Pot smoking hooligans, yes; rabid mongoose(geese?), no.

This recent decision from the First Circuit reminds us of the series of insurance company commercials where the actors discuss unusual situations and whether they were covered, noting that the insurer “has seen a thing or two.”  Mu v. Omni Hotels Management Corp.

In Mu, the panel (CJ Howard, Torruella and J. Barron, opnion by J. Torruella) reversed summary judgment for a hotel as to whether it could be liable when a member of the public who lived in an adjoining residence was beaten by a group of twenty or so ruffians, who had been smoking pot in a hotel room, gotten kicked out by hotel security, was seen by a hotel employee getting a case of beer, beat up someone else, and then stormed into the hotel lobby and beat the plaintiff.  Rhode Island law applied.  Under that law, the Court said, there is a five-factor test, with the most important being foreseeability.  These facts, said the Court of Appeals, generated a genuine dispute of material fact.

In so ruling, the Court contrasted the scenario with that presented in another case, Wood-Leber v. Hyatt Hotels of Puerto Rico, Inc., 124 F.3d 47 (1997) where, applying Puerto Rican law, summary judgment was affirmed for the hotel.   There, the plaintiff was sunbathing near the hotel’s pool, when a “[s]uddenly (and without any apparent provocation) a wild mongoose scurried into the pool area and bit her. Because the mongoose carried rabies, Woods-Leber underwent a series of painful inoculations.”

The difference between the two cases, the Wu Court explained, was that in Wood-Leber, the hotel was clueless that a rabid mongoose was lurking in the environs.  Creatively, the plaintiff there argued that the hotel should be held liable under the “rather exotic theory” that the hotel  “must have benefitted from the mongooses’ natural affinity for devouring snakes and rodents, and that this benefit is legally tantamount to control.”  But the record was “devoid of any evidence that mongooses[1] patrolled the perimeters of the hotel’s grounds, performing pest control functions.”  Lack of actual or constructive knowledge of the presence of mongooses/geese in the neighboring swamp was critical. “[T]here was no evidence either that a non-rabid mongoose, unprovoked, was likely to bite a supine sunbather, or that rabies was prevalent in the area.”

In contrast, in Wu, the attack was potentially foreseeable in light of the sequence of events leading up to it.  Analogizing to the mongoose situation, Judge Torruella wrote:  “it would be as if the hotel had first shooed the mongoose off of the premises, only for it to return and menace others before finally biting the plaintiff.”

[1] According to the internet, the plural of mongoose is mongooses or mongeese.  As noted in Wu, The Court in Wood-Leber took no position which plural noun was “linguistically preferable.”  See 124 F.3d at 49 n.1