Unformatted text preview: CHAPTER 6 – NEGLIGENCE CHAPTER 6 – NEGLIGENCE AND HOSPITALITY PRACTICES
(Applying what we learned last week) Review – Elements of a Review – Elements of a Negligence Claim
Causation Duty Owed by Property Owners in Duty Owed by Property Owners in the Hospitality Industry
• Duty of reasonable care to invitees
– Duty to inspect the premises
– Discovery dangerous conditions and correct them • Owner is not an insurer of safety – owner is only liable if negligent (if the owner does something wrong and that leads to injury) Duty Owed to Guests in Hotel Duty Owed to Guests in Hotel Rooms
Certain conditions can lead to liability if hotel fails to exercise reasonable care. Cleanliness of Hotel Rooms
Cleanliness of Hotel Rooms
• Guests expect a clean room
If room not clean, liability may result
Nelson v. Ritz Carlton – Room not cleaned. Guest reported conditions. Left so room could be cleaned. Sheets were changed. During the night, guest stepped on needle. Awarded $2,500.
Court said hotel is required to use due care to have the room thoroughly cleaned before reassignment. Because hotel keeper failed in performance of this duty, hotel was liable for injury. Beds, Chairs, and Other Seats
Beds, Chairs, and Other Seats
• Defective furniture may lead to liability
What is reasonable to expect?
Safe furniture… The Murphy Bed Case
The Murphy Bed Case
• Facts – Murphy bed lifts up and is stored in wall •
• when no in use. Weighs about 300 lbs. Fell on guests head causing severe injury. Guest sued.
Issue – Does guest need to show defect that caused injury.
Rule – Res Ipsa Loquitur applied (next slide)
Conclusion – Hotel negligent – Judgment for guest.
Lesson – regularly inspect mechanisms to make sure they are operated properly Res Ipsa Loquitur – The thing Res Ipsa Loquitur – The thing speaks for itself
• Used to establish negligence when specific breach by defendant cannot be established.
Applies when: 1. Injuries caused by accident that would not have happened without negligence
2. The thing causing the injury was in the exclusive control of defendant, and
3. The plaintiff did not provoke the accident. Nettles v. Forbes Motel
Nettles v. Forbes Motel
• Facts – Thermostat in hotel room located 6’9” above the •
• floor. Guest stands on stool to adjust thermostat. Stool breaks. Guest is injured and sues.
Issue – Is hotel liable for injury caused by misuse of stool?
Rule – Hotel liable for injury caused by foreseeable misuse.
Conclusion – Hotel liable. Hotel should have foreseen misuse given height of the thermostat, and, stools throughout hotel were in state of disrepair. Liability for Normal Wear and Tear
Liability for Normal Wear and Tear
• To what extent should a hotel be liable when furniture breaks and a guest is hurt? • Hotels and restaurants must regularly inspect the furniture and discard any that is no longer suitable. • Failure to do so may result in liability. Gary Hotel Courts v. Perry
Gary Hotel Courts v. Perry
• Facts – Webbing on chair seat missing. Hotel •
• covered with cushion. Guest sat and chair collapsed.
Rule – Hotel has duty to provide guests with premises that are reasonably safe for use and occupancy.
Application – Hotel breached its duty to provide safe premises.
Conclusion – Judgment for guest. Other Examples
• Hotel liable when bed collapsed when guest was sitting on corner of bed to remove his socks – Evidence from which jury might find that bed was defective and could or should have been discovered by reasonable inspection • Restaurant liable to patron when chair collapsed – Restaurant negligent for failing to properly maintain chair • Sports bar liable where bleachers for watching games were improperly installed and collapsed – Independent contactor hired to do installation, but duty of proper installation was nondelegable Examples where Defendant Not Examples where Defendant Not Liable
• Casino not liable when 350 lb patron was leaning back on stool and it collapsed. Expert testified that stool not defective but it broke because patron leaning back
• Res Ipsa Loquitur did not apply to case where patron was climbing stool and was injured when stool fell stool not in exclusive control of defendant casino Moral of Story
Moral of Story
Regular inspections and repairs reduce risk of liability, why… • 1. Less Injuries
• 2. No liability if acting reasonably and no breach of duty Windows, Fixtures, and Screens
Windows, Fixtures, and Screens
• Same rule applies – duty to inspect for defects and fix them • Riverboat casino liable when decorative window frame fell and injured patron. Defendant negligent because frame negligently maintained. Rue v. Warner Hotel
Rue v. Warner Hotel
• Facts – Hotel guest injured when he was closing •
• window and it shattered. Evidence showed that putty around frame was old and decayed, a defect that could have been detected with reasonable inspection.
Rule – Hotel has duty to inspect and fix dangerous conditions.
Application – Hotel breached duty by failing to inspect and repair.
Conclusion – Judgment for guest. • Window shade fell on guest. Res ipsa loquitur applied. • Hotel liable Maintaining Fixtures in Good Maintaining Fixtures in Good Condition Protect from Liability
• Child in hotel room pushed against window screen and fell through. – No evidence of defect or poor maintenance. • Hotel not liable. It is not an insurer of its guest’s safety. • Only liable if it fails to exercise reasonable care. Electrical and Heating Hazards
Electrical and Heating Hazards
• Duty – Electrical and heating devices must be maintained in good working order. • Reid v. Ehr – Hotel liable when guest suffered a shock when she turned on the light. Court found hotel breached duty to use reasonable care in maintaining and inspecting equipment in room. Johnson Construction v. Opez
Johnson Construction v. Opez
• If responsible party cannot be identified, liability will not result • Airport employee noticed smoke. Entered unlocked room and burned by exploding electrical panel. • Construction company had been working in room and had duty to lock door. But evidence showed that others were given the key. No evidence that construction company left door unlocked. • Without proof of wrongdoing, liability cannot attached. Wilson v. Benoit
Wilson v. Benoit
• Facts – Guest at hotel killed by gas explosion •
• caused by defective hose connection to gas heater.
Issue – Was guest contributorily negligent by being drunk?
Rule – Defendants negligent has to “contribute” to injury.
Conclusion – No causal connection. No contributory negligence. Hotel negligent. Hotel liable. Animals and Insects
Animals and Insects
• Hotel will be liable if negligence leads to presence of animal that causes injury – Hotel liable when guest laying in bed was bitten by rat.
– Evidence showed significant presence of rats on the premises.
– Hotel negligent for failing to inspect, discovery, and remove rats. Copeland v. The Lodge
Copeland v. The Lodge
• Guest at hotel bitten by spider while sleeping causing disfigurement.
• Guest sues for injuries and husband sue for loss of consortium
• Defendant moved for summary judgment claiming (1) they fulfilled •
• duty to maintain safe premises (2) duty did not include protecting against brown recluse spiders b/c risk not foreseeable (3) not insurer of safety (4) their conduct did not create or worsen the risk.
Evidence show effort by hotel to control pests
Never cited for deficiencies
But plaintiff expert said brown recluse spiders are common and reasonable care would have solved spider problem
Duty to provide a reasonably safe premises and protect from dangerous conditions.
Sufficient evidence to go to jury on whether exterminator was negligent in performing services. Summary judgment reversed. Brasseaux v. StandBy Corp.
Brasseaux v. StandBy Corp.
• Guest sued hotel when she was stung by a bee while in the shower. Defendant admitted knowledge of beehive outside window, but told no one. No reports of bees inside rooms. • Foreseeable that bees would come inside
• Hotel was negligent for failing to remove the hives and for failing to warn guests of the bee’s presence. • Holding – Hotel liable. Bathroom Appliances and Bathroom Appliances and Showers
Routine inspections reduce liability. If broken, then repair. Water Faucets
• Brown Hotel v. Marx – Guest cut hand when •
• porcelain faucet broke into pieces. Hotel failed to regularly inspect.
Hotel could not prove guest was negligent and therefore could not rebut presumption of negligence.
Lonsdale v. Horne – spigot spun around and injured guests hand. No evidence of cause. No evidence that defect could have been discovered. Owner not liable. Showers
• Wolfe v. Chateau Renaissance – temperature got very hot, causing guest to fall and suffer injuries. Res ipsa loquitur applied. Sudden gush of hot water suggested malfunction and negligence on part of hotel which had exclusive control over the plumbing and heating devices. Inspections can save…
Inspections can save…
Bearse v. Fowler – Guest sustained injuries when she slipped an fell in bathroom when trying to shut off hot water. Records showed that knob was brand new and no evidence that hotel knew of any defect. Judgment for hotel. Owner inspected shower handles daily and had no difficulty. Thus, he was unaware of any defect. Thus, not negligent. Hand Bars and Grips
Hand Bars and Grips
• These things require inspection and repair, otherwise, •
• liability may result.
Sheridan Holiday Inn v. Poletis – Guest fell when lowering himself into bath and bar broke injuring his back.
Rule – Ordinary care to keep property in reasonably safe condition.
There was enough evidence to supporting a finding of negligence – rotted wall…
Damages $75k supported by evidence – left to jury to decide Bathroom Doors
• Broken hinges can cause doors to fall and injury guests.
• Inspection can show diligence and prevent liability In Room Hot Tubs
In Room Hot Tubs
• Present obvious risks – must be maintained.
• Example – Guests filled hot tub. Filled it with balloons. Came back to room. Got in hot tub. Suffered burns. Hot tub complied with specifications. Guests acknowledged risks were open and obvious – so there was no duty to warn. No liability. Areas of the Hotel Open to Areas of the Hotel Open to Public
• Special precautions should be taken in lobby because it is area most frequented by public. • Walkways should be clear, furniture inspected and safe, no bumps or holes in carpet, etc. • Duty is the same as other areas of hotel, but different considerations based on volume of traffic Elevators
• Generally ordinary care is required, but some •
• states require a higher degree of care.
Self Service – Hotel and repair service can be held liable for injuries.
Maintenance – Responsibility is nondelegable.
Escalators – Same objective standard of ordinary care, but elevated vigilance advised. Doors
• Property owners must exercise reasonable, •
• ordinary care to keep premises reasonably safe.
Adhere to inspection and maintenance plan.
Example – Door at Pizza Hut came off and hit plaintiff in head. Pizza Hut said can’t prove negligence. Court said defendant failed to demonstrate reasonable maintenance schedule. Crowded Doorways
• Attendant normally unnecessary. But look at circumstances and risks…
• Schubert v. Hotel Astor – If hotel is aware that there will be large crowd, duty exists to use an attendant to ensure safety of patrons
• Hotel Liable when large crowd rushed door and injured guest. Automatic Doorways
• Like escalators – require regular examination and prompt repair if any defect discovered. More vigilance because more dangerous.
• Example – Guest at hotel injured with automatic door stopped. Expert testified there was no regular maintenance schedule. Casino found negligent. Sliding Glass Door
Sliding Glass Door
• Sheppard v. CrowBarker – Plaintiff’s son •
• walked though sliding glass door. Hotel denied liability based on comparative fault. Jury said no fault by plaintiff and awarded $445k.
Duty – Avoid subjecting guests to foreseeable harm.
Door was not made with safety glass. Hotel had changed out other doors, but not this one. Hotel on notice of dangerous condition and had duty to warn. Hallways
• Same duty to maintain in reasonably safe conditions – what that means is based on the circumstances. Steps
• Guests are entitled to assume that stairs are • clear of dangerous impediments and otherwise reasonable safe.
– Properly construct
Install railings Keep stairs clear
Adequately light More on Stairs
More on Stairs
• Proper construction is regulated by building •
If carpeted, staples must not protrude
Carpet cannot slide or wrinkle – no gaps
Fields v. Chappell – Guest fell down steps at hotel. Court said hotel not insurer of safety, but required to exercise ordinary care to keep property safe and not expose guests to danger. Hotel liable because it failed to inspect, discover and repair dangerous conditions. Restaurants
• Duty to exercise reasonable care to avoid conditions relevant to restaurants that can cause injury.
– Slippery floors – no traction, overwaxed…
– Foreign substances – water – diligent cleaning may avoid liability – even if injury occurs…
• Inspection and maintenance policy – if you have one, stick to it. – No liability if dangerous condition is obvious – don’t count on this one… Constructive Notice
When a condition has existed for a sufficiently long period of time, such that the facility should have discovered the problem in the ordinary course of monitoring the premises – based on the circumstances Demaille v. Trump Castle
Demaille v. Trump Castle
• Plaintiff slipped on one of several puddles of • • partially melted ice on marble floor.
Rule – To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discovery and remedy it.
Testimony regarding size of melted ice cubes and size of puddles show that puddle had been there for a while to provide constructive notice. Other Examples
• WalMart not liable when patron slipped on dirty macaroni. No evidence that it had been there for a while.
• Outback potentially liable (enough to beat summary judgment) when patron slipped on mashed potatoes. Dirt in mashed potatoes was enough evidence from which jury might find it was around for a while… Importance of Enforcing Policy
Importance of Enforcing Policy
• Keep records of inspections – times
• Evidence that condition was not around long enough to constitute constructive notice • Negligence may be inferred if defendant fails to comply with its own policy Placement of Chairs and Tables
Placement of Chairs and Tables
• Overcrowding can lead to dangerous conditions and liability.
• Must have adequate space so that guests can move around without tripping
• Limits on room occupants
• Evidence – experts if not within knowledge of lay person Hanging Mirrors, Menu Boards and Hanging Mirrors, Menu Boards and TV’s in Restaurants
• Very common
Vigilant inspection required
Res Ipsa Loquitur wll apply if object falls… Duty to Guests Outside
Duty to Guests Outside
Pools General Duty – Ordinary Care General Duty – Ordinary Care Based on Circumstances to Provide Reasonably Safe Property.
…It’s outside, so circumstances are different. If the hotel invites the guests to use the property, hotel may be liable. Sidewalks
• If a guest is required to use it to access the hotel or restaurant – i.e., from parking lot – then hotel or restaurant should maintain it.
– Property lighting
– Clear of debris
– Defense – open and obvious danger… • McDonald’s liable when patron slipped outside entrance where McDonalds replaced paving with tile that did not meet code. Swimming Areas
• Often times highly regulated. Must comply or •
• else negligent per se…
Hotel not insurer of guest safety but is liable if it fails to exercise reasonable care.
Be sure to remove hazards. Equipment should be well maintained.
Comply with statutory requirements
Maintain safety equipment
Control boisterous conduct of guests Duty to Exercise Reasonable Care Duty to Exercise Reasonable Care to Provide for Guests’ Safety
• Fires – liability may result from inadequate fire safety equipment, delays in notifying fire department and guests, failing to train employees • Many statutes and building codes apply Security
• Business must take reasonable steps to guard against risk of assaultive behavior. • Duty does not extend to unforeseeable or unexpected criminal acts by third persons. • Foreseeability is an important factor in determining whether a hospitality defendant had a duty to protect patrons from criminal acts of third parties. • Security should match circumstances Medical Care
• Hotel does not have to offer medical care. If it does, it must do so with reasonable care.
• Hotels usually don’t refer doctors but they may have a list.
• May be liability for failing to call ambulance ...
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This note was uploaded on 10/08/2011 for the course HTM 120 taught by Professor Staff during the Spring '11 term at S.F. State.
- Spring '11