In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2022

MIRANDA SHADDAY,

Plaintiff-Appellant,

v.

OMNI HOTELS MANAGEMENT CORPORATION,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:04-CV-1219—John Daniel Tinder, Judge.

____________

ARGUED NOVEMBER 9, 2006—DECIDED FEBRUARY 20, 2007

____________

Before BAUER, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge. This diversity tort suit charges

the owner of a hotel in Washington, D.C. with negligence

in having failed to prevent the rape of the plaintiff, a

guest at the hotel, by another guest. The district judge

gave summary judgment for the defendant. The parties

agree that District of Columbia law governs the substantive issues.

The plaintiff is a young woman employed in a casket

factory. A member of the steelworkers union, she attended

a “Women in Steel” union conference at the Omni Shore-
2 No. 06-2022

ham Hotel, a large, high-class hotel in a nice part of

Washington (near Connecticut Avenue, Rock Creek

Parkway, and the National Zoo). In the bar of the hotel,

the first night of her stay, she met and had drinks with a

seemingly very respectable Guatemalan lawyer—he was

visiting Washington as a member of a delegation that

included that country’s president. The bar closed at 1 a.m.

and the patrons repaired to the lobby, where at 2 a.m., as

the plaintiff was waiting in front of a bank of elevators to

return to her room, the lawyer accosted her and began

kissing and fondling her. She resisted, but didn’t cry out,

because there was no one in sight. She fought her way free,

and, an elevator having arrived, she ran into it, but he

followed her and raped her in the elevator. She got out at

the next floor and was discovered by a security guard. The

rapist was soon arrested. He did not deny the crime, and

he was convicted of sexual assault.

At the time of night when the rape occurred, the Shoreham normally had three security guards on duty—one in

the lobby, one monitoring the security cameras, and one

patrolling other parts of the hotel. On the night of the rape,

however, one of the security guards was sick and the

other two were patrolling, so there was no guard either

in the lobby or monitoring the cameras. Anyway there

was no security camera trained on the area in front of the

bank of elevators, or in any of the elevators; nor, had all

three guards been on duty, would any of them have

noticed the initial assault unless they happened to be

near the bank of elevators.

A hotel or other innkeeper (“inn” remains the legal term

for a hotel, motel, bed and breakfast, or other lodging

place) has a duty to use due care to protect its guests

against foreseeable hazards, including criminal acts. E.g.,
No. 06-2022 3

Wassell v. Adams, 865 F.2d 849, 855 (7th Cir. 1989); McCarty

v. Pheasant Run, Inc., 826 F.2d 1554, 1557-58 (7th Cir. 1987);

cf. Doe v. Dominion Bank of Washington, N.A., 963 F.2d 1552,

1560-61 (D.C. Cir. 1992) (D.C. law) (duty of landlord to

protect tenant). To state the test in somewhat more practical terms, eschewing legal jargon, the hotel has a duty

to take precautions that are reasonable in relation to the

likelihood that without them guests will be victims of

criminal acts. McAvey v. Lee, 260 F.3d 359, 373-74 (5th Cir.

2001); Kveragas v. Scottish Inns, Inc., 733 F.2d 409, 413-15

(6th Cir. 1984). The duty is imposed by tort law, but

like liability for medical or legal malpractice is most

intuitively understood as an implied term in the contract between injurer and victim. Hotel guests, patients,

and clients would want to buy, and hotels, doctors, and

lawyers would want to sell (as part of the bundles of

services for which they charge), that level of protection

that confers a value greater than its cost. Tort law

codifies their understanding by imposing liability on

injurers who, having a contractual relation with their

victims, could, in principle, negotiate a standard of care

explicitly, along with the other terms of their contractual

relation. This codification, sparing the parties the bother

of an explicit negotiation, makes particularly good sense

in cases such as this (also cases of medical, but not

legal, malpractice) in which the injury is nonpecuniary;

for it is tort law rather than contract law that has evolved

remedies tailored to such injuries.

We can get a better sense of a hotel’s duty to protect its

guests against crimes by observing that the hotel has much

better access to information about the danger than its

guests do. McCarty v. Pheasant Run, Inc., supra, 826 F.2d at

1558; Ellen M. Bublick, “Citizen No-Duty Rules: Rape
4 No. 06-2022

Victims and Comparative Fault,” 99 Colum. L. Rev. 1413,

1422-23 (1999). The information enables the hotel to take

appropriate precautionary measures; the absence of

information makes it difficult for the guests to do so. This

is the basis of the rule in some states (but by no means in

all, see, e.g., Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 161-

63 (4th Cir. 1988); Pittard v. Four Seasons Motor Inn, Inc., 688

P.2d 333, 338-39 (N.M. App. 1984)—and not in the District

of Columbia) that a hotel or other “innkeeper” has an

elevated standard of care toward its guests. McCarty v.

Pheasant Run, Inc., supra, 826 F.2d at 1558; Taboada v. Daly

Seven, Inc., 626 S.E.2d 428, 434-35 (Va. 2006); see generally

Daniel M. Combs, Casenote, “Costos v. Coconut Island Corp.:

Creating a Vicarious Liability Catchall Under the AidedBy-Agency-Relation Theory,” 73 U. Colo. L. Rev. 1099, 1136

(2002).

The District of Columbia (along with California, see

Wiener v. Southcoast Childcare Centers, Inc., 88 P.3d 517, 523-

24 (Cal. 2004)) goes to the other extreme and requires a

“heightened showing of foreseeability” of plaintiffs

who seek to impose liability on a third party who failed

to prevent a criminal’s attack. District of Columbia v.

Beretta, U.S.A., Corp., 872 A.2d 633, 641-42 (D.C. 2005) (en

banc); Potts v. District of Columbia, 697 A.2d 1249, 1252

(D.C. 1997); Clement v. Peoples Drug Store, Inc., 634 A.2d 425,

428-29 (D.C. 1993); Smith v. District of Columbia, 413 F.3d

86, 109 (D.C. Cir. 2005) (D.C. law); Workman v. United

Methodist Committee, 320 F.3d 259, 263-64 (D.C. Cir. 2003)

(same); Doe v. Dominion Bank of Washington, N.A., supra,

963 F.2d at 1560 (same). These cases do not involve

hotels, however, and they invoke the rather old-fashioned

formula that a criminal act, being deliberate, is an “intervening” or “supervening” cause that severs the “causal
No. 06-2022 5

chain” that would otherwise connect the negligence of the

party who failed to prevent the criminal act to the injury

to the victim. This is legal mumbo-jumbo. The practical

question (and law should try to be practical) is whether the

defendant knows or should know that the risk is great

enough, in relation to the cost of averting it, to warrant the

defendant’s incurring the cost. “And so a hospital that

fails to maintain a careful watch over patients known to

be suicidal is not excused by the doctrine of supervening cause from liability for a suicide, any more than a

zoo can escape liability for allowing a tiger to escape and

maul people on the ground that the tiger is the supervening cause of the mauling. In both cases there is a

foreseeable, in the sense of probable, hazard which precautions can and should be taken in order to lessen.” JutziJohnson v. United States, 263 F.3d 753, 756 (7th Cir. 2001)

(citations omitted).

The invocation of “intervening” or “supervening” cause

as a bar to liability is related to the common law’s traditional reluctance to impose a duty to rescue a stranger

in distress. There is no tort liability for failing or refusing

to be a Good Samaritan, as the cases say, and there are

reasons for this rule. Stockberger v. United States, 332 F.3d

479, 480-81 (7th Cir. 2003). But the hotel guest is not a

“stranger,” in any sense relevant to liability, to the hotel

any more than the patient is a stranger to the hospital or

a zoo’s visitor is a stranger to the zoo. See id. at 481-82.

The hotel guest entrusts his safety to the hotel; you do

not entrust your safety to a bystander, counting on him

to protect you from assaults.

So we have our doubts whether the District of Columbia

courts would actually require a hotel guest to make a

“heightened showing” that the hotel should have fore-
6 No. 06-2022

seen and prevented a criminal attack. A further reason to

doubt this is that the District of Columbia cases mainly

involve tenants, and a tenant, not being a transient, is likely

to have more information than a hotel guest about the risk

of crime and a greater ability to protect himself from it. But

we shall see that it would not change the outcome if those

courts would insist on the heightened showing in this case.

Under any standard (for in any event it is doubtful how

much the different articulations of the standard of care

in cases of liability for failing to prevent a criminal assault

influence the actual outcomes of the cases), the greater

the likelihood of a crime against a hotel guest, the more

extensive are the measures that the hotel is required to

take, because the greater the likely benefits of its doing

so. Laura DiCola Kulwicki, Comment, “A Landowner’s

Duty to Guard Against Criminal Attack: Foreseeability

and the Prior Similar Incidents Rule,” 48 Ohio St. L.J. 247,

263-64 (1987). Ideally, the hotel should increase its expenditures on security until the last dollar buys a dollar

in reduced expected crime costs (the cost if a crime occurs,

discounted by the probability that it will occur) to the

hotel’s guests. Of course, this optimal point can’t actually

be ascertained by the methods of litigation, or by the

hotel industry for that matter—there is too much uncertainty. But with the aid of expert and other testimony, a

trier of fact may be able to approximate it, albeit crudely.

The major risk of crime to guests of a hotel, especially

guests of a fancy hotel like the Washington Shoreham (the

American Automobile Association gives it four diamonds

out of a possible five, and so it rates as a luxury hotel;

it charges $350 to $400 a night for a room) is from intruders, not from staff or guests. See, e.g., Banks v. Hyatt Corp.,

722 F.2d 214, 225-26 (5th Cir. 1984). That risk places on the
No. 06-2022 7

hotel a tort duty of maintaining a reasonable perimeter

defense to prevent the initial intrusion, and also an inner,

back-up defense in case the intruder manages to get inside

the hotel. Locked outside doors, safes, keycards, a

brightly lit exterior, surveillance cameras, and security

guards both in the lobby and patrolling the hallways are

commonly used methods of protecting the hotel’s guests

from criminals who try to enter the hotel to prey on them.

It might seem that the better the neighborhood in which

the hotel is located, the fewer the precautions against

intruders that it need take. So some cases assume. Doe v.

Dominion Bank of Washington, N.A., supra, 963 F.2d at 1560;

McAvey v. Lee, supra, 260 F.3d at 373-74; Banks v. Hyatt

Corp., supra, 722 F.2d at 225-26. But maybe incorrectly. The

ritzier hotels have wealthier guests, who are juicier targets for thieves. Thus in Crinkley v. Holiday Inns, Inc., 844

F.2d 156, 161 (4th Cir. 1988), “evidence at trial indicated

that motels with relatively more affluent clienteles,

judged by reference to room rates, were the preferred

targets.” One reason better neighborhoods have lower

crime rates is that they’re better protected because they

are bigger potential targets for criminals.

Did the Shoreham take precautions commensurate

with the danger to its guests from criminals? It is doubtful

that such a question can be answered without the aid of

expert testimony, evidence concerning regulations imposing security standards on hotels, recommendations by

police or by security consultants, or evidence of industry

standards. Although an industry’s standard of care is not

dispositive of due care, Abernathy v. Superior Hardwoods,

Inc., 704 F.2d 963, 967-68 (7th Cir. 1983); Doe v. Cutter

Biological, Inc., 971 F.2d 375, 382-83 (9th Cir. 1992); The T.J.

Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (L. Hand, J.), it is
8 No. 06-2022

highly probative in a case in which the tort plaintiff is a

customer of the defendant, for sellers of products and

services, including hotels, have market incentives to avoid

injury to their customers. Cf. Rodi Yachts, Inc. v. National

Marine, Inc., 984 F.2d 880, 889 (7th Cir. 1993); United States

Fidelity & Guaranty Co. v. Jadranska Slobodna Plovidba, 683

F.2d 1022, 1028-29 (7th Cir. 1982); Keller v. United States,

38 F.3d 16, 25 (1st Cir. 1994). A hotel that gets a reputation for being dangerous, like a hotel that gets a reputation for serving tainted food or being infested by bedbugs,

will lose customers, or at least have to lower its rates.

No evidence was presented concerning the safety

precautions customarily taken by luxury hotels in Washington. It is one thing for a jury unaided by expert testimony, empirical data, or other fruits of exact inquiry to

assess the care with which the defendant in an automobile

accident case drove, for that is something with which

almost all jurors are familiar; it is another thing for a

jury to determine the right standard of care to which to

hold a hotel. The plaintiff did have an expert witness, but

he didn’t substantiate his opinion concerning the amount

of care that the Shoreham should have taken to protect its

guests from criminal assaults by other guests. He did not

compare the Shoreham’s security precautions with those

taken by comparable hotels in comparable neighborhoods (such as Georgetown) in Washington, or elsewhere.

(Compare the testimony of the expert on hotel security

in Crinkley v. Holiday Inns, Inc., supra, 844 F.2d at 161-62.)

Nor, though the amount of care to take is a function of

the danger that care would avert, did he assess the danger

that the Shoreham’s guests faced of being attacked inside

the hotel. There had been intruders into the hotel from

time to time, though how often the record does not indicate. But there had been only one incident in which a
No. 06-2022 9

guest had engaged in unlawful behavior—the guest had

exposed himself to an employee of the hotel and had been

quickly expelled. There had been no reported incidents

at all of crimes committed by staff against guests.

The plaintiff’s expert did testify that within a 2000-foot

radius of the hotel there had been in the three years

preceding the rape a total of 637 criminal acts. But he didn’t

compare the number with the amount of criminal activity

in comparable areas either elsewhere in Washington or

in other cities. He also did not indicate how many of the

637 crimes had occurred in the Shoreham’s immediate

neighborhood. (Manhattan’s Upper East Side is very safe,

but it is only blocks from Harlem.) That is, he did not

justify his choice of a 2000-feet radius. Rock Creek Parkway

is much closer than that to the Shoreham, but it is very

difficult to cross the parkway; the other side is not in the

same neighborhood, though within the 2000-foot radius. (A

sense of the diversity of neighborhoods within 2000 feet

of the Shoreham can be glimpsed, at least by those readers familiar with Washington, in the following satellite

photo; the “thumbtacks” are points on the circumference

of a circle, centered on the Shoreham, having a 2000-foot

radius.) To his credit, he did break down the crimes into

various categories, but they are too broad to enable a

responsible estimate of how many of the 637 incidents

might have imperiled guests of the Shoreham. 
10 No. 06-2022
No. 06-2022 11

At most, moreover, crime conditions in the Shoreham’s

neighborhood are relevant to the risk of a criminal intrusion into the hotel, not to the risk posed by one hotel guest

to another. If the Shoreham’s experience was typical,

and there is no evidence it was not, the latter risk was

so minuscule that no precautions had to be taken in order

to avoid liability. The assault on the plaintiff was as

unexpected as the attack on the guest at another hotel by

a rabid mongoose. Woods-Leber v. Hyatt Hotels of Puerto

Rico, Inc., 124 F.3d 47, 51 (1st Cir. 1997).

Nor is it clear what precautions against guest-on-guest

crime would be feasible. Obviously a perimeter defense

has no value against a criminal guest. And a hotel could

hardly be required to have security guards watching

every inch of the lobby every second of the day and

night. A security camera trained on the bank of elevators

would have been ineffective to prevent the rape. The

video of the struggle outside the elevators might not

have revealed its involuntary character, and anyway by

the time a security guard had been alerted by the video

and reached the bank of elevators, the plaintiff and her

assailant would have been inside the elevator. Had there

been a security camera there, the rape would have been

completed long before a guard, alerted by what the

camera showed, would have arrived on the scene, though

a video recording of the rape might have assisted in the

prosecution of the rapist or in any civil action brought by

the victim against him.

There is an analogy to employers’ liability under

Title VII of the Civil Rights Act for sexual harassment by

coworkers of the harassed employee. Employers are not

strictly liable for such misconduct because they cannot

feasibly maintain continuous surveillance of their entire
12 No. 06-2022

workforce. They are liable only when they know or have

reason to believe that such harassment is occurring and

they fail to take effective measures to stop it. Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 759 (1998); Erickson

v. Wisconsin Dept. of Corrections, 469 F.3d 600, 606 (7th Cir.

2006). A hotel’s relation to its guests is similar. The

hotel cannot keep them under continuous surveillance—

they would be unwilling to surrender their privacy so

completely. The hotel becomes liable for guest-on-guest

crime only when it has some reason to think such crime

likely. The Shoreham had no reason to think that one of

its guests would rape another one in the hotel’s elevator.

The hotel would probably not be liable even if the

plaintiff had proved that, had it not been for the defendant’s failure to exercise due care, she would not have been

injured. The injury must be of the kind that the duty of care

was intended to prevent. E.g., De Haen v. Rockwood Sprinkler

Co., 179 N.E. 764, 766 (N.Y. 1932) (Cardozo, C.J.); Gauger v.

Hendle, 349 F.3d 354, 363 (7th Cir. 2003); Carter v. United

States, 333 F.3d 791, 797 (7th Cir. 2003), and cases cited

there; Restatement (Second) of Torts § 281 comment f (1965).

In the granddaddy of these cases, Gorris v. Scott, 9 L.R.-

Ex. 125 (1874), the plaintiff’s sheep were washed overboard in a storm, and the plaintiff sued the owner of the

ship, who had failed to install pens in which to hold the

animals on their journey, as required by the Contagious

Diseases (Animals) Act of 1869. Had the pens been installed, the sheep would have been saved. But the statute’s

purpose was merely to prevent infection, not to save the

animals from a watery death. So the plaintiff lost. In

deciding how much care to take to comply with the

statute, the shipowner was unlikely to foresee and therefore consider the remote possibility that the pens would
No. 06-2022 13

avert a different and highly improbable harm to the

animals. In the present case, similarly, in deciding how

many precautions to take against intruders the hotel

would hardly be thinking about the incremental value of

those precautions to guests endangered by other guests,

since guest-on-guest crime at a hotel like the Shoreham

appears to be vanishingly rare. (Compare that danger

in the special kind of hotel that we call a maximum-security prison.)

Of course the precautions against guest-on-guest crime

are not dramatically different from the precautions against

intruder crime, though the latter have a perimeter dimension that the former do not. But the same was true in

Gorris. The pens were designed to prevent contagion, but

apparently even without being strengthened they could

keep sheep from being washed overboard.

The Second Circuit has suggested that the principle of

the Gorris case should be limited to cases in which, as in

Gorris itself, the standard of care is set by a statute rather

than by a common law doctrine: “At common law, so

long as the plaintiff category is foreseeable, there is no

requirement that the risk of injury to the plaintiff, and the

risk of the harm that actually occurred, were what made

the defendant’s actions wrongful in the first place. With

statutory claims, the issue is, instead, one of statutory

intent: was the plaintiff (even though foreseeably injured)

in the category the statute meant to protect, and was the

harm that occurred (again, even if foreseeable), the ‘mischief’ the statute sought to avoid.” Abrahams v. Young &

Rubicam Inc., 79 F.3d 234, 237 (2d Cir. 1996); see also

Freeman v. United States, 509 F.2d 626, 630 (6th Cir. 1975).

It is unclear why those things should matter. The violation of a statutory standard of care is negligence; so is a
14 No. 06-2022

violation of a common law duty of care. In either case, the

puzzle of the line of cases that descends from Gorris is

why the defendant, having been negligent, should get

off scot-free just because the harm that would have

been averted had he been careful was not foreseeable. No

doubt the framers of the Contagious Diseases (Animals)

Act made no judgment that the cost of pens was less than

the expected cost of a mass drowning of unpenned animals, but that seems irrelevant. Given that the shipowner was under a legal duty to pen the sheep, why

should he not be liable for a disaster that would have

been averted if only he had complied with his duty?

Like other doctrines that truncate liability for negligence, the doctrine of Gorris seems to reflect judicial

anxiety that negligence liability is potentially too encompassing. As people don’t have complete control over

their actions, or firms over their employees (for whose

negligence committed within the scope of their employment the employer is strictly liable by virtue of the doctrine of respondeat superior), much negligence liability

is strict—the careless accident was in fact unavoidable—and the risk of an unavoidable liability that might

be crushing gives the courts pause. To visit unpredictable

consequences on negligent behavior is unlikely to make

potential injurers more careful, because by definition of

“unpredictable” they can’t reckon the costs of not taking

more care. So they do nothing, and so safety is unaffected.

But because of the strict-liability element in negligence, a

careful person or firm would sometimes be forced to pay

a judgment, perhaps a very large one, that could not

have been avoided at reasonable cost because, although

adjudged negligent, the defendant had in fact used due

care. The negligence might have been that of an employee
No. 06-2022 15

whom the defendant had carefully screened, supervised,

and monitored, all to no avail.

This analysis is far from a conclusive vindication of

Gorris, but the District of Columbia appears to regard the

case with approval, Rong Yao Zhou v. Jennifer Mall Restaurant, Inc., 534 A.2d 1268, 1274-75 (D.C. 1987); Whetzel v. Jess

Fisher Management Co., 282 F.2d 943, 947-48 (D.C. Cir. 1960)

(D.C. law), though how far it would press its doctrine in a

case such as this is uncertain. No matter. For reasons

stated earlier, the plaintiff failed to present enough evidence to establish a genuine issue concerning the sufficiency of the care exercised by the hotel to protect its

guests against the kind of outrage that befell her. The

district judge was therefore right to grant summary

judgment for the defendant.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-20-07