                  IN THE COURT OF APPEALS OF IOWA

                                 No. 16-1374
                             Filed June 21, 2017


ALEX L. BENNINGHOVEN and BRYAN T. SLOAN,
     Plaintiffs-Appellants,

vs.

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.
                                        2


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.
                                        3


      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
                                         4


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
       employees.
              5. Harassing guests or employees.
              ....
              27. Engaging in activities on or off premises which could be
       considered a discredit to the corporation or its employees.
              ....
              30. Fraternization with hotel guests.
              ....
                                            5


               35. Having a fraternization with a guest and/or an employee.

       Also included in its policies is the following drug and alcohol use policy,

“[E]mployees are prohibited from the off premises use of alcohol and possession,

use, or sale of illegal drugs when such activities adversely affect job

performance, job safety, or the Company’s reputation in the community.”

       It is defendants’ policy to check prospective employees’ criminal

backgrounds before deciding whether to hire them. It is standard practice in the

hospitality industry for hotels to conduct background checks of prospective

employees. The purpose of checking an applicant’s background is to determine

if the applicant has had any difficulties in the past that might affect their

employment. It would not be prudent for a hotel to hire someone to work at the

front desk if that person had a history of making bad decisions or had a history of

being unable to control their temper or emotions. It would not be prudent for a

hotel to hire someone to work at the front desk if that person had a history of

violence or of attacking people.

       Hotel manager Rixman and assistant manager Curtis Agan both stated

they did not discover Morrow’s assault convictions before they hired Morrow and

would not have hired Morrow if they had known of his history.

       The district court concluded that an employer’s lack of control over an

employee’s behavior when the employee is not working and not on the

employer’s premises is a situation imposing no duty on the employer as a matter

of law because of a “countervailing principle or policy that warrants denying . . .

liability.” The district court explained:
                                           6


              In the court’s view, an equally strong, if not stronger, policy
      argument lies in the fact that the plaintiffs seek to impose a duty on
      the defendants for conduct over which they have no control. Lack
      of control of the mechanism causing the injury may be a basis upon
      which to find a defendant has no duty. McCormick v. Nikkel &
      Assocs., Inc., 819 N.W.2d 368, 372-73 (Iowa 2012). Here, there is
      no evidence that the defendants had the ability to, or did, exercise
      any control over Morrow’s behavior when he was not at work and
      off the hotel premises. . . .
              The court concludes that an employer’s lack of control over
      an employee’s behavior when the employee is not working and not
      on the employer’s premises is a “countervailing principle or policy
      [that] warrants denying . . . liability”, . . . in cases of harm inflicted by
      an employee while off duty and off the employer’s premises.
              The result is no different under the plaintiffs’ negligent hiring
      and negligent supervision claims because the employer’s liability
      under such claims is premised on a connection between the injury
      and the employment.

      The court further concluded Morrow’s conduct was outside the scope of

the defendants’ liability for negligent hiring because he was off duty and off the

hotel premises when the incident happened under the facts presented. Finally,

the court found that Morrow’s conduct was so far outside any relevant connection

to his employment that his assault of the plaintiffs was outside the scope of the

defendants’ liability for the alleged negligence in hiring Morrow.             The court

granted the defendants summary judgment, and the plaintiffs appeal.

II. Scope and Standard of Review.

             We review a district court ruling on summary judgment for
      correction of errors at law. Summary judgment is appropriate when
      the moving party demonstrates “there are ‘no disputed issues of
      material fact and the moving party is entitled to judgment as a
      matter of law.’” “A genuine issue of fact exists if reasonable minds
      can differ on how an issue should be resolved. When a fact’s
      determination might affect the outcome of the suit, it is material.”

Estate of Gottschalk by Gottschalk v. Pomeroy Dev., Inc., 893 N.W.2d 579, 584

(Iowa 2017) (citations omitted).
                                         7


       “It is well-settled that ‘questions of negligence or proximate cause are

ordinarily for the jury,’ and ‘only in exceptional cases should they be decided as a

matter of law.’”      Thompson v. Kaczinski, 774 N.W.2d 829, 832 (Iowa 2009)

(citation omitted).

III. Discussion.

       The district court granted the defendants summary judgment concluding

as a matter of law they owed no duty to plaintiffs for the actions of an employee

committed off the employer’s premises and on the employee’s own time. Our

courts have not previously drawn this bright line, and plaintiffs argue it was error

for the district court to do so.

       “An actionable claim of negligence requires ‘the existence of a duty to

conform to a standard of conduct to protect others, a failure to conform to that

standard, proximate cause, and damages.’”           Id. at 834 (citation omitted).

“Whether a duty arises out of a given relationship is a matter of law for the court’s

determination.” Id.

       Generally, a person owes a general duty of care under the Restatement

(Third) of Torts [hereinafter Restatement (Third)], section 7(a) if their conduct

creates a risk of physical harm.      See id. at 834 (“[I]n most cases involving

physical harm, courts ‘need not concern themselves with the existence or content

of this ordinary duty,’ but instead may proceed directly to the elements of liability

set forth in section 6.” (citing Restatement (Third) of Torts: Liab. For Physical

and Emotional Harm § 6 cmt. f, at 69 (Am. Law Inst. 2010)).

       However, the court in Thompson observed:
                                          8


       [I]n exceptional cases, the general duty to exercise reasonable care
       can be displaced or modified. [Restatement (Third)] § 6 cmt. f, at
       81–82. An exceptional case is one in which “an articulated
       countervailing principle or policy warrants denying or limiting liability
       in a particular class of cases.” Id. § 7(b), at 90. In such an
       exceptional case, when the court rules as a matter of law that no
       duty is owed by actors in a category of cases, the ruling “should be
       explained and justified based on articulated policies or principles
       that justify exempting [such] actors from liability or modifying the
       ordinary duty of reasonable care.” Id. § 7 cmt. j, at 98. Reasons of
       policy and principle justifying a departure from the general duty to
       exercise reasonable care do not depend on the foreseeability of
       harm based on the specific facts of a case. Id. “A lack of
       foreseeable risk in a specific case may be a basis for a no-breach
       determination, but such a ruling is not a no-duty determination.” Id.

774 N.W.2d at 835.

       Iowa also recognizes an affirmative duty for negligent hiring, training,

supervision, and retention.    See Hoyt v. Gutterz Bowl & Lounge L.L.C., 829

N.W.2d 772, 776 (Iowa 2013) (adopting affirmative duties under chapter 7 of

Restatement (Third)); see also Restatement (Third) §§ 7(a), 41. “[A]n employer

has a duty to exercise reasonable care in hiring individuals, who, because of their

employment, may pose a threat of injury to members of the public.” Godar v.

Edwards, 588 N.W.2d 701, 709 (Iowa 1999).

       The plaintiffs argue that under the analytical framework set out in the

Restatement (Third) and Thompson, the defendants owe a general duty under

Restatement (Third) section 7(a) and an affirmative duty under section 41 as an

employer in hiring, training, supervising, and retention with respect to Morrow

because their conduct of negligently hiring Morrow—who had a knowable history

of assaultive behavior—created a risk of physical harm to hotel guests. They

assert the appellate courts have not and should not adopt the bright-line rule

applied by the district court, which denies liability for employee actions that occur
                                         9


off site and off duty. They maintain such cases should be handled on a case-by-

case basis under section 6 of the Restatement (Third). Plaintiffs also contend

the defendants’ breach of duty was within the scope of liability and the plaintiffs’

injuries were foreseeable.

       In Godar, the court approved the following test:

       [I]n order to recover based on a claim of negligent hiring, a plaintiff
       must prove the following:
               (1) that the employer knew, or in the exercise of ordinary
       care should have known, of its employee’s unfitness at the time of
       hiring;
               (2) that through the negligent hiring of the employee, the
       employee’s incompetence, unfitness, or dangerous characteristics
       proximately caused the resulting injuries; and
               (3) that there is some employment or agency relationship
       between the tortfeasor and the defendant employer.

558 N.W.2d at 708-09.

       This court has held an employer may be liable for an employee’s acts

occurring while the employee is off duty. Jean v. Hy-Vee, Inc., No. 12-0246,

2012 WL 5539738, at *8 (Iowa Ct. App. Nov. 15, 2012) (“[W]hether Lewis [the

employee] was acting within the scope of his employment is not a factor to

consider in a negligent training, supervision, and regulation claim. Instead, the

question is (1) whether Lewis was acting tortiously, and if so, (2) whether Hy–

Vee’s negligence in training, supervising, or regulating him facilitated his wrongful

conduct.”). In Jean, we reversed the district court’s summary judgment in favor

of the employer on a third-party’s negligent training, supervision, and regulation

claim. Id. at *9.

       A hotel is under a duty to its guests to protect them from unreasonable risk

of physical harm. Restatement (Second) of Torts § 314A (Am. Law Inst. 1965).
                                        10


Because of the special relation, this duty extends “to risks arising . . . from the

acts of third persons, whether they be innocent, negligent, intentional, or even

criminal. (See § 302B.).” Id. § 314A, cmt. d; see also Restatement (Third) § 40

(noting “an innkeeper with its guests” is a special relationship imposing upon the

innkeeper “a duty of reasonable care with regard to risks that arise within the

scope of the relationship”).

       One treatise observes:

       The liability of an innkeeper for injuries sustained by guests on the
       innkeeper’s premises is governed by the same rules which govern
       other owners and occupiers of land. Generally, the innkeeper is
       bound to exercise reasonable care toward guests although some
       jurisdictions may require a higher standard of care toward guests.
       The hotel operator owes a guest a duty to exercise reasonable
       care. However, the innkeeper is not the insurer of the guest’s
       safety nor is the innkeeper strictly liable for injuries suffered by
       guests when the injuries are the result of defects inherent in the
       fixtures or furnishings of the hotel rooms. Innkeepers also have no
       duty to investigate or check on their guests to determine if they are
       in medical need.
                It must also be established that the innkeeper’s breach of
       duty was a proximate cause of the plaintiff’s injury.
                In addition to exercising reasonable care to see that the
       premises are maintained in a reasonably safe condition, with regard
       to guests, the innkeeper also has a duty to protect a guest from the
       actions of third parties, including other guests and strangers where
       it is within the innkeeper’s power or that of the innkeeper's servants
       to do so. The relationship between innkeeper and guest is
       considered a special relationship which gives rise to such a duty.
       The innkeeper may be liable for assaults of third parties upon
       guests where the innkeeper has reason to anticipate the assault but
       fails to exercise reasonable care to prevent it. However, the
       innkeeper is not an insurer of the invitee’s safety. The same
       standard of care is owed by the innkeeper to the guest’s own
       guests and invitees.

Barry A. Lindahl, 1 Modern Tort Law: Liability and Litigation § 3:50 (2d ed. June

2016) (emphasis added) (footnotes omitted).
                                         11


              “[A] proprietor is liable for injuries to guests or patrons
       caused by accidental, negligent, or intentionally harmful acts of
       other guests, patrons, or third persons, if, by the exercise of
       reasonable diligence, he could have discovered that such acts were
       being done or were about to be done and could have protected his
       guests or patrons by controlling the conduct of the tortfeasor or by
       giving adequate warning to enable the guest to avoid harm.”

Carter v. Innisfree Hotel, Inc., 661 So.2d 1174, 1180 (Ala. 1995) (emphasis

added) (quoting 40 Am. Jur. 2d Hotels, Motels, & Restaurants § 111 (1968)).

       As noted by Lindahl, the hotel’s liability for injuries sustained by guests is

generally limited to those occurring on the premises because it is governed by

the same rules that govern other owners and occupiers of land duty.             See

McNeal v. Days Inn of Am., Inc., 498 S.E.2d 294, 296 (Ga. Ct. App. 1998)

(finding trial court erred in granting summary judgment to hotel where guests

injured in parking lot where “several criminal acts had previously occurred in this

Days Inn parking lot and its other premises”); Bidar v. Amfac, Inc., 669 P.2d 154,

159 (Haw. 1983) (“The facts recounted earlier indicate the defendant is a hotel

operator and the plaintiff was a guest at its hotel. ‘[A]n occupier of land,’ we have

held, ‘has a duty to use reasonable care for the safety of all persons reasonably

anticipated to be upon the premises.’”(alteration in original) (citation omitted));

see generally George L. Blum, Annotation, Liability of Motel or Hotel Operator for

Injury to Guest Resulting from Assault by Third Party, 17 A.L.R. Fed. 6th 453

(2006); cf. Belyea v. Shiretown Motor Inn, LP, 2 A.3d 276, 279 (Me. 2010)

(finding a hotel had no duty to a patron of an adjoining lounge who was injured in

the hotel’s parking lot and noting “the heightened duty owed by an innkeeper to

his guest, based on a special relationship, to proactively prevent an assault on

the guest if it is reasonably foreseeable”).
                                         12


       A hotel may be liable for injuries sustained by a guest off premises, but in

very limited circumstances. For example, in Westin Operator L.L.C. v. Groh, 347

P.3d 606, 616 (Colo. 2015), the court rejected a hotel’s claim that its duty to its

guest “ended ‘at the property line’ when she exited the hotel.” While “alluring in

the abstract,” the hotel had evicted the guest with knowledge the guest was

intoxicated. Id. The court stated:

       The scope of the property does not define the scope of the duty;
       whether the risk of harm originated during the eviction process
       does. The scope of the property may, however, relate to the scope
       of liability through the application of causation principles.
               ....
               An innkeeper’s duty to protect its guests against an
       unreasonable risk of physical harm applies when “the risk of harm,
       or of further harm, arises in the course of th[e] relation” between the
       parties. Restatement (Second) of Torts § 314A cmt. c. So, in
       evaluating the scope of the duty here, we examine whether the risk
       of harm to Groh arose while she remained a guest. This begs the
       question of when exactly she ceased being a guest.
               We analyze 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. See Black’s Law Dictionary 635
       (9th ed. 2009) (defining “eviction” as “the act or process of legally
       dispossessing a person of land or rental property” (emphasis
       added)). 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 nevertheless 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 re-entry, and
       told him, “No, get the f* * * out of here.” The “risk of harm” to Groh
       arose during this eviction process, while the innkeeper-guest
       special relationship still existed between the Westin and Groh.

Id. (alteration in original); see also Dove v. Lowden, 47 F. Supp. 546, 549 (W.D.

Mo. 1942) (noting a hotel is “only liable for injuries suffered away from the hotel .
                                        13


. . where the fight has been a continuation of that initiated on the innkeeper . . .

property”).

               Historically, we have considered three factors when
       determining whether a duty to exercise reasonable care exists: “the
       relationship between the parties, the foreseeability of harm, and
       public policy.” McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d
       368, 371 (Iowa 2012). We have not viewed these factors as “three
       distinct and necessary elements, but rather as considerations
       employed in a balancing process.” Thompson, 774 N.W.2d at 834.
       Ultimately, “whether a duty exists is a policy decision based upon
       all relevant considerations that guide us to conclude a particular
       person is entitled to be protected from a particular type of harm.”
       Id. (quoting J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589
       N.W.2d 256, 258 (Iowa 1999)).

Gottschalk, 893 N.W.2d at 586.

       Because the liability imposed upon the innkeeper assumes the ability “to

proactively prevent an assault on the guest,” Belyea, 2 A.3d at 279, we agree

with the trial court here that as a matter of law the defendants here cannot be

held liable for injuries to guests that occurred off premises by an off-duty

employee under these facts. See McCormick, 819 N.W.2d at 373 (“Application

of the control principle makes sense here from a public policy perspective.”). It

may not be appropriate to draw a bright line of non-liability for all off-premises

acts of a hotel employee who is off-duty, but here the acts were extraneous to

the employer’s interest, personally motivated, and were not fairly attributable to

the hotel business. Moreover, the hotel’s general duty to exercise care to their

guests and their duty to exercise care in hiring, training, supervision, and

retention of their employees does not encompass the risk that their employee

would rob and beat hotel guests while off premises and during his off-duty hours,
                                  14


particularly when his past criminal history only encompassed misdemeanor

offenses. We therefore affirm.

      AFFIRMED.
