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June 26, 1996

ELLEN KUKLA, Plaintiff, against THE SYFUS LEASING CORP., Defendant.

The opinion of the court was delivered by: CHIN


 On August 29, 1994, while she was a guest at the Holiday Inn in Newburgh, New York, plaintiff Ellen Kukla was raped in her room by an intruder. The man -- a stranger -- was never apprehended. Plaintiff commenced this diversity action against defendant Syfus Leasing Corp., the owner and operator of the hotel, seeking damages for her injuries and alleging that defendant breached its duty to provide reasonably safe and secure lodging for its guests.

 The case was tried to a jury in May 1996. The jury returned a verdict in favor of plaintiff, finding defendant negligent and setting plaintiff's damages at $ 1,515,548.47, consisting of: $ 750,000 for past pain and suffering, $ 600,000 for future pain and suffering, $ 6,417 for lost wages, $ 9,131.47 for other expenses and losses, and $ 150,000 for the cost of future psychological counseling. The jury also found, however, that plaintiff was contributorily negligent and apportioned fault at 60% for defendant and 40% for plaintiff. Hence, unless the jury's findings are set aside, plaintiff will recover 60% of $ 1,515,548.47 -- or $ 909,329.08.

 Before the Court is defendant's motion for a new trial or for judgment as a matter of law. Defendant argues that the jury's finding of liability is against the weight of the evidence, that the jury's award of $ 750,000 for past pain and suffering and $ 600,000 for future pain and suffering is excessive, and that the jury's award of $ 150,000 for the cost of future psychological counseling is speculative and without support in the evidence.

 For the reasons that follow, the motion is denied, except to the extent that the award of $ 150,000 for the cost of future psychological counseling is vacated. A new trial limited solely to the amount of damages for future psychological counseling will be ordered unless plaintiff accepts a remittitur reducing the award for such damages to $ 31,200.


 A. The Facts *fn1"

 In August of 1994, plaintiff was 21 years old. She lived in a small town outside of Columbus, Ohio and had never travelled alone. Her boyfriend was a cadet at the U.S. Military Academy at West Point, New York. He invited plaintiff to visit him at West Point to participate in the "Ring Ceremony Weekend" for senior cadets. She accepted and travelled by herself to New York on Thursday, August 25, 1994, to participate in the festivities.

 After requesting some extra towels at the front desk, plaintiff went to her room, which was on the first floor adjacent to the parking lot. The hotel security guard met her at the door to her room with some extra towels. Her boyfriend's car, which she had used and which he intended to retrieve the next day, was parked just a few feet away from the door to her room. Plaintiff planned to take a shuttle van early the next morning to the airport for the flight back to Ohio.

 The security guard was not dressed in a uniform but was in plain clothes. As he handed the towels to plaintiff, he noticed a man on a flight of nearby stairs walking down from the second floor of the hotel to the ground floor. The man did not look suspicious. He made eye contact with the security guard and they nodded at each other. Plaintiff did not see the man. The security guard left, without waiting to see where the man went. Nor did the security guard hear the sound of a car door closing or car engine starting. As there were vending machines and garbage receptacles on the second floor, the man did not need to go downstairs to use the vending machines or to dispose of garbage.

 Although it was now approximately 1:30 in the morning, the security guard gave no thought to speaking to the man. Nor did he give any thought to whether he should simply wait a moment to observe where the man went or what he did. The security guard did not consider approaching the man to identify himself as a security guard or to ask whether the man needed any assistance or was a guest. Although he had previously been employed in a security position, the security guard had never been provided with the Holiday Inn security officer's guide. Nor had he received any training from the Holiday Inn.

 A few minutes later, plaintiff, who was in her room, decided to call the front desk to place a wake-up call. The telephone, however, did not have the room number on it. Consequently, plaintiff opened her room door to check her room number. When she started to call the front desk, she forgot the room number. Hence, she had to check the room number again. When she opened the door the second time, she saw a man at the door to the next room. They made eye contact, and although she was slightly startled, she thought nothing of it. She did not think he looked suspicious.

 After arranging for a wake-up call, and as she was preparing for bed, plaintiff decided to leave some money and a note for her boyfriend in his car. Because the door to her room had a sign on it stating that it was a self-locking door, she took her room key with her. She left the room to go to the car, but the door to the room did not close behind her. When she was in the car, she remembered that she had some other money in the room that she also wanted to leave for her boyfriend. Hence, she walked back to her room. As she did so, she noticed that the room door was ajar. She walked five or six steps into the room. She did not shut the door behind her, because she intended to immediately return to the car after retrieving the additional money. As she had her back to the door, however, she heard the door close.

 She realized then that someone had entered the room. It was an intruder, who proceeded over the course of the next hour-and-a-half to rape and sodomize plaintiff. The intruder held a knife to plaintiff's throat and repeatedly threatened to kill her. He raped her three times and smothered her face with clothing and pillows. He bound and gagged her before escaping into the night. He was never identified or apprehended.

 Plaintiff untied herself and called the front desk. The security guard went to her room immediately. After he spoke to her briefly and the police were called, however, he left her and waited outside the room for the police to come because he was uncomfortable with the situation. He did not stay to try to comfort her nor did he arrange for one of the women at the front desk to come to her assistance. After the police arrived, he gave a description of the man he had seen on the stairs, from which a composite was prepared.

 Plaintiff spent the remainder of the night being treated and examined at the hospital. Although her boyfriend arrived and tried to comfort her, her reaction was to apologize repeatedly, as if she had done something wrong. She was at the hospital for eight hours and was subjected to, among other things, a pelvic examination and a pregnancy test. She then went to the police station, where she was asked to give a statement and review mug shots. She also gave a description of the attacker, from which a composite was prepared. On Monday afternoon, she flew back to Ohio. When she arrived home, everyone was crying, "as if someone had died."

 Some eight months prior to the attack on plaintiff, a woman had been knocked down in a purse-snatching, at approximately the same time of night, in the parking lot of the hotel. There had been other, albeit more minor, criminal incidents as well at the hotel, including the abandonment of a stolen car in the parking lot. In addition, other hotels in the immediate vicinity of the Holiday Inn also suffered from incidents of crime.

 The door to plaintiff's room was not working properly on the night she was attacked. The doors to the hotel room had self-closing hinges on them, which would have caused the doors to close automatically if they had been functioning properly. Of the two self-closing hinges on the door to plaintiff's room, one was missing a pin that was necessary to its proper functioning and the other was not properly set. Consequently, the door to plaintiff's room did not close by itself as it should have. Had the two hinges been working properly, the door would have automatically closed behind plaintiff when she went to the car and again when she re-entered her room. In addition, the lighting in the hotel parking lot and in the area of plaintiff's room was inadequate. There were dark spots and uneven levels of illumination and the area was "drastically underlit."

 B. The Effect of the Attack on Plaintiff

 Plaintiff's parents, sister, and boyfriend testified about the profound changes in plaintiff's personality and life as a result of the attack. Prior to the incident, she was a cheerful, bubbly, friendly, innocent, trusting person who never locked the door to her house. In her father's words, she "enjoyed life."

 After the incident, however, plaintiff was moody, depressed, and irritable. She was unable to enjoy life. For a period she could not sleep and later she slept too much. She no longer trusted anyone. Not only would she always lock the door to the house, she would not answer the door when the doorbell rang. She rarely spent time with her friends and easily became hysterical. She constantly looked over her shoulder and was afraid of strangers. She became paranoid. When driving, for example, she was always fearful of running out of gas. She never left home alone.

 Plaintiff had to quit one of her two jobs because it did not require much thinking and she found herself constantly thinking about what had happened to her. She had problems performing her duties in her other job at a grocery store because she was afraid to wait on individuals who reminded her of the rapist and because she was afraid of being robbed. When she and her boyfriend drove to Texas on a trip, she refused to stop at a hotel or motel, and they spent the night in the car at a truckstop. For some seven months plaintiff had to live with the fear of AIDS, until she was able to take an AIDS test. Although the test was negative, both she and her father described the agonizing ordeal of going for the test and waiting for the results. Moreover, the tests must be repeated for two years.

 Plaintiff has received extensive psychological counseling and will continue to need counseling for some time into the future. Her sessions cost $ 120 per hour. In the beginning she had one session a week. Later it was a session every other week and at times it was less often than that. Plaintiff's course of treatment ...

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