Behr v. RB Minneapolis Management, LLC

Background

Plaintiffs Dominique Behr and Tessa Behr are sisters who stayed one night in February 2021 at the Radisson Blu Downtown Minneapolis Hotel. That night, five males gained entry to their room and subjected them to hours of violent sexual assault and battery; Tessa was also shot multiple times. The Behrs sued Radisson Hotels Management Company, LLC (successor to the entity that operated the hotel) and G4S Secure Solutions (USA), Inc. (the security contractor at the hotel), alleging negligence under Minnesota law. Radisson and G4S are referred to collectively as "Defendants."

This was the second round of dismissal motions. In the first round, the court dismissed the prior complaint under Federal Rule of Civil Procedure 12(b)(6) (failure to state a claim on which relief can be granted) and Rule 12(c) (judgment on the pleadings), primarily because the Behrs had not plausibly alleged that the assault was foreseeable or that either Defendant engaged in active misconduct (as opposed to mere inaction). The court gave the Behrs leave to file a Second Amended Complaint, which they did.

The Second Amended Complaint's New Allegations

The Second Amended Complaint added details about the five males who entered the hotel around 1:00 a.m.: they wore dark clothing, at least two wore masks (surgical or otherwise), they kept their hands in their pockets, they shared a single backpack concealing a bottle of whiskey, one appeared to be stumbling (suggesting intoxication), one carried a concealed firearm, all appeared under twenty-one, and the youngest was under eighteen (subject to Hennepin County's midnight weekend curfew for fifteen-to-seventeen-year-olds). A G4S security guard let them in after they presented a room key, without checking names or verifying hotel registration. The Behrs also alleged that a Radisson employee had been told earlier that evening there was a smell of marijuana in the hotel, that police had been called to the hotel many times in the preceding seven months for various incidents, and that downtown Minneapolis experienced a 21% increase in violent crime in 2021 compared with 2020.

Legal Framework

Duty to Protect from Third-Party Harm

Under Minnesota law, a person generally has no duty to protect another from harm caused by a third party. Two exceptions exist: (1) a "special relationship" between the plaintiff and defendant combined with foreseeable harm, and (2) the defendant's "own conduct" creating a foreseeable risk of injury.

Minnesota recognizes a special relationship between hotels (innkeepers) and their guests, giving rise to a duty to protect guests from foreseeable dangers. However, foreseeability must be framed narrowly — courts ask whether the specific danger was objectively reasonable to expect, not merely conceivable.

Misfeasance vs. Nonfeasance

Under the "own conduct" exception, a defendant's conduct must amount to "misfeasance" — active misconduct working positive injury to others — not mere "nonfeasance" (passive inaction or failure to take protective steps). If a defendant's conduct is only nonfeasance, no duty of care arises for harm caused by a third party.

Analysis: Foreseeability

Judge Tostrud analyzed each of the Behrs' new allegations and concluded that, individually and collectively, they did not plausibly show it was objectively reasonable to expect the males would assault hotel guests:

- Dark clothing and appearance: The court found no basis to connect dark clothing or the described items of clothing to impending violence, especially absent any allegation linking these items to gang affiliation or criminal intent. - Hands in pockets: The court found this describes common behavior, particularly on a winter evening in Minnesota, and there was no allegation that a request to remove hands from pockets was refused. - Masks: In February 2021, Minnesota mandated masks in hotel lobbies due to COVID-19. The complaint did not allege the masks appeared intended to conceal identity rather than comply with the public health mandate. - Concealed items (whiskey, firearm): Because these items were concealed, the Defendants could not have observed them, and therefore their presence could not have put Defendants on notice of foreseeable criminal behavior. - Apparent intoxication: One male appeared to be stumbling and possibly drunk. The court found this did not make a violent assault foreseeable — the complaint did not allege aggressive or threatening behavior, and intoxication without more does not make violence objectively reasonable to anticipate. The court cited a Louisiana case, Finch v. HRI Lodging, Inc., where a guest's intoxication did not make a subsequent assault foreseeable. - Underage and under-twenty-one: The court found that being underage bore on the separate offense of underage drinking but did not make a violent assault reasonably foreseeable. Nonviolent offenses, without more, do not make violent offenses foreseeable under Minnesota's narrow inquiry. - Curfew violation: The court found that violating a juvenile curfew ordinance did not make assault foreseeable. The only connection between curfew violations and violence was a general statement in the ordinance that juvenile crime has become more violent. The Behrs cited no case law supporting the proposition that a curfew violation makes assault foreseeable, and the court noted persuasive authority from other states reaching the opposite conclusion. - Hotel policy violations (minimum age, room occupancy): These internal hotel policies lacked the force of law. Their violation suggested possible unauthorized access but not violence. - Marijuana smell: The Behrs' theory — that the smell should have prompted an investigation, during which the assault would have been discovered — was rejected as inconsistent with Minnesota's narrow foreseeability inquiry. - History of crime at hotel and downtown Minneapolis: The court found these allegations too general and not specific enough to the type of harm suffered. The court contrasted the facts here with Connolly v. Nicollet Hotel (where the hotel knew guests were dropping items from windows — the same type of conduct that injured the plaintiff) and with Wiley v. Fleet Farm (where a county sheriff predicted a shooting the day before it occurred, and there was a history of violent incidents at the specific bar). Here, no one predicted a similar assault, and past suspicious activity at the hotel was not shown to have occurred in the same or similar fashion as the attack on the Behrs.

Analysis: Misfeasance vs. Nonfeasance

The court also rejected the Behrs' "own conduct" negligence theory. The complaint's allegations — that the security guard failed to verify the room key, failed to check registration, failed to conduct floor patrols, and failed to investigate after the marijuana report — all describe passive inaction (nonfeasance), not active misconduct (misfeasance). Under Minnesota law established in Fenrich v. The Blake School and Doe 169 v. Brandon, nonfeasance is insufficient to impose a duty of care for third-party harm.

Because the direct negligence claims failed, the court also dismissed the derivative claims: the Behrs' claim that G4S is vicariously liable (under respondeat superior) for its employees' negligence, and the claim that Radisson is liable for G4S's negligence as its apparent agent.

Dismissal with Prejudice

Judge Tostrud dismissed the Second Amended Complaint with prejudice — meaning the Behrs cannot refile this lawsuit. The court reasoned that the Behrs had already amended their complaint twice, the second time after receiving an order specifically identifying the gaps they needed to fill, and they still had not cured the deficiencies. The Behrs had not requested a further opportunity to amend, nor indicated what additional allegations might fix the identified problems.