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Read the following cases:
For each case, identify the following:
CASE EXAMPLE 5-1
Ordonez v. Gillespie
2001 WL 294553 (Tex. 2001)
…Ordonez alleged that on or about March 9, 1996
she was working as a housekeeper at a Dallas
hotel. The Gillespies had rented adjoining rooms
1224 and 1225. While cleaning room 1224,
Ordonez alleged she was sexually assaulted by
17 year old Jason Gillespie, who is mentally
challenged. Ordonez alleged the Gillespies acted
negligently “by violating the duty which they owed
her to exercise ordinary care in the care of their
mentally challenged son, a minor.” More
specifically, Ordonez asserted the Gillespies
failed to properly supervise their son, which
included failing to ensure Jason would not be left
alone with unfamiliar people…. The Gillespies
asserted that Jason’s alleged conduct was not
foreseeable to his parents… The trial court
granted summary judgment for the Gillespies….
Ordonez contends a duty existed because
Jason’s alleged sexual assault [was] a foreseeable
result of the Gillespies’ negligently leaving him
alone in a hotel room.
Negligence consists of three essential elements:
(1) a legal duty owed by one person to another;
(2) a breach of that duty; and (3) damages
proximately resulting from the breach. Duty is the
threshold inquiry. It is the function of several
interrelated factors, the foremost and dominant
consideration being foreseeability of the risk. A
parent’s duty to protect third parties from acts of
the parent’s minor child depends on whether the
injury to the third party is reasonably foreseeable.
Foreseeability means the [defendant], as a person
of ordinary intelligence, should have anticipated
the dangers his negligent act created for others….
Ordonez relies on a copy of the Gillespies’ hotel
reservation for room 1225, which includes the
notation that the Gillespies needed to be
connected to their mentally handicapped son.
[Evidence also indicates that] at school Jason
“disrupted the class” and “got into a lot of trouble”.
The Gillespies put Jason in a boarding school in
Massachusetts “for kids with psychological or
school problems.” After six or eight months he
was asked to leave the facility because he had
run away a couple of times and smoked in the
high school. He got his GED when he was 16.
…Jason had never been detained for any type
of criminal activity. It was Ordonez’ burden to
present some evidence that Jason’s conduct was
foreseeable to his parents. We conclude she
failed to do so. Evidence that Jason did not like
school and disrupted class is no evidence that his
parents should have foreseen the possibility that
he was capable of assaultive conduct. Likewise,
evidence that Jason’s parents considered him to
be mentally handicapped is no evidence that it
was foreseeable he might be a danger to others.
The trial court properly granted the Gillespies’
motion for summary judgment.
CASE EXAMPLE 5-2
Shadburn v. Whitlow
533 S.E.2d 765 (Ga. 2000)
…IT]he record shows that Shadburn, Whitlow,
and Jewel Palmer were on their way to Ormond
Beach, Florida. En route, they stopped at New
Perry Hotel to eat lunch. The three proceeded up
a flight of stairs to the hotel restaurant. Palmer
proceeded first, followed by Shadburn. Whitlow,
an elderly woman who had impaired vision due to
cataracts, followed last. Palmer was waiting in line
at the restaurant when she heard a noise.
Turning, she saw Whitlow, who had reached the
top of the stairs, fall into Shadburn who was
standing in the lobby area. Shadburn was injured.
Palmer and Shadburn believed Whitlow’s fall
was caused by loose carpeting, which they
noticed at the top of the stairwell the evening after
the fall; however, all three ladies testified that they
were not actually certain what caused Whitlow to
fall. Palmer also averred in her affidavit that
Whitlow may have tripped because she may have
been inebriated after sipping an unknown
beverage from a cup during the trip to Perry.
failed to present any evidence that a condition on
the stairs, the loose carpeting, caused Whitlow to
fall. The speculation that Whitlow may have tripped
on loose carpeting does not sufficiently establish
causation.
On the issue of causation, as on other issues
essential to a cause of action for negligence, the
plaintiff, in general, has the burden of proof. The
plaintiff must introduce evidence which affords a
reasonable basis for the conclusion that it is more
likely than not that the conduct of the defendant
was a cause in fact of the result. A mere possibility
of such causation is not enough; and when the
matter remains one of pure speculation or con-
jecture, or the probabilities are at least evenly
balanced, it becomes the duty of the court to
grant summary judgment for the defendant.
Similarly, the trial court also properly granted
summary judgment to Whitlow because there is
no evidence that Shadburn’s injuries were caused
by an act or omission of Whitlow. There is no
evidence in the record of the cause of Whitlow’s
fall. Shadburn can point only to speculation that
Whitlow may have tripped and fallen because she
was inebriated.
The trial court properly granted summary
judgment to New Perry Hotel because Shadburn
230 0
CASE EXAMPLE 6-12
At trial the testimony revealed that defendant
Eisnaugle v. McDonald’s
2000 WL 33226184 (Ohio 2000)
… On a rainy morning Jill Eisnaugle, then 15, and
her father stopped at the McDonald’s restaurant
in Jackson for breakfast. Jill walked across the
parking lot and stepped up onto the tile sidewalk
in front of the side entrance. Upon stepping onto
the tile, Jill immediately fell. Jill twisted and broke
the neck of her femur. Resetting the bone
required surgery and the implantation of surgical
screws…. Her doctor did not release her to full
activity until nearly 19 months after the accident.
The Eisnaugles filed a lawsuit against the
restaurant alleging that the McDonald’s negligently
permitted an unsafe condition to exist. They sought
damages for Jill’s medical expenses, her pain and
suffering, and her parents’ loss of Jill’s company
and services.
franchisee leases the land and the building, and
is responsible for its upkeep and remodeling. In
1990 defendant opted to change the type of
sidewalk outside the restaurant from exposed
aggregate (a type of sidewalk material) to tile
The franchise owner testified that he selected the
tile sidewalk because it is easier and cheaper to
maintain than aggregate. The Eisnaugles’ expert
witness tested the tile and determined that it did
not comply with the Ohio Building Code, the Life
Safety Code, or Americans with Disabilities Act
standards for safe, slip-resistant outdoor
walkways….
The jury deliberated and determined that
defendant was negligent and that defendant’s
negligence proximately caused Jill’s accident and
the resulting injuries….
On appeal the judgment affirmed.
CASE EXAMPLE 6-15
Taboada v. Daly Seven, Inc.
626 S.E.2d 428 (Va. 2006)
…Daly Seven, Inc. owns and operates hotels in
Virginia, including a Holiday Inn Express located
in downtown Roanoke. At approximately 2 a.m.
Ryan Taboada and his family arrived at the
Holiday Inn Express seeking lodging for the night.
Taboada had selected the hotel relying, in part,
upon the hotel’s representation that the hotel was
a “safe, secure and reliable place to lodge.”
a room. Taboada then returned to his vehicle in the
Taboada registered as a guest and was assigned
hotel’s parking lot where his wife and two children
were waiting and began to unload the family’s
Derrick W. Smith, who was not a guest at
luggage.
the hotel, approached Taboada and demanded
money from him. Smith then, immediately and
without provocation, began to fire a weapon at
Taboada. Taboada was wounded eight times,
suffering severe bodily injuries. Smith took a
wristwatch from Taboada’s seven-year-old son
and stole the family vehicle; Taboada’s infant
daughter was still in her seat in the vehicle at the
time. Police apprehended Smith, recovered the
vehicle, and rescued the infant, who was not
physically harmed…
Taboada sued the hotel for negligence
premised upon the innkeeper’s breach of a duty
of care owed to Taboada as a guest. Taboada
alleged that Daly Seven had misrepresented that
the Holiday Inn Express was located in a “safe”
area when, in fact, Daly Seven “knew the business
assaultive acts. Taboada alleged that these facts
placed Daly Seven on notice that uninvited
persons regularly came upon the property and
created a risk of imminent harm to guests and
employees…. Taboada alleged that Daly Seven
had at one time employed uniformed security
guards to patrol the hotel and its parking lot
during the overnight hours, but that it had
discontinued this practice in favor of saving
expenses. Taboada alleged that had Daly Seven
continued to employ uniformed security guards,
they would have been able to see the assailant
prior to the attack and would have been able to
stop the assailant before the assault….
The hotel asserted that Taboada failed to allege
that Daly Seven knew that criminal assaults
against persons were occurring or about to occur
on the premises which would have indicated an
imminent probability of harm…
There is no liability when the defendant neither
knows of the danger of an injury to a plaintiff from
the criminal conduct of a third party, nor has
reason to foresee that danger… The guest of an
innkeeper entrusts his safety to the innkeeper and
has little ability to control his environment. The
guest relies upon the innkeeper to make the
property safe and the innkeeper’s knowledge of
the neighborhood in taking the reasonably
necessary precautions to do so. In this regard, it
is reasonable for the law to impose upon the
innkeeper a duty to take reasonable precautions
to protect his guests against injury caused by the
criminal conduct on the part of other guests or
strangers, if the danger or injury by such conduct
is known to the innkeeper or reasonably
foreseeable…
We hold that Taboada’s allegations, if proven,
would be sufficient to permit a trier of fact to find
that Daly Seven had breached its duty of care.
Taboada alleged that, over a three-year period
immediately prior to the attack upon Taboada, Daly
Seven’s employees had regularly contacted police
96 times to report criminal conduct including
robberies, malicious woundings, shootings and
was a known target for repeat criminal activity
including assaultive crimes on employees and
guests.” Taboada alleged that for the three months
prior to his arrival the hotel called the Roanoke
City Police Department on at least 96 occasions to
report the presence of trespassers who refused to
the leave the premises, the presence of
suspicious persons on the premises, larcenies,
disorderly persons, suspicious circumstances and
suspected drug offenses, robberies, malicious
woundings, shootings, and other criminally
(continued)
252 UNIT II: Negligence
other criminally assaultive acts… As a result of
these repeated incidents, Daly Seven had been
advised by police that its guests were at an
imminent risk of harm from uninvited persons
coming into or upon its property. These allegations
are sufficient to support a reasonable conclusion
that Daly Seven knew its property was located in a
high-crime area, and that Daly Seven was on
notice that its guests were in danger of injury
caused by criminal acts of third parties. These
allegations sufficiently support the further
conclusion that the injury to Taboada from the
criminal act of the third party was reasonably
For these reasons we decline to grant summary
foreseeable.
judgment to Daly Seven.
