No room for liability: a hotel's exposure to costly negligent security claims is controllable.
Matt sued the hotel for negligent security, arguing that the crime was foreseeable. He produced evidence that eighty-one crimes had been committed in the hotel parking lot in the previous three years, including a purse snatching and a forcible robbery. Three nearby hotels also had suffered more than 400 crimes in their parking lots in the same period, including armed robberies, rapes, and kidnappings. Moreover, the hotel security officer had complained to management about feeling unsafe, and had asked to be supplied with a weapon, bulletproof vest, and phone.
At trial, however, the court granted the hotel's motion for summary judgment, concluding that the crime was caused by the unforeseeable action of a third party - there had not been a prior crime committed on the premises in a similar manner and under like circumstances. (Summary judgment is a request for the judge to make a ruling based on the facts and law, most often prior to trial.)
The decision was appealed. The appeals court (with three dissenting votes) reversed the lower court's decision, finding that the trial court had imposed too narrow a definition of foreseeability (Matt v. Days Inn of America, 1994). The ruling indicated that the high crime rate in and around the hotel should have been enough to warrant extra security.
The Georgia Supreme Court affirmed the appeals court ruling and remanded the case for trial. According to a defense attorney for the Atlanta hotel, the parties ended up settling the lawsuit for an estimated $90,000.
Foreseeability is just one of many issues a hotel must consider when defending a negligent security case. While a hotel security professional's primary goal is to help the business protect staff and patrons, an increasingly important goal is to ensure that the security program will shield the company against significant damage awards in the unfortunate cases where guests are injured. Understanding the elements of a legal claim is key, as is a good legal strategy. The best defense is a good offense - a preemptive liability audit to guide the hotel in establishing a sound security program.
Elements of a claim. Inadequate security cases hinge on four major elements: whether the owner owed a duty to provide a safe environment to the injured party, whether the owner breached that duty, whether the breach constituted the "proximate cause" of the injury, and whether the plaintiff suffered actual injury or damage. Foreseeability is the major factor by which the first three elements are evaluated.
Duty. It must first be established that the hotel owner had a duty to provide a safe environment for the victim.
Dating back to the 19th century, innkeepers have been held to a high standard of care for their guests, who are often hundreds of miles from home. Innkeepers have a special duty to use ordinary care to protect guests from unreasonable risk of harm where the owner is aware or should reasonably be aware of that risk. For example, in Cyzio v. Righa International U.S.A. Inc. (New York Supreme Court, 1997), the trial court denied the hotel's motion for summary judgment. It distinguished a hotel's duty from the lesser duty owed by a landlord to its residential tenants.
In another case, a man was assaulted in a private outdoor area on the way to his room (Van Blargan v. Williams Hospitality Corp., U.S. District Court, Puerto Rico, 1991). He sued and recovered $500,000. In its decision, the court distinguished public areas, such as lobbies, from private areas, such as room corridors, stating that enhanced security was necessary in private places. The court likened the attack site to a private passageway since it was enclosed by trees, foliage, and a pool. Thus, the court found, the hotel had a duty to provide heightened security there.
Breach. Before a company can be held liable for an injury, the property owner must have violated the duty owed to the victim. In a basic case involving a criminal attack on a guest, a breach occurs when the hotel fails to act even when it knows an attack is taking place, such as in Sauer v. St. James's Club & Hotel (Los Angeles Superior Court, 1994). In that case, funk artist Rick James held captive and beat a woman in his hotel room over a twelve-hour period. At one point, a room service waiter came to the room, and the victim begged him to help her. The waiter informed security officers, but no action was taken. Not surprisingly, the jury found the hotel liable.
But most cases are not that clear-cut. Courts seek to determine whether a breach of duty occurred by examining whether the hotel had adequate safeguards in place to prevent reasonably foreseeable dangers. Courts may define "reasonably foreseeable" quite differently than a layman would. In Chapman v ESJ Towers, for example, a hotel guest standing at the front desk was shot in the leg by a felon fleeing in a car (U.S. District Court, Puerto Rico, 1992). The victim sued the hotel, and the trial court dismissed the case. The appeals court reversed, finding, among other things, that only one security guard was on duty, working a twelve-hour shift without a break and watching ten to fifteen CCTV monitors simultaneously. The court also found that cars could get out of the hotel's lot without going through an access control system.
Some states, such as New York and Ohio, have laws that limit a hotel's liability for theft of personal property. These laws, known as limited-liability statutes, protect innkeepers who provide a safe or safe deposit box for their guests, provide adequate notice of these safes, and state clearly the ramifications of not placing personal articles in them.
Causation. The property owner's breach of duty must be the proximate cause of the victim's damages. Inadequate security alone is not enough to warrant a ruling in favor of the victim. There may have been an unpreventable intervening factor, for example, that caused the injury.
To determine whether proximate cause exists, courts frequently look at whether the crime was foreseeable. What is foreseeable at one property, however, is not necessarily foreseeable at another.
An important test of foreseeability is whether previous crimes have occurred in or around the hotel, putting the hotel on notice of a security problem. But how recent and similar to the incident at hand must the prior crimes be? There is no magic formula for making that determination; courts generally consider either "the totality of the circumstances" or prior similar incidents.
In some states, courts have held that "reasonably foreseeable" means that the exact same crime occurred on the property relatively recently, perhaps within the year. Other courts have ruled that "reasonably foreseeable" equates to similar events that took place in or near the property - no matter how recently.
In Meyers v. Ramada Hotel Operating Co. (U.S. Court of Appeals for the Eleventh Circuit, 1987), a man forced his way into the hotel room of Cathleen Meyers and raped her. Meyers sued the hotel but the trial court granted the hotel's motion for summary judgment.
In reversing that finding and determining the act foreseeable, the court noted the relevance of a number of incidents involving threats to guest safety in the seventeen months before the attack, such as a man resisting arrest with force and the arrest of a drug dealer carrying a loaded .38 revolver. The court also found it relevant that the hotel's night manager had been robbed fourteen years before the attack on Meyers.
In distinguishing the Meyers case from another case in which a post office was found not liable for a rape in its lobby, the court pointed out that personal attacks are more likely in hotel rooms and hotel bars, which encourage alcohol consumption and congregation of strangers in the early morning. (The case also shows that courts deciding hotel liability cases will look to precedent and practices involving other businesses. Counsel must be familiar with premises liability law in different environments.)
The case laid out other factors relevant to foreseeability, including:
* The hotel's compliance with industry standards in protecting its premises
* The presence of suspicious people around the premises
* Peculiar security problems of the hotel, such as having stairwells available to the public and not restricted to emergency use
Other courts have considered different factors, including the design of the facility, the nature of the hotel, and crime rates and types of crimes in other hotels.
Foreseeability can also be suggested in an employee's comment. In Penchas v. Hilton Hotels (New York Supreme Court, Appellate Division, 1993), the appeals court upheld the denial of the defendant's motion for summary judgment. In that case, a woman had jewels stolen by scam artists as she was getting into a cab in the hotel's driveway. In denying the motion, the lower court noted that the hotel porter had become suspicious during the incident, stating "[T]hey do this when they rob people." That raised enough of a factual question, according to both courts, to raise the issue of foreseeability and put the case in front of a jury where, this year, a verdict for the defendant was reached.
Injury. The final element of a premises liability claim is injury. The victim must have suffered harm, such as injury or loss of property, as a result of the hotel's negligence.
Juries. Although the elements of hotel premises security claims are fairly consistent nationwide, courts and juries across the country - and even within the same jurisdiction - have interpreted these elements differently, leading to disparate results in sometimes similar fact patterns. Some courts have favored the victims, while others have leaned toward protecting the property owner. For example, in our experience, rural juries in New York state tend to be conservative and protective of large businesses, while plaintiffs more often receive multimillion-dollar awards from inner city juries, especially in the Bronx, Brooklyn, and other places where jurors may feel disenfranchised and angry at the system.
Legal strategy. Defense counsel for a hotel has many tactical decisions to make in defending a premises liability case. Once the victim's attorney serves a complaint, the hotel must choose between moving to dismiss the case - typically on technical grounds such as the assertion that the plaintiff has not stated sufficient facts on which to base a claim - or serving an answer.
Answering a complaint does not rule out later moving for summary judgment after an investigation into the facts of the case. The hotel owner can also choose to settle the case at any time - even before serving an answer - based on factors such as the likely cost of its own legal expenses and whether a delaying strategy will force the plaintiff to accept less.
Discovery. If the case is not settled during the initial stages, discovery will take place. Discovery entails the exchange of documents and information related to the case, pretrial depositions of witnesses, and written interrogatories or demands for bills of particulars - an itemized list of the plaintiff's claims.
During discovery, the hotel should at a minimum ask for the following types of information:
* Documentation of the nature of the injury sustained by the victim
* Documentation detailing the amount and composition of damages sustained by the victim, such as lost earnings, medical bills, and pain and suffering
* The victim's medical records to determine whether he or she had prior injuries that are now being claimed as new
* The victim's criminal record and litigation in which the victim has been involved to determine, among other things, whether he or she has filed lawsuits frivolously or tried to extort money from businesses
In turn, the victim's attorney will ask for such items as:
* The security log books maintained by the property owner
* Periodic security reports prepared by officers and management
* Neighborhood crime statistics, which may show that the same crime or similar crimes had been committed in the past
* A list of prior incidents and accidents at the hotel
* Information, such as internal memos, showing that the property owner foresaw or could have reasonably foreseen the incident
* Evidence that the property owner did not take precautions, such as memos about a particular security problem that was never addressed
* An inventory of security equipment on the premises plus proposals for security purchases and upgrades
* Information, such as blueprints and technical drawings, showing the design of the premises to enable a review as to whether the design led to an unsafe situation.
In some cases, a deposition of the architect who designed the premises may be requested.
The innkeeper should have in order all material that may be requested. Documents showing that the innkeeper knew of the risk but failed to act are tantamount to a smoking gun. If, however, security has been properly managed, these documents will present a convincing picture that management was aware of all risks (or took reasonable steps to discover all risks) and took adequate measures to prevent them.
Summary judgment. If the case is not settled early on, it will often be settled after the hotel loses a motion for summary judgment. A motion for summary judgment puts before the court all of the basic facts of the case not in dispute, often including statements of witnesses taken under oath (which may have been recorded at a pretrial deposition). The motion for summary judgment is granted to the hotel if it shows that the victim has failed to establish a valid claim based on the undisputed facts presented (viewed in the light most favorable to the plaintiff) or that the hotelier has an affirmative defense that precludes recovery.
Moving for summary judgment early on, however, is risky for the hotel because many judges are reluctant to throw out cases so quickly. Plaintiffs win most of these motions and, with a dispositive ruling by the judge in hand, become emboldened to press their case further. The plaintiff's settlement demand will often skyrocket. By contrast, if the defense saves such a motion until the eve of trial, it may get an advantage because the plaintiff will have no indication of what the judge thinks about the case and the defense may then be able to negotiate a lower settlement.
Trial. In developing a strategy for the victim, plaintiff's counsel will focus the jury's attention on the victim's suffering and the perceived lack of security. Counsel will also highlight countermeasures that could have been taken to prevent the incident.
The plaintiff's goal is to convince the jury that appropriate countermeasures could have been reasonably implemented and that the failure to do so constitutes negligence. To win over the jury, the plaintiff's counsel often seeks to show indifference, disregard, or callousness on the part of the owner.
For their part, defense attorneys need to demonstrate that their client diligently fulfilled the duty of care. The defense must be able to demonstrate to the jury that security was taken seriously and that a sophisticated analysis was conducted to determine which security measures to take. Counsel must then demonstrate that the security measures mapped out were actually implemented.
Defense counsel would also emphasize to the jury that the hotel cannot be kept crime-free and that they should consider only whether management took adequate precautions to guard against harm to potential victims. Defense counsel will most often benefit by educating the judge or jury as to the broad array of complicated and sometimes conflicting security issues faced by the hotel, illustrating that the incident was either not reasonably foreseeable or not reasonably preventable.
The defense must demonstrate that the property owner was diligent, and that the event was extraordinary - occurring despite a determined effort at providing security. For example, in Franklin v. Dupuis & Associates, a truck driver was shot in a parking lot as he was preparing to enter his motel room. The driver sued, and the jury found for the motel.
Upholding the verdict, the appeals court noted that the motel had met its duty to provide reasonable care. It pointed out that the motel had only been robbed twice before, so no extraordinary security measures were necessary. Moreover, the appeals court observed, the motel had only one entrance, and the facility was surrounded by an eight-foot-high fence topped with barbed wire.
Liability audit. Hotels should not wait until they are sued before they consider how well their security program would withstand close scrutiny. They should preemptively conduct a legal liability audit to develop a full understanding of risks on the property. Essentially, this is a security survey conducted with an eye toward how the jury would see each element under review. The purpose is simple: Is security adequate? Does the security work? Would the hotel be comfortable defending each practice in court? If the audit yields a "no" answer to any of these questions, immediate changes should be made.
Management can hire outside counsel to act as the audit director and team leader. It should be noted that confidential communications made to the attorney by the client will be protected by the attorney-client privilege.
Further, the "work product" rule may protect from disclosure documents and information prepared in anticipation of litigation that contain mental impressions, conclusions, opinions, or legal theories of the attorney. Documentation may include an attorney's legal opinion that a given security measure or program is adequate or inadequate. Because of the possibility that the hotel will end up in court, the outside counsel should have litigation experience.
Depending on the level of in-house expertise, it may be important to include on the audit team a multidisciplinary security consultant who can assess vulnerabilities and quickly determine where specific security measures can be implemented. If a renovation or Americans With Disabilities Act (ADA) compliance program will be implemented, an architect should also serve as part of the team.
The team should develop a detailed scope of the audit before it begins. In this process, team members should discuss goals in conducting the audit as if they were articulating a business plan. Team members should brainstorm about all the places and ways a criminal might operate on the property. Topics of special concern might include access to rest rooms, stair-wells, corridors, and hotel safes.
The team should make sure that preliminary information provided by the hotel owner is accurate by asking hotel staff detailed questions. For example, the team should make sure it gets an exhaustive list of all prior security incidents, including any unrecorded incidents. Team members should ensure that they have the most recent blueprint of the hotel and that they have interviewed staff members who work at different hours. They should also ensure that the audit is supported by senior management before it is undertaken.
The full premises should be assessed, including adjacent uses and risks. For instance, a nightclub on an upper floor may lead to drunk guests roaming the hotel, or an all-night convenience store next door may lead to a stream of pedestrians seeking rest rooms.
If the audit reveals problems, the team should prepare a realistic plan to remedy each one. For example, if stairways offer hiding places for thieves, a hotel might better illuminate the area, install CCTV cameras, have officers patrol there, or restrict stairs to emergency use only. The team should then set up a consistent and organized record-keeping system to document security problems and efforts, and make sure it is followed assiduously.
A policy of candor should be developed. Legal liability often derives not from a security problem, but from the lengths to which the property owner has gone to conceal the problems from hotel guests. Candor, in the form of signs and oral warnings, allows occupants to better protect themselves.
A hotel's exposure to costly premises liability cases is controllable. By understanding why judges and juries hold hotels liable for guest injuries and using that knowledge to develop an effective and legally defensible security program, hotel management can ensure that they, as well as their guests, get a good night's sleep.
RELATED ARTICLE: An Ounce of Prevention
Hotel security professionals should make sure that management knows the high cost of ignoring security. Although varying statistics rank the cost differently, all agree that litigation strains corporate coffers. The cost of defending against negligent security cases may well exceed the cost of implementing security measures.
A new study by Liability Consultants, Inc., of Sudbury, Massachusetts, shows that there were thirty-five reported negligent security cases involving hotels - of 549 total - between 1993 and 1995. The number places hotels eighth on the list of targets.
The picture is even worse according to A Complete Guide to Premises Security Litigation, a 1995 American Bar Association study by Alan Kaminsky. Kaminsky finds that hotels are the second biggest business target of premises liability suits (accounting for 22 percent), trailing only residential property owners (36 percent). By contrast, retail stores (9 percent), restaurants and bars (7 percent), offices (5 percent), hospitals (5 percent), and colleges (3 percent) face relatively few suits. The average settlement in a hotel premises liability case is a whopping $1.2 million.
The ABA study estimates total pretrial expenses for all commercial property owners as ranging between $18,000 and $30,000 and expenses during trial running to at least $35,000. These figures appear to be conservative, and hotel owners are advised to anticipate expenses that well exceed these numbers.
John E. Osborn heads the New York City law firm of John E. Osborn, P.C., Attorneys at Law. He has been a litigation attorney for almost twenty years. His practice has included defense of hotels in premises liability cases and other matters. Sal DePasquale is a regional security manager for Georgia Pacific Corporation in Atlanta. He is a member of the ASIS Standing Committee on Physical Security.