Unpublished Disposition, 907 F.2d 155 (9th Cir. 1990)

MEMORANDUM^* 

Mindy Waddle brought this action alleging the Tempe Hotel Limited Partnership No. 1 and other named defendants (the Hotel) were negligent in failing to provide adequate security protection in a hotel parking lot. The district court granted defendants-appellees' motions for summary judgement finding there was no evidence indicating the appellees knew or should have known of the danger that resulted in Waddle's injury. We affirm.

FACTS

The facts are not disputed.

Mindy Waddle was assaulted and robbed on November 5, 1985 in the parking lot of the Sheraton Hotel near Phoenix Arizona. She and her co-worker had parked their car directly under a light and were unloading business equipment from the car when an assailant attempted to take her purse. A struggle ensued and Waddle was hit on the head. The blow caused severe damage to Waddle.

At the time of the assault, the Hotel had one security guard on duty who conducted hourly foot patrols of the Hotel premises. To the south of the parking lot there is an open field with no fence or wall barring entrance into the Hotel parking lot. The area of the lot in which the assault occurred was well lit and there is no evidence that the assailant came from the open field.

There were six prior crimes that occurred in the vicinity of the Hotel near the time of the assault on Waddle. In August 1985 the Hotel was a victim of internal theft of television sets and towels; a computer was stolen from a business office more than five miles from the hotel in October 1985; a shoplifting incident occurred at a liquor store six blocks from the Hotel in October 1985; a domestic dispute occurred nine blocks from the Hotel in September 1985; and a traffic accident scuffle occurred eight blocks from the Hotel in July 1985.

DISCUSSION

This case is governed by Arizona law. Whether the district court properly construed state law is a question reviewed de novo. In re McLinn, 739 F.2d 1395, 1493 (9th Cir. 1984) (en banc).

The Hotel has a duty to exercise reasonable care and diligence to protect its invitees from injury. Chiara v. Fry's Food Stores of Arizona, Inc., 152 Ariz. 398, 733 P.2d 283, 284 (1987); Burke v. Arizona Biltmore Hotel, Inc., 12 Ariz.App. 69, 467 P.2d 781, 783 (1970). If the Hotel's conduct subjected Waddle to foreseeable and unreasonable risk of danger, it was negligent. Morkowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364, 369 (1985); Shaner v. Tucson Airport Authority, Inc., 117 Ariz. 444, 573 P.2d 518, 521 (App.1977).

The evidence does not indicate the security was inadequate for the location of the Hotel. The Hotel provided at least one guard at all times. The parking lot contained bright street lights and there was a security camera near the loading dock. Moreover, there is no record that serious crimes had been committed in the vicinity of the Hotel. Four of the previous six crimes involved minor property theft. The two that involved assault were the result of a domestic dispute and a traffic accident. None of the crimes involved a random assault on a person similar to the incident in the Hotel parking lot. Because all six crimes were minor in comparison to the assault on Waddle, no jury could have found that the previous six crimes put the Hotel on notice that an assault similar to that which Waddle endured was likely to occur. See Nicoletti v. Westor, Inc., 131 Ariz. 140, 639 P.2d 330, 332 (1982) (granting summary judgment in negligence case). Considering the totality of the circumstances, no reasonable person could conclude that the Hotel could have foreseen that Mindy Waddle would have been assaulted in the parking lot; consequently, summary judgment was appropriate. Robertson v. Sixpence Inns of America, Inc., (Ariz. Mar. 8, 1990) (Lexis, States library, Ariz. file).

The district court's order granting summary judgment is AFFIRMED.