[00:00:00] Speaker 04: The next matter before us is 24-3051 Blaylock versus SRKBS Hotel. [00:00:10] Speaker 04: Council, we're ready when you are. [00:00:20] Speaker 00: Thank you. [00:00:20] Speaker 00: Your honors, may it please the court. [00:00:22] Speaker 00: Jeff Wilson, hearing on behalf of the plaintiff, Pellent, Mayor of Blaylock. [00:00:27] Speaker 00: So, Your Honors, what we have in this case is a hotel that was experiencing a dramatically rising level of crime on the property, ignoring its own employees' pleas for extra security for an additional person to work the night shift, and ignoring customer warnings. [00:00:47] Speaker 04: Can you pause for one minute? [00:00:48] Speaker 04: Can we close the doors in the back, please? [00:00:55] Speaker 04: Thank you. [00:00:56] Speaker 04: Sorry. [00:00:57] Speaker 00: No problem, your honor. [00:00:58] Speaker 00: Um, ignored customer warnings about suspected gang members being on the property, drug users being on the property. [00:01:06] Speaker 00: And then when they admit that customers became more aggressive generally in May of 2020, specifically took action that made it more conducive and attractive for people to congregate on the property that were intent on committing crimes. [00:01:24] Speaker 00: And despite acknowledging that it should not have rented the room to these two ladies on this night in question because it should have set off alarm bells, they did rent the room to them. [00:01:34] Speaker 00: And then the one employee on the property went to his specific duties in the breakfast room where he was unable to watch the door, unable to watch the security cameras. [00:01:46] Speaker 00: So he wasn't in a position to see what the general manager admits is a sign [00:01:51] Speaker 00: that the patrons of the hotel may be in danger, in and out activity from the rooms, people congregating with alcohol. [00:01:58] Speaker 02: Council, can I ask you, so in Siebert, the Kansas Supreme Court discusses the need for a direct relationship between the harm caused and sort of the underlying facts or circumstances [00:02:15] Speaker 02: that would have given rise to this duty to provide security. [00:02:19] Speaker 02: I read your brief to argue what I think your expert referred to as the broken window theory of liability that, as you mentioned, this hotel in Wichita was experiencing a lot of crime. [00:02:29] Speaker 02: There was allegations of potential prostitution and drugs, and there were, I think, 11 different violent crimes within a three-year period. [00:02:38] Speaker 02: But none of those involve the type of offense at issue here. [00:02:42] Speaker 02: firearms, shooting in the parking lot. [00:02:46] Speaker 02: So the direct harm here that was caused to your client, excuse me, was from a pretty outlandish set of facts. [00:02:56] Speaker 02: So one, is there any legal authority that says the broken window theory of liability here applies under Kansas law? [00:03:04] Speaker 00: I think so, Your Honor. [00:03:07] Speaker 00: It's kind of something that's frustrated me in this case is that no one's ever really explained what direct relationship means. [00:03:14] Speaker 00: But I think it's kind of been recognized implicitly. [00:03:16] Speaker 00: In the Bell case, for instance, which is not presidential, it's unpublished, at the very end of the opinion, and I think really this was the linchpin for that panel's decision, they noted that [00:03:28] Speaker 00: There was no indication that those shooters in that case were there to take advantage of their lax security protocol. [00:03:36] Speaker 00: So it's kind of a conduciveness to commit crime, making the property more attractive to people that might be intent on committing crimes. [00:03:44] Speaker 00: I do think it's recognized in other states using the same restatement test. [00:03:48] Speaker 00: I did cite that in my brief. [00:03:50] Speaker 00: That's also referenced in American jurisprudence. [00:03:53] Speaker 00: But it has not been specifically set out as this is appropriate in Kansas law. [00:03:59] Speaker 00: But I would submit that doesn't mean it's inappropriate. [00:04:01] Speaker 00: You know, the Seabird Court talked about five factors. [00:04:05] Speaker 00: But it noted that these are not exclusive. [00:04:07] Speaker 00: You can consider other things. [00:04:10] Speaker 00: And if you look at other law in the state, such as Shirley v. Glass, the appellate case where it talks about, you know, [00:04:17] Speaker 00: the duty of care is kind of intertwined with the foreseeability of harm. [00:04:21] Speaker 00: And so the more foreseeable it is that someone may be hurt or harmed, it doesn't necessarily raise the duty to more than reasonable care, but it makes complying with that duty and what it means to comply with that duty more. [00:04:32] Speaker 02: Yeah, but isn't that why the Kansas Supreme Court says it requires this sort of direct link between what is foreseeable and the harm that actually occurred? [00:04:42] Speaker 02: Because as I read the record that's been [00:04:46] Speaker 02: I think well developed frankly about not just the high crime area, but the past offenses and what was going on at this hotel. [00:04:53] Speaker 02: Again, there were violent crimes, but there was just nothing that even categorically remotes to a hotel guest completely uninvolved with the assailants just sleeping in her bedroom who is harmed by this other criminal conduct. [00:05:07] Speaker 02: So how closely related or directly related, to use the language of the Kansas Supreme Court, does it have to be? [00:05:14] Speaker 02: because it doesn't seem like you have anything that's directly related or at least explicitly. [00:05:20] Speaker 00: Judge Federico, it depends on how you look at what directly related means. [00:05:24] Speaker 00: The appellees in this case and the district court, in my view, took it to mean it does have to be some similar instances or some similar prior violent crime. [00:05:34] Speaker 00: But I would submit that if that's what it means, then what the Kansas Supreme Court did was say we're doing away with the prior similar instance test, but then re-adopting it under a different name. [00:05:46] Speaker 04: Well, and if you look at our case in Hardee's, that's us attempting to apply Kansas law, right? [00:05:56] Speaker 04: Yes. [00:05:56] Speaker 04: And there, there were no similar incidents at all at Hardee's, and the totality of the circumstances test was the character [00:06:08] Speaker 04: and a broader look at the turnpike itself in terms of that. [00:06:16] Speaker 04: So under our case law, do you need to have a similar incident? [00:06:23] Speaker 00: No, Your Honor. [00:06:24] Speaker 04: Or even under Kansas, it doesn't have to be. [00:06:30] Speaker 04: I have a little confusion on your claims because you've got the premises liability claim and then you have this section that's other claims. [00:06:38] Speaker 04: And you mentioned whether they should have rented the room to these young ladies at all and that seems to go to your other claims argument. [00:06:51] Speaker 04: Am I correct on that? [00:06:53] Speaker 00: I believe so, Your Honor. [00:06:54] Speaker 00: I think the district court did note that there's kind of been a distinction in these cases. [00:06:59] Speaker 00: There's cases like the Gold versus Taco Bell case, Kimpel versus Foster, where there was some indication that they knew kind of right around the time it was happening that it might happen. [00:07:09] Speaker 00: And so that created the duty. [00:07:10] Speaker 00: Whereas in other cases like ours, it's more of a longer period of time where there's kind of foreseeability that building and building. [00:07:17] Speaker 04: Well, you're sort of relying, I think it's the restatement that talks about you can't have a parking lot in a high crime area that's not lighted and just wait until one of your patrons is injured before you have a duty. [00:07:35] Speaker 04: And I guess the argument is that if you're letting, you know there's prostitution, you know there's drug dealing, drug use, you see people armed with firearms, and you see people who are throwing gang signs, and that is enough for you to have a duty under Kansas law. [00:07:58] Speaker 04: Am I understanding the argument? [00:08:01] Speaker 00: I believe so, Your Honor, and I think even with my [00:08:05] Speaker 00: pause it saying I definitively understand what directly related means. [00:08:09] Speaker 00: I think the CBER court did definitively say you do not have to have prior similar incidents even if they are important to the analysis. [00:08:16] Speaker 00: You can have a duty in the absence of them. [00:08:19] Speaker 04: What about, it seems here the court seemed to conclude this isn't a high crime area. [00:08:28] Speaker 04: You're challenging that finding, that you're claiming that that was inaccurate, right? [00:08:35] Speaker 00: I am, Judge. [00:08:35] Speaker 00: I think there was sufficient evidence presented for a jury to certainly conclude that it was a high crime area, and not just city-wide, and not even really to this region of Wichita, but this specific property with how the crime kind of, the center of crime migrated to be directly over the hotel by 2020, and just the increasing numbers of reports [00:08:57] Speaker 00: over the years and even the testimony from the employees themselves that it was getting worse and they were asking for off-duty police officers to be present or a second person to work the next shift. [00:09:08] Speaker 00: But I want to, if I can, Judge Federico, you asked about directly related and I submit that I pointed out in the briefing like my best guess is it really has something to do with causation because that phrase direct relationship or directly related, that appears when we talk about proximate causation. [00:09:24] Speaker 00: And I think the appellees even kind of [00:09:27] Speaker 00: maybe inadvertently agreed with that because on page 16 of their brief they say quote, guided by Bell, the district court deduced that prior crimes with no causal relation to the ultimate crime cannot be credited by the court. [00:09:42] Speaker 00: But even if we assume that's not the case, I think there is evidence that's directly related to the issue or to what happened in this case. [00:09:49] Speaker 00: And that's the prior circumstances include gang members being on the property, staying on the property, customer complaints about that, employee complaints about that, firearms being seen at the hotel, ammunition being found in rooms. [00:10:05] Speaker 00: The hotel knew they did not have enough people working the night shift. [00:10:08] Speaker 00: They had one person for the entirety of the hotel. [00:10:11] Speaker 00: They knew there was not secure access to the hotel. [00:10:14] Speaker 00: Anybody could get in from multiple points of entry. [00:10:17] Speaker 00: They knew that no one would be there to watch the front door or the side door or the security cameras to see who's coming and going. [00:10:25] Speaker 00: And Mr. Townsend admits that he knew, he should have known that they were going to be planning a party and the shooters entered through the front door and either walked right past where Mr. Townsend was or went up the stairs right next to the front door. [00:10:41] Speaker 02: front door. [00:10:42] Speaker 02: So can I understand this argument then to be that it doesn't have to be foreseeable to the owners of the Super 8 that a sleeping hotel guest may get shot through stray bullets, but it's enough to say that it's foreseeable that some harm could occur to the sleeping hotel guest just by allowing this sort of general activity of lawlessness to occur at the hotel. [00:11:05] Speaker 00: That's right, Your Honor. [00:11:07] Speaker 00: I don't think, and I pointed this out in my briefing, you don't have to foresee this exact incident. [00:11:11] Speaker 00: And I would take it even further in that they don't have to see that some generalized harm would happen to the sleeping hotel guests, but any of their patrons. [00:11:19] Speaker 00: And the key is they have to be able to foresee that because of the circumstances on the property that would give them kind of knowledge or foreseeability as medical. [00:11:30] Speaker 04: Well, and they had a violent instance against a pregnant hotel guest, as I recall, because she complained about a theft in her room and then was beaten right in front of the hotel staff. [00:11:46] Speaker 04: Am I remembering that correctly? [00:11:48] Speaker 00: That is correct, Your Honor. [00:11:50] Speaker 00: I believe that appears on volume 2, pages 279 through 281. [00:11:57] Speaker 00: Beyond the incidents of violence, there were also threats of violence, and specifically threats to come back and shoot the place up. [00:12:03] Speaker 04: Why is the domestic violence not relevant? [00:12:08] Speaker 00: So, you might have noticed that only the appellees presented that, and that was before the district court as well. [00:12:16] Speaker 04: I mean, violence is violence, isn't it? [00:12:18] Speaker 00: Violence is violence, and the reason I didn't address that is specifically because my expert said he wouldn't consider it. [00:12:26] Speaker 00: And the reason he told me that is [00:12:29] Speaker 00: domestic violence uh... there's really no way to predict uh... you know it's not the same as as crime happening well if you're looking to beat up your girlfriend you might be willing to beat somebody else up right? [00:12:41] Speaker 00: I can certainly see that drawing and I think the jury may view it that way but uh... [00:12:47] Speaker 00: There's enough facts in the brief already. [00:12:49] Speaker 00: I didn't feel the need to add to it. [00:12:50] Speaker 01: I am running up on- Can I just stop you there, just because your time is running short. [00:12:55] Speaker 00: Yes. [00:12:56] Speaker 01: But you can see that there had not been a shooting. [00:12:59] Speaker 00: There had not been a shooting, yes. [00:13:01] Speaker 01: Okay. [00:13:01] Speaker 01: So this is, I guess your argument is a shooting was reasonably foreseeable given the gang activity. [00:13:11] Speaker 01: Is that- [00:13:11] Speaker 00: The argument is that some generalized risk of harm to the patrons above and beyond the ordinary was foreseeable. [00:13:19] Speaker 00: And I think that's all you have to prove to show duty. [00:13:22] Speaker 01: Well, don't you have to show something particular to this case or no? [00:13:26] Speaker 01: I mean, could you show, I mean, does the character of the crime lead to some connection to, or the generalized crime lead to this particular one? [00:13:38] Speaker 00: I don't think that you have to have foreseen or have this specific incident be foreseeable when it comes to the creation of duty. [00:13:46] Speaker 00: Now, if we were talking about proximate causation, that might be a little bit of a different question. [00:13:51] Speaker 00: I still wouldn't take it as far as you have to foresee this exact incident. [00:13:54] Speaker 00: But I hope that answers your question, Judge Eyde. [00:13:58] Speaker 00: I'd like to reserve the rest of my time for rebuttal. [00:14:21] Speaker 03: May it please the court, on behalf of the appellees in this case, the important features about this case are that in this case, I don't think that we need recitation of the facts, because I think the facts have been pretty well laid out. [00:14:41] Speaker 03: There is a couple important, very germane and salient facts though in this case, which I think [00:14:48] Speaker 03: creates the distinction and distinguishes this case as opposed to some of the other examples that were talked about by the appellant in this case. [00:14:57] Speaker 03: First of all, there is absolutely no evidence whatsoever of any violent crimes or shootings that had taken place at this front. [00:15:05] Speaker 04: Well, there's no shootings, but there's certainly violent crimes. [00:15:08] Speaker 04: I just described one where a pregnant guest was beaten in the lobby. [00:15:13] Speaker 04: and there were two suspected rapes and there were a bunch of batteries and aggravated batteries that are in the police report. [00:15:22] Speaker 04: The police were called a hundred dimes. [00:15:26] Speaker 04: I don't know how you can say there's no violent crime just because it was a crime on a domestic partner. [00:15:35] Speaker 03: The Siebert case, I think, prescribes exactly what is necessary with regards to the quality of the evidence that has to be presented in this case, because the important thing about this type of case is that the law is [00:15:51] Speaker 03: that the owner of a business is not the insurer of the safety of its customers or patrons. [00:15:57] Speaker 04: Well, that's the general rule, but there's an exception. [00:16:00] Speaker 03: Right. [00:16:00] Speaker 03: And so for the appellant in this case to be successful, they have to come in on an exception. [00:16:07] Speaker 03: And that [00:16:08] Speaker 03: was established, the law on this that is filed in the state of Kansas, the law on this was set forth in the Siebert case. [00:16:17] Speaker 03: In the Siebert case, they talked about the fact that the owners are not the insurers and the safety of the customers. [00:16:24] Speaker 03: But they also talked about this issue with regards to foreseeability. [00:16:30] Speaker 03: And in that regard, they [00:16:33] Speaker 03: As we all know, they changed the test from prior instances or prior incidents of crime to a totality of circumstances. [00:16:41] Speaker 03: And this is where they talked about the type of thing that you're concerned about, Judge, with respect to the evidence that has to take place with regards to clear that hurdle. [00:16:54] Speaker 04: Well, let's describe the hurdle first. [00:16:56] Speaker 04: This is what the Siebert case says. [00:16:59] Speaker 04: is that a possessor of land has a duty to take precautions against criminal conduct on the part of third persons if the place or character of his business or his past experience is such that he should reasonably anticipate careless or criminal conduct on the part of third persons. [00:17:20] Speaker 04: Well, they certainly knew about criminal conduct. [00:17:23] Speaker 04: There was rampant prostitution and drug use in the [00:17:27] Speaker 04: in the hotel. [00:17:28] Speaker 03: Well, when we're looking at the facts of this case, Judge, we're talking about a shooting that took place and a shooting that occurred in the parking lot. [00:17:38] Speaker 03: And it is not a disputed fact that there had never been a shooting [00:17:43] Speaker 03: that occurred at this particular location. [00:17:46] Speaker 04: And you think that's required under Kansas law, that there had to be a prior shooting at this location? [00:17:52] Speaker 03: Well, I think as Judge Frederico pointed out and has stated, and I will quote to you, the circumstances that must be, to be considered must, not could be, not might be, but must have a direct relationship to the harm incurred in regard to foreseeability. [00:18:11] Speaker 03: And that is a direct relationship that we're talking about. [00:18:15] Speaker 03: So in this particular case, and all these cases, Judge, I think are fact sensitive. [00:18:20] Speaker 03: In this case, we're talking about a shooting that took place. [00:18:24] Speaker 02: Yeah, but you're focusing on the facts a little bit here. [00:18:26] Speaker 02: So Mr. Townsend, the night auditor, he goes up to room 319. [00:18:32] Speaker 02: It's after 2 AM. [00:18:33] Speaker 02: He knocks on the door, and he says, you've got to break up the party. [00:18:36] Speaker 02: And I think 29 people come out of that room. [00:18:39] Speaker 02: and the video shows people walking around the hotel carrying big bottles of alcohol just you know and so it's it's an environment that it seems just kind of obvious to him that something bad may happen and as they're all out the parking lot and again it's 2 30 in the morning they're right outside the front lobby the doors of the front lobby why wasn't it so obvious to him that at that point to provide just a [00:19:04] Speaker 02: basic duty of security to other patrons. [00:19:06] Speaker 02: He needed to call Wichita Police and say, I need you to help or come here and break this up. [00:19:11] Speaker 03: Well, I think that Judge Crabtree, in his order, understood the fragility of this analysis. [00:19:21] Speaker 03: And that's why I think that he did a granular dissection of the facts and of the available Kansas law in this regard. [00:19:31] Speaker 03: to reach the conclusion that he did. [00:19:33] Speaker 03: And the way that he gets there to his conclusion is that when you look at the facts, you look at, on that particular evening, you have to be able to make a leap to say, okay, there's a party going on, and it's 2.30 in the morning, to [00:19:54] Speaker 03: The leap is then to that there is going to be a shooting here. [00:19:59] Speaker 02: Yeah, but isn't there a foreseeable risk that something bad's going to happen? [00:20:05] Speaker 02: Well, according to Judge Crabtree, no. [00:20:09] Speaker 02: Well, I agree he has a very thorough order, and he did a great job reciting all the case law. [00:20:14] Speaker 02: But our review's de novo. [00:20:15] Speaker 02: So I look at these same facts. [00:20:18] Speaker 03: But I think my response to that, Judge, is that if you're sitting there, and you're in a position where you have to judge that, [00:20:25] Speaker 03: And then you're talking about having to provide some type of safety or precaution. [00:20:33] Speaker 03: Without knowing or without having notice or just suspecting that something may happen, aren't you then being put in a position where you're the insurer of the safety of these people? [00:20:43] Speaker 04: No, because this is not a situation where you're looking just at the party. [00:20:47] Speaker 04: You're looking at the fact that your hotel or motel has become [00:20:53] Speaker 04: haven for prostitution, drug use, drug dealing, and armed gang members. [00:21:01] Speaker 04: That's all evidence before us. [00:21:04] Speaker 03: Judge, I would dispute the fact that there was gang activity and prostitution. [00:21:11] Speaker 03: The employees [00:21:13] Speaker 04: It let me interrupt you, not you interrupt me. [00:21:17] Speaker 04: The testimony that we have to take all inferences in favor of the non-moving party is that there were complaints about gang members who were throwing gang signs and were identified as gang members and self-identified as a member of the Crips who'd been staying there for a month and that they were armed. [00:21:40] Speaker 04: That's what we have to take and all reasonable influences from that in favor of the plaintiff. [00:21:48] Speaker 03: So the question then becomes at what point do you say that on this particular night [00:21:54] Speaker 04: that there was... I don't think it has to be this particular night. [00:21:58] Speaker 04: I think that the danger has to be foreseeable based on the circumstances and the totality of those circumstances, including it's in a high crime area, you've had violent crime there before, and you see [00:22:13] Speaker 04: These obvious issues for normal patrons are going to be associating with this. [00:22:21] Speaker 04: If, you know, I look at it this way, if there was a KU party and all of this was going on, would I let my kid go? [00:22:29] Speaker 04: No, because it's foreseeable that something really bad is going to happen. [00:22:37] Speaker 03: Well then, the next inquiry then with regards to the Seabird case is what level of security is necessary. [00:22:43] Speaker 03: And according to Seabird, the only standard is a reasonable standard. [00:22:49] Speaker 03: And I think that Judge Crabtree in his order had gone through a comparison of the case law that was involved and saw that there were security cameras that were set up at this hotel, and that there was monitoring that was going on, and that when they [00:23:04] Speaker 03: When notice came of this party that was going on, it was dispersed. [00:23:10] Speaker 04: And I think that goes to the claim for failure to intervene. [00:23:16] Speaker 04: I think that there wasn't an attempt to intervene. [00:23:21] Speaker 04: But with regard to the security cameras, I guess my question is if someone claps in the forest and no one hears it, they've got security cameras, but nobody to watch them. [00:23:33] Speaker 04: The security cameras are at the front desk and they only have a limited amount of them, but they don't expect anybody to be there monitoring because they have other duties. [00:23:44] Speaker 03: Well, I would point out in this particular case that when the night person, the night manager at that time went up to disperse the party, [00:23:55] Speaker 03: The shooting took place in the parking lot three minutes later, and this was when he was about to go out and tell them that they were supposed to leave the parking lot. [00:24:05] Speaker 03: It is, I think, of note that the evidence was that when he went up to the room to disperse his party, the evidence is pretty clear that there was no resistance [00:24:18] Speaker 03: There was nothing that he saw that would indicate any illegal activity. [00:24:22] Speaker 03: And not only that, but there was a willingness for these people to leave. [00:24:25] Speaker 03: And apparently they left peaceably and exited the building. [00:24:29] Speaker 03: And he even checked throughout the building to make sure that they did. [00:24:32] Speaker 03: And they did. [00:24:34] Speaker 03: So when they get out to the parking lot, that's when the problem happens. [00:24:38] Speaker 03: And this is a situation, most of these cases involve situations where the victim is actually [00:24:47] Speaker 03: is a crime of opportunity, the victim is actually the person who is the target of the crime. [00:24:52] Speaker 03: This is not that case. [00:24:55] Speaker 03: And I think that that also creates an important distinction because this is something that's going on in the parking lot, and this is a random incident that happens when this bullet goes through the wall. [00:25:06] Speaker 03: So this isn't [00:25:08] Speaker 03: A situation where a customer or a patron is being a victim of a crime in this particular case. [00:25:17] Speaker 02: But often we see foreseeability come up in the causation analysis of a claim like this, but here we're looking at only whether or not the legal analysis as to foreseeability impacts whether the hotel had a duty. [00:25:30] Speaker 02: So I struggle to think about that argument you just made, which is a sound argument if the case were to proceed about why there's a lack of causation here to the actual harm occurred. [00:25:40] Speaker 02: But don't we think about it differently when we're applying foreseeability as to only whether there's a duty to provide security? [00:25:48] Speaker 03: Well, I think that as Judge Crabtree pointed out, I think that the inquiry goes to the [00:25:55] Speaker 03: the reasonable nature of the security provided because this was without question a spontaneous event that occurred. [00:26:03] Speaker 03: It wasn't something that could have been foreseen by anybody that somebody was going to pull out a gun in the parking lot at this time and the accident occurred. [00:26:13] Speaker 03: So when you have that coupled with the fact that there's never been an incident of shooting on this property before, which apparently was corroborated by the police testimony in this case, [00:26:25] Speaker 03: Then we have the question of are we going to squeeze this into the exception in this case, or are we then requiring this hotel to be the insurer of the safety of its patrons under this particular incident? [00:26:44] Speaker 03: And I think that Judge Crabtree, after [00:26:48] Speaker 03: He went through all of this specifically and the cases that are engaged in these types of instances and has found that in this case there was no way that this incident could have been foreseen, this incident, such as to, you know, instill a duty upon the hotel owner. [00:27:12] Speaker 03: And I do just want to comment briefly about, you know, [00:27:16] Speaker 03: what I think Judge Crabtree referred to as the conducive environment theory. [00:27:22] Speaker 03: And I think that that was addressed and he also specifically applied the law as it had been established with regards to that and found that it is improper to say that an entire city or entire area or entire region [00:27:46] Speaker 03: is a high crime area because I think that what he saw and the way he interpreted Siebert, which I think is the way Siebert was meant to be interpreted, is that you have to have some showing that there is a frequency and severity of criminal conduct that substantially exceeds the norm [00:28:10] Speaker 04: So you're saying, so Wichita apparently, news to me, is more dangerous than 98% of the cities in the United States apparently. [00:28:23] Speaker 04: So you're saying that this hotel can't be in a high crime area because the entire city is a high crime area? [00:28:30] Speaker 03: is that I'm trying to understand your... No, what I'm saying is you cannot say that just because this business sits in what is considered to be a larger high crime area, [00:28:42] Speaker 03: that that would instill a duty upon this to provide? [00:28:47] Speaker 04: Why not? [00:28:48] Speaker 04: I mean, if you're going to have a motel and you know it's in a high crime area, doesn't that require you to have different security measures than if you were in a very low crime area? [00:29:02] Speaker 03: Judge, what I would say is that in the Siebert case, apparently not. [00:29:09] Speaker 04: First of all, Judge Crabtree found that the jury could find this hotel was in a high crime area. [00:29:17] Speaker 04: as I read his opinion. [00:29:19] Speaker 03: A high crime area but what he also determined and what the evidence did not show was that there were no incidents of shootings and that's I think... Yeah, there were no incidents of shootings but I don't see anything in the case law that says you have to have a shooting. [00:29:34] Speaker 04: In fact, that's why they got rid of [00:29:37] Speaker 04: the similar incidents test and went to the totality of the circumstances test in Kansas as I understand the case law. [00:29:46] Speaker 04: You don't have to have the Hardee's case that this court did. [00:29:51] Speaker 04: There was no prior abduction and rape from that Hardee's. [00:29:55] Speaker 04: In fact, there was no prior violent crime at that Hardee's. [00:30:02] Speaker 03: But what there was in that area [00:30:04] Speaker 04: Well, rather long area. [00:30:06] Speaker 03: It was the entire turnpike. [00:30:08] Speaker 03: And there was a long discussion about that in the Hardee's case as to why that factored in on that particular case. [00:30:15] Speaker 03: In this case, as the Siebert case, as the Kansas Supreme Court said, [00:30:20] Speaker 03: the circumstances to be considered must have a direct relationship to the harm. [00:30:27] Speaker 03: That's the Supreme Court saying that. [00:30:29] Speaker 04: So my question to you is if the hotel knows they have armed gang members, drug dealing, prostitution, is it foreseeable [00:30:42] Speaker 04: and prior violent crime and they're in a high crime area, is it foreseeable that their normal guest might be subjected to injury based on this criminal activity that they're turning a blind eye to? [00:30:57] Speaker 03: Again, I turn to Siebert, which says it is, because the one thing about the Siebert case is that they kind of broke, the judges kind of broke through the fourth wall when they said, you know, we understand that these parking lots are [00:31:10] Speaker 03: are grounds for all kinds of crime and larceny. [00:31:13] Speaker 03: And that's why they threw in the concept that when you make this analysis, when you're looking at the totality of circumstances, it is only where the frequency and severity of criminal conduct, criminal conduct, substantially exceed the norm [00:31:33] Speaker 04: Well, wouldn't you say the frequency and severity of criminal conduct exceeded the norm at this motel? [00:31:40] Speaker 04: I mean, apparently, it was used by prostitutes with some regularity. [00:31:46] Speaker 04: There was drug dealing, drug using going on. [00:31:50] Speaker 04: I mean, that's criminal conduct, isn't it? [00:31:53] Speaker 03: That is, that would be, could be considered criminal conduct. [00:31:57] Speaker 03: But I think, you know, when you look at the record, Judge, the record clearly spells out [00:32:02] Speaker 03: what the amount of criminal cases were that relate to this particular property. [00:32:08] Speaker 03: And I think Judge Crabtree laid that out. [00:32:11] Speaker 03: And you know, that's where you have to, this analysis requires an inquiry into the severity and frequency of the crimes. [00:32:22] Speaker 03: before we do that. [00:32:23] Speaker 03: And you couple that with the fact that there has to be a direct relationship, the circumstances must bear a direct relationship to the harm incurred. [00:32:48] Speaker 00: I think maybe the most important factor about this case, Your Honors, is that according to the employees of the hotel, Mr. Wissinger, Mr. Townsend, Mr. Malone, Mrs. Malone, not only was some risk of harm to the patrons of the hotel foreseeable, it was actually foreseen. [00:33:07] Speaker 00: And that's why Mr. Wissinger and Mr. Malone were asking, we only have one person working in the night for the entire hotel, and their primary job is setting up breakfast away from the front desk. [00:33:18] Speaker 00: We need another person. [00:33:20] Speaker 00: We need an off-duty police officer. [00:33:21] Speaker 00: We need some security, because otherwise, someone's going to get hurt. [00:33:25] Speaker 02: Council, can I ask you to respond to an argument that was made about the timing? [00:33:29] Speaker 02: It seems to me the worst facts here for you are that Mr. Townsend knocks on the door at room 319 at 225 a.m., and then we know from the surveillance at 233 the shooting occurs. [00:33:40] Speaker 02: That's eight minutes. [00:33:42] Speaker 02: So when you think about, you know, what's a foreseeable duty beyond saying I'm going to break up the party, I mean, he doesn't even really have an opportunity to do much more before what is a really extreme act of violence occurs in the parking lot. [00:33:53] Speaker 02: So how do you respond to that? [00:33:54] Speaker 00: So if you watch the video and you look at the clips, basically there's the east entrance to the front door. [00:34:00] Speaker 00: All three shooters came in that door, along with many other people. [00:34:04] Speaker 00: And down that hallway between the front door and the elevator, where they ultimately go up to third floor, that's where the breakfast room is. [00:34:09] Speaker 00: That's where Mr. Townsend is. [00:34:11] Speaker 00: So even if the argument is Mr. Townsend had no idea 30 people were in that room, or that they were violent, or that they were drinking, or that they were having a party, he should have known. [00:34:20] Speaker 00: And the only reason he didn't is because the hotel knowingly let him work alone when they knew he couldn't watch the security cameras. [00:34:27] Speaker 00: And security cameras with no one watching them are no security cameras at all. [00:34:33] Speaker 00: The last thing I'd note, Your Honors, is the generalized duty of reasonable care. [00:34:40] Speaker 00: Kansas has kind of gone away from specialized duties, beginning with Reardon versus King, 2019 Supreme Court case, Granados versus Wilson, 2023 Supreme Court case. [00:34:52] Speaker 00: And I think that's what they will ultimately do the next time they have this issue. [00:34:55] Speaker 00: Now, there has been a case that's gone up before them, the Hammond versus Sanlo, Leyte, VFW case from 2022. [00:35:04] Speaker 00: But in that case, it's important to note, [00:35:06] Speaker 00: that the defendant in that case was not contesting that their duty existed. [00:35:11] Speaker 00: They were only contesting, and I'm out of time. [00:35:13] Speaker 00: I will wrap up the time.