Rape at the French Lick Resort & Casino: Is the hotel liable?

Did French Lick Resort owe a duty to its invitee to protect her from a criminal attack by an unknown assailant while she was in her room?

Rape at the French Lick Resort & Casino: Is the hotel liable?

In this week’s travel law article, we examine the case of Cosgray v. French Lick Resort & Casino d/b/a/ Blue Sky Casino, LLC, No. 59A01-1710-CT-2512 (Ind. Ct. App. May 9, 2018) wherein “After checking into her room, Cosgray joined her co-employees in the area…While at the casino (Cosgray consumed) two or three beers and two additional mixed drinks (and) felt the effects of the alcohol. At approximately 2:00 a.m., Cosgray walked back to her hotel room. Because (her employer) Pomasi intended to join her in her room after he cashed-in his chips…Cosgray propped her room door open…After changing into sweatpants, Cosgray feel asleep on the bed…About two hours later, Cosgray, laying on her stomach, awoke with her sweatpants and underwear pulled down and an unknown man on top of her, vaginally penetrating her. The unknown assailant never said anything and Cosgray did not many any noise. After approximately six minutes, the male left the room, and Cosgray locked the door. Law enforcement later identified Cosgray’s assailant as Javier Urbano Uribe (who had been invited to the premises from a local bar by a French Lick Resort employee Summer Andrews). After accompanying Uribe into the hotel, and prior to arriving at her room, Andrews rebuked Uribe’s advances and left him alone near Cosgray’s room”. Defendant’s motion for summary judgment granted.

Terror Targets Update

Kabul, Afghanistan

In Gunfight under way amid explosions in Kabul, travelwirenews (5/30/2018) it was noted that “Gunmen launched an assault on the interior ministry in Afghanistan’s capital after twin bomb explosions near the compound. Two blasts went off outside the ministry in Kabul on Wednesday before assailants attempted to storm the building, triggering fierce clashes with security forces”.

Flensburg, Germany

In One person killed, two critically wounded in German train knife attack, travelwirenews (5/30/2018) it was noted that “one person was killed, two critically wounded in German train knife attack. Armed man has been shot dead by German police officer after he attacked a train passenger with a knife and then injured a policewoman on a train near Flensburg station in northern Germany”.

Parkland, Florida

In Robles, ‘You’ll All Know Who I Am’, Parkland Suspect Said in Video, nytimes (5/30/2018) it was noted that “With a chilling lack of emotion and a meticulous plan, the teenager charged with killing 17 people at the high school in Parkland, Fla., he once attended announced his goals on three short videos recorded on his cellphone before the shooting. ‘When you see me on the news, you’ll all know who I am’, he said. ‘You’re all going to die’. He mimicked the sound of video game gunfire-‘pew, pew, pew’-and added: ‘Can’t wait’”.

U.S. Supreme Court Upholds Travel Ban

In Wolf & Gomez, Supreme Court reinstates Trump’s travel ban, but only for some immigrants, usatoday (6/26/2018) it was noted that “The Supreme Court agreed Monday to let President Trump’s immigration travel ban to go into effect for some travelers, revering the actions of lower federal courts that had put the controversial policy completely on hold. The court also agreed to hear the case involving travelers from six predominantly Muslin countries and international refugees in October. Leaving open the chance it could reverse Monday’s verdict if challengers can prove the ban is illegal or unconstitutional”.

Airbnb Responds To Travel Ban Decision

In Airbnb speaks out on Supreme Court decision on US travel ban, travelwirenews (6/27/2018) it was noted that “Airbnb (has) this to say…We are profoundly disappointed by the Court’s decision. The travel ban is a [policy that goes against our mission and values-to restrict travel based on a person’s nationality or religion is wrong. And while today’s news is a setback, we will continue the fight with organizations that are helping those impacted. Airbnb will be matching donations to the International Refugee Assistance Project (IRAP) up to a total of $150,000 through September 30, 2018 to support their work advocating for systemic change and legal pathways for those affected by the travel ban”.

Bomb Jokes On Indonesian Airlines

In Ives, Bomb Jokes on Indonesian Flights Have Officials Cracking Down, Not Up, nytimes (5/30/2018) it was noted that “There have been nine bomb scares that started with a joke on Indonesian flights this month, seven of them on Lion Air alone, the local news media reported. It’s not funny, people. That’s the message the Indonesian authorities are trying to send as a sudden rash of jokes about bombs has resulted in flight disruptions across the country. On Monday night, at least 10 passengers suffered injuries, including broken bones, after a 26-year-old man on a Lion Air plane preparing to take off from the city of Pontianak on Borneo island told a flight attendant there was a bomb on board, The Associated Press reported”.

Booking The Best Hotel For You

In Vora, 6 Tips to Book the Best Hotel for You, nytimes (5/24/2018) it was noted that “Booking the best hotel goes beyond just booking the cheapest, or the most centrally located. Here’s how to make sure you find the best fit. Travelers today are spoiled for choice when it comes to booking a hotel…’Hotels are increasingly opening all over the world at such a fast clip that the choices can be overwhelming’. But how do you wade through the options and find the best one for you? (1) Define the purpose of your trip…(2) Consider Your Consideration…(3) Choose a Hotel that Matches your Priorities (and Budget)…(4) Get those Loyalty Points…(5) Ask Yourself? What’s Your Style?…(6) Consider Sustainability”.

Big Fire At Europa-Park

In Massive fire rips through Europe’s 2nd largest theme park, travelwirenews (5/26/2018) it was noted that “A huge fire has broken out at Europa-Park in the German town of Rust, the second most visited theme park in Europe after Disneyland. The inferno prompted the visitors to evacuate as many lamented their favorite attraction online. A huge plume of black smoke has risen hundreds of meters in sky as a warehouse near the attraction called ‘The Pirates of Batavia’ caught fire on Saturday”.

Death Toll In Puerto Rico

In Study: Hurricane Maria killed more than 4,600 in Puerto Rico, travelwirenews (5/29/2018) it was noted that “Hurricane Maria was the strongest storm to hit Puerto Rico in 90 years. Hurricane Maria killed directly or indirectly more than 4,600 people in Puerto Rico, more than 70 times the toll recorded by officials, a new study has suggested…A third of the deaths were caused by delayed or interrupted access to healthcare, said the Mortality in Puerto Rico after Hurricane Maria study, which was compiled by Harvard University researchers (published in The New England Journal of Medicine)”.

Have A Nice Sleep, Please

In Mohn, 5 Tips to Sleep Better on Your Next Trip, nytimes (5/31/2018) it was noted that “We all have tricks to beat jet lag and get a good night’s sleep when traveling, but these five tips will help, no matter where you roam…David Hamer, director of the Travel Clinic of Boston Medical Center and a professor of Global Health and Medicine at the Boston University of Public Health and Medicine shared some strategies for catching a few z’s at 30,000 feet….(1) Adjust Your Bedtimes Before You Go…(2) Eat and Drink Moderately While on Board…(3) Act Like a Local After You Land…(4) Consider Sleep Aids Carefully…(5) Get Reliable Advice”.

Abortion Ban In Ireland Ends

In Freytas-Tamura, Ireland Votes to End Abortion Ban in Rebuke to Catholic Church, nytimes (5/26/2018) it was noted that “Ireland voted decisively to repeal one of the world’s more restrictive abortion bans, sweeping aside generations of conservative patriarchy and dealing the latest in a series of stinging rebukes to the Roman Catholic Church…But this was a particularly wrenching issue for Irish voters, even for supporters of the measure. And it was not clear until the end that the momentum toward socially liberal policies would be powerful enough to sweep away deeply ingrained opposition to abortion”.

10 Worst Airports Ranked

In Perkins, The 10 Worst Airports for Summer Travel, Ranked, smartertravel (5/17/2018) it was noted that “Wondering which airports are most likely to put you behind schedule during the busy summer travel season. If you’re flying to the Boston, Chicago, New York or San Francisco areas this summer-or even worse, connecting to another flight there, be wary. As measured by a 10-year average, magnifymoney found that the six worst large U.S. airports for summer on-time arrival rates are some of the most popular air hubs. Here are the top 10 airports where you might be right to worry about timeliness for summer travel, and the average percent of the summer flights that are on time there. Newark: 67 percent on time; LaGuardia: 68 percent on time; San Francisco: 69.2 percent on time; JFK: 70.5 percent on time; Boston, 72.5 percent on time; Chicago (O’Hare): 73.3 percent on time; Miami: 74.4 percent on time; Washington, D.C. (Reagan): 74.4 percent on time; Raleigh Durham: 74.6 percent on time; Philadelphia: 74.6 percent on time”.

Airbnb Quality Control

In Conde Nast Traveler (Vol. IV 2018) p. 149 it was noted that “Airbnb is really stepping up its quality control. To confirm that listed apartments and homes are as clean and comfortable as a hotel room, the company has sent inspectors to properties in 13 destinations, including Barcelona, Cape Town, Los Angeles, San Francisco, and Sydney. So far, about 2,000 of the company’s roughly 4.5 million listings qualify for the Airbnb Plus distinction”.

U.S. Train Safety Systems?

In Conde Nast Traveler (Vol. IV 2018) p. 149 it was noted that “Parts of the U.S. still don’t have the train safety systems that much of the world uses. Nearly 50 years ago, the National Transportation Safety Board first called for ‘positive train control’ technology, which automatically triggers the brakes on speeding trains. Congress mandated the systems in 2008, but railroads, including Amtrak, say it’ll cost billions to fully implement”.

Baby TripAdvisor

In Counter, Baby TripAdvisor, nytimes (5/25/2018) it was noted that “I stayed with my parents at the Flamingo Bay Hotel and Resort for four nights last month, though there were no real flamingos. Now I don’t usually leave reviews, both because I’ve never been on vacation before and because I’m a baby who can’t speak or type. But Flamingo Bay was the best vacation of my whole entire life, and also the absolute worst”.

Uber’s 911 Button Available In App

In Uber’s 911 button is now available for riders in the app, travelwirenews (5/29/2018) it was noted that “CEO Dara Khosrowshahi says he’s all about safety-for riders, drivers, pedestrians and other people on the road. That’s why last month he spearheaded a series of new features and updates to the ride-hailing app. A suite of new safety features, including more vigorous driver background checks, a list of trusted contacts to alert about your travel plans, and a new in-app safety center ere previewed…As part of the new safety rollout, a 911 button will be available to all riders. In the coming months, the driver app will offer a similar safety tool to dial law enforcement directly. Live location sharing to emergency dispatchers in seven initial cities will also go live”.

Eating Alone In Paris

In Rosenblum, On Eating Alone in Paris, nytimes (5/30/2018) it was noted that Comptoir Turenne is on the ground floor of a 19th century building with battered shutters in the Haut Marais, on the less fashionable end of rue de Turenne…It is not on ‘must-eat’ lists…Portions, however, appear to be measured with Americans in mind…I’ve eaten by myself in France more than anywhere…all too often the meals we have alone are rushed and forgotten…In the United States, dining alone…has (been) called the ‘snackification of meals’…the French have historically spent more time eating than the people of other nations-more than two hours a day…Through the years, the only thing portrayed as worse than eating alone has neem eating alone in public. To borrow a term from the sociologist Erving Goffman, you’re a ‘single’, not a ‘with’. When Steve Martin enters a bustling restaurant in the 1984 film ‘The Lonely Guy’ and tells the captain, ‘I’m alone’, he replies ‘Alone?’-and the restaurant comes to a standstill. After a prolonged silence the captain says, ‘Follow me, sir’ and a cold spotlight appears on Mr. Martin, pursuing him to a table amid the gawking crowd”.

Uber’s Abrupt Exit From Southeast Asia


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In Goel & Lim, Uber’s Exit From Southeast Asia Upsets Regulators and Drivers, nytimes (5/28/2018) it was noted that “Uber’s abrupt exit on March 25 from eight countries – a month after Mr. Khosrowshahi publicly promised to ‘continue to invest very aggressively’ in the region-has left regulators, drivers, riders and employees feeling bruised and disrespected. Mr. Khosrowshahi’s decision to quit Southeast Asia reflects the pressure he is under from both Uber’s board and big investor’s like Softbank to reduce the company’s tremendous losses as he prepares it for an initial public offering of stock. How he carried out the exit plan illustrates the challenges he faces in maintaining Uber’s trademark boldness while ditching its devil-may-care disdain for others. Under Mr. Khosrowshahi, Uber has gone out of its way to woo regulators and customers in important markets like London and France. In Southeast Asia, though, the company made a cold-blooded calculation that regulators in eight countries had little power to stop it from exiting. Uber presented the sale of its operations to Grab…as a fait accompli. The Uber app shut down in two weeks…Uber’s 500 employees in the region were immediately laid off…and regulators were told there was no way the deal could be undone, even if they objected to Grab’s overwhelming dominance of the region’s ride-hailing market”.

So, What’s The Stink All About?

In Bauerlein, Residents Raise a Stink Over Pig Farms in North Carolina, wsj (5/29/2018) it was noted that “The linchpin of 500 legal complaints against Chinese-owned pork giant Smithfield Foods, Inc., is headed to federal court Tuesday, part of a historic challenge to North Carolina’s $2.9 billion hog industry. A Raleigh-based jury will determine whether a 4,700 hog farm run by a Smithfield contractor, with open pools of manure, emits enough odor and sprayed liquid waste to be considered a nuisance to a neighboring couple (whose lawyers said) the smell has hurt the couple’s ‘ability to enjoy family gatherings, barbeques, outdoor chores, playing with children outside and doing yardwork”.

Pain & Suffering Worth $4

In Stevens, Jury Leaves $4 to Family of Man Killed by Sheriff’s Deputy, Along With Many Questions, nytimes (5/30/2018) it was noted that “Mr. Hill, a 30-year-old African-American, was fatally shot by a white sheriff’s deputy who had responded to a noise complaint about music Mr. Hill had been playing in his garage. Toxicology reports showed Mr. Hill was drunk at the time. After a brief encounter with the deputies, he was discovered dead inside the garage with a gun in his back pocket…Mr. Hill had been shot three times by one of the deputies…How much, jurors were asked, were the pain and suffering of Mr. Hill’s three children worth?…The jury awarded $4 in damages: $1 for funeral expenses and $1 for each child’s loss. Because jurors also found that the sheriff’s office was only 1 percent at fault in the death, that award was reduced to four cents”.

The Longest Flight Ever Returns

In Wichter, 18 Hours and 45 Minutes: Longest Commercial Flight Returns to Service, nytimes (5/30/2018) it was noted “Got 18 hours and 45 minutes? That’s the length of a new flight between Singapore and Liberty International Airport in Newark. Service on what Singapore Airlines says will be the longest commercial flight in the world begins on Oct. 11. The flight will become daily beginning Oct. 18. Contrast that to the shortest regularly scheduled commercial flight, a one-and-a-half-minute hop between Westray and Papa Westray, two islands north of the Scottish mainland, by Loganair”.

Ten Best Rooftop Bars With A View

In 10 of the best rooftop bars in Europe: readers’ travel tips, travelwirenews (5/31/2018) it was noted that “From the tops of boutique hotels to car parks and old office blocks, our tipsters know where to enjoy booze with a view: (1) Skajo, Freiburg, Germany; (2) Park, Lisbon; (3) Frank’s Café, Peckham, London; (4) Konak Café, Istanbul; (5) La Pedara, Barcelona; (6) The Neboticnik, Ljubjana, Slovenia; (7) Rinascente, Palermo, Sicily (8) Art-Café, Tblisi; (9) 360 Bar, Budapest; (10) Locavore Bar, Vasteras, Sweden”.

Spiderman To The Rescue

In Cowell & Breeden, ‘Spiderman’, a Migrant in Paris, Scales Building to Save a Child, nytimes (5/28/2018) it was noted that “The child seemed suspended from a balcony. An adult standing nearby seemed powerless to help. Disaster seemed the only possible outcome. Then, to the nimble rescue on the streets of Paris on Saturday evening, came a young man some French people have started to call the Spiderman of the 18th, referring to the area of Pars where the episode unfolded. With a combination of grit, agility and muscle, the man hauled himself hand over hand from one balcony to another, springing from one parapet to grasp the next one up…Finally, the man reached the child and pulled him to safety. And suddenly, an act of individual courage and resourcefulness began to play into Europe’s fraught and polarized debate about outsiders, immigrants and refugees”.

Flash Floods In Maryland

In Mele & Baumgaertner, Flash Flooding Rages Through Maryland Community, nytimes (5/27/2018) it was noted that “Flash floods on Sunday raged through the downtown of a Maryland community that was devastated by flooding nearly two years ago, prompting residents to seek shelter in upper floors…The community, Ellicott City, about 15 miles west of Baltimore experienced floodwaters six feet deep in some places”.

Flying Taxis, Anyone?

In Nussbaum, Airbus Steps Up Push for Flying Taxis, On-Demand Helicopters, msn (5/29/2018) it was noted that “Airbus SE is creating a division to oversee futuristic transport options such as flying taxis and on demand helicopters in a sign the European plane maker is going on the offensive against tech providers and startups encroaching in the market”.

A Walking Tour, Anyone?

In Rosenbloom, Seeing a City the Old-Fashioned Way: One Step at a Time, nytimes (5/25/2018) it was noted that “Backroads, the adventure travel company created in California in 1979, has also reported that walking and hiking tours are the fastest-growing segment, with double-digit growth…This year alone it has new walking and hiking trips in Croatia, and Slovenia; the Italian, French and Swiss Alps; Maine, Morocco, Namibia and Zimbabwe, Portugal, Provence and he French Riviera and Scotland…Walking, of course, has already been the ultimate way to explore-it’s a positively ancient way to travel”.

Norwegian Bliss, Indeed

In The Largest Ship Christened In Seattle: Norwegian Bliss, travelwirenews (5/31/2018) it was noted that “The Norwegian Bliss arrive(d) at Bell Street Pier Cruise Terminal on its maiden voyage to Seattle, 30 May 2018. Norwegian Bliss is the largest cruise vessel (168,000 gross tons with a capacity of 4,004, double occupancy) on the west coast and was built especially for the Alaska cruise market”.

Uber To Resume Self-Driving Program

In Uber will resume its self-driving program, looks to offer driver benefits, travelwirenews (5/31/2018) it was noted “Uber will shortly resume its self-driving tests, and is looking into benefits for drivers, CEO Dara Khosrowshahi told Recorde’s Code Conference on Wednesday…Uber shuttered the program following a fatality involving one of its autonomous vehicles, which struck and killed a woman crossing the street back in March”.

Travel Law Case Of The Week

In the Cosgray case, the Court noted that “Cosgray, along with her employer, Greg Pomasi, attended a work-related Christmas Party at the hotel/casino owned and operated by French Lick Resort…At the time of check-in at the hotel, all guests were given a key card, which is placed in a key card holder and which includes the following safety instructions (in part)”.

Safety Instructions

“1. Don’t answer the door to your guest room without verifying who it is. If the person claims to be an employee, call the front desk and ask if someone from their staff is supposed to have access to your room and for what purpose.

2. Keep your room key with you at all times and don’t needlessly display it in public. Should you misplace it, please notify the front desk immediately.

3. Close the door securely whenever you are in your room and use all of the locking devices provided.

4. Check to see that any sliding glass doors or windows and any connecting room doors are locked.

5. Don’t invite strangers to your room…”

The Locking Devices

“All guest room doors at the French Lick Resort are equipped with three locking devices. The first security lock automatically locks the door upon closing. The second device is a deadbolt located near the doorknob which a guest has to manually turn to provide additional security. The third security device is a rasp safety lock which a guest simply flips over the closed door”.

The Complaint

“Cosgray filed a Complaint for damages against French Lick Resort, claiming negligence, vicarious liability and negligent infliction of emotional distress…To recover in negligence, Cosgray must establish: (1) a duty on the part of French Lick Resort to conform its conduct to a standard of care arising from its relationship with Cosgray; (2) a failure on the part of the French Lick Resort to conform its conduct to the requisite standard of care; and (3) an injury to Cosgray proximately caused by the breach”.

Did French Lick Have A Duty?

“In this case, the threshold inquiry is whether French Lick Resort owed a duty to its invitee, Cosgray, to protect her from a criminal attack by an unknown assailant while she was in her room on French Lick Resort’s premises with her room door intentionally left unlocked…while landowners have a duty to take reasonable precaution to protect their invitees from criminal attacks by third parties, there is a foreseeability component in that analysis, requiring the trial court to decide, in the context of duty, whether the criminal; act was foreseeable”.

Not Foreseeable

“Cosgray’s injuries resulted from the conduct of a third person. Under the foreseeability test…we find that the sexual criminal attack by another invitee in a room left intentionally unlocked was not normally to be expected, and thus not foreseeable, and therefore French Lick Resort did not owe a duty to Cosgray”.

History Of Assaults

“Cosgray encourages this court to take into consideration the ‘ongoing history of assaults and batteries involving injury and a prior reported rape’ and the specific security measures to impose a duty on the French Lick Resort. However, Cosgray’s inclination to incorporate the totality of the circumstances into our consideration of the duty element is no longer applicable since our supreme court decision in Goodwin and Martin. See Goodwin, 62 N.E. 3d at 392 (The totality of the circumstances test ‘is ill-suited to determine foreseeability in the context of duty’). Accordingly, we affirm the trial court’s summary judgment for French Lick Resort”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org.

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