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Moore v. Jimel9/27/2002
mal tones. Lauren made no comment about a door not closing or a latch not working. The appellant saw nothing that caused her to be concerned for her safety. She described the facility as a "fairly typical bar bathroom." Although the appellant's brief now characterizes the lighting as "dim," her deposition testimony was that the lighting did not appear to her to be particularly dim, either in the restroom or in the hallway leading to the restroom. It was, moreover, not yet dark outside.
At about six p.m., the appellant made her second trip to the restroom, on that occasion alone. At that time, in addition to her own party there were "between two and six other people" on the deck. With respect to the demeanor of the crowd, moreover, the appellant, in her deposition, described it as being qualitatively quiet as well as quantitatively sparse.
Q: Was there anything about the other patrons that you saw at Hightopps at any time before this incident that caused you to be concerned about your safety or your security?
A: No.
Q: They weren't rowdy or poorly dressed?
A: No, it was just rather quiet. Most of what I remember being up there were kind of petite little females, because I think that's kind of why my party was interested in staying up there.
Q: You mean the men in your party?
A: Yes. (Emphasis supplied).
There was no suggestion as to why there should have been a heightened need for security because of an unusually large or unruly crowd. Indeed, where a rape occurs in an allegedly lonely restroom off an allegedly secluded hallway, the danger would seem to stem more from the lack of people than from the presence of too many people.
When the appellant arrived there, no one else was in the restroom. The appellant chose the stall on the right, without the latch, rather than the stall on the left, with the latch. It did not concern her that she had to hold the stall door shut, because she had been in public restrooms before where that had been the case.
The appellant then saw a man enter the restroom, a man she knew, from past acquaintanceship, to be one Richard Casey. In her deposition, the appellant stated that she "looked" and "kind of opened her stall door to see if it was Lauren." The lack of a latch does not appear to have had significance.
There was then nothing in Casey's appearance or initial behavior to cause the appellant any concern. He looked "like a normal guy" and she did not smell alcohol on his breath at any time. The fact that Hightopps served intoxicating beverages does not appear to have had any significance.
At that point, Richard Casey entered the stall, grabbed the appellant by the shoulders, turned her around, and raped her from behind. The appellant in her deposition described the nature of her yells or screams:
Q: How many times did you scream?
A: Twice.
Q: Was one scream louder than the other, that you were conscious of?
A: The second one was louder.
Q: Did you yell words or did you just scream a sound?
A: No, I think the first time, I think the first time I yelled "help" or something stupid. And then the second time I yelled "please, stop," thinking, I think in my head at the time, thinking maybe somebody had heard "help," but was thinking it was somebody playing around or joking.
Casey asked the appellant if she wanted him to kill her, and she quieted down. As she was being sexually assaulted, however, the appellant kicked backward, striking Casey. He backed out of the stall, backed out of the restroom, and disappeared. The appel
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