           In the Missouri Court of Appeals
                   Eastern District
                                        DIVISION TWO

DANIEL T. HUGHES,                                 )         ED108077
                                                  )
       Appellant,                                 )         Appeal from the Circuit Court of
                                                  )         St. Louis County
v.                                                )         18SL-CC00492
                                                  )
MARITZ, WOLFF & CO., LLC, and                     )         Honorable Ellen H. Ribaudo
RITZ-CARLTON HOTEL COMPANY                        )
COMPANY OF DELAWARE, LLC,                         )
                                                  )
       Respondents.                               )         Filed: May 12, 2020

                                           OPINION

       Daniel Hughes (“Plaintiff”) appeals the trial court’s grant of summary judgment in favor

of Maritz, Wolff & Co., LLC, and Ritz-Carlton Hotel Company, LLC a/k/a Ritz-Carlton Hotel

Company of Delaware, LLC (collectively “Defendants”). We affirm.

                                        BACKGROUND

       Plaintiff was employed by Enterprise Leasing Company (“Enterprise”) as a regional

executive. In March 2011, he attended an Enterprise group sales meeting in Clayton, Missouri

and stayed as a guest at the Ritz-Carlton Hotel (“Ritz”), assigned to room 811. Plaintiff went to

a business dinner with other executives and returned to the Ritz in the early morning hours of
March 6, 2011. He requested a replacement key to his room, but mistakenly identified it as room

1611. Plaintiff had to forcibly break the privacy chain engaged inside the room to enter. He

noticed there were individuals sleeping in the room but did not question their presence. Instead,

he proceeded to undress, climb into bed with a sleeping nine-year-old female child (“Victim”)

and initiate inappropriate physical contact with her. He was ultimately confronted by her

parents, who were sleeping in the other bed. After they kicked him out of the room, he went to

the lobby where he was stopped by a security guard. Plaintiff was eventually arrested and

charged with four counts of lewd and lascivious behavior with a minor.1 Enterprise terminated

Plaintiff following the incident. Plaintiff subsequently filed a petition for negligence against

Defendants, claiming they breached their duty to him as a guest by failing to protect him,

resulting in his termination and damages.

         Defendants filed a motion for summary judgment and statement of uncontroverted facts.

Plaintiff failed to timely respond to each paragraph of Defendants’ stated facts as required by

Rule 74.04(c)(2). Plaintiff filed a motion to enlarge the time to respond attaching a proposed

response. However, the proposed response failed to controvert any of Defendants’ enumerated

uncontroverted facts nor did it enumerate a single additional material fact.2 The trial court did

not rule on the motion but noted the proposed response was considered in granting summary

judgment in favor of Defendants.


1
  He was acquitted of all charges in April 2014.
2
  This failure was fatal to Plaintiff’s case because “the trial court’s review is limited to only ‘the motion, the
response, the reply and the sur-reply.’” Fid. Real Estate Co. v. Norman, 586 S.W.3d 873, 883 (Mo. App. W.D.
2019) (quoting Rule 74.04(c)(6)). Pursuant to Rule 74.04(c), the trial court is no longer required to pore through the
record to include reviewing depositions to determine if the movant made a prima facie case because the burden is
now placed upon the parties to identify the true issues in dispute. Id. For each material fact that the non-movant
claims is genuinely disputed, the non-movant must direct the trial court to a particular numbered paragraph in
movant’s statement of uncontroverted material facts that is denied in the non-movant’s response and support any
denial with specifically referenced evidence. Id. When reviewing a summary judgment, our court does not review
the entire trial court record; instead, our court may only review the undisputed material facts established by the
process set forth in Rule 74.04(c). Fleddermann v. Casino One Corp., 579 S.W.3d 244, 248 (Mo. App. E.D. 2019).

                                                          2
                                           DISCUSSION

       Plaintiff presents four points on appeal, each of which asserts the trial court erred in

granting summary judgment in favor of Defendants. In his first point, Plaintiff claims the court

erred because Defendants had a duty to protect him as a guest in the hotel. In point two, Plaintiff

claims summary judgment was improper because Defendants breached their duty by giving him

the wrong room key, which caused his entry to room 1611. In his third point, Plaintiff argues the

trial court erroneously granted summary judgment in favor of Defendants because there is a

factual question regarding proximate cause and it cannot be resolved as a matter of law. In his

fourth and final point, Plaintiff contends the trial court erred in granting summary judgment in

favor of Defendants because his forcible entry into room 1611 was not a superseding or

intervening cause to break the chain of causation, but instead a foreseeable consequence of

Defendants’ negligence.

                                        Standard of Review

       Our review of the trial court’s grant of summary judgment is de novo. ITT Comm. Fin.

Corp. v. Mid-Amer. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will

affirm the judgment of the trial court if there are no genuine issues of material fact and the

movant is entitled to judgment as a matter of law. Id. at 377; Rule 74.04(c)(6).

       When a defendant moves for summary judgment, a right to judgment as a matter of law

can be established by showing: (1) facts that negate any one of the elements of Plaintiff’s claim;

(2) that Plaintiff, after an adequate period of time for discovery, has not and will not be able to

produce sufficient evidence to find the existence of any element of Plaintiff’s claim; or (3) there

is no genuine dispute as to the existence of each of the facts required to prove a properly pleaded

affirmative defense. Garrett v. Impac Hotels 1, LLC, 87 S.W.3d 870, 872 (Mo. App. E.D. 2002);


                                                  3
(quoting ITT Comm. Fin. Corp., 854 S.W.2d at 381).
                                         Analysis

         We need not address each of Plaintiff’s points individually because the summary

judgment record is clear that Defendants are entitled to judgment as a matter of law on Plaintiff’s

negligence claim against them based upon the undisputed facts. To show negligence, Plaintiff

was required to prove Defendants had a duty to protect him from injury, Defendants failed to

exercise their duty, and that failure resulted in damage to Plaintiff. Miller v. South County

Center, Inc., 857 S.W.2d 507, 510 (Mo. App. E.D. 1993). While businesses generally do not

owe a duty to protect invitees, there are two exceptions: the “special relationship” test, and the

“special circumstances” test.3 Id. A “special relationship” exists if an individual entrusts

himself to the protection of another and relies upon that party to provide a safe place. Id. This

includes the innkeeper-guest relationship. Id.

         However, such duty must be premised upon foreseeable harm that can occur to the guest.

See id. at 512. The Plaintiff did not dispute Defendants facts showing they could not have

known or should have reason to know Plaintiff would conduct himself in the manner he did once

given the key to the wrong room. More specifically, the undisputed facts are that Plaintiff was

voluntarily intoxicated, and requested the key to room 1611, which was not his room. Once

given the key to room 1611, he found the door locked from inside with a chain which could not

be unlocked by the key card. Despite this secondary lock, Plaintiff forcibly entered the room,

breaking the chain’s screws off the door frame. Upon entry, Plaintiff saw people sleeping in the

beds, but did not speak to anyone, much less inquire why they were in his room. He undressed


3
  If special circumstances exist, it may give rise to a duty to protect an invitee where no special relationship exists.
Miller, 857 S.W.2d at 510. A duty may arise if there is an intentional infliction of injury by a known and
identifiable third party, or if there are frequent and recent occurrences of violent crimes against individuals on the
premises by unknown assailants, which results in such acts becoming foreseeable. Id. The special circumstances
exception does not apply to this case.

                                                            4
to his underwear, climbed into bed with a person he presumed was a female but did not know the

identity of and initiated physical contact with her. He admitted to the police he “was rubbing her

butt and I could feel her skin,” as he touched her breasts, legs, shoulder, and hands. He also tried

to kiss Victim and pull her on top of his body. As a result of his actions, Plaintiff was criminally

charged and subsequently terminated from Enterprise.

         Nothing in the summary judgment record shows Defendants should have or could have

anticipated such behavior by Plaintiff upon being given the key to the wrong room.4 Thus, the

undisputed facts show no duty existed. See Miller, 857 S.W.2d at 513 (no evidence was

presented of prior incidents to establish foreseeability of crime to prove existence of duty on the

part of the defendants). As a result, Plaintiff failed to establish a necessary element of his

negligence claim, and summary judgment in favor of Defendants was proper.

         In addition, we find the undisputed facts in the summary judgment record also defeat the

element of causation. To prove the required causation for his claim of negligence, Plaintiff must

show both causation in fact and proximate cause. Heffernan v. Reinhold, 73 S.W.3d 659, 664

(Mo. App. W.D. 2002). Defendants’ actions are the cause in fact of Plaintiff’s damages if the

injury would not have occurred “but for” that conduct. Id. Proximate cause is not causation in

fact, but instead is a limitation imposed by law upon a party’s right to recover for the

consequences of a negligent act. Id. “The requirement of proving proximate cause absolves

those actors whom it would be unfair to punish because of the attenuated relation which their

conduct bears to the plaintiff’s injuries.” Id. The test is whether the negligence is the action of

which the damages were the natural and probable consequence. Id.



4
  Plaintiff contends his obvious intoxication serves as justification for imposing a duty upon Defendants to have
protected him from himself after receiving the key to room 1611; however, Plaintiff failed to refute Defendants’
statement of uncontroverted fact, and nothing in the summary judgment record supports this contention.

                                                          5
         As discussed above, the undisputed facts show Plaintiff broke the chain off the door to

enter a locked room, undressed, got into bed with a minor child unknown to him, and admitted

he engaged in inappropriate contact with her. Plaintiff alleges his termination as a result of this

behavior was proximately caused by Defendants’ negligence in giving him the key to the wrong

room. However, there is no genuine dispute of material fact regarding Plaintiff’s conduct

following the alleged negligence of Defendants, nor that such conduct was not a natural or

probable consequence to being given the key to room 1611. Moreover, the undisputed facts

show Plaintiff’s claimed injury, his termination from Enterprise, was not the result of the alleged

negligent act of giving Plaintiff the key to the wrong room. Instead, the summary judgment

record unequivocally establishes he was terminated because he forcibly entered the room and

was criminally charged for his behavior after doing so.5 Thus, the undisputed facts negate

causation and Defendants are entitled to judgment as a matter of law on Plaintiff’s negligence

claim.

As a result of the foregoing, the trial court did not err in granting summary judgment in favor of

Defendants.

                                              CONCLUSION

         The judgment of the trial court granting summary judgment in favor of Defendants is

affirmed.



                                                             _______________________________
                                                             Lisa P. Page, Judge

Philip M. Hess, P.J. and Kurt
S. Odenwald, J., concur.

5
 The undisputed facts further showed Plaintiff had been previously warned and reprimanded about his inappropriate
behavior and was on probation with Enterprise at the time.

                                                       6
