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Benninghoven v. Hawkeye Hotels, Inc.

Court of Appeals of Iowa

June 21, 2017

ALEX L. BENNINGHOVEN and BRYAN T. SLOAN, Plaintiffs-Appellants,
v.
HAWKEYE HOTELS, INC., DM RIVER LODGING, INC., and HAWKEYE HOTELS HOSPITALITY MANAGEMENT, INC., Defendants-Appellees.

         Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

         The plaintiffs appeal the district court's grant of summary judgment in favor of the defendants. AFFIRMED.

          Mark J. Wiedenfeld of Elverson Vasey, L.L.P., Des Moines, for appellants.

          Joel T. S. Greer of Cartwright, Druker & Ryden, Marshalltown, for appellees.

          Considered by Danilson, C.J., and Potterfield and Bower, JJ.

          DANILSON, Chief Judge.

         The plaintiffs, Alex Benninghoven and Bryan Sloan, appeal the district court's grant of summary judgment in favor of the defendants, Hawkeye Hotels, Inc., DM River Lodging, Inc., and Hawkeye Hotels Hospitality Management, Inc. The plaintiffs argue the defendants breached their duty of reasonable care owed to hotel guests in hiring Michael Morrow without discovering Morrow's criminal history. The plaintiffs were hotel guests and were assaulted by Morrow after Morrow's shift was over and they were all off premises. Because we agree the hotel's liability does not extend to criminal conduct of an employee who was off duty and off premises under these facts, we affirm.

         I. Background Facts and Proceedings.

         These facts are not in dispute. The defendants are the owners and managers of the Residence Inn Hotel located in downtown Des Moines near the Court Avenue entertainment district. Morrow was employed as a desk clerk at the Residence Inn Hotel, checking guests in and out.

         On April 4, 2014, Morrow applied and was hired to work for defendants. Morrow filled out an employment application with the defendants on that date in which he denied any criminal convictions (excluding traffic accidents). However, between July 27, 2010, and April 4, 2014, Morrow had numerous criminal convictions, including various misdemeanor offenses including theft, operating while intoxicated, unauthorized use of a credit card, criminal trespass, and criminal mischief. He also had two misdemeanor assault convictions-one for domestic assault and one for assault causing bodily injury.

         The defendants' general manager, Daryl Rixman, acknowledges a background check was conducted, including a check of Iowa Courts Online. However, Morrow's convictions for assault were not discovered.

         On May 24, 2014, Alex L. Benninghoven and Bryan T. Sloan (the plaintiffs) visited Des Moines to celebrate Sloan's bachelor party. They checked into the Residence Inn at about 2:30 p.m. Morrow greeted them, checked them in, and escorted them to their rooms. At their request, Morrow gave the plaintiffs recommendations regarding nearby bars. The plaintiffs attended a baseball game later in the evening, then returned to the hotel where they again spoke to Morrow about which bars they planned on patronizing.

         At around 2:30 a.m. on May 25, 2014, the plaintiffs were walking back to the hotel from the entertainment district. As they passed by an alley, about a block away from the hotel, Morrow called out to them from the alley where he was standing with a group of people. The plaintiffs recognized Morrow and walked over to join him. The plaintiffs aver they would not have approached the group had they not recognized Morrow from the hotel.

         A vehicle occupied by some women drove up. After a disagreement about Sloan talking with the women in the vehicle, Morrow and Sloan began to scuffle and the encounter escalated into a violent assault of the plaintiffs by Morrow and the group. Sloan was knocked unconscious and his wallet and phone were stolen. Benninghoven was also knocked unconscious.

         The plaintiffs filed a petition against the defendants, stating claims of general negligence and a claim of negligent hiring and retention. The specifications of negligence under the general negligence claim include: failing to perform an adequate criminal background check when hiring its employee Morrow; hiring Morrow when he had a criminal background including a history of violent crime; placing Morrow in a position in the hotel that represents to guests that he is a person whom guests can trust; retaining Morrow in this position despite Morrow's criminal and violent background; and failing to properly train Morrow concerning interactions with guests including while off duty. Under the negligent-hiring claim, the plaintiffs assert the defendants were negligent in hiring and retaining Morrow when they knew, or in exercise of ordinary care should have known, of his dangerous characteristics as demonstrated by his criminal history.

         The defendants filed a motion for summary judgment, asserting they owed no duty to the plaintiffs for intentional torts committed by an employee who is off duty and off property. They also asserted the intentional torts committed by the employee off duty and off property were not foreseeable as a matter of law.

         The defendants' employee policies, signed by Morrow, include the following:

The following are examples of conduct not tolerated by this corporation and will be considered just cause for punishments of written reprimand and/or including immediate dismissal.
1. Falsification or alteration of company records or documents.
. . . .
4. Threatening, intimidating, or coercing guests or ...

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