2010-Chapter 8 outline

Hotel, Restaurant, and Travel Law

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Unformatted text preview: Week Seven Chapter 8 (to page 303) Week Innkeeper Liability for Guest Property. Innkeeper *An innkeeper’s guests bring a lot of stuff in the form of personal property to the innkeeper’s form premises, including: premises, *Money *Jewelry *Computers/electronic devices *Clothing Clothing *Sports equipment *Cars *Even pets *Loss of guest property can occur: * due to theft by other guests, trespassers or employees employees *Due to innkeeper negligence. *Due to guest negligence. *Due to unknown or unproveable reasons. *An innkeeper owes a duty to protect guest property. property. *There is also a duty to provide reasonable safety and security for any guest, invitee or licensee who and enters the premises. *Some innkeeper conduct might not meet that duty and would be negligent. and *Ways to avoid negligence resulting in property loss may include: may *Sufficient security personnel. *Warnings to guests to lock rooms and put valuables in a hotel safe. valuables *Installing closed-circuit televisions to monitor hallways. hallways. *Replacing traditional keys with swipe cards to avoid the possibility that outsiders would have avoid access to rented rooms or the premises, as a access whole. whole. *If guest property is lost or stolen while on premises, the guest may sue the innkeeper. *If they have insurance for the loss of their property, the innkeeper remains liable, but it will be their the insurance company that may now sue. insurance *The insurance company gets whatever rights to sue that the guest had after it pays the guest’s sue (their insured) claim – the claim is subrogated to (their the insurance company. *Any defenses that the innkeeper had against the guest, would still be available against the insurance guest, company. company. *Innkeeper’s liability for loss of Guest property. *According to common law, innkeepers were fully liable for any loss of guests’ property occurring on liable hotel premises. hotel *This is a form of strict liability. This *Three exceptions will result in no liability: *Loss caused by an “act of God” – severe weather or natural disaster. or *Loss caused by a “act of war” – terrorist attack or bombing. bombing. *Negligence by the guest – The guest left their door open or left their luggage unattended in the lobby. open *Under current law, the three possibilities as to liability for loss of guest property are that the liability innkeeper will have: innkeeper *Full liability; *Limited liability (a maximum limit for the amount they can be liable for a particular loss); or they *No liability. *Liability Limiting Statute - By state statutory law, an innkeeper’s liability is now limited to a maximum an amount for each loss so long as the innkeeper amount complies with the requirements of the statute. complies *The limited amount may be as low as a few hundred dollars depending upon the situation, even hundred if the loss ranged into the thousands. if *With regard to the loss of Guest “valuables that belong in a safe,” the innkeeper liability will be belong limited to the statutory amount if: limited *Provide a safe for use by guests *Must be available 24/7 – whenever guests may check in. check *Safe must be reasonably secure. *Post notices announcing availability of safes in all required places under the statute. required *Post notices announcing that liability will be limited if the guest uses the safe. if *If the innkeeper does not comply with the statute, in any way, its liability will be full liability – meaning in the common law rule will be applied. the *What Property Belongs in the Safe? *Not all property is appropriate *Most state statutes require the following property to be deposited in safes: to *Money. May include gambling chips. *Jewels *Ornaments *Bank notes, bonds, negotiable securities *Precious stones *Other articles of similar value *Hotel liability, and any limitation thereof, may apply during guest check-in or check-out. during *When the person becomes a guest, the duty to protect their property begins. protect *That duty would not end until a reasonable time after the relationship ends – when they cease to be after a guest, as discussed earlier. guest, *The innkeeper’s coverage under the liability limiting statute - the right to limited liability - would limiting also be effective from check-in to check-out. also *The same duties and limitation would generally apply when guest property is in transit to the apply innkeeper’s premises, though already accepted by innkeeper’s the innkeeper. the *Even in the innkeeper’s own restaurant, the guest status would apply to a guest, though not to other status patrons of the restaurant who are not guests of the patrons innkeeper. innkeeper. *Some states’ statutes may require a hotel to maintain suitable locks and bolts on doors and maintain fastening on windows to benefit from limited fastening liability. liability. *This is especially true for a liability limiting statute that covers the loss of guest property that does not that belong in the safe. belong *Such a statute might apply to articles of clothing, inexpensive watches, sporting equipment, camera, inexpensive or laptops. or *The limitation may, or may not, apply to items stored in the innkeeper’s baggage storage, as stored opposed to kept in the guest’s own room. *Under any of the liability limiting statutes, if the guest can prove that the innkeeper’s own guest negligence caused the loss, the innkeeper’s liability negligence would go back to full liability, losing protection would under the statute. under *When innkeeper negligence is proven, the innkeeper would also have the available defense of innkeeper comparative negligence due to the guest’s comparative unreasonable conduct contributing to their loss. unreasonable *In any event, the absolute liability rule and the applicable liability limiting statutes generally do not applicable apply to guests’ cars, the property of nonguests, or apply the property of restaurant or gift shop patrons of the the hotel. *The issue of liability in these situations would be governed by law of bailments. governed *Guest property lost due to fire. *Most states now limit or eliminate and innkeeper’s liability due to fire, if fire is not a result of hotel’s liability negligence. negligence. *As with other losses, the hotel will generally be fully liable if the fire is caused by the hotel’s fully negligence. negligence. Week Eight Bailment. Chapter 8 (page 303 to end) •A bailment is a transfer of possession of tangible personal property from one person to another with understanding that property will be returned. •There are two parties involved in the transaction. •Bailor—person transferring possession of property •Bailee—person receiving possession The essential elements of a bailment: •Personal property; Land cannot be bailed. Intangible personal property, such as intellectual property or shares in a corporation would not be the subject of a bailment. •Delivery of possession; •Acceptance of possession; •Although the text states that bailment agreement is necessary, there won’t be an actual agreement in a constructive bailment. Also, an agreement requires consideration and a bailment can exist where the bailor, or bailee, gets all of the benefit and the other gets none. •The main legal issues in bailment are: •Did a bailment exist? •What property was the subject of the bailment? •If property was bailed, what was the duty owed by the bailee to protect the bailor’s property? •Is there a duty of the Bailor? •Did a bailment exist? •Did the bailor deliver possession? •If bailor’s tangible personal property was not actually given to the bailee, then the bailment never happened. •If an owner of a car pays a garage for the right to park the car in the garage, but the owner parks and locks the car and leaves with the keys, the owner never delivered possession of the car to the garage. •A coat hung, by a patron, on an unattended coatrack in a restaurant, was never delivered to the restaurant. •Did the bailee accept possession? Did the bailee intend, expressly or impliedly, to accept possession of the bailor’s property? •A coat checked in a restaurant’s attended • checkroom is bailed. •Jewelry in the pocket of the coat was not known of by the restaurant, so it was not bailed and the restaurant would not be liable for the jewelry. •If the restaurant’s employee, the coat-check person, knew or should have known of the jewelry’s presence in the pocket, they would have to refuse possession of the jewelry, or it is probably bailed. •Objects in the locked trunk of a bailed car may be bailed along with the car, as the bailee knew or should have known that the trunk would contain such objects. •Objects hidden inside the interior of the car were not bailed, as the bailee had no knowledge of their presence. •A Bailee has a duty to protect the bailor’s property while it is in the bailee’s possession. •The bailee would be liable only if it fails to exercise the amount of care required in tending to bailed goods •The care required of the bailee depends upon type of bailment •There are three types of bailment: •For the sole benefit of the bailor; •For the sole benefit of the bailee; or •Mutual benefit. •Bailment for the sole benefit of the bailor •When the bailee receives no benefit from the bailment. •For example, as a favor, a neighbor fixes another neighbor’s lawnmower without being compensated for the work. The one doing the repair is the bailee. •In this case, the bailee is obligated to exercise only a slight degree of care. •That slight degree of care owed translates into the bailee being liable only for gross negligence. •Anything less than gross negligence would not give rise to liability. •Bailment for the sole benefit of the bailee •As when a Bailor lends property to a bailee and receives nothing in return. •For example, a caterer has a job lined up, but not enough equipment to work it. If that caterer borrows the equipment from a friend who owns a restaurant and does not have to pay the restaurant in return, the bailee-caterer gets all of the benefit. •In this case, the bailee is obligated to exercise great care to protect the bailor’s property. •The bailee could be liable for damages, even if they acted reasonably. They would have to work harder than “acting reasonably” to protect the bailed property. •Mutual benefit bailment •The most common form of bailment •Bailment for hire is this form. •For example, An owner takes a vehicle to a repair shop for brake work. The owner gets the repair and the shop gets paid - both parties receive some benefit. •Bailee’s duty to exercise ordinary, or reasonable, care. •A bailee would be liable for regular negligence. •Proof of negligence in bailment cases •It would be very complicated for a bailor to prove why or how a bailee breached their duty to protect the bailed property. •The law, therefore, creates a presumption of a breach of the duty where the bailee fails to return property to the bailor or the property is returned in damaged condition. •This presumption shifts the burden of proof to the bailee, who must now prove they did not breach their duty of care. (In effect, a shifting of the burden makes the defendant guilty until they can prove they are innocent.) •The bailor need only prove: •delivery of the property to the bailee; •acceptance by the bailee; and •Bailee’s failure to return property or return of property in damaged condition. •Then the burden of proof is on the baileedefendant. •Duties owed by the bailor •In mutual-benefit bailment, the bailor may owe a duty to pay the bailee for services provided. •Not always the case, as when a person rents a car from a car-rental company, it is the bailee who pays. •The bailor generally is obligated to warn bailee of any defects in bailed property that might result in injury to bailee or interfere with bailee’s use of the bailed property, such as bad brakes in a car that is given to the valet parking attendant. •Constructive Bailment •A bailment created by law as a result of special circumstances rather than by express statements made by the parties. •If a person loses some item of tangible personal property and did not intend to give up ownership, the finder may be considered a bailee of that item. •A finder of abandoned property can become the owner of that property, but.. •A finder of lost property often becomes a constructive bailee who owes some duty of care to protect and return the property, depending upon the circumstances. •Rules as to coat checkrooms. •A bailment is created between customer who leaves property with checkroom attendant and the facility that employs that attendant. •Attendant accepts garments and issues a receipt. •Limiting liability laws may cover attended checkrooms and baggage rooms. •If checkroom is unattended, limiting liability statutes do not apply and there generally won’t even be a bailment. •If the checkroom is operated by an independent contractor, liability limiting statutes, which were created to limit the liability of a restaurant or innkeeper, will generally not protect the contractor. ...
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