Westin Operator, LLC v. Groh

JUSTICE EID,

dissenting.

152 The majority devotes almost the entirety of its opinion coming to the conclusion that the Westin owed its guest Groh a general duty of reasonable care during the eviction process, which, in this case, means refraining from evicting a guest into an unreasonably dangerous environment. Maj. op. 11 22-46. I agree with this entirely unremarkable position, as did the author of the initial panel opinion below affirming summary judgment in the Westin's favor. See Groh v. Westin Operator, LLC, 2012 COA 189 , slip op. at 17, withdrawn, 2018 COA 89 , - P.3d -; Groh v. Westin Operator, LLC, 2013 COA 39 , 11 57, - P.3d - (Furman, J., concurring in part and dissenting in part). The important question in this case, however, is the application of that duty to the cirenmstances presented here. In my view, the duty was plainly satisfied, as the group discussed taking a taxi, Groh's brother told her to take a taxi, video footage shows Groh and her companions walking by two taxi cabs on the way to her car, and there is no suggestion that Groh was so intoxicated that she could not call or get into a taxi. Yet the majority sets the evidentiary burden so high-demanding evidence regarding the actual availability of taxis at the time and place of eviction and the parties knowledge thereof-that summary judgment could never be awarded in an eviction case. For this reason, I respectfully dissent from the majority's opinion.

1 53 The majority correctly holds that the Westin had a duty not to evict Groh into an unreasonably dangerous environment, which in turn may depend upon "[an evicted guest's] physical state and the conditions into which she was evicted, including the time, the surroundings, and the weather." Maj. op. 137. But then it holds that summary judgment is inappropriate in this case because "the record does not contain determi-mative information on ... the degree of Groh's intoxication, the accessibility of alternative transportation, the parties' knowledge as to the availability of alternative transportation, and the weather conditions at the time of eviction." Id. at 145 (emphasis added). In coming to this conclusion, the majority suggests that each of these factors is material to the analysis and must be factually developed and "determin[{ed]" (presumably in the Westin's favor) before summary judgment can be awarded. But these considerations simply help to inform the ultimate inquiry-namely, whether the guest was evicted into an unreasonably dangerous environment. And here, under the undisputed (and material) facts, Groh was not.

*619 154 Video footage shows Groh and her companions walking by two taxi cabs. The footage also shows one of her companions pointing toward the cab stand in front of the Westin. Groh's brother told her to take a cab, and the group had a short discussion about taking a cab. Significantly, Groh does not dispute any of these facts. Because undisputed evidence demonstrates that Groh was evicted into an environment where alternative transportation was available, summary judgment in the Westin's favor is appropriate.

£55 The majority disagrees, concluding that the record lacks, among other things, "determinative information" regarding "the degree of Groh's intoxication." Id. But the majority does not explain why such information would matter in this case. Indeed, the intoxication of Groh and her companions caused the eviction in the first place; no one disputes this. Id. at 148 . Presuming intoxication, the issue is whether Groh was evicted into an unreasonably dangerous environment. As noted above, undisputed evidence shows that she called her brother, who told her to get a taxi, the group talked about getting a taxi, and she walked past taxis to get to her car. There is no suggestion that she was so intoxicated that she could not call or get into a taxi. Compare id., with Kelleher v. F.M.E. Auto Leasing Corp., 192 A.D.2d 581 , 596 N.Y.S.2d 186, 189 (1993) (holding that where cab driver pulled seventy-two-year-old intoxicated passenger out of cab by his ankles and dropped him onto an unknown person's snowy driveway a quarter of a mile away from his home, passenger, who later died, could not be held comparatively negligent due to intoxication). Therefore, there is no material dispute regarding Groh's intoxication that would preclude summary judgment.

T56 The majority also suggests that the record lacks "determinative information" regarding "the weather conditions at the time of the eviction." Maj. op. 145. But again, the majority does not explain how such information would impact this case. No one disputes that the incident occurred on a cold March evening. Id. at 12. But there is no suggestion that the weather somehow prevented Groh from obtaining a taxi. Compare id., with McCoy v. Millville Traction Co., 83 N.J.L. 508 , 85 A. 358, 360 (N.J.1912) (Gury question whether intoxicated passenger was ejected into a "dangerous" situation where he had to cross two-foot snow banks to reach shelter). Indeed, the group had to walk farther to reach Groh's car than to reach a taxi. Again, there is no material dispute in the record regarding the weather that would preclude summary judgment.

157 Finally, the majority states that the record lacks "determinative information" regarding "the accessibility of alternative transportation [and] the parties' knowledge as to the availability of alternative transportation." Maj. op. 145. In other words, Wes-tin must not only show that taxis were available, but that the "parties" (presumably all of Groh's companions) knew that they were available. The majority sets forth an almost impossible evidentiary burden, requiring not only tracking down taxis on a particular date and time over eight years ago, but also determining whether they were carrying passengers at the time, and then establishing the knowledge of multiple people as to the taxis' status at that date and time. But while impossible, this evidentiary burden is entirely unnecessary. Again, the majority does not explain why this information is relevant to the case at hand. The question is whether Groh was evicted into an unreasonably dangerous environment, and the undisputed evidence shows she was not. Again, as with the weather and Groh's intoxication, there is no material dispute regarding the availability of taxis that would preclude summary judgment. *

T58 The majority's analysis in this case is problematic for two interrelated reasons. First, as a general matter, the "every factor is relevant" approach means that every evietion case will have to go to a jury. Indeed, under the majority's approach, summary judgment will never be appropriate because the factfinder must weigh all of the factors and come to a determination. As the majority sees it, eviction cases are simply not eligible for being decided on summary judgment because they are "highly fact-specific." Id. at 1 89.

*620 59 In fact, the majority emphasizes the point by "analyz[ing]l Groh's eviction as a process-a series of events that began with a knock on a hotel room door and culminated with actual expulsion from the hotel." Id. at " 48 (emphasis added). As the majority continues:

The Westin started the eviction process shortly after its security guards went to Groh's room to confront the occupants about the noise level, entered the room without permission, and engaged in a heated argument with the occupants. During that confrontation, the security guards told everyone except the registered guests to leave the premises. Groh and her companions protested that they were drunk and could not drive. Aware of this intoxicated state, the guards escorted the group outside. When one member of the group asked if they could wait in the lobby for a taxi, a guard blocked the door, barred reentry, and [used a profanity].

1g. Yet as the majority indicates elsewhere in its opinion, this was a lawful eviction, and the propriety of the eviction itself is not at issue. Id. at 14 22, 88 n.7. And while the behavior of the security guards was unquestionably unprofessional, such behavior does nothing to change the availability of taxis, nor did it prevent Groh and her companions from getting a taxi, or create a dangerous environment. The majority's emphasis on the evietion "process" simply underscores the fact that its "all factors are relevant" approach precludes summary judgment in this-and virtually every other-case.

T60 Second, and more importantly, the majority's analysis imposes a duty on innkeepers to ensure that an evicted guest actually takes alternative transportation. Although the majority protests that it does not impose such a burden, id. at 138, that is the only way that the Westin could have "ensure[{d] that a particular eviction [was] reasonable in light of the cireumstances." Id. at 136; see also id. at 134 (noting that "the possible availability of a taxi" would have only "mitigated" the risk present here). The majority does suggest that the Westin could have "allow[ed] intoxicated guests to wait in the lobby after they callfed] a taxi," id. at [ 86, but, as noted above, there is no indication that the security guards prevented Groh from getting into a taxi in this case. The majority also suggests that the Westin could have requested police assistance, id. but, again, the eviction itself was lawful; there was no need to request police assistance to evict the guests. All that is left is ensuring that the evicted guest actually takes alternative transportation off the property. I know of no authority, and the majority cites none, that would impose a duty on innkeepers to ensure safe transportation for evicted guests. See Rodriguez v. Primadonna Co., 125 Nev. 578 , 216 P.3d 793, 800 (2009) (refusing to impose such a duty).

61 The majority makes light of the burden it imposes on innkeepers, suggesting that ensuring that evicted guests actually take alternative transportation off the property would be a "[rlelatively low-cost option[ ]." Maj. op. 186; see also id. ("any modest increase in business costs is justified"). But the majority fails to look at the larger picture, which is that its reasoning would apply to impose a duty to provide safe transportation for evicted guests on the entire Colorado hotel industry-indeed, on all businesses involved in providing "entertainment." But see id. at 188 n.7 (stating that it is not imposing a duty on all "entertainment" businesses). While it is not possible to precisely quantify the burden that the majority is placing on Colorado businesses at this stage, surely it is not the trivial obligation the majority makes it out to be. Under such cireumstances, the majority should proceed cautiously. Because the majority does not do so, I respectfully dissent from its opinion.

I am authorized to state that JUSTICE COATS joins in this dissent.