Henry mu

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

HENRY MU,

Plaintiff, vs. C.A. No. 1:15-cv-00187-PAS

OMNI HOTELS MANAGEMENT CORPORATION ET AL,

Defendants.

PLAINTIFF HENRY MU'S MEMORANDUM OF LAW IN SUPPORT OF HIS OBJECTION TO DEFENDANT OMNI HOTELS MANAGEMENT CORPORATION’S

MOTION FOR SUMMARY JUDGMENT

Plaintiff Henry Mu respectfully submits this memorandum of law in support of his

Objection to Defendant Omni Hotels Management Corporation’s Motion for Summary

Judgment.

INTRODUCTION

This matter arises out of an incident in which the Plaintiff, Henry Mu was severely beaten

by a group of patrons of the Omni Hotel while a guest and invitee at the Omni Providence Hotel.

Complaint XXX. Mu himself lives in the aptly named Residences at the same location, shares

the same lobby, and many of the same rights, privileges, and amenities, all of which are available

to Residence owners and lessees. Exhibit P, http://www.residencesprovidence.com/forlease.asp.

At 2:10 a.m. a guest of the hotel notified the Omni's front desk that they were concerned

about a party going on in which young men and women were using controlled substances and

being disruptive. PSUF ¶¶ 5-6. Thereafter, at approximately 2:22 a.m. a group of approximately

twenty individuals were evicted from room 407, but all Omni incident reports indicate that they

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were not escorted off the property by security until after the attack on Mr. Mu, Exhibit G,

Exhibit I, Exhibit M. Even after the beating, at least 10 individuals involved in the attack were

observed to be still lingering around the second floor of the Omni, Exhibit I, Exhibit M.

Acknowledging the threat, it appears that at least one of the two Omni security officers opted to

resume collecting room service menus instead of attempting to remove the dangerous presence

or obtain identifying information that may have assisted law enforcement. Exhibit B. Plaintiff’s

Statement of Undisputed Facts, (“PSUF”) ¶¶ 6-7. Minutes later, as Plaintiff waited for a friend to

arrive in the valet circle of the Omni, he noticed a mob of approximately twenty young adults

exit the lobby while pursuing and directing racial epithets toward a dark-skinned man. Exhibit E

Mu Dep., at 35:10-24.

Plaintiff observed the angry mob chase the man into the Omni's parking garage and

overheard noises which suggested to Plaintiff that the group had attacked the man, whereupon he

suggested to Mr. Lebron, the valet attendant, that he inform Omni Security, which the attendant

declined to do, despite being in radio contact with Omni Security. Exhibit D, Lebron Dec., ¶ 2;

Mu Dep., 36:8-10, 15-17, 38:13-19. Plaintiff proceeded inside the Omni and informed the front

desk about the unruly group's activities and requested that they call the police. Exhibit G. Rather

than immediately calling the police or summoning security, the Omni Night Manager engaged in

a verbal dispute with the group, effectively allowing the situation to escalate. Exhibit G. The

group began to yell at the Plaintiff and commenced physically assaulting him as he attempted to

leave the premises. Exhibit G. The attackers landed a series of punches and kicks, even held him

down while other members utilized a nearby metal table to fracture the Plaintiff's arm leaving

blood strewn throughout the lobby. Exhibits G, I, M.

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When the police finally arrived, the Omni staff took steps to prevent any meaningful

investigation of the matter with the Providence Police such as even filing a report, by

withholding statements from several eye witness Omni agents and documentation such as video

evidence of the incident. PSUF

Omni security cameras captured footage of the assault and the attackers. PSUF ¶ 26.

However, Omni never showed this evidence to the Providence Police. PSUF ¶ 27. The day after

the attack, Plaintiff spoke to the then head of security at the Omni Providence, Mr. Shannon

Earle, who told Plaintiff that because he had not still been in the lobby when the police finally

arrived, the police were unable to obtain information about the victim or any witnesses, despite

the fact that the Omni was either in possession of all the requisite information or easily could

have acquired same prior to the arrival of authorities. PSUF ¶ 24.

ARGUMENT

1. Omni Had a Duty to Protect Mr. Mu from the Assault and Take Appropriate Action in the Aftermath

A legal duty is a question of law that the court alone is authorized to determine. Volpe v.

Gallagher, 821 A.2d 699, 705 (R.I.2003). As there is "[n]o clear cut formula" for determining

the existence of a duty, the court will make the determination on a case-by-case basis. Id. In so

doing, this court " 'will consider all relevant factors, including the relationship between the

parties, the scope and burden of the obligation to be imposed upon the defendant, public policy

considerations,' " id., and the "foreseeability of harm to the plaintiff." Banks v. Bowen's Landing

Corp., 522 A.2d 1222, 1225 (R.I.1987).

In Martin v. Marciano, 871 A.2d 911 (2005) the Rhode Island Supreme Court held that

“as a general rule, a landowner has no duty to protect another from harm caused by the

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dangerous or illegal acts of a third party”. Luoni v. Berube, 431 Mass. 729, 729 N.E.2d 1108,

1111 (2000). An exception to this rule exists, however, “when a plaintiff and a defendant bear a

special relationship to each other. A special relationship, when derived from common law, is

predicated on a plaintiff's reasonable expectations and reliance that a defendant will anticipate

harmful acts of third persons and take appropriate measures to protect the plaintiff from harm.

See Irwin v. Ware, 392 Mass. 745, 756, 467 N.E.2d 1292(1984); see e.g., Fund v. Hotel Lenox of

Boston, Inc., 418 Mass. 191, 192, 635 N.E.2d 1189 (1994) (hotel and guests)[.]”

Our High Court then applied these principles in a similar special relationship context

while evaluating the liability of a social host whose guest was attacked at a party, and stated that

“[a]lthough there may be no evidence that defendant knew of [the assailant's] presence at the

party, for the reasons stated below we are of the opinion that defendant had actual or constructive

knowledge that the party she hosted created an atmosphere that could lead to violence, and

hence, the need for greater vigilance. Therefore, she should have taken reasonable steps to

protect the physical safety of her social guests from attacks.” Id. at 917.

Exploring the foreseeability inquiry, the Court went on to state that “the concept of

foreseeability "plays a variety of roles in tort doctrine generally; in some contexts it is a question

of fact for the jury, whereas in other contexts it is part of the calculus to which a court looks in

defining the boundaries of 'duty.' " Banks, 522 A.2d at 1226 (quoting Ballard v. Uribe, 41 Cal.3d

564, 224 Cal.Rptr. 664, 715 P.2d 624, 628 n. 6 (1986)). As it pertains to the determination of

duty, the foreseeability inquiry considers generally whether "the category of negligent conduct at

issue is sufficiently likely to result in the kind of harm experienced that liability may

appropriately be imposed on the negligent party." Id. at 1226-27 (quoting Ballard, 224 Cal.Rptr.

664, 715 P.2d at 628 n. 6).

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Comment e of the Restatement (Second) Torts § 314A (1999) touches upon the issue of

foreseeability in its description of the standard of conduct expected of those under a duty to

protect others from unreasonable harm. That comment explains that one who is under such a

duty "is not required to take precautions against a sudden attack from a third person which he has

no reason to anticipate * * *." Id. at 120. "The requisite 'cause to anticipate' the assault may arise

from 1) actual or constructive knowledge of the assailant's violent nature, or 2) actual or

constructive knowledge that an atmosphere of violence exists in the [location of the

assault]." W.B. Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1189

(Miss.1994) (quoting Grisham, 519 So.2d at 416-17).” Id. at 917.

Turning to Massachusetts decisions for guidance, the Court cited with approval Pollard v.

Powers, 50 Mass.App.Ct. 515, 738 N.E.2d 1144, 1144-45 (2000), a case in which “a party guest

brought suit against his host after he was "sucker punched" by uninvited assailants. The court

noted that " 'the specific kind of harm need not be foreseeable as long as it was foreseeable that

there would be harm from the act which constituted the negligence, provided it was foreseeable

that there would be violence toward others.' " Id. at 1146. "[I]t is for the jury to determine

whether the assault was such a remote possibility that it was an intervening cause of harm." Id.

We are of the opinion that, in the context of defendant's duty, it was generally foreseeable

that one of her underage guests could have been the victim of an attack while attending the party.

Based on defendant's decision to rent a tent and a port-a-john, it seems she anticipated a large

gathering, which is exactly what she got. Seventy under aged people arrived at the party through

word-of-mouth and proceeded to drink alcoholic beverages, violating the law. Indeed, "it is

common knowledge that the use of intoxicants frequently unduly excites the tempers, emotions

and actions of those who indulge in them." Fisher, 319 P.2d at 126.” The Court concluded that

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“because it was foreseeable that a melee could break out, resulting in injury to the social guest, it

is a question of fact whether [the assailant's] actions constitute a supervening cause of harm,

thereby insulating defendant from liability. Pollard, 738 N.E.2d at 1146.” Id.

Here, it is clear that Omni owed Plaintiff a duty to exercise reasonable care for his

protection, even if the harm caused to him could be found to be the result of an illegal act caused

by a third party, because a special relationship existed between Omni and Plaintiff. A special

relationship existed between the Omni and Plaintiff because at all times relevant Plaintiff was an

invitee and guest at the Omni, the Omni had exclusive control over its property, specifically the

lobby, and the Omni had the control to expel the raucous mob from its premises and even

utilized its control by evicting the mob from room 407.

Since 2010, Plaintiff has lived in the Residences and passed through the lobby of the

Omni numerous times on a daily basis, observing security personnel and the several security

cameras Omni has positioned around the lobby and other common areas of the hotel. It is

foreseeable that a raucous group of intoxicated young adults would continue their disorderly and

mischievous conduct that night. Plaintiff was lawfully passing through the lobby of the Omni, in

an effort to visit his parents who were registered guests of the Omni.

2. The Plaintiff Can Establish The Standard of Care Without Expert Testimony

There is no Rhode Island case law stating that expert testimony is required to establish a

standard of care in hotel liability cases such as this. In fact, the only cases in Rhode Island where

an expert is required to establish the standard of care are legal and medical malpractice cases.

For example, in Cronan v. Iwon, 972 A.2d 172 (R.I. 2009), the Court explained that

"to prevail on a negligence-based legal malpractice claim, a plaintiff must prove by a fair

preponderance of the evidence not only a defendant's duty of care, but also a breach thereof and

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the damages actually or proximately resulting therefrom to the plaintiff." Richmond Square

Capital Corp. v. Mittleman , 773 A.2d 882, 886 (R.I.2002) (quoting Macera Brothers of

Cranston, Inc. v. Gelfuso & Lachut, Inc. , 740 A.2d 1262, 1264 (R.I.1999)). Failure to prove

each of these requisite elements " acts as a matter of law, to bar relief or recovery." Ahmed v.

Pannone , 779 A.2d 630, 633 (R.I.2001) (quoting Macera Brothers of Cranston, Inc. , 740 A.2d

at 1264).

However, not even all of those malpractice cases are beyond the ambit of ordinary

commonsense. As the Court explains, expert evidence is required "unless the attorney's lack of

care and skill is so obvious" that it would be a matter of common knowledge. Focus Investment

Associates, Inc. , 992 F.2d at 1239. "Cases which fall into the ‘common knowledge’ category are

those where the negligence is ‘clear and palpable,’ or where no analysis of legal expertise is

involved." Id.; accord Suritz v. Kelner, 155 So.2d 831, 833-34 (Fla.Dist.Ct.App.1963) (expert

testimony not required where attorney directed clients not to answer interrogatories in violation

of judge's order to answer on penalty of dismissal); Collins v. Greenstein , 61 Haw. 26, 595 P.2d

275, 276, 282 (1979) (expert testimony not required where attorney failed to file suit within the

appropriate statute of limitations period); Sommers v. McKinney , 287 N.J.Super. 1, 670 A.2d 99,

105 (App.Div.1996) (no expert testimony needed to evaluate attorney's failure to inform client of

settlement offer).” Cronan at 174. “In this case, the hearing justice granted summary judgment

on the legal malpractice claim based on plaintiff's failure to obtain an expert during the five-year

pendency of her case, as well as on her representation at oral argument that she did not intend to

employ one. The plaintiff argues that expert testimony was unnecessary because defendants'

negligence was, as she contends, clear and palpable. We disagree.

The defendants' alleged failure to discover certain bank- and credit-card statements in

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assessing the value of the marital estate is a markedly less obvious transgression than an

attorney's failure to file suit within the requisite statute-of-limitations period or to answer

interrogatories under penalty of dismissal. See Suritz , 155 So.2d at 833, 834; Collins , 595 P.2d

at 276, 282. The exact importance of the bank and credit-card statements to the overall equitable

distribution scheme is not clear from the record, nor is whether the information contained therein

was obtainable from other sources. Considering further that the CPA's report following the

equitable division of marital property found no missing assets, defendants' alleged negligence is

not at all clear and palpable. Without expert testimony, plaintiff is unable to establish the

appropriate standard of care or defendants' alleged breach thereof, as required to prove a claim of

legal malpractice.” Cronan at 174.

Given the state of affairs in Rhode Island, where it is exclusively in the case of

professional malpractice where an expert is required to set the standard of care as a matter of

law, in order to aid its own failure to protect its guests from harm, Omni cites its own case from

the 7th circuit, Shadday v. Ommni Hotels Mgmt. Corp. 477 F.3d 511, 515, in which Omni evaded

liability after a woman was raped at Omni's Washington D.C. location. Of course, this decision

has no bearing on the present matter, as unlike Shadday, this is not a situation in which a

diplomat surreptitiously raped a woman in an elevator without prior notice of his intentions or

the woman's concerns being provided to the hotel. To the contrary, this is a situation in which, as

in Pollard and Martin, the dangerous situation was brought about by Omni in the first place.

Omni was aware that it had been playing host to an unruly late night party involving young

people and drug use but yet did not see fit to properly remove the individuals from the premises

despite finding it necessary to evict them from the room due to the concerns of other guests. Nor

did the hotel find it necessary to call security on these same unruly individuals as they chased

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around other passersby even after this was brought to the attention of staff. Indeed, even when

Mr. Mu implored the night manager to call the police, the night manager instead called out to the

gang, prompting the very beating of Mr. Mu which he had hoped to avoid for himself and other

guests – and yet according to the reports of both Mr. Attah and Mr. Pfefferle—the only two

security officers on duty that night—the police were not called to the scene until at least 13

minutes after the fight had begun, according to Exhibit B, p.2, indicating security was radioed at

2:35 a.m. regarding the fight in the lobby.

A simple reading of the reports in this matter demonstrate that common sense rather than

advanced hotel security expertise is required in order to evaluate a breach of the standard of care.

According to Timmy Pfefferle's report, he was radioed at 2:45 a.m. for a disturbance in the

lobby, and when he got there it was already over. He states that he was informed by Night

Manager Elizabeth Kapel that Mr. Mu had walked into the lobby – where he lived and where he

was visiting his parents on that particular night - and asked her to call the police, then as he tried

to leave was jumped by 10 individuals. Pfefferle notes that, coincidentally, 10 individuals had

remained on the 2nd floor of the hotel until 3:25 a.m. Mysteriously, all security camera footage –

since was “inconclusive” as to what had occurred and could not identify a single individual

involved. The report claims that no police report was made as none of the perpetrators could be

found, though according to Elizabeth Kapel's statement they had the party's host's credit card on

file and charged it that very night for the damage.

CONCLUSION

In conclusion, Omni has failed to demonstrate an absence of material fact for trial. As the

exhibits on file show, Omni, despite having a special relationship with and duty to protect the

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plaintiff, effectively created a dangerous situation and then failed to protect him against it, and

then obscured all remedial efforts but their own, culminating in his being beaten by a band of

hooligans with a table in Providence’s premier hotel, while staff looked on and covered their

tracks.

For these, and reasons advanced at hearing, and in the interest of justice, Omni’s motion

for summary judgment must be denied.

Respectfully Submitted, Henry Mu, by his attorney: Jesse W. Duarte, Esq., #8978 DUARTE & OBOLENSKY LAW, LLC 127 Dorrance St – 4th Floor Providence, RI 02903-2828 P: 401.454.7700 F: 401.454.7702 JWD@DOLAW.US Date: May 31, 2016

CERTIFICATE OF SERVICE

I hereby certify that I filed this Memorandum through the ECF system on 31st of May, 2016, that notice will be sent electronically to all counsel who are registered participants identified on the Mailing Information for C.A. No. 1:15-cv-00187-L-PAS.

________________________

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/s/Jesse W. Duarte

/s/Jesse W. Duarte

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