Appellate Court of Illinois,First District, Third Division.
Carol Ranko YAMADA and Mabel M. Okubo, as Administrator of the Estate of Evelyn Okubo, Deceased, Plaintiffs-Appellants,
HILTON HOTEL CORPORATION, Defendant-Appellee.
Dec. 21, 1977.
As Modified On Denial of Rehearing May 31, 1978.
Woman who sustained injuries resulting from slashings inflicted by assailant while woman was staying at hotel, and administrator of estate of other woman who died as a result of attack at such hotel brought action against hotel owner. The Circuit Court, Cook County, Harry G. Hershenson, J., entered judgment in favor of hotel owner, and plaintiffs appealed. The Appellate Court, McNamara, J., held that: (1) evidence presented jury question as to whether hotel owner was negligent in failing to provide adequate security; (2) statement of plaintiffs' counsel in closing argument to the effect that victims of attack had visited Black Panther Center prior to attack did not constitute waiver of objection to introduction of evidence concerning such visit, as statement was legitimate attempt to avoid perceived damaging effects of evidence; (3) plaintiffs preserved objection to cross-examination of witness as hostile; (4) hotel owner could not properly impeach witness as an occurrence witness, where witness was a postoccurrence witness and where, even assuming that witness was an occurrence witness, evidence submitted by hotel owner was used not to impeach but to bolster owner's theory that assailant was not an intruder; (5) witness' inability to recall whether victim of attack had visited Black Panther Center a few days before attack was insufficient proof of unwillingness or hostility required by rules relating to questioning hostile witnesses; (6) error in admitting witness' deposition was prejudicial; (7) trial court properly refused to allow hotel security employee to give testimony of postoccurrence installation of night chain on doors of hotel rooms; (8) offer of proof concerning testimony of hotel security employee was adequate; (9) trial court erred in refusing to admit testimony of hotel security employee relating to his recommendations relating to night chains and installation of electronic surveillance; (10) trial court erred in permitting defense counsel to read from article written by victim prior to attack, and (11) trial court erred in submitting to jury instructions regarding victim's exercise of ordinary care.
Reversed and remanded.
*104 **230 ***231 Perry M. Berke, Baskin, Server & Berke, Chicago, for plaintiffs-appellants.
John T. Burke, Chicago, for defendant-appellee; Edward J. Egan and Robert Guritz, Chicago, of counsel.
The plaintiffs, Carol Ranko Yamada and Mabel Okubo, administrator of the estate of Evelyn Okubo, filed suit to recover for injuries sustained by Carol and for the death of Evelyn resulting from slashings inflicted by an assailant while the women were staying at the Palmer House, a hotel owned and operated by the defendant, Hilton Hotel Corporation. A jury returned general verdicts in favor of the defendant, and the circuit court of Cook County entered judgment on the verdicts. Plaintiffs appeal.
Count I of plaintiffs' second amended complaint, upon which the suit was tried, alleged that it was the duty of defendant to exercise a high degree of care for plaintiffs' safety. It further charged that this duty was breached by defendant's failure to equip its rooms with adequate security devices and its failure to maintain an adequate system of surveillance throughout the common areas of the hotel. Plaintiffs alleged that either or both of these negligent omissions constituted the proximate cause of their injuries. Count II, charging defendant with a breach of express and implied warranties relating to security, was withdrawn by the plaintiffs shortly before the case was submitted to the jury.
In July 1970, Carol and Evelyn came to Chicago as representatives of the Stockton, California chapter of the Japanese American Citizens League (hereinafter the “JACL”) to attend a JACL convention at the Palmer House. Carol, Evelyn and a third JACL member, Patti Iwataki, stayed together in Room 725.
On the day of the occurrence, July 16, Carol gave a four and one-half hour presentation to the convention. It dealt, in part, with the bombings of Hiroshima and Nagasaki.**231 ***232 That evening Evelyn attended a convention dinner at the Hilton Hotel. She returned to the Palmer House at approximately 9:30 p.m. and went to Room 862. Carol and Patti were there visiting with some friends. Evelyn stayed for a half hour and returned to their room. About 30 minutes later, Carol went to the room to get a radio and to see if Evelyn would rejoin them. Carol had a key to the room, but could not remember whether she had asked Patti for the key. On one prior occasion, Patti had chastised Carol for leaving her key in the door to their room.
Carol knocked on the door of their room but received no answer. She opened the door with her key, entered the room, took the key out of the door and closed it. As she entered the vestibule of the room she saw Evelyn's naked body on the floor. Evelyn was on her back, her hands *105 were tied behind her and she had a pillow over her head. Carol stopped and a man came out from behind the wall on her left side and grabbed her. She described him as tall, black, naked and having a long, uneven and messy afro hair style. He forced Carol to lie down and tied her hands behind her back. He cut off her clothes and covered her head with a sheet. He also tied her feet. He turned her on her back. Carol heard a noise and the man arose and began moving around the room. Carol heard him take Evelyn into the bathroom and could hear Evelyn struggling as she was put into the bathtub. Evelyn screamed once and then it was silent. The man dragged Carol to the vestibule opposite the bathroom door.
When he came out of the bathroom, Carol heard the rustling of clothes as if the man was dressing. He came over to her, lifted the sheet, and cut her throat. She saw him briefly and then closed her eyes pretending to be dead. She believed he was wearing blue jeans and a dark colored shirt.
After the man left, Carol dragged herself or hopped over to the door. She had managed to partially untie her hands. She locked the door by turning something other than the knob. Defendant's security officer and office manager testified that when the door is closed, it is locked and the only way to double lock it is to use the key on the inside. A photograph taken of the room after the occurrence shows that there was no key in the door and nothing other than the knob to turn.
Carol tried to untie her legs but was unable to do so. She went to the telephone but could not speak to the operator. The operator could not tell from which room the call was coming. Carol began writing notes. Among them were the following: “he's black w/ a natural,” “it looks gory but there's no pain,” and “don't blame him it is not his fault.” She testified that she wrote the notes because she thought she was dying and did not want her family to think her death had been painful.
Carol then dragged herself to the door and banged on the wall with a shoe. When no one came, she went to the bathroom to find something to cut the cords binding her ankles. She was in the bathroom holding a razorblade when Patti entered the room. Upon seeing Carol with the blade in her hand and blood streaming down her neck, Patti said, “Why did you do it?” Carol pulled her over to the notes to show her what she had written. Help arrived and Carol was taken to the hospital. The assailant did not rape Carol or Evelyn.
The Palmer House has 24 floors above street level and 2,144 guest rooms. There is an arcade at street level which can be reached through any of three public entrances. Automatically operated elevators at the street level go to all guest room floors. These elevators also go down to a lower arcade. The stores in the arcade level close at 10:00 p.m., but public access to the arcade continues through the street level entrances.
Frank Lopez, an expert witness for plaintiffs, became chief of security *106 at the Palmer House in July 1970 and left its employ in May 1971. The Palmer House security force consisted of five men in each of three daily shifts. Three of the five men were given stationary positions, none of which were located at the street level entrances. The other two men patrolled all floors of **232 ***233 the hotel. During the period between January 1 and July 16, 1970, there were several incidents of illegal entries of guest rooms by “undesirables.” Lopez was of the opinion that a black man in jeans and with a messy afro would be considered a potential undesirable and would be challenged if observed by a security officer. Leonard Mackiewicz, a former security officer for the Palmer House, testified that the term “undesirable” would include any person causing a disturbance, prostitutes, and people who were not clothed properly. The term also would include anyone who looked suspicious to the witness.
Lopez recommended to management that additional men and an augmented security program were necessary, given the size of the Palmer House and the number of illegal entries in the recent past. He believed that it would have taken 15 to 20 men per shift to provide adequate security for the hotel guests. Prior to the present occurrence, Lopez recommended that the security staff be increased to eight men per shift. He asked for a smaller increase because he felt that management would be more receptive to the proposal. As of July 16, 1970, his request had not been granted.
We shall first consider defendant's contention that, regardless of any error committed in the trial court, the judgment must be affirmed because plaintiffs failed to make out a sufficient case to warrant submission of the issue of defendant's liability to the jury. In support thereof, defendant argues that plaintiffs presented no competent evidence which would support a reasonable inference that the injuries were in any way proximately caused by defendant's negligence. Defendant contends that any verdict finding it liable would be based on speculation and conjecture.
While we agree with defendant that there are other possible theories as to how plaintiffs' assailant gained access to their room, some unrelated to any negligence on defendant's part, we do not believe the trial court properly could have granted defendant's motion for a directed verdict. When received in the light most favorable to plaintiffs, American Nat. Bank & T. Co. v. Peoples Gas Co. (1963), 42 Ill.App.2d 163, 191 N.E.2d 628, the evidence presented at trial, including the testimony of Frank Lopez as to the inadequacy of the security and that of Carol Yamada describing the assailant, presented a question of fact for the jury. Particularly in such cases where the presentation of direct evidence is impossible, courts have been reluctant to conclude that a verdict based upon circumstantial evidence cannot be upheld. This is so *107 even though a contrary verdict could have been reached based upon the same circumstantial evidence. (See Pearson v. Ford Motor Co. (1975), 32 Ill.App.3d 188, 336 N.E.2d 528; Justice v. Justice (1969), 114 Ill.App.2d 254, 252 N.E.2d 493; Olsen v. Pigott (1963), 39 Ill.App.2d 191, 188 N.E.2d 361.) Only when there is a complete absence of probative facts supporting an inference can it be said that such inference is clearly unreasonable. (Justice v. Justice.) A verdict for plaintiffs could be upheld.
Plaintiffs contend that several erroneous evidentiary rulings by the trial court, solely or cumulatively, constituted prejudicial error against them and mandate a new trial. Plaintiffs maintain that defense counsel was in error in examining Patti as a hostile witness at the time of her deposition. After a discovery deposition her evidence deposition was taken in California some time prior to trial. The error was compounded, plaintiffs urge, when defense counsel was permitted at trial, over objection, to present the contents of Patti's evidence deposition to the jury.
As part of the convention activities, some members of the JACL visited informally with representatives of local organizations including the Black Panthers, to discuss their community projects. Patti printed an article in the Pacific Citizen that Evelyn was among those who visited the Black Panther Center. At the evidence deposition, Patti testified that she could not remember whether or not Evelyn had gone with them on that occasion. Defense counsel read her the text of the article. The witness still stated that she could not recall **233 ***234 who visited the center. Defense counsel also commented during closing argument how he had impeached Patti by using her article. Plaintiffs maintain that they were severely prejudiced in that this evidence was the only manner in which defendant was able to bolster the theory that the assailant was not an intruder but someone Evelyn had invited back to the room. (A clean-up man testified that five days after the incident he found a Black Panther newspaper in Room 725. Photographs taken of the room right after the occurrence did not reveal the presence of any Black Panther literature in the area where the newspaper was found.)
In response, defendant argues that plaintiffs' counsel waived any error in the admission of this testimony by stating in his closing argument “. . . we know that Patti and Evelyn, a few days before, had visited the Black Panther Center . . . . That is not important.” We do not agree with defendant's response. The comment by plaintiff's counsel can only be construed as a legitimate attempt to avoid what he perceived to be the damaging effects of this evidence. Counsel's acknowledgment that the women had visited the center in an effort to diminish the importance of this evidence cannot be construed as an admission of the truthfulness of the item in the Pacific Citizen article or operate as a waiver of error. (See *108 Sabo v. T. W. Moore Feed & Grain Co. (1968), 97 Ill.App.2d 7, 239 N.E.2d 459; Deel v. United States Steel Corp. (1969), 105 Ill.App.2d 170, 245 N.E.2d 109.) To hold that counsel's statement in closing argument constituted a waiver of any objection to this evidence would deprive him of any effective means of countering evidence he believes to be erroneously admitted and prejudicial to his case. The authorities cited by defendant, Flewellen v. Atkins (1968), 99 Ill.App.2d 409, 241 N.E.2d 667; Drell v. American Nat. Bank & Trust Co. (1965), 57 Ill.App.2d 129, 207 N.E.2d 101; Darling II v. Charleston Memorial Hospital (1964), 50 Ill.App.2d 253, 200 N.E.2d 149, aff'd 33 Ill.2d 326, 211 N.E.2d 253, are distinguishable in that they involve statements by counsel which admit a contested fact or issue which is central to the disposition of the case.
Defendant also responds by urging that plaintiffs' counsel in California failed to interpose any objection to the questioning of Patti concerning the newspaper article during the taking of the evidence deposition. When defense counsel proposed to proceed with the witness as hostile, the following objection was made: “There is still no showing of any adversity or hostility and we will object to any questions other than in the form of questions as they as his own witness in a direct examination under the Rules of Evidence.” Thus, it is clear that plaintiffs preserved their objection to the cross-examination of the witness as hostile as required by Supreme Court Rule 211(c) (2). (Ill.Rev.Stat.1975, ch. 110A, par. 211(c)(2).) It was not necessary for plaintiffs to object specifically to each question.
Defendant further maintains that when Patti continued to claim a lapse of memory regarding the news article, it was proper to impeach her as an occurrence witness under Supreme Court Rule 238. (Ill.Rev.Stat.1975, ch. 110A, par. 238.) First, it is doubtful whether Patti properly can be considered as an occurrence witness. The substance of her testimony relating to the incident consisted of her reaction upon seeing Carol in the bathroom with a razorblade in her hand and her subsequent efforts to get help. The occurrence which was the subject matter of the suit was the actual attack on Carol and Evelyn. We think Patti can be classified as a post-occurrence witness. See Hall v. Baum Corp. (1973), 12 Ill.App.3d 755, 299 N.E.2d 156.