Tomsic v. Marriott Int'l Inc.

The plaintiff failed to support her claims for negligent hiring and retention, premises liability and failure to warn after the defendant hotel's employee allegedly physically and sexually assaulted her while giving her a massage.

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Susan J. Tomsic brought an action against Marriott International, Inc. and Marriott’s former employee, Broderick Sumner, alleging that Sumner physically and sexually assaulted her while giving her a massage at a hotel managed and operated by Marriott. Pertinently, her complaint alleged that Marriott was liable for negligent hiring and retention, premises liability, and failure to warn. Tomsic’s claims against Sumner are not at issue in this appeal. Likewise, although Tomsic alleged in her complaint that Sumner’s acts of battery against her were within the scope of his employment by Marriott, she has not argued on appeal that Marriott should be held liable for those acts under a theory of respondeat superior, and we deem abandoned any claims of error regarding her count alleging battery. Marriott did not file a timely answer, but the trial court opened the default. The trial court dismissed the failure to warn count and the case proceeded to a jury trial on the remaining counts, including the premises liability count. After the close of evidence, the trial court granted directed verdicts to Marriott on the remaining counts against it. Tomsic appeals.

As detailed below, we find that the trial court was authorized to open the default, because Marriott met the conditions precedent for opening default and presented evidence authorizing the trial court to find a proper case for opening default. We find that the directed verdicts were proper because neither the evidence at trial nor evidence that Tomsic argues was erroneously excluded demonstrated the required element of causation. Finally, we find that the trial court did not err in dismissing the failure to warn count because the relief sought in that count was encompassed within the premises liability claim that proceeded to trial. Accordingly, we affirm.

Tomsic v. Marriott Int'l Inc.

The plaintiff failed to support her claims for negligent hiring and retention, premises liability and failure to warn after the defendant hotel's employee allegedly physically and sexually assaulted her while giving her a massage.

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