Excerpts from Hapgood Lawsuit Filed Monday Against Resort Company

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The lawsuit filed Monday against Auberge Resorts LLC in the San Francisco suburb of Mill Valley is the most detailed narrative of what happened to Darienite Scott Hapgood and his family since Hapgood’s fight with a hotel employee at a Caribbean resort last April.

The narrative account, submitted to advance Hapgood’s claims against the resort company for damages, and isn’t expected to be an unbiased account of what happened, but a truthful one. Additional truths and conclusions from the company being defended would be considered in court, later.

The lawsuit alleges that the resort company was negligent in employing Kenny Mitchel, already accused of a violent crime, to work in the hotel where Hapgood’s family was staying, and that employees who came to the hotel room acted poorly in not getting police to the scene. Mitchel died after the struggle and Hapgood was charged with manslaughter.

An initial medical examiner’s report said Mitchel suffered from asphyxiation and received injuries as he struggled with Hapgood (who was also injured). A later report from the medical examiner, citing toxicology test results, said drugs in Mitchel’s body at the time were enough to kill him.

These three paragraphs of the complaint that get to the heart of the allegation against the company and its staff:

  • 8. Thus, Auberge let Mitchel — this drunk, high, delinquent, accused-rapist employee — stay in an Auberge uniform and gave him unrestricted access to its guests, including children.
  • 9. Auberge’s response to the situation was also woefully inadequate. Once hotel staff knew of the attack, they should have immediately acted to address the situation and, at the very least, to immediately call for police and medical assistance. Instead, they delayed in getting help, both for the Hapgoods and for Mitchel.
  • […]
  • 66. Auberge was entrusted, or should have been entrusted, with the safety and protection of all hotel guests, including Plaintiffs. Auberge was subject to a duty to hire, supervise and retain employees to ensure the safety and protection of all hotel guests, including Plaintiffs. Auberge also knew or should have known that it was subject to a duty to train and to supervise its personnel and have appropriate policies to ensure the safety and protection of all hotel guests, including Plaintiffs, or to ensure that others properly performed those tasks.

The Hapgoods are seeking unspecified damages for the physical and emotional harm from Mitchel’s alleged attack. No officers or employees of the company are named as defendants in the lawsuit, although it does refer to Kapil Sharma, general manager of the hotel in Anguilla, by name — but the lawsuit states that individual officers and employees may be named later, as their names and responsibilities become known.

The lawsuit was filed in California Superior Court for Marin County by four attorneys from Diamond McCarthy LLP, a law firm with offices in Los Angeles (where the first two attorneys in the case — Thomas Watson, Robert Mockler — have offices; and San Francisco, where the third attorney, Christopher Sullivan, is based).

About what we left out: These excerpts include the vast majority of the words in the complaint filed in Marin County Court. Most of what’s left out are legal details, but we’ve also replaced lurid language mentioning children and harsh accusations against resort employees, substituting summary language. Paragraph breaks have been kept and numbered as in the original document. Brackets (“[ ]”) indicate statements or words added here by Darienite.com. Ellipses in brackets (“[…]”) indicate spots where words or sentences were left out; on their own line, they indicate at least a paragraph was left out.

As the initial document in a civil lawsuit, the complaint is full of allegations yet to be proven in court and isn’t expected to include every fact in the case. For instance, the complaint, like the news release about the lawsuit released by Hapgood’s public relations company, doesn’t mention reports that hotel employees in the room with Hapgood told him he shouldn’t hold Mitchell so tightly for so long.

Legal complaints in civil lawsuits can be lurid, with emotional language. This one is seems more lurid and emotional than most, perhaps reflecting the nature of the incident. For instance, one subheading in the complaint reads: “The Nightmare Begins as Scott Is Attacked by an Auberge Employee.”

The complaint is even more literary than most, particularly the introduction, which reads like the script of a television news magazine segment.

Auberge Resorts LLC can be expected to file an answer to the complaint in the same court, in which case the argument in it, and in any other response the company may make public, will be reported by Darienite.com.

COMPLAINT

Introduction

1. Auberge promises a “dream vacation.” The resorts it owns and operates—more than 20 in total, including the five-star Malliouhana resort on the tiny Caribbean island of Anguilla—are high-end. President Obama, Beyoncé, and Jay Z have all been Auberge guests. According to its marketing, the “Auberge way” in hospitality means “unforgettable experiences in storied destinations.” But to plaintiff Scott Hapgood, the 45-year-old husband of Kallie and father of Ryan, Hope, and Winn, the “Auberge way” means something different. It means getting attacked at knifepoint by a high, intoxicated 27-year-old hotel employee, being viciously stabbed, clawed, bitten, and beaten fearing for his life and his family. It means getting charged with a frivolous criminal prosecution, thrown in jail without just cause, risking being killed because the attacker’s relatives worked there, and fighting against extradition. And it means getting suspended from his job, enduring ongoing trauma and hardship, and being forced to defend a lawsuit by the representatives of his attacker. To plaintiffs Ryan and Hope Hapgood, it means fearing your father is about to be killed by a hotel employee and fearing for your own life. For Scott and the entire Hapgood family, the Plaintiffs here, Auberge’s “dream vacation” is a nightmare that does not end.

2. The Hapgoods’ Auberge nightmare began on April 13, 2019. Scott, his wife Kallie, their two daughters Ryan and Hope, and their son Winn had just arrived at the Malliouhana resort on the island of Anguilla for their first family vacation abroad. They spent the morning at the beach, and Scott had returned to their adjoining hotel rooms to watch television. Ryan, then 13 years old, and Hope, then 11 years old, had just returned to the hotel rooms as well. Kallie was returning snorkeling equipment. And Winn, then just 9 years old, was getting a cookie from the hotel lobby.

3. Someone knocked on the door. When Scott came to the door, there was a man wearing the Auberge hotel uniform, whom Scott would later learn was named Kenny Mitchel (“Mitchel”). The man, later identified as hotel maintenance man Kenny Mitchel, said he was there to fix a broken sink. In fact, there was no broken sink, and no one had called about one, but since Mitchel was wearing the uniform of the luxury resort, Scott allowed him to go in to check on the sink.

4. After pretending to inspect the so-called “broken” sink, Mitchel drew a knife, demanded money, and then physically attacked Scott. The attack was violent and prolonged. Mitchel, who toxicology reports demonstrate was high on cocaine and marijuana and drunk at the time, fought furiously, stabbing Scott and biting, clawing and hitting him. Scott endeavored to defend himself and to protect his daughters Ryan and Hope, as any father would do. Scott’s daughters tried to pull the man away from their father and then ran to get help.

5. Despite Mitchel’s attack, Scott eventually disarmed and restrained him. When hotel personnel arrived, Scott asked that they handcuff Mitchel to prevent further attacks. Instead, the hotel staff stood watching and waited to call the police or an ambulance. Unaware whether Mitchel had additional weapons, or whether hotel personnel, who appeared to be friendly with Mitchel, were in league with Mitchel as part of a coordinated robbery or attack, and fearful of continued violence, Scott continued to restrain Mitchel. Eventually, the hotel’s security guard arrived and took over restraining Mitchel.

6. After an ambulance belatedly arrived at the scene, the ambulance personnel took Mitchel to the hospital. Mr. Mitchel, tragically, died there an hour later from an overdose of cocaine, according to the toxicology report prepared by the Anguillan authorities.

7. Defendant Auberge never should have allowed the attack to happen. Two weeks earlier, Mitchel had been arrested and charged with rape, and Mitchel had breached certain of his bail conditions and spent additional time in police custody. Moreover, Mitchel, a national of Dominica not Anguilla became ineligible to continue his employment on Anguilla while under criminal charges. Auberge knew or should have known these facts yet kept him on the job anyway—around guests and children. And, on the day of the attack, Mitchel showed up to work more than two hours late and disappeared from his assignment for a substantial portion of the workday, reappearing at the Hapgoods’ hotel rooms, drunk and high on cocaine.

8. Thus, Auberge let Mitchel — this drunk, high, delinquent, accused-rapist employee — stay in an Auberge uniform and gave him unrestricted access to its guests, including children.

9. Auberge’s response to the situation was also woefully inadequate. Once hotel staff knew of the attack, they should have immediately acted to address the situation and, at the very least, to immediately call for police and medical assistance. Instead, they delayed in getting help, both for the Hapgoods and for Mitchel.

10. The result of Auberge’s actions has been devastating for Scott and his family — physically, emotionally, and financially. But the Hapgoods’ nightmare was just beginning.

11. Anguilla is a small island with a population of roughly 15,000 — essentially a small town — so word traveled fast about the Mitchel’s death.

12. Shockingly, Anguillan prosecutors arrested and blamed Scott. They did so despite the facts that Mitchel had attacked Scott, had a history of criminal violence, and was under the influence of fatal amounts of cocaine at the time of the attack and despite the facts that Scott, by contrast, has no criminal record, was on vacation with his family, and was just watching TV in his hotel room after a day at the beach when Mitchel entered his family’s hotel room. Anguillan prosecutors charged Scott with manslaughter, despite the obvious fact that Scott was acting in self-defense and in defense of his family.

13. Scott was charged and sent to jail and later to prison. An angry mob gathered outside the jail. He was repeatedly yelled at and told he would be killed. Scott was terrified and so was his family, fearing they would never see him again. Because Mitchel’s relatives worked inside the prison, Scott also feared that prison personnel would attack or kill him. Although Scott was initially denied bail by a magistrate, despite no objection being raised to bail by the prosecution, an Anguillan High Court judge later allowed him to leave on bond because the judge feared that Scott would in fact be killed if he spent additional time in prison.

14. Thereafter, desiring to clear his name despite the injustice of the charges and local authorities’ issuance of a formal notice of death threats against Scott, Scott returned routinely, three times, to Anguilla for court hearings. Each time, Kallie and the children worried that Scott would be stuck in an Anguillan prison, or worse.

15. When the Anguillan government’s own toxicology results showed that Mitchel died from an overdose of cocaine, the prosecution nonetheless continued to press its charges against Scott. And, at the conclusion of the last hearing he attended, the Anguillan Prosecutor refused to guarantee that Scott could remain free on bail until any additional hearing and even threatened to charge him with murder, essentially forcing Scott to run the risk that he would be attacked or killed or thrown in a prison where his attacker’s family members worked. It was a risk that Scott chose not to take so he did not return to Anguilla. Anguilla continues to pursue its charges against him.

16. Though the Hapgoods are back at their home in Connecticut, their nightmare continues. They worry that they or other family members will be attacked; they are frightened by everyday occurrences; and any time a family member leaves they worry that they won’t come back. The entire family has sought trauma counseling. Because Scott remains charged with manslaughter, his employer put him on leave, depriving him of his career and depriving him and his family of his full income. Scott has also been unable to coach his son’s football team. And the Hapgoods have received death threats.

17. For all this, Auberge is legally responsible. Although this lawsuit cannot end the Hapgoods’ nightmare, it is designed to at least bring them some measure of compensation, to recover their costs incurred, to bring some accountability to Auberge, and to ensure that other Auberge guests are protected in the future.

Parties

[This section names members of Hapgood’s immediate family.]

25. Plaintiffs are unaware of the true names, capacities, or basis for liability of defendants […] [presumably owners and employees of Auberge Resorts] and therefore sues said defendants by their fictitious names. Plaintiffs will amend this complaint to allege their true names, capacities, or basis for liability when the same has been ascertained.

Jurisdiction and Venue

[Legal details that are omitted here.]

Factual Allegations

28. Defendant Auberge Resorts LLC (“Auberge”) owns and operates approximately 20 resorts around the world. One of the resorts it owns and operates is the Malliouhana resort hotel (“Malliouhana”) in the West End district of Anguilla, a small Caribbean island with a population of approximately 15,000 people.

29. Scott and Kallie booked a stay at Malliouhana through a travel agent. They reviewed the Auberge website and decided that the Malliouhana was the type of luxury resort that would be the perfect (and secure) place for a relaxing family vacation. It was the Hapgood family’s first family vacation abroad. Scott, Kallie, Ryan, Hope, and Winn (together, “Plaintiffs”) arrived at Malliouhana on April 12, 2019 at around 2 p.m. They stayed in a suite that combined Malliouhana Rooms 48 and 49.

The Nightmare Begins as Scott Is Attacked by an Auberge Employee

30. The attack came the next day—April 13, 2019. At the time of the attack, Kallie, Ryan, and Hope were still at the pool. Kallie was returning the snorkeling equipment. Scott and Winn had returned to the room because Scott was having pain due to a herniated disc in his back and needed to rest. Winn asked his father whether he could go to the lobby to get a cookie and Scott agreed. Scott stayed in the family’s rooms watching TV. Ryan and Hope returned to the room. Just a few minutes after they arrived, and were still in their bathing suits, there was a knock on the door.

31. Scott came to the door. He saw a man in an Auberge uniform, whom he later learned was named Kenny Mitchel. Mitchel told Scott he had come to fix a broken sink in the room, but that was a lie. The Hapgoods had not called the hotel about a broken sink. Scott told Mitchel he didn’t think there was a broken sink but that he could take a look. Scott went to the bathroom, then went to tell his daughters that someone was in the room and ask them if they knew about a broken sink.

32. Scott then turned and saw Mitchel brandishing a utility “Leatherman” knife. Mitchel demanded that Scott give him his wallet and his money. Scott feared for his life and the lives of his daughters.

33. A vicious struggle ensued. Mitchel stabbed Scott with the knife and bit him repeatedly. Mitchel, who was trained in Taekwondo and was much younger than Scott, fought very hard, in a crazed manner, clawing and growling. Mitchel’s breath reeked, and Scott believed that he was under the influence of drugs and/or alcohol. The fight was long, sustained, violent and bloody.

34. Seeing that their dad needed help, Ryan and Hope at first tried to pull Mitchel off their father. But Scott then told them to get help and they ran to the resort’s front desk, screaming and crying and asking for help.

35. Scott was trying to neutralize Mitchel and keep him from continuing to attack Scott and cause him more injuries. Scott was able to knock the knife out of Mitchel’s hands, and then pin Mitchel down. Eventually other hotel employees entered the room, having responded to the calls from the daughters after they reached the front desk. These hotel employees did not respond with any urgency or act particularly surprised at the event. They even referred to the attacker by his first name, causing Scott to fear that these other hotel employees were in league with Mitchel as part of an orchestrated robbery. Scott told them that the attacker needed to be put into handcuffs.

36. By this time, Kallie Hapgood arrived at the scene, and both Kallie and Scott urged the hotel staff to call the police and an ambulance and to put Mitchel in handcuffs. Inexplicably, the hotel staff did not want to call the police or an ambulance and delayed in doing so. Kallie did not know what to do, having been notified just minutes before by her terrified and tearful daughters (whom she came across in the hotel lobby) that their father was being attacked with a knife by a hotel employee. Indeed, Kallie did not know whether her husband was alive when she ran to the room.

37. Eventually hotel security arrived. Scott transferred the restraint of Mitchel to the hotel’s security guard, a portly gentleman. Scott told him, “You’re a big guy, you take over.” The hotel’s security guard then restrained Mitchel until an ambulance arrived.

38. Scott went to tend to his wounds. Kallie tried to assist him. She took pictures of his several stab wounds and teeth and fingernail marks. Scott had to be taken to a medical facility where he received further treatment.

39. From the medical facility, Scott was escorted to the police station, allegedly to give a witness statement. It was there, as he was giving a witness statement, that Scott was told that Mitchel had passed away. Scott was shocked and saddened.

40. Mitchel died after spending about an hour in medical custody of a cocaine overdose as confirmed by the toxicology report and the Prosecution’s medical examiner. In other words, nothing that Scott did in defending himself and his daughters against Mitchel’s attack resulted in Mitchel’s death.

Auberge’s Negligence Enabled the Attack

41. The security, safety and emergency response measures and procedures at Malliouhana were completely inadequate for any hotel, particularly for a luxury resort. There were no security cameras nor any sort of security infrastructure on site. The person responsible for security on site at the time of the attack doubled as a hotel gardener. And the hotel staff had woefully inadequate training in security and how to respond to emergency situations and procedures to follow, if any.

42. Further, the procedures and training for hiring, retaining, and supervising employees at Malliouhana were completely inadequate for any hotel, particularly for a luxury resort. In March 2019, less than three weeks before the attack, Mitchel was arrested and charged with a separate attack and rape. He then spent a night in jail and later breached one of the conditions of his bail. Under the conditions of his bail, Mitchel was required to regularly go to the police station to sign the logbook, which was only available at specified hours. By court order, Mitchel was also restricted from seeing his daughter and the mother of his daughter. Mitchel’s rape case was still pending at the time of the attack. He had breached one or more of the conditions of his bail, which resulted in spending additional time in police custody.

43. Auberge was aware, or should have been aware, of Mitchel’s arrest and rape charge before the attack occurred. Not only is Anguilla a very small island where information about happenings on the island is well-known, but, on information and belief, the impact of the rape charge which included Mitchel’s spending a night in jail and having to go to the police station would have impacted his work schedule. In other words, Mitchel would have needed to inform someone at the hotel why he disappeared due to the imprisonment or would be disappearing or needed to be given a shift to work around the hours of his ongoing police sign ins.

44. Further, Mitchel, as a national of Dominica, was not eligible to work in Anguilla with a criminal charge pending. Yet Auberge continued to allow him to work for the hotel and have access to its guests, including children.

45. Malliouhana staff also observed Mitchel behaving erratically the day of the attack. He showed up to work two hours late and disappeared for a substantial period of time in the middle of the workday. He never returned to duty. Rather, he showed up to the Hapgoods’ room, acutely intoxicated with alcohol, marijuana and cocaine. His blood-alcohol content was more than twice the typical legal limit for drivers in the United States. Cocaine levels in his bloodstream were more than twice an amount known to be potentially fatal. Levels of cocabenzoid were also acute, indicating that he had consumed the cocaine shortly before his death.

46. Mitchel died at the hospital from a cocaine overdose. Though the initial coroner’s report, issued before the toxicology report, and without the benefit of any witness statements, pinned the blame on Scott, subsequent analysis proved that Mitchel died from “acute cocaine toxicity.” Mitchel also had high levels of alcohol in his system.

The Nightmare Escalates as Scott Is Charged with Manslaughter

47. Despite the abundant evidence that Mitchel was erratic, making it plain that he should at least be tested for drugs and alcohol, local authorities arrested Scott at the police station. First, they talked of charging him with murder, then decided on manslaughter. Scott was charged and arrested and spent the next three nights in jail, where he received constant death threats, including that he would have his head bashed in. By that stage, news of the attack spread through social media (where it was falsely asserted that Scott had attacked Mitchel), an angry mob gathered, forcing the Royal Anguillan Police Force and the Anguillan Premier to issue an appeal for public order.

48. Scott was aware of all of these developments, and he was terrified, fearing for his life, and for his family. Kallie and the children also greatly feared for Scott and for themselves.

49. Scott had no criminal record at the time of his arrest.

50. A magistrate initially denied Scott bail, but that decision was later reversed by the judge who specifically remarked in his judgment that the prison was unsafe because relatives of the deceased’s worked there, as well as other individuals from the deceased’s home island of Dominica. These factors, the judge noted “weighed heavily on the court’s decision, particularly in view of the court’s observations concerning the public furor that this incident excited.” With the help of the U.S. State Department, the Hapgoods returned home.

51. Thereafter, desiring to clear his name despite the injustice of the charges and local authorities’ issuance of a formal notice of death threats against Scott, Scott returned routinely, three times, to Anguilla for court hearings. Each time, Kallie and the children worried that Scott would be stuck in an Anguillan prison, or worse.

52. When the Anguillan government’s own toxicology results showed that cocaine killed Mitchel, the prosecution nonetheless continued to press its charges against Scott. And, at the conclusion of the last hearing he attended, the Anguillan Prosecutor refused to guarantee that Scott could remain free on bail until any additional hearing and even threatened to charge him with murder, essentially forcing Scott to run the risk that he would be attacked or killed or thrown in a prison where his attacker’s family members worked.

53. It was a risk that Scott chose not to take so he did not return to Anguilla, and Anguilla is now continuing to pursue its charges against him.

54. Fighting these unfair criminal charges has forced Scott to incur costs for counsel, travel, and security.

The Nightmare Continues Even After the Hapgoods Return Home

55. Because of the manslaughter charge, Scott’s employer, UBS, put Scott on administrative leave. Scott works in a regulated industry and having a felony charge against him, even one that is demonstrably frivolous, disqualifies him from performing his job. Scott’s career is driven entirely by client relationships, which he has not been able to cultivate for the last nine months and which are severely impacted by these charges. Accordingly, Scott has lost income as a result of the attack. Scott and Kallie have also had to spend much of their life savings as well.

56. Even though Scott and his family have a strong network of family and friends who have been very supportive, Scott has nonetheless suffered social ostracism from those unaware of the true facts. For example, he was told he would not be allowed to coach his son’s football team because of the charge pending in Anguilla. The children’s classmates are keenly aware of the incident as well which has made it difficult for them to return to a normal life.

57. The Hapgoods have also been targeted by individuals who have made death threats against them as a result of Mitchel’s death, and those individuals have also wrongly viewed the attack on Scott and his acts in self-defense as having racial overtones.

58. Auberge’s acts have caused Plaintiffs significant stress. Plaintiffs have had counseling for post-traumatic stress, which they have paid for. Everyday occurrences that would not have scared the plaintiffs prior to the attack, now cause them stress. Each trip Scott made back to Anguilla also caused incredible emotional stress as the plaintiffs were not sure if Scott would ever be allowed to return, or worse. The Anguillan authorities issued a formal notice stating that there were death threats against Scott, and the family feared that he would be harmed by locals or at the hands of the legal system.

59. Scott also suffered physically as a result of the attack and had to pay for medical treatment. Scott suffered serious physical wounds, including several stab wounds, bite wounds to his nose, ear, and arm, claw marks on his arms, chest and face, and extensive bruising from being beaten. Scott also needed to undergo prophylactic treatment for communicable diseases because Mitchel had blood in his mouth when he repeatedly bit Scott during the attack.

60. Scott also had to undergo HIV testing. For 6 months, Scott and Kallie lived in fear that he might have acquired the virus from Mitchel, knowing that he took drugs and having heard from journalists that Mitchel had a reputation as a drug pusher.

61. Despite the toxicology results showing that an overdose caused Mitchel’s death, Anguilla has continued to prosecute Scott, and he has incurred substantial costs in defending that prosecution.

62. Moreover, purported representatives of Mitchel’s estate have sued Scott in the United States District Court for the District of Connecticut for damages they allege to have suffered as a result of Mitchel’s death, and he has incurred and will continue to incur fees and costs to defend himself in that action.

63. For its part, Auberge has been silent and has taken no responsibility for its actions and the effects on the Hapgoods. The Auberge’s initial reaction was to apologize in person, find a lawyer for Scott, and put Kallie and their children up in a new hotel. The Auberge’s general manager said that he was sorry for what had happened to the family and said he “would be horrified” if he had experienced something similar.

64. However, once Scott was rearrested and was facing his second night, of a total of 3 nights, in jail, Kallie tried multiple times to reach the hotel’s general manager, Kapil Sharma. After finally reaching him, he quickly said he could not help and abruptly ended the call. The Hapgoods have not heard a word from the hotel since. In addition, on information and belief, the Auberge, as owner of one of the most important, if not the most important, hotels on the small island of Anguilla, an island entirely dependent on the tourism industry, has not urged the authorities to drop the case against Scott. Indeed, the Auberge has failed to do what is right.

FIRST CAUSE OF ACTION

(Negligent Hiring, Supervision, or Retention of Employee Mitchel) (By All Plaintiffs)

65. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.

66. Auberge was entrusted, or should have been entrusted, with the safety and protection of all hotel guests, including Plaintiffs. Auberge was subject to a duty to hire, supervise and retain employees to ensure the safety and protection of all hotel guests, including Plaintiffs. Auberge also knew or should have known that it was subject to a duty to train and to supervise its personnel and have appropriate policies to ensure the safety and protection of all hotel guests, including Plaintiffs, or to ensure that others properly performed those tasks.

67. Auberge hired, retained and was responsible for supervising Mitchel.

68. Mitchel was unfit and incompetent to perform the work for which he was hired, supervised and retained, and he posed a danger to hotel guests. He was high on cocaine and marijuana and drunk on the job on the day of the attack, had violent criminal charges against him, and had no right to work lawfully under Anguillan law.

69. Auberge knew or should have known that Mitchel was unfit and incompetent to perform the work for which he was hired and continued to be employed by the hotel and posed a danger to hotel guests and that this unfitness and incompetence and history of drugs, alcohol, violent criminal charges, and unlawful work status created a particular risk to hotel guests yet he was placed in a position where he could have access to hotel guests, including children, and their belongings.

70. Auberge knew or should have known that Mitchel was acutely intoxicated and high the day of the attack. Indeed, Mitchel should have drawn extra scrutiny because he showed up to work more than two hours late and disappeared for more than an hour in the middle of the workday. The fact that Mitchel was acutely intoxicated with alcohol and cocaine created a particular risk to guests staying at the resort.

71. Auberge knew or should have known that Mitchel had recently been arrested and charged with rape. The fact that Mitchel had recently been charged with rape created a particular risk to guests staying at the resort.

72. Auberge knew or should have known that Mitchel was unfit to work around guests and could pose a serious security risk to guests.

73. Thus, before Scott was attacked, Auberge was aware of the probable dangerous consequences of its conduct, and that it willfully and deliberately failed to avoid those consequences.

74. Mitchel’s unfitness, incompetence and history of drugs, alcohol, violent criminal charges, and unlawful work status harmed Plaintiffs.

75. Auberge breached its duty to Plaintiffs in training, supervising, and retaining Mitchel, and engaged in negligent or reckless behavior by, among other things, (1) hiring Mitchel; (2) allowing Mitchel to continue working at the resort following his criminal charges for rape; (3) allowing someone with a drug and alcohol problem to work at the resort; (4) allowing an unlawful employee to continue working at the resort; (5) allowing Mitchel to work even though he showed up late and was high and drunk; (6) allowing Mitchel on the day of the attack while high and drunk to wear an Auberge uniform; and (7) failing to ensure that Mitchel was not given access to guests, particularly in their hotel rooms; and (8) failing to ensure that Mitchel was not assaulting guests.

76. Auberge’s negligence in hiring, supervising and retaining Mitchel, an employee on cocaine and marijuana and drunk with a criminal charge pending for rape, was a substantial factor in causing Plaintiffs’ harm.

77. The attack and harm to Scott and his family were foreseeable.

78. It was foreseeable that a vicious physical attack on a guest in the presence of his young daughters would cause the guest and his family severe emotional distress and mental suffering.

79. It was foreseeable that a vicious physical attack on a guest by a knife-wielding assailant would cause the guest to suffer a loss of income.

80. It was foreseeable that a vicious physical attack on a guest in the presence of a guest’s young daughters would be met with self-defense, and that legal proceedings would ensue.

81. As a proximate result of negligence, recklessness, and/or lack of diligence of Auberge, Plaintiffs suffered damages in an amount to be proven at trial, including but not limited to damages for severe emotional distress and mental suffering.

SECOND CAUSE OF ACTION

(Negligent Hiring, Supervision, or Retention of Other Employees) (By All Plaintiffs)

82. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.

83. Auberge was entrusted, or should have been entrusted, with the supervision of personnel in addition to Mitchel, including the head of security at the Malliouhana, and protection of Plaintiffs, and was subject to a duty to reasonably retain, train, and supervise the other personnel at the hotel, or ensure that others properly performed those tasks.

84. Auberge hired, supervised and retained employees, including the head of security, other than Mitchel.

[…]

[Those employees failed to perform their work adequately.]

87. In particular, Auberge knew or should have known that its guests, including Plaintiffs, needed a safe environment at the hotel. Auberge knew or should have known that its guests, including Plaintiffs, could face security risks and emergency situations requiring an appropriate and reasonable response from hotel staff, police and/or medical professionals. And Auberge knew or should have known that its guests, as well as its personnel, could experience medical emergencies, including alcohol and/or drug overdoses, requiring an appropriate and reasonable response from hotel staff, police and/or medical professionals.

88. However, Auberge hired, supervised and retained employees, including the head of security, who were not trained or able, among other things, to provide a safe environment, to identify an employee who was high and drunk and to remove him from work, or to handle emergency situations and medical emergencies.

89. Auberge also knew or should have known that the security protocols and training of employees at the Malliouhana were inadequate to protect guests, including Plaintiffs, as well as its personnel from violent acts, and inadequate to respond appropriately to emergency situations.

90. Thus, before Scott was attacked, Auberge was aware of the probable dangerous consequences of its conduct, and that it willfully and deliberately failed to avoid those consequences.

91. These employees’ […] [actions and lack of action] harmed Plaintiffs.

92. Auberge breached its duty to Plaintiffs in training, supervising, and retaining other personnel, including the head of security, and engaged in negligent or reckless behavior by, among other things, (1) failing to hire and train its employees so that they were able to ensure that the hotel provided a safe and secure environment for its guests; (2) failing to hire and train its employees so that they would not allow Mitchel to continue working at the resort or have access to hotel guests, including wearing an Auberge uniform, particularly when high and drunk; (3) failing to hire and train its employees so that they were able to respond appropriately and immediately to the attack once notified of it; and (4) failing to hire and train its employees so that they were able to respond appropriately and immediately to the medical emergency of Mitchel’s being high and drunk.

93. Thus, Auberge acted negligently, recklessly or with a lack of diligence when it failed to train and to supervise personnel to ensure the safety and protection of Plaintiffs, or to ensure that others properly performed those tasks.

94. Auberge’s negligence in supervising and retaining employees, including the head of security, other than Mitchel, was a substantial factor in causing Plaintiffs’ harm.

95. The attack and harm to Scott and his family were foreseeable.

96. It was foreseeable that a vicious physical attack on a guest in the presence of his young daughters would cause the guest and his family severe emotional distress and mental suffering.

97. It was foreseeable that a vicious physical attack on a guest by a knife-wielding assailant would cause the guest to suffer a loss of income.

98. It was foreseeable that a vicious physical attack on a guest in the presence of a guest’s young daughters would be met with self-defense, and that legal proceedings would ensue..

99. It was foreseeable that a staff member like Mitchel might be on alcohol and/or drugs requiring immediate medical intervention.

100. As a proximate result of negligence, recklessness, and/or lack of diligence of Auberge, Plaintiffs suffered damages in an amount to be proven at trial, including but not limited to damages for severe emotional distress and mental suffering.

THIRD CAUSE OF ACTION

(Vicarious Liability for Negligence) (By All Plaintiffs)

101. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.

102. Mitchel and the other employees of Auberge, including the head of security, were negligent, reckless, and lacked diligence.

103. As a result, Plaintiffs were harmed.

104. The negligence, recklessness, and lack of diligence of Mitchel and the other employees of Auberge, including the head of security, was a substantial factor in causing Plaintiffs’ harm.

105. Auberge is responsible for Mitchel’s assault and the actions taken by hotel employees thereafter because they all acted in the scope of their employment for Auberge and in performing service on behalf of Auberge. Mitchel’s attack occurred during his shift, while he was in an Auberge uniform, and was enabled by his saying he came to the Hapgoods’ room to repair the sink. The actions taken by hotel employees thereafter were while in uniform and were done in response to efforts by Plaintiffs to obtain help from the hotel.

FOURTH CAUSE OF ACTION

(Premises Liability) (By All Plaintiffs)

106. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.

107. Auberge owned, occupied and controlled the Malliouhana.

108. Auberge was negligent in the use or maintenance of the property, including the security and safety measures.

109. Auberge acted with a conscious disregard for the safety of its hotel guests, including the Hapgoods.

110. Auberge had actual or constructive knowledge of the dangerous consequences of having inadequate security and safety measures, had actual or constructive knowledge that injury and aggravation of injury was a probable, as opposed to possible, result of having inadequate security and safety measures, and consciously failed to act to avoid those consequences.

111. Plaintiffs were harmed as a result.

112. Auberge’s negligence was a substantial factor in causing Plaintiffs’ harm.

FIFTH CAUSE OF ACTION

(Vicarious Liability for Intentional Infliction of Emotional Distress) (by All Plaintiffs)

113. Plaintiff repeats and realleges all paragraphs above, as if fully set forth herein.

114. The conduct of Auberge and its employees was outrageous.

115. Auberge and its employees acted with reckless disregard of the probability that Plaintiffs would suffer emotional distress and mental suffering, knowing that Plaintiffs were present when the conduct described above occurred.

116. Plaintiffs suffered severe emotional distress and mental suffering.

117. The conduct of Auberge and its employees was a substantial factor in causing Plaintiffs’ severe emotional distress.

118. Auberge is responsible for the acts of its employees because its employees acted in the scope of their employment for Auberge and in performing service on behalf of Auberge.

SIXTH CAUSE OF ACTION

(Vicarious Liability for Assault) [some members of the Hapgood family]

119. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.

120. Mitchel brandished a knife and demanded money intending to [harm not only Scott Hapgood, but his children].

[…]

126. Mitchel’s conduct was a substantial factor in causing harm [to Scott Hapgood and his children. Scott Hapgood suffered “serious stab, claw and bite wounds” along with “severe bruising.” He also “suffered severe emotional distress” thinking he and his children might be killed. His children also suffered emotional distress.]

127. Mitchel’s conduct was a substantial factor in causing […] harm.

128. Auberge is responsible for Mitchel’s assault because Mitchel acted in the scope of his employment for Auberge and in performing service on behalf of Auberge. Mitchel’s attack occurred during his shift, while he was in an Auberge uniform, and was enabled by his saying he came to the Hapgoods’ room to repair the sink.

129. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.

130. Mitchel stabbed, hit, clawed, and bit Scott repeatedly with the intent to harm him and without Scott’s consent.

131. Scott was harmed, suffering serious stab, claw, and bite wounds and severe bruising. He also suffered severe emotional distress, thinking he and his young daughters might well be murdered.

132. Auberge is responsible for Mitchel’s battery because Mitchel acted in the scope of his employment for Auberge and in performing service on behalf of Auberge. Mitchel’s attack occurred during his shift, while he was in an Auberge uniform, and was enabled by his saying he came to the Hapgoods’ room to repair the sink.

EIGHTH CAUSE OF ACTION

(Vicarious Liability for Intentional Infliction of Emotional Distress— Fear of HIV and other Serious Diseases)

[…]

135. The conduct of Auberge and its employees exposed Scott to biting by Mitchel and to Mitchel’s blood.

136. Given that Mitchel was both a known drug-user and an accused rapist [he was accused of raping his girlfriend, who disavowed her accusation after Mitchel’s death], fear of transmission of serious diseases, including HIV, was a legitimate fear supported by medical evidence.

[…]

139. The conduct of Auberge and its employees was a substantial factor in causing Scott’s severe emotional distress.

140. Scott’s fear of contracting or developing HIV or other serious diseases was “reasonable” because his fear stemmed from the knowledge, confirmed by reliable medical or scientific opinion, that his risk of contracting or developing HIV or other serious diseases significantly increased as a result of the conduct described above and that the resulting risk was significant.

141. Auberge is responsible for the intentional infliction of severe emotional distress because Mitchel acted in the scope of his employment for Auberge and in performing service on behalf of Auberge. Mitchel’s attack occurred during his shift, while he was in an Auberge uniform, and was enabled by his saying he came to the Hapgoods’ room to repair the sink.

NINTH CAUSE OF ACTION

(Breach of Contract) (By All Plaintiffs)

142. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.

143. Plaintiffs and Auberge entered into a contract when Plaintiffs booked Plaintiffs’ stay at Malliouhana. Having booked two adjoining rooms, Auberge knew that Scott would be accompanied by his family, including children.

[…]

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment as follows:

A. For general damages according to proof;

B. For special damages according to proof;

C. For the first through eighth causes of action, punitive damages in an amount appropriate to punish the Defendants and to deter others from engaging in similar misconduct;

D. For pre- and post-judgment interest;

E. For cost of suit herein, including attorneys’ fees, to the maximum extent allowed by law; and

F. For such other and further relief as this Court may deem just and proper.

Editor’s note: This article was published at 2:20 p.m. The time stamp has been changed for layout purposes.

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