1 Thomas Watson (SBN 181546)

Robert W. Mockler (SBN 200200)

2 DIAMOND MCCARTHY LLP
3 333 South Hope Street, 18th Floor
Los Angeles, California 90071
4 Telephone: (424) 278-2335
Facsimile: (424) 278-2339
5 thomas.watson@diamondmccarthy.com
robert.mockler@diamondmccarthy.com
6
7 Christopher D. Sullivan (SBN 148083)
DIAMOND MCCARTHY LLP
8 150 California Street, Suite 2200
9 San Francisco, California 94111
Telephone: (415) 692-5200
10 Facsimile: (415) 263-9200
christopher.sullivan@diamondmccarthy.com
11
Attorneys for Plaintiffs GAVIN SCOTT HAPGOOD, KALLIE
12 BUEHLER HAPGOOD, RYAN RUTH HAPGOOD, EMMA
HOPE HAPGOOD and WINN THOMAS HAPGOOD
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
FOR THE COUNTY OF MARIN
15
16
GAVIN SCOTT HAPGOOD; KALLIE Case No.
17 BUEHLER HAPGOOD; RYAN RUTH
HAPGOOD, a minor, by GAVIN SCOTT COMPLAINT
18
HAPGOOD, her guardian ad litem; EMMA [JURY TRIAL DEMANDED]
19 HOPE HAPGOOD, a minor, by GAVIN
20 SCOTT HAPGOOD, her guardian ad litem;
and WINN THOMAS HAPGOOD, a minor,
21 by GAVIN SCOTT HAPGOOD, his
guardian ad litem;
22
Plaintiffs,
23
24 v.
25
AUBERGE RESORTS LLC, a Delaware
26 LLC, and DOES 1 through 50,
27
Defendants.
28
1
COMPLAINT
 1 Plaintiffs Gavin Scott Hapgood (“Scott”), Kallie Buehler Hapgood (“Kallie”), Ryan
2 Ruth Hapgood (“Ryan”) through her guardian ad litem Gavin Scott Hapgood, Emma Hope
3 Hapgood (“Hope”) through her guardian ad litem Gavin Scott Hapgood, and Winn Thomas
4 Hapgood (“Winn”) through his guardian ad litem Gavin Scott Hapgood (collectively, the
5 “Hapgoods” or “Plaintiffs”), for their claims against Defendant Auberge Resorts LLC
(“Auberge”), allege as follows:
6
7 INTRODUCTION

8 1. Auberge promises a “dream vacation.” The resorts it owns and operates—more

9 than 20 in total, including the five-star Malliouhana resort on the tiny Caribbean island of
10 Anguilla—are high-end. President Obama, Beyoncé, and Jay Z have all been Auberge guests.
11 According to its marketing, the “Auberge way” in hospitality means “unforgettable
12 experiences in storied destinations.” But to plaintiff Scott Hapgood, the 45-year-old husband
13 of Kallie and father of Ryan, Hope, and Winn, the “Auberge way” means something different.
14 It means getting attacked at knifepoint by a high, intoxicated 27-year-old hotel employee,
15 being viciously stabbed, clawed, bitten, and beaten fearing for his life and his family. It means
16 getting charged with a frivolous criminal prosecution, thrown in jail without just cause,
17 risking being killed because the attacker’s relatives worked there, and fighting against
18 extradition. And it means getting suspended from his job, enduring ongoing trauma and
19 hardship, and being forced to defend a lawsuit by the representatives of his attacker. To
20 plaintiffs Ryan and Hope Hapgood, it means fearing your father is about to be killed by a
21 hotel employee and fearing for your own life. For Scott and the entire Hapgood family, the
22 Plaintiffs here, Auberge’s “dream vacation” is a nightmare that does not end.
23 2. The Hapgoods’ Auberge nightmare began on April 13, 2019. Scott, his wife

24 Kallie, their two daughters Ryan and Hope, and their son Winn had just arrived at the
25 Malliouhana resort on the island of Anguilla for their first family vacation abroad. They spent
26 the morning at the beach, and Scott had returned to their adjoining hotel rooms to watch
27 television. Ryan, then 13 years old, and Hope, then 11 years old, had just returned to the hotel
28 rooms as well. Kallie was returning snorkeling equipment. And Winn, then just 9 years old,
2
COMPLAINT
 1 was getting a cookie from the hotel lobby.
2 3. Someone knocked on the door. When Scott came to the door, there was a man
3 wearing the Auberge hotel uniform, whom Scott would later learn was named Kenny Mitchel
4 (“Mitchel”). The man, later identified as hotel maintenance man Kenny Mitchel, said he was
5 there to fix a broken sink. In fact, there was no broken sink, and no one had called about one,
6 but since Mitchel was wearing the uniform of the luxury resort, Scott allowed him to go in to
7 check on the sink.
8 4. After pretending to inspect the so-called “broken” sink, Mitchel drew a knife,
9 demanded money, and then physically attacked Scott. The attack was violent and prolonged.
10 Mitchel, who toxicology reports demonstrate was high on cocaine and marijuana and drunk
11 at the time, fought furiously, stabbing Scott and biting, clawing and hitting him. Scott
12 endeavored to defend himself and to protect his daughters Ryan and Hope, as any father
13 would do. Scott’s daughters tried to pull the man away from their father and then ran to get
14 help.
15 5. Despite Mitchel’s attack, Scott eventually disarmed and restrained him. When
16 hotel personnel arrived, Scott asked that they handcuff Mitchel to prevent further attacks.
17 Instead, the hotel staff stood watching and waited to call the police or an ambulance. Unaware
18 whether Mitchel had additional weapons, or whether hotel personnel, who appeared to be
19 friendly with Mitchel, were in league with Mitchel as part of a coordinated robbery or attack,
20 and fearful of continued violence, Scott continued to restrain Mitchel. Eventually, the hotel’s
21 security guard arrived and took over restraining Mitchel.
22 6. After an ambulance belatedly arrived at the scene, the ambulance personnel
23 took Mitchel to the hospital. Mr. Mitchel, tragically, died there an hour later from an overdose
24 of cocaine, according to the toxicology report prepared by the Anguillan authorities.
25 7. Defendant Auberge never should have allowed the attack to happen. Two
26 weeks earlier, Mitchel had been arrested and charged with rape, and Mitchel had breached
27 certain of his bail conditions and spent additional time in police custody. Moreover, Mitchel,
28 a national of Dominica not Anguilla became ineligible to continue his employment on
3
COMPLAINT
 1 Anguilla while under criminal charges. Auberge knew or should have known these facts yet
2 kept him on the job anyway—around guests and children. And, on the day of the attack,
3 Mitchel showed up to work more than two hours late and disappeared from his assignment
4 for a substantial portion of the workday, reappearing at the Hapgoods’ hotel rooms, drunk
5 and high on cocaine.
6 8. Thus, Auberge let Mitchel—this drunk, high, delinquent, accused-rapist
7 employee—stay in an Auberge uniform and gave him unrestricted access to its guests,
8 including children.
9 9. Auberge’s response to the situation was also woefully inadequate. Once hotel
10 staff knew of the attack, they should have immediately acted to address the situation and, at
11 the very least, to immediately call for police and medical assistance. Instead, they delayed in
12 getting help, both for the Hapgoods and for Mitchel.
13 10. The result of Auberge’s actions has been devastating for Scott and his family—
14 physically, emotionally, and financially. But the Hapgoods’ nightmare was just beginning.
15 11. Anguilla is a small island with a population of roughly 15,000—essentially a
16 small town—so word traveled fast about the Mitchel’s death.
17 12. Shockingly, Anguillan prosecutors arrested and blamed Scott. They did so
18 despite the facts that Mitchel had attacked Scott, had a history of criminal violence, and was
19 under the influence of fatal amounts of cocaine at the time of the attack and despite the facts
20 that Scott, by contrast, has no criminal record, was on vacation with his family, and was just
21 watching TV in his hotel room after a day at the beach when Mitchel entered his family’s
22 hotel room. Anguillan prosecutors charged Scott with manslaughter, despite the obvious fact
23 that Scott was acting in self-defense and in defense of his family.
24 13. Scott was charged and sent to jail and later to prison. An angry mob gathered
25 outside the jail. He was repeatedly yelled at and told he would be killed. Scott was terrified
26 and so was his family, fearing they would never see him again. Because Mitchel’s relatives
27 worked inside the prison, Scott also feared that prison personnel would attack or kill him.
28 Although Scott was initially denied bail by a magistrate, despite no objection being raised to
4
COMPLAINT
 1 bail by the prosecution, an Anguillan High Court judge later allowed him to leave on bond
2 because the judge feared that Scott would in fact be killed if he spent additional time in prison.
3 14. Thereafter, desiring to clear his name despite the injustice of the charges and
4 local authorities’ issuance of a formal notice of death threats against Scott, Scott returned
5 routinely, three times, to Anguilla for court hearings. Each time, Kallie and the children
6 worried that Scott would be stuck in an Anguillan prison, or worse.
7 15. When the Anguillan government’s own toxicology results showed that Mitchel
8 died from an overdose of cocaine, the prosecution nonetheless continued to press its charges
9 against Scott. And, at the conclusion of the last hearing he attended, the Anguillan Prosecutor
10 refused to guarantee that Scott could remain free on bail until any additional hearing and even
11 threatened to charge him with murder, essentially forcing Scott to run the risk that he would
12 be attacked or killed or thrown in a prison where his attacker’s family members worked. It
13 was a risk that Scott chose not to take so he did not return to Anguilla. Anguilla continues to
14 pursue its charges against him.
15 16. Though the Hapgoods are back at their home in Connecticut, their nightmare
16 continues. They worry that they or other family members will be attacked; they are frightened
17 by everyday occurrences; and any time a family member leaves they worry that they won’t
18 come back. The entire family has sought trauma counseling. Because Scott remains charged
19 with manslaughter, his employer put him on leave, depriving him of his career and depriving
20 him and his family of his full income. Scott has also been unable to coach his son’s football
21 team. And the Hapgoods have received death threats.
22 17. For all this, Auberge is legally responsible. Although this lawsuit cannot end
23 the Hapgoods’ nightmare, it is designed to at least bring them some measure of compensation,
24 to recover their costs incurred, to bring some accountability to Auberge, and to ensure that
25 other Auberge guests are protected in the future.
26 THE PARTIES
27 18. Plaintiff Gavin Scott Hapgood (“Scott”) is an individual residing in
28 Connecticut.
5
COMPLAINT
 1 19. Plaintiff Kallie Buehler Hapgood (“Kallie”) is an individual residing in
2 Connecticut. She and Scott are married.
3 20. Plaintiff Ryan Ruth Hapgood (“Ryan”) is a 15-year-old individual residing in
4 Connecticut. She is Scott and Kallie’s eldest daughter.
5 21. Plaintiff Emma Hope Hapgood (“Hope”) is a 13-year-old individual residing
6 in Connecticut. She is Scott and Kallie’s youngest daughter.
7 22. Plaintiff Winn Thomas Hapgood (“Winn”) is a 11-year-old individual residing
8 in Connecticut. Winn is Scott and Kallie’s son.
9 23. The claims of Ryan, Hope and Winn are brought by Scott, their Guardian-Ad-
10 Litem.
11 24. Defendant, Auberge Resorts LLC, is a Delaware limited-liability company with
12 its principal place of business at 33 Reed Boulevard, # A, Mill Valley, California 94941.
13 25. Plaintiffs are unaware of the true names, capacities, or basis for liability of
14 defendants DOES 1 through 50, inclusive, and therefore sues said defendants by their
15 fictitious names. Plaintiffs will amend this complaint to allege their true names, capacities,
16 or basis for liability when the same has been ascertained.
17 JURISDICTION AND VENUE
18 26. Auberge is subject to general personal jurisdiction in California because it
19 maintains its corporate headquarters here and, on information and belief, decisions regarding
20 management of the Malliouhana are made here.
21 27. Venue is proper in Marin County because Auberge’s principal of place business
22 is in Mill Valley, California.
23 FACTUAL ALLEGATIONS
24 28. Defendant Auberge Resorts LLC (“Auberge”) owns and operates
25 approximately 20 resorts around the world. One of the resorts it owns and operates is the
26 Malliouhana resort hotel (“Malliouhana”) in the West End district of Anguilla, a small
27 Caribbean island with a population of approximately 15,000 people.
28 29. Scott and Kallie booked a stay at Malliouhana through a travel agent. They
6
COMPLAINT
 1 reviewed the Auberge website and decided that the Malliouhana was the type of luxury resort
2 that would be the perfect (and secure) place for a relaxing family vacation. It was the
3 Hapgood family’s first family vacation abroad. Scott, Kallie, Ryan, Hope, and Winn
4 (together, “Plaintiffs”) arrived at Malliouhana on April 12, 2019 at around 2 p.m. They stayed
5 in a suite that combined Malliouhana Rooms 48 and 49.
6 The Nightmare Begins as Scott Is Attacked by an Auberge Employee
7 30. The attack came the next day—April 13, 2019. At the time of the attack, Kallie,
8 Ryan, and Hope were still at the pool. Kallie was returning the snorkeling equipment. Scott
9 and Winn had returned to the room because Scott was having pain due to a herniated disc in
10 his back and needed to rest. Winn asked his father whether he could go to the lobby to get a
11 cookie and Scott agreed. Scott stayed in the family’s rooms watching TV. Ryan and Hope
12 returned to the room. Just a few minutes after they arrived, and were still in their bathing
13 suits, there was a knock on the door.
14 31. Scott came to the door. He saw a man in an Auberge uniform, whom he later
15 learned was named Kenny Mitchel. Mitchel told Scott he had come to fix a broken sink in
16 the room, but that was a lie. The Hapgoods had not called the hotel about a broken sink. Scott
17 told Mitchel he didn’t think there was a broken sink but that he could take a look. Scott went
18 to the bathroom, then went to tell his daughters that someone was in the room and ask them
19 if they knew about a broken sink.
20 32. Scott then turned and saw Mitchel brandishing a utility “Leatherman” knife.
21 Mitchel demanded that Scott give him his wallet and his money. Scott feared for his life and
22 the lives of his daughters.
23 33. A vicious struggle ensued. Mitchel stabbed Scott with the knife and bit him
24 repeatedly. Mitchel, who was trained in Taekwondo and was much younger than Scott,
25 fought very hard, in a crazed manner, clawing and growling. Mitchel’s breath reeked, and
26 Scott believed that he was under the influence of drugs and/or alcohol. The fight was long,
27 sustained, violent and bloody.
28
7
COMPLAINT
 1 34. Seeing that their dad needed help, Ryan and Hope at first tried to pull Mitchel
2 off their father. But Scott then told them to get help and they ran to the resort’s front desk,
3 screaming and crying and asking for help.
4 35. Scott was trying to neutralize Mitchel and keep him from continuing to attack
5 Scott and cause him more injuries. Scott was able to knock the knife out of Mitchel’s hands,
6 and then pin Mitchel down. Eventually other hotel employees entered the room, having
7 responded to the calls from the daughters after they reached the front desk. These hotel
8 employees did not respond with any urgency or act particularly surprised at the event. They
9 even referred to the attacker by his first name, causing Scott to fear that these other hotel
10 employees were in league with Mitchel as part of an orchestrated robbery. Scott told them
11 that the attacker needed to be put into handcuffs.
12 36. By this time, Kallie Hapgood arrived at the scene, and both Kallie and Scott
13 urged the hotel staff to call the police and an ambulance and to put Mitchel in handcuffs.
14 Inexplicably, the hotel staff did not want to call the police or an ambulance and delayed in
15 doing so. Kallie did not know what to do, having been notified just minutes before by her
16 terrified and tearful daughters (whom she came across in the hotel lobby) that their father was
17 being attacked with a knife by a hotel employee. Indeed, Kallie did not know whether her
18 husband was alive when she ran to the room.
19 37. Eventually hotel security arrived. Scott transferred the restraint of Mitchel to
20 the hotel’s security guard, a portly gentleman. Scott told him, “You’re a big guy, you take
21 over.” The hotel’s security guard then restrained Mitchel until an ambulance arrived.
22 38. Scott went to tend to his wounds. Kallie tried to assist him. She took pictures
23 of his several stab wounds and teeth and fingernail marks. Scott had to be taken to a medical
24 facility where he received further treatment.
25 39. From the medical facility, Scott was escorted to the police station, allegedly to
26 give a witness statement. It was there, as he was giving a witness statement, that Scott was
27 told that Mitchel had passed away. Scott was shocked and saddened.
28
8
COMPLAINT
 1 40. Mitchel died after spending about an hour in medical custody of a cocaine
2 overdose as confirmed by the toxicology report and the Prosecution’s medical examiner. In
3 other words, nothing that Scott did in defending himself and his daughters against Mitchel’s
4 attack resulted in Mitchel’s death.
5 Auberge’s Negligence Enabled the Attack
6 41. The security, safety and emergency response measures and procedures at
7 Malliouhana were completely inadequate for any hotel, particularly for a luxury resort. There
8 were no security cameras nor any sort of security infrastructure on site. The person
9 responsible for security on site at the time of the attack doubled as a hotel gardener. And the
10 hotel staff had woefully inadequate training in security and how to respond to emergency
11 situations and procedures to follow, if any.
12 42. Further, the procedures and training for hiring, retaining, and supervising
13 employees at Malliouhana were completely inadequate for any hotel, particularly for a luxury
14 resort. In March 2019, less than three weeks before the attack, Mitchel was arrested and
15 charged with a separate attack and rape. He then spent a night in jail and later breached one
16 of the conditions of his bail. Under the conditions of his bail, Mitchel was required to
17 regularly go to the police station to sign the logbook, which was only available at specified
18 hours. By court order, Mitchel was also restricted from seeing his daughter and the mother
19 of his daughter. Mitchel’s rape case was still pending at the time of the attack. He had
20 breached one or more of the conditions of his bail, which resulted in spending additional time
21 in police custody.
22 43. Auberge was aware, or should have been aware, of Mitchel’s arrest and rape
23 charge before the attack occurred. Not only is Anguilla a very small island where information
24 about happenings on the island is well-known, but, on information and belief, the impact of
25 the rape charge which included Mitchel’s spending a night in jail and having to go to the
26 police station would have impacted his work schedule. In other words, Mitchel would have
27 needed to inform someone at the hotel why he disappeared due to the imprisonment or would
28
9
COMPLAINT
 1 be disappearing or needed to be given a shift to work around the hours of his ongoing police
2 sign ins.
3 44. Further, Mitchel, as a national of Dominica, was not eligible to work in
4 Anguilla with a criminal charge pending. Yet Auberge continued to allow him to work for
5 the hotel and have access to its guests, including children.
6 45. Malliouhana staff also observed Mitchel behaving erratically the day of the
7 attack. He showed up to work two hours late and disappeared for a substantial period of time
8 in the middle of the workday. He never returned to duty. Rather, he showed up to the
9 Hapgoods’ room, acutely intoxicated with alcohol, marijuana and cocaine. His blood-alcohol
10 content was more than twice the typical legal limit for drivers in the United States. Cocaine
11 levels in his bloodstream were more than twice an amount known to be potentially fatal.
12 Levels of cocabenzoid were also acute, indicating that he had consumed the cocaine shortly
13 before his death.
14 46. Mitchel died at the hospital from a cocaine overdose. Though the initial
15 coroner’s report, issued before the toxicology report, and without the benefit of any witness
16 statements, pinned the blame on Scott, subsequent analysis proved that Mitchel died from
17 “acute cocaine toxicity.” Mitchel also had high levels of alcohol in his system.
18 The Nightmare Escalates as Scott Is Charged with Manslaughter
19 47. Despite the abundant evidence that Mitchel was erratic, making it plain that he
20 should at least be tested for drugs and alcohol, local authorities arrested Scott at the police
21 station. First, they talked of charging him with murder, then decided on manslaughter. Scott
22 was charged and arrested and spent the next three nights in jail, where he received constant
23 death threats, including that he would have his head bashed in. By that stage, news of the
24 attack spread through social media (where it was falsely asserted that Scott had attacked
25 Mitchel), an angry mob gathered, forcing the Royal Anguillan Police Force and the Anguillan
26 Premier to issue an appeal for public order.
27
28
10
COMPLAINT
 1 48. Scott was aware of all of these developments, and he was terrified, fearing for
2 his life, and for his family. Kallie and the children also greatly feared for Scott and for
3 themselves.
4 49. Scott had no criminal record at the time of his arrest.
5 50. A magistrate initially denied Scott bail, but that decision was later reversed by
6 the judge who specifically remarked in his judgment that the prison was unsafe because
7 relatives of the deceased’s worked there, as well as other individuals from the deceased’s
8 home island of Dominica. These factors, the judge noted “weighed heavily on the court’s
9 decision, particularly in view of the court’s observations concerning the public furor that this
10 incident excited.” With the help of the U.S. State Department, the Hapgoods returned home.
11 51. Thereafter, desiring to clear his name despite the injustice of the charges and
12 local authorities’ issuance of a formal notice of death threats against Scott, Scott returned
13 routinely, three times, to Anguilla for court hearings. Each time, Kallie and the children
14 worried that Scott would be stuck in an Anguillan prison, or worse.
15 52. When the Anguillan government’s own toxicology results showed that cocaine
16 killed Mitchel, the prosecution nonetheless continued to press its charges against Scott. And,
17 at the conclusion of the last hearing he attended, the Anguillan Prosecutor refused to
18 guarantee that Scott could remain free on bail until any additional hearing and even
19 threatened to charge him with murder, essentially forcing Scott to run the risk that he would
20 be attacked or killed or thrown in a prison where his attacker’s family members worked.
21 53. It was a risk that Scott chose not to take so he did not return to Anguilla, and
22 Anguilla is now continuing to pursue its charges against him.
23 54. Fighting these unfair criminal charges has forced Scott to incur costs for
24 counsel, travel, and security.
25 The Nightmare Continues Even After the Hapgoods Return Home
26 55. Because of the manslaughter charge, Scott’s employer, UBS, put Scott on
27 administrative leave. Scott works in a regulated industry and having a felony charge against
28 him, even one that is demonstrably frivolous, disqualifies him from performing his job.
11
COMPLAINT
 1 Scott’s career is driven entirely by client relationships, which he has not been able to cultivate
2 for the last nine months and which are severely impacted by these charges. Accordingly,
3 Scott has lost income as a result of the attack. Scott and Kallie have also had to spend much
4 of their life savings as well.
5 56. Even though Scott and his family have a strong network of family and friends
6 who have been very supportive, Scott has nonetheless suffered social ostracism from those
7 unaware of the true facts. For example, he was told he would not be allowed to coach his
8 son’s football team because of the charge pending in Anguilla. The children’s classmates are
9 keenly aware of the incident as well which has made it difficult for them to return to a normal
10 life.
11 57. The Hapgoods have also been targeted by individuals who have made death
12 threats against them as a result of Mitchel’s death, and those individuals have also wrongly
13 viewed the attack on Scott and his acts in self-defense as having racial overtones.
14 58. Auberge’s acts have caused Plaintiffs significant stress. Plaintiffs have had
15 counseling for post-traumatic stress, which they have paid for. Everyday occurrences that
16 would not have scared the plaintiffs prior to the attack, now cause them stress. Each trip Scott
17 made back to Anguilla also caused incredible emotional stress as the plaintiffs were not sure
18 if Scott would ever be allowed to return, or worse. The Anguillan authorities issued a formal
19 notice stating that there were death threats against Scott, and the family feared that he would
20 be harmed by locals or at the hands of the legal system.
21 59. Scott also suffered physically as a result of the attack and had to pay for medical
22 treatment. Scott suffered serious physical wounds, including several stab wounds, bite
23 wounds to his nose, ear, and arm, claw marks on his arms, chest and face, and extensive
24 bruising from being beaten. Scott also needed to undergo prophylactic treatment for
25 communicable diseases because Mitchel had blood in his mouth when he repeatedly bit Scott
26 during the attack.
27
28
12
COMPLAINT
 1 60. Scott also had to undergo HIV testing. For 6 months, Scott and Kallie lived in
2 fear that he might have acquired the virus from Mitchel, knowing that he took drugs and
3 having heard from journalists that Mitchel had a reputation as a drug pusher.
4 61. Despite the toxicology results showing that an overdose caused Mitchel’s
5 death, Anguilla has continued to prosecute Scott, and he has incurred substantial costs in
6 defending that prosecution.
7 62. Moreover, purported representatives of Mitchel’s estate have sued Scott in the
8 United States District Court for the District of Connecticut for damages they allege to have
9 suffered as a result of Mitchel’s death, and he has incurred and will continue to incur fees
10 and costs to defend himself in that action.
11 63. For its part, Auberge has been silent and has taken no responsibility for its
12 actions and the effects on the Hapgoods. The Auberge’s initial reaction was to apologize in
13 person, find a lawyer for Scott, and put Kallie and their children up in a new hotel. The
14 Auberge’s general manager said that he was sorry for what had happened to the family and
15 said he “would be horrified” if he had experienced something similar.
16 64. However, once Scott was rearrested and was facing his second night, of a total
17 of 3 nights, in jail, Kallie tried multiple times to reach the hotel’s general manager, Kapil
18 Sharma. After finally reaching him, he quickly said he could not help and abruptly ended the
19 call. The Hapgoods have not heard a word from the hotel since. In addition, on information
20 and belief, the Auberge, as owner of one of the most important, if not the most important,
21 hotels on the small island of Anguilla, an island entirely dependent on the tourism industry,
22 has not urged the authorities to drop the case against Scott. Indeed, the Auberge has failed to
23 do what is right.
24
FIRST CAUSE OF ACTION
25 (Negligent Hiring, Supervision, or Retention of Employee Mitchel)
(By All Plaintiffs)
26
27 65. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.

28
13
COMPLAINT
 1 66. Auberge was entrusted, or should have been entrusted, with the safety and
2 protection of all hotel guests, including Plaintiffs. Auberge was subject to a duty to hire,
3 supervise and retain employees to ensure the safety and protection of all hotel guests,
4 including Plaintiffs. Auberge also knew or should have known that it was subject to a duty
5 to train and to supervise its personnel and have appropriate policies to ensure the safety and
6 protection of all hotel guests, including Plaintiffs, or to ensure that others properly performed
7 those tasks.
8 67. Auberge hired, retained and was responsible for supervising Mitchel.
9 68. Mitchel was unfit and incompetent to perform the work for which he was hired,
10 supervised and retained, and he posed a danger to hotel guests. He was high on cocaine and
11 marijuana and drunk on the job on the day of the attack, had violent criminal charges against
12 him, and had no right to work lawfully under Anguillan law.
13 69. Auberge knew or should have known that Mitchel was unfit and incompetent
14 to perform the work for which he was hired and continued to be employed by the hotel and
15 posed a danger to hotel guests and that this unfitness and incompetence and history of drugs,
16 alcohol, violent criminal charges, and unlawful work status created a particular risk to hotel
17 guests yet he was placed in a position where he could have access to hotel guests, including
18 children, and their belongings.
19 70. Auberge knew or should have known that Mitchel was acutely intoxicated and
20 high the day of the attack. Indeed, Mitchel should have drawn extra scrutiny because he
21 showed up to work more than two hours late and disappeared for more than an hour in the
22 middle of the workday. The fact that Mitchel was acutely intoxicated with alcohol and
23 cocaine created a particular risk to guests staying at the resort.
24 71. Auberge knew or should have known that Mitchel had recently been arrested
25 and charged with rape. The fact that Mitchel had recently been charged with rape created a
26 particular risk to guests staying at the resort.
27 72. Auberge knew or should have known that Mitchel was unfit to work around
28 guests and could pose a serious security risk to guests.
14
COMPLAINT
 1 73. Thus, before Scott was attacked, Auberge was aware of the probable dangerous
2 consequences of its conduct, and that it willfully and deliberately failed to avoid those
3 consequences.
4 74. Mitchel’s unfitness, incompetence and history of drugs, alcohol, violent
5 criminal charges, and unlawful work status harmed Plaintiffs.
6 75. Auberge breached its duty to Plaintiffs in training, supervising, and retaining
7 Mitchel, and engaged in negligent or reckless behavior by, among other things, (1) hiring
8 Mitchel; (2) allowing Mitchel to continue working at the resort following his criminal charges
9 for rape; (3) allowing someone with a drug and alcohol problem to work at the resort; (4)
10 allowing an unlawful employee to continue working at the resort; (5) allowing Mitchel to
11 work even though he showed up late and was high and drunk; (6) allowing Mitchel on the
12 day of the attack while high and drunk to wear an Auberge uniform; and (7) failing to ensure
13 that Mitchel was not given access to guests, particularly in their hotel rooms; and (8) failing
14 to ensure that Mitchel was not assaulting guests.
15 76. Auberge’s negligence in hiring, supervising and retaining Mitchel, an
16 employee on cocaine and marijuana and drunk with a criminal charge pending for rape, was
17 a substantial factor in causing Plaintiffs’ harm.
18 77. The attack and harm to Scott and his family were foreseeable.
19 78. It was foreseeable that a vicious physical attack on a guest in the presence of
20 his young daughters would cause the guest and his family severe emotional distress and
21 mental suffering.
22 79. It was foreseeable that a vicious physical attack on a guest by a knife-wielding
23 assailant would cause the guest to suffer a loss of income.
24 80. It was foreseeable that a vicious physical attack on a guest in the presence of a
25 guest’s young daughters would be met with self-defense, and that legal proceedings would
26 ensue.
27
28
15
COMPLAINT
 1 81. As a proximate result of negligence, recklessness, and/or lack of diligence of
2 Auberge, Plaintiffs suffered damages in an amount to be proven at trial, including but not
3 limited to damages for severe emotional distress and mental suffering.
4 SECOND CAUSE OF ACTION
(Negligent Hiring, Supervision, or Retention of Other Employees)
5 (By All Plaintiffs)
6 82. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.
7 83. Auberge was entrusted, or should have been entrusted, with the supervision of
8 personnel in addition to Mitchel, including the head of security at the Malliouhana, and
9 protection of Plaintiffs, and was subject to a duty to reasonably retain, train, and supervise
10 the other personnel at the hotel, or ensure that others properly performed those tasks.
11 84. Auberge hired, supervised and retained employees, including the head of
12 security, other than Mitchel.
13 85. These employees were and became unfit and incompetent to perform the work
14 for which they were hired, supervised and retained.
15 86. Auberge knew or should have known that these employees, including the head
16 of security were unfit and incompetent to perform the work for which they were hired and
17 continued to be employed by the hotel.
18 87. In particular, Auberge knew or should have known that its guests, including
19 Plaintiffs, needed a safe environment at the hotel. Auberge knew or should have known that
20 its guests, including Plaintiffs, could face security risks and emergency situations requiring
21 an appropriate and reasonable response from hotel staff, police and/or medical professionals.
22 And Auberge knew or should have known that its guests, as well as its personnel, could
23 experience medical emergencies, including alcohol and/or drug overdoses, requiring an
24 appropriate and reasonable response from hotel staff, police and/or medical professionals.
25 88. However, Auberge hired, supervised and retained employees, including the
26 head of security, who were not trained or able, among other things, to provide a safe
27 environment, to identify an employee who was high and drunk and to remove him from work,
28 or to handle emergency situations and medical emergencies.
16
COMPLAINT
 1 89. Auberge also knew or should have known that the security protocols and
2 training of employees at the Malliouhana were inadequate to protect guests, including
3 Plaintiffs, as well as its personnel from violent acts, and inadequate to respond appropriately
4 to emergency situations.
5 90. Thus, before Scott was attacked, Auberge was aware of the probable dangerous
6 consequences of its conduct, and that it willfully and deliberately failed to avoid those
7 consequences.
8 91. These employees’ unfitness and incompetence harmed Plaintiffs.
9 92. Auberge breached its duty to Plaintiffs in training, supervising, and retaining
10 other personnel, including the head of security, and engaged in negligent or reckless behavior
11 by, among other things, (1) failing to hire and train its employees so that they were able to
12 ensure that the hotel provided a safe and secure environment for its guests; (2) failing to hire
13 and train its employees so that they would not allow Mitchel to continue working at the resort
14 or have access to hotel guests, including wearing an Auberge uniform, particularly when high
15 and drunk; (3) failing to hire and train its employees so that they were able to respond
16 appropriately and immediately to the attack once notified of it; and (4) failing to hire and
17 train its employees so that they were able to respond appropriately and immediately to the
18 medical emergency of Mitchel’s being high and drunk.
19 93. Thus, Auberge acted negligently, recklessly or with a lack of diligence when it
20 failed to train and to supervise personnel to ensure the safety and protection of Plaintiffs, or
21 to ensure that others properly performed those tasks.
22 94. Auberge’s negligence in supervising and retaining employees, including the
23 head of security, other than Mitchel, was a substantial factor in causing Plaintiffs’ harm.
24 95. The attack and harm to Scott and his family were foreseeable.
25 96. It was foreseeable that a vicious physical attack on a guest in the presence of
26 his young daughters would cause the guest and his family severe emotional distress and
27 mental suffering.
28
17
COMPLAINT
 1 97. It was foreseeable that a vicious physical attack on a guest by a knife-wielding
2 assailant would cause the guest to suffer a loss of income.
3 98. It was foreseeable that a vicious physical attack on a guest in the presence of a
4 guest’s young daughters would be met with self-defense, and that legal proceedings would
5 ensue.
6 99. It was foreseeable that a staff member like Mitchel might be on alcohol and/or
7 drugs requiring immediate medical intervention.
8 100. As a proximate result of negligence, recklessness, and/or lack of diligence of
9 Auberge, Plaintiffs suffered damages in an amount to be proven at trial, including but not
10 limited to damages for severe emotional distress and mental suffering.
11
THIRD CAUSE OF ACTION
12 (Vicarious Liability for Negligence)
(By All Plaintiffs)
13
14 101. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.

15 102. Mitchel and the other employees of Auberge, including the head of security,

16 were negligent, reckless, and lacked diligence.

17 103. As a result, Plaintiffs were harmed.

18 104. The negligence, recklessness, and lack of diligence of Mitchel and the other

19 employees of Auberge, including the head of security, was a substantial factor in causing
20 Plaintiffs’ harm.
21 105. Auberge is responsible for Mitchel’s assault and the actions taken by hotel

22 employees thereafter because they all acted in the scope of their employment for Auberge
23 and in performing service on behalf of Auberge. Mitchel’s attack occurred during his shift,
24 while he was in an Auberge uniform, and was enabled by his saying he came to the Hapgoods’
25 room to repair the sink. The actions taken by hotel employees thereafter were while in
26 uniform and were done in response to efforts by Plaintiffs to obtain help from the hotel.
27
28
18
COMPLAINT
 1 FOURTH CAUSE OF ACTION
(Premises Liability)
2 (By All Plaintiffs)
3
106. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.
4
107. Auberge owned, occupied and controlled the Malliouhana.
5
108. Auberge was negligent in the use or maintenance of the property, including the
6
security and safety measures.
7
109. Auberge acted with a conscious disregard for the safety of its hotel guests,
8
including the Hapgoods.
9
110. Auberge had actual or constructive knowledge of the dangerous consequences
10
of having inadequate security and safety measures, had actual or constructive knowledge that
11
injury and aggravation of injury was a probable, as opposed to possible, result of having
12
inadequate security and safety measures, and consciously failed to act to avoid those
13
consequences.
14
111. Plaintiffs were harmed as a result.
15
112. Auberge’s negligence was a substantial factor in causing Plaintiffs’ harm.
16
17 FIFTH CAUSE OF ACTION
(Vicarious Liability for Intentional Infliction of Emotional Distress)
18 (by All Plaintiffs)
19
113. Plaintiff repeats and realleges all paragraphs above, as if fully set forth herein.
20
114. The conduct of Auberge and its employees was outrageous.
21
115. Auberge and its employees acted with reckless disregard of the probability that
22
Plaintiffs would suffer emotional distress and mental suffering, knowing that Plaintiffs were
23
present when the conduct described above occurred.
24
116. Plaintiffs suffered severe emotional distress and mental suffering.
25
117. The conduct of Auberge and its employees was a substantial factor in causing
26
Plaintiffs’ severe emotional distress.
27
28
19
COMPLAINT
 1 118. Auberge is responsible for the acts of its employees because its employees
2 acted in the scope of their employment for Auberge and in performing service on behalf of
3 Auberge.
4 SIXTH CAUSE OF ACTION
5 (Vicarious Liability for Assault)
(by Gavin Scott Hapgood, Ryan Ruth Hapgood, and Emma Hope Hapgood)
6
7 119. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.
8 120. Mitchel brandished a knife and demanded money, intending to cause harmful
9 or offensive contact with Scott, Ryan and Hope.
10 121. Scott, Ryan and Hope reasonably believed they were about to be touched in a
11 harmful or offensive manner.
12 122. Further, Mitchel threatened to touch Scott, Ryan and Hope.
13 123. It reasonably appeared to Scott, Ryan and Hope that Mitchel was about to carry
14 out the threat.
15 124. Scott, Ryan and Hope did not consent to Mitchel’s conduct.
16 125. Scott, Ryan and Hope were harmed.
17 126. Mitchel’s conduct was a substantial factor in causing harm to Scott, Ryan and
18 Hope. Scott was harmed, suffering serious stab, claw, and bite wounds and severe bruising.
19 He also suffered severe emotional distress, thinking he and his young daughters might well
20 be murdered. Ryan and Hope also suffered severe emotional distress.
21 127. Mitchel’s conduct was a substantial factor in causing Scott, Ryan and Hope
22 harm.
23 128. Auberge is responsible for Mitchel’s assault because Mitchel acted in the scope
24 of his employment for Auberge and in performing service on behalf of Auberge. Mitchel’s
25 attack occurred during his shift, while he was in an Auberge uniform, and was enabled by his
26 saying he came to the Hapgoods’ room to repair the sink.
27
28
20
COMPLAINT
 1 SEVENTH CAUSE OF ACTION
(Vicarious Liability for Battery)
2 (By Gavin Scott Hapgood)
3
4 129. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.

5 130. Mitchel stabbed, hit, clawed, and bit Scott repeatedly with the intent to harm

6 him and without Scott’s consent.

7 131. Scott was harmed, suffering serious stab, claw, and bite wounds and severe

8 bruising. He also suffered severe emotional distress, thinking he and his young daughters
9 might well be murdered.
10 132. Auberge is responsible for Mitchel’s battery because Mitchel acted in the scope

11 of his employment for Auberge and in performing service on behalf of Auberge. Mitchel’s
12 attack occurred during his shift, while he was in an Auberge uniform, and was enabled by his
13 saying he came to the Hapgoods’ room to repair the sink.
14 EIGHTH CAUSE OF ACTION
(Vicarious Liability for Intentional Infliction of Emotional Distress—
15
Fear of HIV and other Serious Diseases)
16 (By Gavin Scott Hapgood)

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

18 134. The conduct of Auberge and its employees was outrageous.

19 135. The conduct of Auberge and its employees exposed Scott to biting by Mitchel

20 and to Mitchel’s blood.

21 136. Given that Mitchel was both a known drug-user and an accused rapist, fear of

22 transmission of serious diseases, including HIV, was a legitimate fear supported by medical
23 evidence.
24 137. Auberge and its employees acted with reckless disregard of the probability that

25 Scott would suffer emotional distress and mental suffering, knowing that Scott was present
26 when the conduct occurred.
27 138. Scott suffered severe emotional distress from a reasonable fear of contracting

28 or developing HIV or other serious diseases, and

21
COMPLAINT
 1 139. The conduct of Auberge and its employees was a substantial factor in causing
2 Scott’s severe emotional distress.
3 140. Scott’s fear of contracting or developing HIV or other serious diseases was
4 “reasonable” because his fear stemmed from the knowledge, confirmed by reliable medical
5 or scientific opinion, that his risk of contracting or developing HIV or other serious diseases
6 significantly increased as a result of the conduct described above and that the resulting risk
7 was significant.
8 141. Auberge is responsible for the intentional infliction of severe emotional distress
9 because Mitchel acted in the scope of his employment for Auberge and in performing service
10 on behalf of Auberge. Mitchel’s attack occurred during his shift, while he was in an Auberge
11 uniform, and was enabled by his saying he came to the Hapgoods’ room to repair the sink.
12
NINTH CAUSE OF ACTION
13 (Breach of Contract)
(By All Plaintiffs)
14
15 142. Plaintiffs repeat and reallege all paragraphs above, as if fully set forth herein.

16 143. Plaintiffs and Auberge entered into a contract when Plaintiffs booked

17 Plaintiffs’ stay at Malliouhana. Having booked two adjoining rooms, Auberge knew that
18 Scott would be accompanied by his family, including children.
19 144. Plaintiffs did all the contract required, including paying the cost of Plaintiffs’

20 stay.
21 145. Through the acts and omissions described above, Auberge breached the

22 contract, including the covenant of good faith and fair dealing.

23 146. Plaintiffs were harmed as a result of Auberge’s breach and suffered damages

24 in an amount to be proven at trial.

25
PRAYER FOR RELIEF
26
WHEREFORE, Plaintiffs pray for judgment as follows:
27
A. For general damages according to proof;
28 B. For special damages according to proof;
22
COMPLAINT
 1 C. For the first through eighth causes of action, punitive damages in an
2 amount appropriate to punish the Defendants and to deter others
3 from engaging in similar misconduct;

4 D. For pre- and post-judgment interest;

5 E. For cost of suit herein, including attorneys’ fees, to the maximum

6 extent allowed by law; and

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

8 proper.

9 DATED: January 13, 2020 DIAMOND MCCARTHY LLP

10
11
By: ________________________________
12 Thomas Watson
13 Attorneys for Plaintiffs GAVIN SCOTT
HAPGOOD, KALLIE BUEHLER
14 HAPGOOD, RYAN RUTH HAPGOOD,
EMMA HOPE HAPGOOD, and WINN
15 THOMAS HAPGOOD
16
17
18
19
20
21
22
23
24
25
26
27
28
23
COMPLAINT
 1 DEMAND FOR TRIAL BY JURY
2
3 NOTICE IS HEREBY GIVEN THAT Plaintiffs demand a trial by jury in the above-
4 entitled matter.
5
6 DATED: January 13, 2020 DIAMOND MCCARTHY LLP
7
8
9 By: ________________________________
Thomas Watson
10
Attorneys for Plaintiffs GAVIN SCOTT
11 HAPGOOD, KALLIE BUEHLER
HAPGOOD, RYAN RUTH HAPGOOD,
12 EMMA HOPE HAPGOOD, and WINN
THOMAS HAPGOOD
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24
COMPLAINT