Hospitality Law Chapter 2

Negligence Doctrines Generally Favoring the Plaintiff 1. Res Ipsa Loquitur: the doctrine meaning ‘the thing speaks for itself” which frees the plaintiff from the burden of proving the specific breach of duty committed by the defendant. It applies where an accident would not normally happen without negligence and the instrumentality causing the injury was in the defendant’s exclusive control. It applies in cases where the circumstances suggest the defendant was negligent, but no proof of specific acts of negligence exists. Example, plaintiff is walking by a flour factory when for an unexplained reason a barrel of flour falls out of a window and injures plaintiff. Because he was not inside the factory at the time of the incident plaintiff cannot prove why the barrel fell from the window. Yet the occurrence is such that it would not have happed without negligence on the part of someone inside the factory. The doctrine of res ispa loquitur creates an inference that defendant was negligent and allows the plaintiff to proceed with the lawsuit without having to prove through witnesses or otherwise the specific way in which the defendant was negligent. To use the doctrine the plaintiff must prove the following three elements: a. Plaintiff’s injury was caused by an accident that would not normally have happened without negligence; b. The thing causing the injury was within the exclusive control of the defendant; and c. Plaintiff did not provoke the accident. 2. Children and the Reasonable Person Test: children do not comprehend dangers obvious to more mature persons. Nor are children able to weigh cause and effect accurately. The law excuses a young child from negligent acts; a person injured by a young child’s acts is not entitled to compensation. 3. Reasonable Accommodations for Children: a hotel must anticipate dangers and use reasonable care to protect against them when furnishing a room that will be occupied by children. 4. Attractive Nuisance Doctrine: a potentially dangerous object or condition of exceptional interest to young people, such as a swimming pool, a large empty box, etc. If an attractive nuisance exists on the property the owner or occupier is required to exercise reasonable care to protect a child from associated risk. The Elements of an attractive nuisance are the following: 1. A condition exists that is attractive to children and is likely to cause them injury 2. The owner or occupier of the land knows or should know of the condition; and 3. Due to the child’s immaturity, he does not appreciate the danger. 5. Negligence Per Se Doctrine: describes an act that violates a law or ordinance designed to protect the safety of the public. Such acts are treated as negligence without any further proof of breach of duty. When applicable, this doctrine is of great help to the plaintiff because he does not have to prove that defendant failed to act as a reasonable person. Instead the only facts the plaintiff needs to prove are the existence of the law or ordinance, defendant’s violation of it, the extent of the injury and proximate cause between the violation and the injury. The reasoning supporting this doctrine is that the propriety of an establishment has a duty always to comply with legal mandates designed to protect patrons. Obligations Beyond Regulation: suppose a hotel fully complies with a statute but the requirements of the law are inadequate to protect the guests. Can that hotel be found negligent for failing to do more than the law requires. Yes! The hotel has a duty to exercise reasonable care to protect guests from injury. If satisfying the law falls short of reasonable care, the hotel must do more than what the stature requires. Strict or Absolute Liability: normally defendants are not liable unless they do something wrong. Eg. if a guest trips and fall because he is drunk, the property will not be liable for any injuries, since the restaurant did not breach any duty owed to the customer. One exception called strict/absolute liability exists. If applicable, a defendant will be liable even though it violated no duty and did nothing wrong. Strict Liability imposes liability from an ultra-hazardous activity upon those who engage in it. Such activities might include keeping wild animals or using explosives. This doctrine imposes liability for resulting injuries even if the defendant took every precaution and was not negligent. Strict Product Liability: this doctrine is an extension of the strict liability to sellers of defective products. It imposes liability on the seller of a defective product without regard to negligence. A product is defective for this purpose if it is designed or manufactured improperly or if it contains adequate warning of danger it present. 6. Respondeat Superior (let the master answer): in general an employer is liable for the acts of its employees done in furtherance of their jobs. They are liable to their customers, guests and other invitees for the negligence of their employees. The doctrine is funded on the theory that an employee is an agent of the employer; whenever an employee is performing the duties of the job he is acting on behalf of the employer. Nondelegable Duties: an exception exists to the rule that an employer is not liable for the acts of an independent contractor. Normally the duty imposed on a hospitality facility to keep the premises reasonably safe for guest is nondelegable, meaning it cannot be transferred or delegated to another. For policy reasons, the employer is not permitted to avoid liability on the ground that the independent contractor failed to properly perform the work. This is intended to motivate property owners to monitor carefully the work of the independent contractors it hires. Duty to Aid a Person in Distress: if someone in need calls out to you for help you are not obligated to offer assistance and will not be liable for the resulting injuries to the person in trouble. The law does not impose a legal penalty on individuals for refusing to rescue someone in trouble. However if someone does come to the aid of another the law imposes a duty on the rescuer to exercise reasonable care. While no liability would have resulted had the rescuer chosen to do nothing, liability will result if a rescue attempt is done improperly. Duty to Invitees in Danger: the law in some areas requires hotels and restaurants to lend a hand under certain circumstances. These include situations where the injury was caused by something under the defendant’s control, and lack of care would aggravate the injury. Limitation on Duty to Invitees: if the guest who is in danger is being cared for by others who appear competent to render the necessary assistance, the hotel does not have a duty to offer aid. Statutory Protection for Good Samaritans: laws that protect a person who reacts in an emergency situation by trying to help a sick or injured person or someone in peril. The rescuers will not be liable for any injuries caused in the attempt to render assistance if the means used were reasonable in relation to the emergency conditions at the time. Rescue Doctrine: benefits a rescuer who is injured while administering aid. It provides that a person who negligently creates peril and thereby endangers another person is liable for injuries to a rescuer who comes forward to office assistance. Rule in Choking Situations: relieves a restaurant from liability for failing to aid a choking patron. Negligence Doctrines Favoring Defendants 1. Contributory Negligence and Comparative Negligence Contributory Negligence: if plaintiff’s negligence contributed to the injury, plaintiff cannot successfully sue a negligent defendant. Instead, the case will be dismissed. Defendant will not be liable for plaintiff’s loss and plaintiff must absorb the full extent of the injuries. Comparative Negligence: plaintiff’s negligence will not defeat the law. Instead the jury will allocate the liability between the plaintiff and the defendant depending on their degree of culpability based on a total of 100 percent. The Doctrine of Last Clear Chance: the defendant will be liable for failing to prevent the injury even if negligent acts of the plaintiff initially put him into peril. Four elements must be established before the doctrine will come into play: 1. The plaintiff has been negligent. 2. As the result of this negligence, plaintiff is in a position of peril that cannot be escaped by the exercise of ordinary care. 3. The defendant knew or should have known of the plaintiff’s peril. 4. The defendant had a clear chance by the exercise of ordinary care to avoid the injury to the plaintiff, but failed to do so. 2. Assumption of Risk: this doctrine benefits the defendant and applies in cases where the plaintiff voluntarily engages in conduct known to present a risk of injury. If plaintiff in injured as a result of that risk, plaintiff cannot successfully sue for the loss. Instead the plaintiff is said to have assumed the risk, that is, accepted the chance that injury might occur and impliedly agreed not to sue if it does. Negligence and Hospitality Practices Duty Owed Guests in Rooms Cleanliness of Hotel Rooms: if a guest room is not cleaned well, liability can result. Beds and Other Furniture: injuries caused by defective beds and furniture are permitted recovery. Windows, Window Fixtures, and Screens: the duty to inspect for defects and remedy exists in regards to windows and screens. Maintaining appropriate fixtures in good condition can protect a hotel from liability. Electrical and Heating Hazards: electrical and heating devices must be maintained in good working order. Animals and Insects: if a guest is injured by an animal or insect and the hotel or restaurant’s negligence led to its presence, liability will result. Bathroom Appliances and Hot Water: the rule of negligence applies in hotel bathrooms involving defective appliances and plumbing systems. Duty Owed Guests and Others in Public Areas Lobby: because the lobby is the most frequently used public area of a hotel, special precautions should be taken. Frequent and regular inspections should be made to ensure the walkways are not blocked by suitcases or otherwise. Elevators: they are in great demand and accidents occasionally occur therefore the hotel is obligated to use at least ordinary care in its maintenance and operation. Doors: the duty to exercise reasonable, ordinary due care to keep the premises reasonably safe applies also to doors. Hallways: when being cleaned can be troublesome, especially when being washed or waxed, therefore care should be exercised. Barriers and warning signs can prevent an accident and a lawsuit. Stairways, Steps and Their Coverings: guests are entitled to assume that steps and passageways are clear of dangerous impediments and otherwise reasonably safe. Escalators: need maintenance attention. Injuries can result if an escalator is not working properly, if it is overcrowded from too many people, if children or others are permitted to run or engage in other horseplay while riding, or if scratches, holes, or other damage to the steps develop and go unattended. The railings and access areas must be inspected and any dangerous conditions removed. Duty Owed in Restaurants and Dining Rooms Slippery Floors: accidents caused by slippery floors are not infrequent in dining rooms, banquet halls, and bars. Highly polished and waxed floors are the cause of most slippery floor cases. The restaurant must be sure the type of wax or polish being used is appropriate for the particular floor before it is applied. They must also make sure that it is applied consistent with the directions that accompany the product. Foreign Substances on the Floor: another main cause of slippery floor accidents. The restaurant must inspect the floor regularly for spilled or dropped substances and clean the floor when such substances are found. Importance of Enforcing a Policy of Frequent Floor Cleaning: helps a restaurant establish that it exercised reasonable care and thus was not negligent where it enforces a policy of frequent inspections of the floor Placement of Chairs and Tables: if tables in a dining room are so close together that walking between them is difficult, a diner may foreseeably be injured. Hanging Mirrors in Dining Rooms: this can cause injury. The restaurant must be vigilant to ensure such mirrors remain securely attached. Ceilings: improperly built or supported ceilings is another condition that can cause significant injuries and give rise to liability. Serving Flambé Foods: these dishes must be handled with great care if attempted as they add an element of danger. Serving Hot Liquids: it is foreseeable that customers may spill hot drinks purchased at restaurants and liability can result if the drinks cause burns. Therefore restaurants should not overheat tea, coffee, hot chocolate and other drinks that must be served hot. Duty Owed Guests Outside Outside Door Service: a hotel or restaurant is not required to furnish door attendants or valets but if it does, the hotel or restaurant is liable if it is negligent. Grounds: a restaurant should inspect outside areas regularly and if obstructions such as stones, debris etc are found they should be removed immediately. Cracks and holes should be repaired. Outdoor Sporting Facilities: the hotel owes its guests a duty of reasonable care in the maintenance of all its sports facilities. Outdoor Lighting Requirements: the hotel and any area used by the public must be properly lighted. Duty Owed Guests in Swimming Areas Exercise Reasonable Care: a hotel is liable if it fails to exercise reasonable care. Introduce No New Hazards: a hotel may be liable for leaving maintenance equipment in the vicinity of the pool. Comply with Statutory Requirements: failure to comply with safety requirements imposed by statutes on pool operators can result in liability under the doctrine of negligence per se. Safety Equipment: hotels with pools must maintain necessary safety equipment to rescue a swimmer experiencing difficulty in remaining a float. Act on Superior Knowledge of Dangers: a hotel with superior knowledge of the danger presented by a situation is liable for resulting injuries. Comply with Pool Safety Procedures: following the safety policies concerning maintenance of swimming pools can protect a hotel from liability. Warn Guests of Unusual Natural Hazards: a hotel must warn its guests of non-obvious dangers associated with swimming. Restrict Use or Warn of Hazards in the Water: the hotel has to restrict the area or warn bathers of hazards such as sporting equipment in the water. Inspect for Glass in Pool Area: the hotel has to exercise ordinary care by inspecting the pool regularly to make sure that it is safe. Inspect Lake Bottoms for Hazards: if a hotel invites its guest to swim in a natural body of water its duty of reasonable care requires it to inspect the bottom for dangerous objects and remove any found, or warn swimmers, prohibit swimming in the area or prevent the cause of the dangerous objects. Control Boisterous Conduct of Guests: when boisterous conduct and horseplay are allowed in the pool area, accidents may occur; the hotel must stop such when it is noticed. Expect Protection From Guests’ Negligence: if a guest is negligent and the pool operator is not, the latter will not be liable when the guest is injured. Special Duties Fire: liability can result from inadequate fire safety equipment, delays in notifying the fire departments and guests about a fire, and failing to train employees on how to act in a fire. Maintain Fire Safety Equipment: all hotels and restaurants are required These include: fire to have equipment for fire protection. extinguishers, sprinkler systems, smoke detectors, fire alarms, smoke and fire dampers, voice communication systems, exit illumination, posting of maps showing exit routes, emergency lighting, evacuation plan etc. Train Staff on How to Respond to a Fire: when a fire breaks out, the hotel has a continuing duty to exercise reasonable care to protect the safety of its guests. Security Maintain adequate staff and security procedures: a hotel will be liable to a guest if the hotel security department is understaffed, the staff is undertrained, or staff responds poorly. Matching security to circumstances: the type of security that would constitute ordinary care in a relatively quiet and tranquil location with a low crime rate might be considered grossly negligent if employed in a high-crime areas with a history of muggings and unauthorized entries into guests rooms. Matching security to neighborhood crime rates: when a local crime rate is high, a hotel should foresee and anticipate the possibility of criminal activity together with resulting injury or loss to patrons. Appropriate security measures must be adopted. Adequate security can eliminate liability: if a hotel takes adequate security precautions but a guest is nonetheless attacked, the hotel will not be liable. Security personnel and firearms: a gun in the hands of even a well trained guard can present dangers; however an unarmed security guard may be of only limited help in the event of an attack, and the hotel or restaurant that employs the guard risks civil liability for any injuries the guard incurs. Duty owed by hotel to security personnel: just as the hotel is liable to its guest for failing to use reasonable care to protect their safety, it is likewise liable to its security guards. Medical Care: a hotel is not required to offer its guests medical services. To avoid legal complications surrounding the issue of medical care, most hotels will avoid recommending a doctor. Instead, the hotel might provide a list of available physicians and require the guest to select. This eliminates the possibility of a claim against the hotel for negligence where a doctor is recommended by the hotel malpractices and the guest is injured as a result.