accelerate atherosclerosis to the point of heart attack. Further, they removed the cause of Sarah Crinkley's own heart attack from the realm of conjecture by providing competent medical testimony from which the jury would conclude that the stress from the assault was the prime causal factor. They also produced expert testimony, corroborated by significant lay testimony, that the assault produced severe stress in Sarah Crinkley.
We are also satisfied that the evidence was sufficient to connect the disputed medical expenses to the assault. As noted above, there was evidence that linked the assault to Sarah Crinkley's heart attack. The evidence also showed that the heart attack itself resulted from the occlusion of an artery in her heart and that the resulting added stress on her remaining “good” arteries necessitated invasive treatment. A balloon angioplasty was attempted as a means of opening the closed artery; however, the procedure was unsuccessful. The record indicates that after this unsuccessful treatment, by-pass surgery was recommended and ultimately performed. From this evidence alone, the jury could infer that all of Sarah Crinkley's heart-related medical procedures for which expenses were claimed were linked to the assault. The district court therefore properly submitted this damages issue to the jury.
BWe next consider defendants' contention that the district court erred in not setting aside the damages awards as excessive.
[5]
The grant or denial of a motion for a new trial on the ground that the verdict is excessive is a matter committed to the sound discretion of the trial court. 11 C. Wright & A. Miller, Federal Practice and Procedure § 2818 at 118 (1973 and Supp.1987). In reviewing the trial court's ruling for abuse of discretion, we are bound by an extremely stringent standard. We may not reverse a denial of the motion unless the verdict is so “ ‘untoward, inordinate, unreasonable or outrageous' ” as to demand being set aside. Grunenthal v. Long Island R.R., 393 U.S. 156, 160, 89 S.Ct. 331, 334, 21 L.Ed.2d 309 (1968). And “[i]f the question of excessiveness is close or in balance, we must affirm.” Dagnello v. Long Island R.R., 289 F.2d 797, 806 (2d Cir.1961). Ultimately, the verdict must stand if there is in the record credible evidence which if accepted by the jury and given its most favorable inferences will support it. Guided by this stringent standard, we believe that the awards in this case are not “so high that it would be a denial of justice to permit ... [them] to stand.” Id.Looking first to Sarah Crinkley, the jury awarded her $400,000 in compensatory damages. The evidence at trial was sufficient for the jury to conclude that she has been deeply affected by the incident, both physically and emotionally, and that she has not yet recovered. Several witnesses testified that this once active, lively, and outgoing woman has become withdrawn, melancholy and suffers from constant fearfulness. Her psychiatrist testified that she suffers from severe mental disorders as a result of the assault and will not likely ever return to her former self. There was evidence from which the jury could conclude that the assault aggravated Sarah Crinkley's heart problems, eventually causing her to suffer a heart attack, and that the *166 heart attack necessitated a series of medical procedures culminating in heart by-pass surgery. Sarah Crinkley's medical costs alone amounted to over $40,000. The assault itself was highly traumatic. During the ordeal she was threatened with death, a gun was placed to her head, and she was bound and gagged. She twice witnessed the beating of her husband, and at one point was led to believe that he was dead.
[6]
As to James Crinkley, the jury awarded him $100,000 compensatory damages. The evidence at trial showed that he was beaten severely and had his jaw broken in two places. His jaw was wired closed for six weeks. Though he has fully recovered from the incident, his life has been dramatically altered as a result of the assault and its aftermath.These awards are not outrageous in light of the evidence which the jury was entitled to accept. We thus decline to set them aside.
IVFinally, Holiday Inns contends that the district court erred in submitting the claim against it to the jury on a theory of apparent agency. They argue first that because, as the district court properly held, the evidence would not support a finding of actual agency, they could not therefore be found liable on the basis of apparent authority. They then contend that in any event the evidence was insufficient to support a finding of apparent agency.
On the first point, Holiday Inns is simply confused. It is true that apparent authority presupposes actual agency, and only operates to extend the scope of an actual agent's authority. See generally Restatement (Second) of Agency § 8 (1958); see, e.g., S.F. McCotter & Son, Inc. v. O.H.A. Indus., Inc., 54 N.C.App. 151, 282 S.E.2d 584, 586 (1981).
[7]
But there is the related principle of apparent agency or agency by estoppel under which agency itself may be imposed by law on legal relations. Though no actual agency exists, a party may be held to be the agent of another on the basis that he has been held out by the other to be so in a way that reasonably induces reliance on the appearances. See, e.g., Fike v. Board of Trustees, 53 N.C.App. 78, 279 S.E.2d 910, 912 (1981) (citation omitted) (recognizing that a party may be liable for the acts of another under the theory of agency by estoppel even where no agency relationship in fact exists); see generally Restatement (Second) of Agency § 267. It is clear here that the theory submitted to the jury by the district court was agency by estoppel; the issue submitted was whether TRAVCO had the power to bind Holiday Inns by virtue of its appearance as Holiday Inns' agent. Holiday Inns in fact accepts this in its brief by arguing that there was insufficient evidence to establish apparent agency, and we will review the record on that basis.In establishing liability based on apparent agency, a plaintiff must show that (1) the alleged principal has represented or permitted it to be represented that the party dealing directly with the plaintiff is its agent, and (2) the plaintiff, in reliance on such representations, has dealt with the supposed agent. Fike, supra; see also Restatement (Second) of Agency § 267 (1958) (justifiable reliance and change of position). We believe the evidence sufficed to support submission of this theory.
[8]
By virtue of the franchise agreement, Holiday Inns retained a significant degree of control over the operation of the Holiday Inn-Concord. This control included the use of the Holiday Inns trade name and trademarks, which appeared on numerous items in and about the motel. The motel itself was originally designed and built by Holiday Inns and sold in 1976 to a group that later conveyed it to the current owners. The company engages in national advertising that promotes its national system, without distinguishing between company owned and franchised properties. It also apparently publishes a directory listing the properties within its system, also without distinguishing between company owned and franchised properties. The only indication that the Holiday Inn-Concord was not owned by Holiday Inns was a sign in the *167 restaurant that stated that the motel was operated by TRAVCO under a franchise agreement. Holiday Inns contends that the franchise agreement disclaims any agency relationship. However, the denial of an agency relationship in a franchise agreement is not alone determinative of liability. See Drummond v. Hilton Hotel Corp., 501 F.Supp. 29, 31 (E.D.Pa.1980). As indicated, agency by estoppel specifically applies to situations where no actual agency relationship exists. We think that a jury could reasonably conclude that the Holiday Inn-Concord was operated in such a way as to create the appearance that it was owned by Holiday Inns, Inc. and that this was one of the purposes of the franchise agreement.As to the reliance prong of the test, Sarah Crinkley testified that she and her husband had previously stayed at Holiday Inns and that she was familiar with its national advertising. She also testified that they originally attempted to make reservations at a Holiday Inn in Charlotte because they thought it would be a good place to stay. Rather than looking for another Charlotte area hotel when they could not get a room at the Holiday Inn near their destination, they used a Holiday Inn directory to find another convenient motel. James Crinkley testified that he did not know the difference between a franchise inn and a company owned inn at the time of February 27, 1981, and noted that he would be greatly surprised to find out that Holiday Inns was not involved in the operation of the Holiday Inn-Concord beyond the franchise agreement. While the Crinkleys' evidence of actual reliance may be marginal, we think it sufficed under the applicable substantive principles to raise a jury issue.FN3
FN3. The recent North Carolina decision by a divided panel in Hayman v. Ramada Inn, Inc., 86 N.C.App. 274, 357 S.E.2d 394 (1987), rev. granted in part, 320 N.C. 631, 360 S.E.2d 87 (1987), rejecting a comparable apparent agency claim against a motel franchisor, is distinguishable. In that case, the motel guest was required by her employer to stay at the franchised motel. On this basis the court held as a matter of law that necessity rather than reliance on the franchisor's representations dictated the guest's choice. Here, by contrast, the guests were exercising free choice so that their reliance on the franchisor's representations as the controlling factor in this choice was reasonably inferable as a matter of fact. The Hayman majority also thought that the evidence failed as a matter of law to establish that there was any effective misrepresentation of the franchisor-franchisee relationship. Again, in the instant case, the only indication that a franchisor-franchisee relationship existed was a sign in the restaurant which the Crinkleys had had no occasion to see before they checked in. WILKINSON, Circuit Judge, concurring in part and dissenting in part:Like the majority, I am saddened by the sequence of events that has befallen Sarah Crinkley. The assault suffered by the Crinkleys was absolutely dreadful. No one disputes that the circumstances are poignant, yet there remains the need to remember that wrenching facts may wrest a body of law from its moorings and foundations. That is what has happened to North Carolina tort law in this case.
The law of tort performs important functions: it has compensated the victims of wrongful acts and enhanced, through deterrence, our basic sense of safety. It cannot, however, provide an answer to every personal misfortune, and it is not intended to replace the role of non-liability insurance, private pensions, public assistance, and the like in promoting the well being of our citizens.
The chain of liability and recovery which obligates Holiday Inns, et al., to compensate Sarah Crinkley for her injuries is an exceedingly tenuous one consisting of a series of weak links. To appreciate the implications of this case, it is important to put into perspective exactly what transpired here. Plaintiff contends that the motel's failure to post “no trespassing” signs, extend its fences, and to keep a proper look out resulted in the assault on her by the “motel bandits,” which, in turn, resulted in a heart attack more than a year later. Then, through a theory of apparent agency, Holiday Inns, Inc. is joined as a *168 defendant in the action despite the fact that the motel was run by an independent franchise and Holiday Inns played no role in its management.
The upshot of the majority's decision is, therefore, that an innkeeper not responsible for managing the premises is found, under a marginal theory of causation, to have proximately caused an assault by third party criminal actors which in turn is found to have caused a heart attack occurring at a remote point in time. With all respect, speculation seems piled upon speculation until the label of tortfeasor can be pinned on some deep pocket in the vicinage.
With part of the majority's opinion, I can concur. Because innkeepers have a responsibility to provide for the safety of their guests, I would agree that the case on liability, though marginal, presents a jury question under North Carolina law. The law of North Carolina does not, however, hold a negligent party responsible for medical events that occur long after the unfortunate incident. The majority in this case would lay at the feet of Holiday Inns, et al., liability to the plaintiff for the most speculative effects of the trauma that followed her injury by intervening criminal actors. Because such a holding stretches the thin-skull theory of tort liability to cover the most remote of medical mishaps, I respectfully dissent.
Plaintiff is now to recover damages, not only for the trauma and injuries that she sustained in the assault, but also for a heart attack she suffered fourteen months later as well as for hospital and medical expenses incurred in treating her heart condition for a period extending up to five and one-half years after the assault. This is highly problematic. The evidence indicates that Sarah Crinkley was sixty-six years old at the time of the assault. She was overweight and had a history of arteriosclerosis, chest pains, and high blood pressure for which she had been under a physician's care since 1978. She was clearly exposed to alternate sources of stress with the closing of the family hardware store where she worked. Although North Carolina recognizes the “thin skull” rule, making tortfeasors liable for the “unusually extensive” damages resulting from their negligence to persons of “peculiar susceptibility,” see Lockwood v. McCaskill, 262 N.C. 663, 138 S.E.2d 541, 546 (1964), the North Carolina Supreme Court has clearly articulated the limits of a tortfeasor's liability for injuries suffered by persons with such preexisting susceptibilities.
[When] injuries are aggravated or activated by a pre-existing physical or mental condition, defendant is liable only to the extent that his wrongful act proximately and naturally aggravated or activated plaintiff's condition. ‘The defendant is not liable for damages ... attributable solely to the original condition.’ ... Plaintiff is confined to those damages due to its enhancement or aggravation.
This process obviously contemplates that juries will play an important factfinding role. I recognize that factfinding can be a murky undertaking. Juries may be required to make complex determinations on causation based on circumstantial evidence. We do not demand of a jury certitude in its conclusions, for the civil standard is one of proof by a preponderance of the evidence. This system does not, however, permit federal judges to abdicate to juries their responsibility to apply the injunctions of state law.
The majority forsakes any sense of limits and permits the jury to engage in rampant speculation as to whether and to what extent Sarah Crinkley's heart attack and subsequent medical expenses were “due to” the enhancement of her preexisting condition as the result of the motel's breach of its duty of care. North Carolina law does not permit such speculation. The Supreme Court of North Carolina held in Lee v. Stevens, 251 N.C. 429, 111 S.E.2d 623 (1959), that evidence which “leaves the causal relationship between the accident and the [injury] in the realm of conjecture and speculation ... is insufficient to support a verdict and judgment.” Id. 111 S.E.2d at 626-27. The majority ignores the point under North Carolina law where the *169 jury departs from its normal factfinding function and enters the realm of the conjectural.
The fact that an expert can be enlisted in support of one proposition or another does not establish automatically the existence of a jury question. At least nothing in recent Supreme Court opinions leads us in that direction. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although Sarah Crinkley's physicians testified that her heart attack was “caused” by the assault, their testimony on the degree of causation was ambiguous and they admitted that the rate of occlusion of her arteries was unknown. Dr. Bennett admitted that “it would be conjecture on [his] part” to say how long it took the vessels to become totally occluded. Dr. Harris testified that he “just [could]n't say what the occlusion was [at the time of the assault.]” Thus, the question of causation remains problematic, for it is obvious that heart attacks and heart disease are complex physiological processes resulting from the effect, over a great many years, of a combination of hereditary risk factors, personal health habits, life-style, and environmental conditions. Dr. Harris, in fact, testified that “there are a lot of causes that lead to heart attacks.”
The majority professes faith in the factfinding process, but what we have here finally is not factfinding but sheer guesswork. Of course guesswork can appear in the garb of the adversary process bolstered by expert testimony, but it is guesswork nonetheless. It is wrong to ask the jury to speculate at what no medical expert can say with much assurance, namely the extent to which Sarah Crinkley's heart attack and subsequent medical expenses were attributable to the hotel's negligence or to the other undeniable risk factors and alternate sources of stress in Sarah Crinkley's life.
The victims of all torts will suffer some degree of trauma. There must, however, be some limit to the extent that complex and remote medical events in a person's life may be attributed to that trauma. The innkeeper here engaged in what even the majority must recognize was a most marginal form of negligence. While I do not contend that the degree of culpability governs the rule of damages, I do believe a basic injustice has been done here. To require surrogate wrongdoers to compensate victims for the more remote effects of trauma on their preexisting medical conditions will extend tort liability far beyond the bounds defined by North Carolina law. As a result, businesses will become the virtual insurers of the future health of guests and customers injured on their premises and parties of all kinds will be held responsible for medical mishaps long after the occurrence of any negligent act.
The majority is crawling on a far limb. Its decision severs tort law from historic notions of fault and causation. Divorced from the concept of responsibility, the law of tort simply loses its deterrent effect. Liability imposed under circumstances such as these will do nothing to deter the negligent conduct, which is only tenuously linked to the injury, by an actor similarly remote from the entity ultimately bearing financial responsibility. Courts have, until recently, interpreted the common law to require that legal obligations bear some relationship to legal wrongdoing. The majority's departure from this framework is replete with implications of policy involving, in the most immediate sense, the obligations of motels and businesses and the cost of goods and services to their guests and customers. The appropriate body to undertake such creative explorations is, first, the North Carolina legislature, secondly, the North Carolina courts, and least of all, a federal court sitting in diversity.
I understand and appreciate that the expansion of this field of law owes much to genuine concern for the plight of injured persons. It is no easy thing to draw lines in the face of visible personal misfortune. However, there are claims of justice on both sides of these hard cases which find expression in the limits of state law. With all respect for the sympathetic circumstances*170 presented here, I would reverse and remand for a new trial on damages.
[案由] 这是一起民事案件，与假日酒店集团有关联的众多被告不服一审陪审团裁决提出上诉。原告克瑞利夫妇在入住一家假日酒店汽车旅馆时遭到第三人袭击，该陪审团裁决认定众被告应对原告克瑞利遭受的伤害承担责任。被告在上诉中提出了若干项请求，其主要观点是，一审时被告请求地区法院在判决时不考虑陪审团裁决，并以该陪审团裁决过于极端并且是受不当因素干预的产物为由，请求地区法院宣告该陪审团裁决无效，地区法院拒绝了原告的上述请求，被告认为一审判决错误。我们认为不存在足以翻案的错误，维持原判。
1981年2月27、28日是周末。此前某天，克瑞利夫妇决定周末去位于夏洛特市的北卡罗来纳州市政中心参加一项典礼。他们试图在距离市政中心很近的夏洛特假日酒店预订一个房间，但发现该酒店已经被预订一空。在寻找其他住处时，他们查阅了以前入住某个假日酒店时带回的一本假日酒店指南，他们查到了康科德假日酒店，并预定了2月27日、28日的房间。那家康科德假日酒店位于夏洛特市以北约20英里，紧邻29号公路，顺着29号公路向南就能直达夏洛特市中心，那家假日酒店还紧 邻85号州际公路，也能到达夏洛特市北部边缘。
2月27日周末前大约两周，夏洛特市周边好几家汽车旅馆的顾客在旅馆内遭受了一伙歹徒的攻击和抢劫，这伙人后来被媒体称为“汽车旅馆劫匪”。涉案的汽车旅馆遍及整个夏洛特都市区域，其中很多就紧邻85号州际公路。康科德假日酒店的经理助理，布赖恩·麦瑞从很多新闻媒体报道中注意到了汽车旅馆劫匪。当地警署也多次和他联系过，询问他是否知道汽车旅馆劫匪事件，在汽车旅馆劫匪尚未被抓捕前他的酒店有什么保证安全的计划。其中一些治安警察还提出可以在下班后到该酒店作收费的兼职保安员，这是过去汽车旅馆常用的保安措施，不过现在已经不再使用。
在得知这些信息后，麦瑞和吉米·范·欧韦进行了联系，讨论是否聘请保安员在汽车旅馆周围巡逻。范·欧韦是位于草坪路的夏洛特假日酒店经理，作为被告旅行者管理公司（TRAVCO）的雇员，他对康科德假日酒店负有某种监管职责，因为被告TRAVCO公司负责康科德假日酒店的经营监管。范·欧韦还是迈特利纳旅店业主协会的主席，并且就汽车旅馆劫匪事件接受过一家报纸的采访，在采访中，他提到自己的酒店已经增加了夜间巡逻人员。当麦瑞申请增加康科德假日酒店保安人员时，范·欧韦却称采取额外保安措施的理由不充分。麦瑞指示手下员工对任何可疑情况提高警惕，2月27日当天他自己还定时在酒店周围巡逻，最后一次大约在晚上8点到8点30分之间。该酒店虽然没有聘用任何治安官作保安员，但也采取措施鼓励当地治安机构的人员光顾酒店，例如为他们提供免费的快餐，正餐打折。
2月27日晚上大约8点钟，克瑞利夫妇到达了康科德假日酒店。花了很短时间登记后，他们把车停到了房间前面，并开始卸行李。当詹姆士·克瑞利正在搬他们最后一件行李时，莎拉·克瑞利站在房间前的过道上，她注意到有个男人站在汽车旅馆院子边上，正朝着他们走过来。当这个人走近克瑞利夫妇的房间时，他停下来说想和詹姆士·克瑞利聊聊，几乎同时，他开始试图将克瑞利夫妇推进他们的房间，尽管克瑞利夫妇拼力反抗，他还是成功地将他们赶进房间。那个人拿着一把手枪，在房间里，他开始殴打詹姆士·克瑞利，他打开电视机，用电话叫同伙。随后他的两名同伙也进来了，他们再次殴打詹姆士·克瑞利，并把他捆住，用毛巾堵住嘴，然后用毯子盖上他。然后他们逼近莎拉·克瑞利，把她推倒在地，抢她的钱包和结婚戒指。当她说结婚戒指不能摘时，一个家伙用枪顶住她的头告诉她，如果不摘，就“把她的脑浆打出来。”她摘下戒指交给他们。这伙人在离开前也把她捆住并塞住她的嘴。过了一会儿，她挣扎着解开身上的绳子，把丈夫身上的毯子掀开，取出堵在他嘴里的毛巾，然后给前台打电话求救。前台值班员电话通知了卡巴拉斯县警署，一名副警长在几分钟后到达克瑞利夫妇的房间。
克瑞利夫妇被带到当地一家医院接受紧急医疗。詹姆士·克瑞利头部和上半身多处淤血，下颚被严重打裂。莎拉·克瑞利后来的情况更加复杂。在遭受袭击前，她正由于高血压和肥胖症接受医生治疗。1982年4月，大约在遭受袭击后的第14个月——她突发心脏病。医生给她实施了球囊血管成形手术，目的是清除动脉血管中的栓塞，但手术失败。在向医生咨询后，她选择心脏搭桥手术作为治疗方式。除了心脏问题外，她的朋友和家人指出，在遭受袭击后，莎拉·克瑞利的性格也发生了重大改变，她变得胆小、焦虑和孤僻。人们发现她的活动范围也越来越小。1984年初，她开始看精神病医生，医生诊断她患有创伤后精神压迫症和严重的精神错乱。
克瑞利夫妇向很多与康科德假日酒店有关联的被告提起诉讼，主张（包括其他）被告在没有向他们提供充分的安全保障上存在过失，该过失是他们所遭受的损失的近因。在经过审前裁决后，假日酒店、TRAVCO公司、美国健康家园公司、弗兰克·希拉以及罗杰·哈里斯仍被留作被告，原告主张后三个被告是康科德假日酒店的实际拥有者，主张TRAVCO公司作为控制康科德假日酒店实际日常经营的实体应承担责任，TRAVCO公司对康科德假日酒店的管理是通过该酒店与假日酒店之间的特许经营协议中的条款确定的。原告主张，根据实际授权理论，或者表见代理，假日酒店应当承担责任。两种代理理论的事实基础就是一份特许经营协议，该协议规定假日酒店有权对该汽车旅馆经营的某些方面实施控制。
一审中，克瑞利夫妇主要依赖布赖恩·麦瑞的证言来证明袭击是可以合理预见的。他们引用了一个安全专家的证言，即康科德假日酒店的安全措施不足以应对潜在的威胁。主要的缺陷是该汽车旅馆四周缺乏围栏，没有外人不得入内的警示标志，也没有保安巡逻。医疗专家的证言认为，莎拉·克瑞利的心脏病和精神问题是由于她因遭受袭击而持续紧张造成的。
被告请求法院不经陪审团直接做出判决的请求被拒绝后，陪审团作出了对原告克瑞利夫妇有利的裁决，裁决上述所有被列明的被告败诉，并以一项特别裁决认定该汽车旅馆的业主和TRAVCO公司是可以合理地预见到那些犯罪行为的，那些被告没有提供充分的安全措施，存在过失，这些过失造成克瑞利夫妇遭受到伤害。根据表见代理理论，被告假日酒店被认定应当承担连带责任。陪审团裁定被告支付莎拉·克瑞利40万美元的补偿性损害赔偿金，支付詹姆士·克瑞利10万美元的补偿性损害赔偿金。
陪审团作出裁定后，被告请求法院作判决时不理会陪审团裁定，或者有条件地重新审理此案，遭到法院拒绝，故提出上诉。
[判决意见]
菲利普法官：
本案涉及的是土地所有者或承租人对进入其建筑物的商业受邀请人所承担的义务。在北卡罗莱纳州，通常而言，土地所有者或承租人没有义务确保受邀请人的安全。相反，他们通常只需要承担合理的、一般的注意义务。这项义务通常并没有延伸到保证受邀请人免受第三人故意的、犯罪性行为侵害，但在恰当的情况下，却可能出现。特别是，在恰当的情况下，法院会认定公共旅馆的经营者对他们的顾客负有这种注意义务。
可预见性决定了“某个特定案件中的特定房东是否有义务保护其商业受邀请人免受第三人的犯罪行为。”可预见性可以通过所有相关证据显示出来，包括其领地内以前发生的犯罪行为的证据、或者其建筑物坐落的大区域内的犯罪行为。被告主张，先前发生的犯罪行为不足以让他们合理地预见到“汽车旅馆劫匪”的活动会威胁到的安全，因此他们没有义务去防范该特定危险。我们不这样认为。
仅从康科德假日酒店以前发生犯罪行为的记录本身看，并不足以预见该旅馆发生犯罪行为的可能性，但我们认为，从证据的整体看，足以使陪审团认定被告有义务采取合理的预防措施。
在遭袭前2周，该区域内有7家汽车旅馆遭受抢劫，警方和媒体已经认定是同一伙匪徒所为。有时候，这伙人一晚上洗劫多家汽车旅馆。抢劫的规律性、同一伙人作案的明显性、这伙人在警方已经锁定他们后仍然继续肆无忌惮作案的事实、以及警方已经向夏洛特地区所有汽车旅馆都发出警告的事实都表明，抢劫还会继续。
以前的抢劫案并不是局限于夏洛特地区的某个特定的、狭小的区域。很多被袭击的汽车旅馆相距好几英里远。第85号州际公路和第29号高速公路既提供了从康科德到夏洛特的便捷通道，也为歹徒提供了逃离康科德的捷径，来往这两个城市的车辆是经常的，数量众多。科瑞利夫妇决定住在康科德，尽管他们最终目的地是夏洛特，甚至该汽车旅馆的经理的家都在夏洛特，每天开车去康科德上班。
最后，证据充分表明，人们可以合理地预见到康科德假日酒店可能成为袭击目标。该旅馆位于一条主要公路旁边，和夏洛特地区内已经遭受袭击的几家旅店情况相似。一审证据表明，汽车旅馆入住的客人越富有（可以通过房费的高低判断），这样的旅馆越容易成为袭击目标。康科德假日酒店就属于这类。相对松懈的保安措施也当然地增加了一个汽车旅馆遭受袭击的几率，这一点非常明显。
除了证明可预见性的间接证据外，有证据表明被告实际上注意到了特定的威胁。麦瑞，旅馆的经理助理，证实他知道汽车旅馆劫匪的存在，他还证实当地警方已经和他联系过，询问他是否知道抢劫一事，是否采取了充分的保安措施。一些治安官还主动提出为该旅馆作兼职保安，以应对抢劫威胁。麦瑞本人也认真地做了应对这些威胁的准备，向上级申请增加巡逻保安人员。尽管上级认为这种威胁不足以采取增加保安员的措施，但他还是提醒手下员工对可疑情况提高警惕，在克瑞利夫妇受袭击的当晚，他自己还在旅馆四周巡逻过。
我们认为这些证据足以让陪审团在可预见性问题上得出结论，陪审团可以合理地推论出，由于歹徒对旅客的袭击是可以合理预见的，在这种情况下，被告有义务采取特定的防护措施。
为了证明被告违反了在特定环境下产生的注意义务，原告克瑞利夫妇主要依赖了一位酒店（汽车旅馆）安全专家，肯尼思•普莱蒂亚的证言。
普莱蒂亚证实，康科德假日酒店的安全措施在几个方面存在缺陷。该汽车旅馆从很多方向都能进入，再者，酒店前台的员工也无法观察到所有的入口，这加剧了安全问题的严重性。现有的围栏不够高，可以轻易跳入，而且四周也没有“禁止入内”的警示牌。他认为这些硬件措施会起到震慑犯罪的效果，让人感到该汽车旅馆非常重视安全防卫，缺乏这样的措施会增加该旅馆发生犯罪行为的风险。
普莱蒂亚还认为，除了这些硬件措施外，还有其他不足之处。该汽车旅馆从没有制定过针对性的安全预案，也没有雇用保安巡逻。普莱蒂亚证实，在该旅馆存在多个入口，并且员工视野有限的情况下，配备保安巡逻就显得特别重要。在犯罪行为高发期或者犯罪风险增加时，酒店应当增加更多保安巡逻，这可以通过雇佣下班后的治安官员的方式实现。
被告没有提供自己的专家证据来反驳普莱蒂亚认为该汽车旅馆缺乏安全措施的主张。在交叉询问期间，被告试图反驳普莱蒂亚认为旅馆缺乏安全措施以及采取他建议的措施后该旅馆的安全性就会增强。被告试图将康科德假日酒店描绘成一个幽静、安全的汽车旅馆，根本不需要普莱蒂亚主张的那些极端的保安措施。
考虑到普莱蒂亚的证言，而且他强调该汽车旅馆缺乏的正是被告假日酒店自己的《损失预防手册》中建议的某些安全措施，我们认为，已经存在充分证据让陪审团合理地认定，被告违反了他们的注意义务，未能针对环境产生的特定的、已知的、可预见的风险，采取充分的保安措施来保护他们的客人。
被告主张，即使他们违反了在特定环境下对客人应尽的注意义务，他们的过失并不是原告克瑞利夫妇遭受抢劫的近因。
尽管我们认为这是个关键问题，但我们赞同地区法院的观点，近因问题应当由陪审团认定。
最后，假日酒店主张，地区法院根据表见代理理论让陪审团作出评判是错误的。他们首先主张，正如地区法院正确认定的那样，由于缺乏实际授权的证据，不应根据实际授权理论认定他们有责任。他们接着主张，在任何情况下，现有证据也不足以认定表见代理的存在。
首先，假日酒店的主张毫无章法。的确，表见代理是以实际授权的存在为前提的，其作用只不过是扩大了实际代理人被授权的范围。
但是，法律上存在着因禁止食言原则而产生的有关表见代理或代理理论，法律可以据此认定特定法律关系下会产生代理。尽管不存在实际代理关系，一方也可以被认定为另一方的代理人，如果其他人会这样认为，并且这种表象让他们产生了合理的依赖。在本案中，地区法院指令陪审团使用的是“不可否认的代理”理论（agency by estoppel），这一点很清楚。地区法院提交给陪审团的问题是，由于TRAVCO表面上是假日酒店的代理人，TRAVOCO的行为是否能够约束假日酒店？假日酒店实际上在其简要陈述中接受了这种认定，他们的主张是构成表见代理的证据不充分。我们据此再回顾本案的证据纪录。
在根据表见代理理论认定责任时，原告必须证明：（1）被代理人已经主动表示或以默认方式表示，与原告进行直接交易的另一方是他的代理人，（2）原告，基于上述表示，已经和所谓的代理人进行了交易。我们认为本案证据足以支持这种理论。
根据特许经营协议，假日酒店在很大程度上保留了对康科德假日酒店经营的控制。这种控制包括使用“Holiday Inn”商标和商号，这出现在汽车旅馆内和周围的很多物品上。汽车旅馆本身最初也是由假日酒店公司设计和建造的，1976年出售给一家集团，后来又被转让给目前的所有者。假日酒店在全美国范围内推销其国内酒店系统，并没有区分自营酒店和特许经营店。它还出版了一本公司简介，大张旗鼓地宣传和列举了它的体系下的公司，同样也没有区分自营酒店和特许经营酒店。惟一显示康科德假日酒店并非由假日酒店公司拥有的标志是该酒店内的一块牌子，写着“本酒店根据特许经营协议由TRAVCO公司经营”。被告假日酒店公司主张，特许经营协议本身条款明确排除任何代理关系。但是，特许经营协议本身对代理关系的否定并不是确定被告是否承担责任的决定性因素。正如上述所称，不可否认的代理适用于没有实际代理关系存在的特殊情况。我们认为陪审团可以合理地得出这样的结论：康科德假日酒店的经营模式会让人产生这样的印象，即它是由假日酒店公司拥有的，这正是特许经营协议的目的之一。
至于是否存在信赖，莎拉·克瑞利证实她和丈夫以前曾入住过假日酒店，她对假日酒店全国性的广告宣传也很熟悉。她还证实，他们原本想在夏洛特假日酒店预订房间，因为他们认为那里肯定不错。当发现距离目的地很近的夏洛特假日酒店客满后，他们没有选择夏洛特市区内的其他酒店，而是查阅了一本假日酒店指南，想找另一家比较方便的假日酒店。詹姆士·克瑞利证实，在1981年2月27日，他并不知道特许经营店和自营店之间的区别，而且说如果他知道除了一份特许经营协议外，假日酒店和康科德假日酒店的经营毫无关系，他会对此感到很诧异。
虽然克瑞利夫妇关于他们对被告假日酒店存在实际信赖的证言可能很薄弱，我们认为，根据现行适用的实体法规则，它已经足以回答陪审团的疑问。
维持原判。
维尔金森法官部分同意、部分反对的意见
正象多数法官那样，我对降临到克瑞利夫妇头上的不幸感到非常遗憾。克瑞利夫妇的遭遇骇人听闻，没有人否认他们的悲惨遭遇，但我们必须记住，对事实的扭曲会从根本上造成对法律的曲解。本案中，这正是北卡罗来纳州侵权法面临的境遇。侵权法具有重要功能：它对过错行为的受害者进行补偿，并通过震慑手段，提高我们的基本安全感。但是，它并不能对个人遭受的所有不幸都出手相助，其目的并不是取代严格责任保险、私人基金、公共救助，以及其他提高公民生活福祉的手段。
让被告赔偿莎拉·克瑞利遭受的伤害，其责任和救济之间的链条极其脆弱，含有一系列薄弱环节。为了分析本案中的因果关系，我们必须原原本本地考虑实际发生的情况。原告主张，汽车旅馆未能张贴“禁止入内”警示牌、没有延展围栏、以及没有配备适当的保安，导致她被“汽车旅馆劫匪”袭击，这又导致她在一年多后突发心脏病。然后，根据所谓表见代理理论，假日酒店又成为诉讼中的共同被告，尽管在事实上，该汽车旅馆由独立的特许经营人负责经营，假日酒店并没有参与管理。
多数法官的结论是，并不负责酒店经营管理的被告，根据牵强附会的因果关系推理，造成了第三方犯罪分子对原告的袭击，然后又造成原告在另一个遥远的时间点突发心脏病。从各个方面看，经过深思熟虑，一层层的假设推测被堆积起来，直到最终能将“侵权人”的标签贴到某个富有的被告身上。
对于多数法官的部分观点，我表示赞同。由于旅馆主对顾客负有安全义务，根据北卡罗来纳州的法律，本案的责任问题，尽管有些牵强，确实构成了一个陪审团问题。但是，北卡罗来纳州的法律并不会让一个过错方承担不幸事件发生后很长时间再产生的医疗费。本案多数法官的意见是，让假日酒店承担原告遭受犯罪分子袭击很久后发生的最不确定的病患，这是对侵权责任中的“薄脑壳原则”的滥用，我完全不同意。
原告得到的损害赔偿，不仅包括她在遭袭时经受的痛苦和伤害，而且包括她14个月后突发的心脏病，以及在她遭袭后长达5年半的时间里治疗心脏病发生的住院费和医疗费。这很有问题。证据显示，莎拉·克瑞利遭袭时已经66岁，她身体超重并有动脉硬化、胸痛、高血压病史，从1978年就开始接受治疗。当她家开的五金店倒闭时，她无疑遭受了新的心理压力。尽管北卡罗来纳州承认“薄脑壳规则”，侵权者对由于过失给那些体质“特别敏感”的人造成“异常重大”的损害承担责任，但是北卡罗来纳州最高法院也已经清晰地阐明：侵权者对具有敏感体质的受害人所承担责任上的限制：
“当损害是由先前存在的生理或精神状况引发的，或因而加重的，被告仅需对其过错行为直接和自然引发或加重的状况负责，对于完全由于原告先前的状况产生的损害，被告无需负责”。
我们的审判程序显然认为，陪审团在事实认定上起着至关重要的作用。法官可能要求陪审团根据间接证据作出复杂的因果关系认定。我们并不要求陪审团的结论准确无误，因为民事案件只不过是选择具有优势地位的证据。但是我们的审判程序并不允许联邦法官把适用州法的职责让位给陪审团。
莎拉·克瑞利突发心脏病并且随后产生医疗费用，这在多大程度上是由于汽车旅馆违反注意义务导致她先前的病情加重而产生的呢？多数法官抛弃了责任限制观念，允许陪审团漫无边际地作出推测。
所有侵权行为的受害人都会在某种程度上受到伤害，然而，在一个人的生活中所发生的复杂和遥远的患病事件中，哪些可以归因于侵权所引发的伤害呢？我们必须对此作出某种限制。本案中，甚至多数法官也认为，判定被告假日酒店有过失是非常牵强的。过错程度决定了损害赔偿的大小，对此我并不否认，但我认为本案判决存在根本性的不公平。让替罪羊承担被害人先前身体状况所引发的遥远的病痛，这超出了北卡罗来纳州法律，扩大了侵权责任。
这样的结果是，如果顾客或旅客在企业的经营场所受到侵害，企业实际上就充当了受害者的保险人，即使在侵权行为发生很久之后，企业仍然需要对受害人患病医疗负责。
多数法官把触角伸得过长。其判决背离了侵权法中传统的过错和因果关系概念。如果抛弃了责任概念，侵权法将失去其威慑效果。在本案环境下，要求一个遥远的、对损害的发生基本没有什么关联的实体承担责任，这对于震慑过失行为根本起不到什么作用。近来，法院对普通法的解释是，法律责任的认定必须要求责任人与过错行为之间存在某种关系。多数法官背离了这个原则，原因是他们头脑中充满了政策考虑，最直接的感觉是，汽车旅馆和企业承担的义务少，他们的顾客和旅客享受的商品和服务的成本高。对这个问题进行创造性探索的适当机构，首先应当是北卡罗来纳州的议会，其次是北卡罗来纳州法院，最后才是负责跨州事务的联邦法院。
侵权法领域的扩张在很大程度上是基于对受害人窘境的真切关注，我对此表示理解。对于可以预见的人身伤害，我们很难作出界定。然而，这些复杂案件的双方当事人都需要公正的判决，这在州法中可以找到答案。考虑到本案充斥着对原告的同情，我将推翻原判，发回重审。
[评析]
本案有两个争议焦点，第一，原告入住的康科德假日酒店在保护顾客的安全上，是否尽到了合理的注意义务。第二，在假日酒店集团作为特许人，是否应当对被特许人的过错承担连带责任？
首先，根据美国侵权法的一般原则，土地所有者或承租人没有义务确保受邀请人的绝对安全。他们通常只需要承担合理的、一般的注意义务。这项义务通常并没有延伸到保证受邀请人免受第三人故意的、犯罪性行为侵害，但在恰当的情况下，法院会认定公共旅馆的经营者对他们的顾客负有注意义务。在本案中，陪审团认定，由于当时的特定环境，歹徒对旅客的袭击是可以合理预见的，在这种情况下，康科德假日酒店有义务采取特定的防护措施，但他们却没有采取必要措施，导致原告遭到抢劫攻击，存在过错。
第二，英美法中存在着因禁止食言原则而产生的有关表见代理或代理理论，法院可以据此认定特定法律关系下会产生代理。尽管双方不存在实际代理关系，如果其他人会这样认为，并且这种表象让他们产生了合理的依赖，法院可能认定一方为另一方的代理人。在假日酒店集团作为特许人，是否应当对被特许人的过错承担连带责任这个争议上，本案审理法院认为，在根据表见代理理论认定责任时，原告必须证明：（1）被代理人已经主动表示或以默认方式表示，与原告进行直接交易的另一方是他的代理人，（2）原告，基于被代理人的上述表示，已经和所谓的代理人进行了交易。在本案中，陪审团认定，康科德假日酒店的经营模式会让人产生这样的印象，即它是由假日酒店集团拥有的，原告是基于对被告假日酒店集团的信赖而入住康科德假日酒店的，这满足了表见代理的成立条件。
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