Chapter 5 Principles of negligence.
Negligence Doctrines Generally Favoring the Plantiff
Negligence Doctrines Generally Favoring the Defendant
Guests at a hotel or restaurant can injure themselves in many ways. One might trip in the dining room. Another might suffer burns from scalding water in a shower. Yet another might drown in the pool. This chapter answers the question: When is a hotel or restaurant liable for guests' injuries? Stated differently, must the hospitality facility compensate patrons for injuries they suffer while at a restaurant or hotel?
The answer depends on whether the establishment violated a legal duty. The hotel or restaurant is not an insurer of guests' safety. This means the hotel is not liable for all injuries that occur while guests are on the premises. With few exceptions, the hotel or restaurant will only be liable when it does something wrong--that is, when the hotel or restaurant commits a tort. The term tort refers to many types of non-criminal wrongs done by one person that injure another (but not to breaches of contract which we studied in Chapter 4).
If the guest who tripped in the dining room did so because the heel on her shoe broke due to shoddy workmanship, the restaurant did not do anything wrong and therefore will not be liable. Similarly, if the scalding water in the shower occurred because the guest carelessly left the knob turned to the hottest setting, the hotel will not be obligated to compensate the guest. If, however, the patron tripped on a hole in the dining room rug, or the hot water resulted from a defective plumbing system, the restaurant or hotel may indeed be liable to the guest.
As was mentioned in Chapter 1, negligence is a breach of a legal duty to act reasonably that is the direct (or proximate) cause of injury to another. In nonlegal language, negligence is carelessness that causes harm. Assume the hole in the restaurant rug had been there for two weeks. Failure to repair it was careless; the restaurant could have anticipated that someone would be injured by it. As a result, the restaurant will be liable for the customer's injury.
Similarly, assume the hotel had received several complaints about excessively hot water during the week before a guest was scalded, yet the hotel had not called a plumber or taken any steps to fix the problem. Failure to investigate and correct the water problem was careless; the hotel should have anticipated that someone would be harmed. As a result, the hotel will be liable to the injured guest.
The law requires that people and businesses act reasonably in attempting to prevent injuries. When someone acts unreasonably or carelessly, that person is negligent. A reasonable restaurant employee, seeing a hole in the dining room rug, would repair it to avoid an accident. A reasonable hotel employee who had been alerted about hot water problems in the hotel would investigate and correct the problem. Failure to make the necessary repairs in these examples constitutes negligence.
If the cause of a hotel guest's injury is the carelessness of an employee, the hotel will be liable to the guest. Managers and employees of restaurants and hotels should strive to act reasonably in the way they perform their duties to avoid liability for negligence. The cases in this chapter and in Chapter 6 will illustrate some of the countless injuries that can occur at a restaurant or hotel and may result in liability. By reading these cases, future hospitality managers will begin to appreciate situations that can cause injuries and will cultivate a keener eye with which to survey their facilities to ensure they are in suitable condition for customers and guests.
Elements of a Negligence Case
A plaintiff suing in negligence must prove four elements. Failure to prove any one of them is fatal to the plaintiff's case. The four elements are:
1. The existence of a legal duty to act reasonably owed by the defendant to the plaintiff;
2. A breach of that duty;
3. Injury to the plaintiff; and
4. Proximate cause.
This last element means the breach of duty must be the direct cause of the injury; there can be no intervening cause. Let us examine each element individually.
EXISTENCE OF A DUTY TO ACT REASONABLY
Surprisingly, we do not owe everyone the duty to act reasonably. We owe the duty only to those people who would foreseeably be injured by our actions. A restaurant can foresee that if the leg of a chair is broken, a patron will sit on the chair and fall. Therefore, the restaurant owes a duty to its guests to repair the chair. If a restaurant or hotel cannot foresee a particular type of injury, it does not owe a duty to protect patrons against that injury, even though someone is in fact injured. Thus, where a club patron was injured when another customer intentionally bumped into her but the club had no way of knowing that the latter presented a risk to customers or had a dangerous propensity, the club was not liable to the injured patron. Similarly, where the host of a party held at a Hyatt hotel had no way of knowing that one of the guests would fight another, the host is not liable for injuries resulting from the brawl.
In Case Example 5-1, the court concluded that hotel guests could not have foreseen that their son would sexually assault a housekeeper. Therefore, the parents owed no duty to closely monitor their son's activities.
CASE EXAMPLE 5-1 Ordonez v. Gillespie 2001 WL 294553 (Tex. 2001) ... Ordonez alleged that on or about March 9, 1996 she was working as a housekeeper at a Dallas hotel. The Gillespies had rented adjoining rooms 1224 and 1225. While cleaning room 1224, Ordonez alleged she was sexually assaulted by 17 year old Jason Gillespie, who is mentally challenged. Ordonez alleged the Gillespies acted negligently "by violating the duty which they owed her to exercise ordinary care in the care of their mentally challenged son, a minor." More specifically, Ordonez asserted the Gillespies failed to properly supervise their son, which included failing to ensure Jason would not be left alone with unfamiliar people.... The Gillespies asserted that Jason's alleged conduct was not foreseeable to his parents ... The trial court granted summary judgment for the Gillespies.... Ordonez contends a duty existed because Jason's alleged sexual assault [was] a foreseeable result of the Gillespies' negligently leaving him alone in a hotel room. Negligence consists of three essential elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Duty is the threshold inquiry. It is the function of several interrelated factors, the foremost and dominant consideration being foreseeability of the risk. A parent's duty to protect third parties from acts of the parent's minor child depends on whether the injury to the third party is reasonably foreseeable. Foreseeability means the [defendant], as a person of ordinary intelligence, should have anticipated the dangers his negligent act created for others.... Ordonez relies on a copy of the Gillespies' hotel reservation for room 1225, which includes the notation that the Gillespies needed to be connected to their mentally handicapped son. [Evidence also indicates that] at school Jason "disrupted the class" and "got into a lot of trouble". The Gillespies put Jason in a boarding school in Massachusetts "for kids with psychological or school problems." After six or eight months he was asked to leave the facility because he had run away a couple of times and smoked in the high school. He got his GED when he was 16. ...Jason had never been detained for any type of criminal activity. It was Ordonez' burden to present some evidence that Jason's conduct was foreseeable to his parents. We conclude she failed to do so. Evidence that Jason did not like school and disrupted class is no evidence that his parents should have foreseen the possibility that he was capable of assaultive conduct. Likewise, evidence that Jason's parents considered him to be mentally handicapped is no evidence that it was foreseeable he might be a danger to others. The trial court properly granted the Gillespies' motion for summary judgment. CASE QUESTION 1. What changes in the facts might have resulted in the Gillespies being liable?
In another case, a bridesmaid was injured at the wedding reception when several partygoers, participating in a "wheelbarrow race" (where one person walks on his hands and his partner holds his legs up while running and steering from behind) ran into her. She sued the restaurant at which the reception was held, claiming it had not adequately protected her safety. The court, noting that the race was "spontaneous and inappropriate," found the restaurant could not have anticipated the contest and thus owed no duty to protect the plaintiff from it. (1)
The owner of an amusement park has no duty to protect patrons against unforeseeable and unexpected assaults. Thus, where a patron who had just exited the roller coaster was attacked spontaneously and without warning, the park was not liable for failing to prevent the assault. (2)
Similarly, a restaurant owed no duty to protect patrons from a firecracker that was unexpectedly thrown into the establishment by an unknown person. The firecracker shattered a glass picture frame, propelling shards of glass that hit a diner and caused permanent injury. The restaurant could not reasonably have foreseen this type of injury, and so it had no duty to protect customers against it. (3)
Where the presence of bees could not be foreseen, an inn hosting a 50th wedding anniversary party did not owe a duty to protect the guests from being stung. A guest was stung, resulting in anaphylactic shock and cardiac arrest causing permanent quadriplegia. The circumstances included the following: In the 20 years prior to this incident no other guest had been stung; at the time of the sting the bee was isolated and not in a swarm; no hive or nest was found on the premises; and the inn was well maintained. (4) Since the injury was not foreseeable and therefore no duty was owed, the inn was not liable for the guest's injuries.
In all of these cases the lawsuits were dismissed because no duty was owed.
BREACH OF DUTY
For a defendant to be liable for negligence, the defendant must not only owe a duty to the plaintiff to act reasonably, but must also breach that duty. A restaurant owes a duty to its customers not to serve rancid food because customers who eat it will foreseeably become ill. If the restaurant serves spoiled food, it thereby breaches that duty. Likewise, failure by a hotel to maintain floors in its building in a safe condition constitutes a breach of duty to those who utilize the premises.
Another example of a breach of duty involves an Elks Club (an organization that exists to foster fellowship among its members and provide services to the community) that maintained a building with a dining room and kitchen. A portion of the kitchen floor had sunk and split, resulting in a crack in excess of four to six inches between lateral floor joists. The plaintiff, wife of an Elks member, was helping to set up for a dinner. She fell on the crack, which had been covered by a mat, and sued the club. She was able to prove that the Elks had been aware of the problem for at least two years. The club had investigated repairs but failed to take any remedial action. The Elks' use of a mat to cover up the crack made it unlikely a person using the kitchen would see the hole, increasing the possibility of a mishap. The appeals court affirmed a judgment entered for the plaintiff by the trial court. (5)
A hotel owes its guests and the occupants of adjacent buildings a duty to maintain fire extinguishers in operable condition. Failure to do so will foreseeably cause injury in the event of a fire and so constitutes a breach of duty. In a case where a hotel fire spread to and destroyed an adjacent saloon, efforts to put out the fire were unsuccessful because of a faulty and inoperable fire extinguisher. The hotel thus had breached its duty to take reasonable measures to prevent the spread of fire and was liable to the bar for its loss. (6)
Reasonable Person Standard
Determining whether a defendant acted reasonably is not always easy. The law provides a standard to help judge whether a defendant's actions were or were not within the bounds of the law. Though difficult to apply in some cases, it is a helpful guide. The standard is a mythical "reasonable person of ordinary prudence." The issue in each case is whether the defendant acted as a reasonable person of ordinary prudence would have acted under similar circumstances.
Sometimes this imaginary person is described in cases by judges not only as "reasonable" and "prudent" but also as "a person of average prudence," or even as "a person of ordinary sense using ordinary care and skill." All these phrases mean much the same. This reasonable person does not have bad days; he is always up to standard, a personification of a community ideal of reasonable behavior. What constitutes reasonable conduct in a given situation is determined by a jury or, in a bench trial, by the judge.
If the defendant in a lawsuit has not breached a duty, the defendant is not liable. The plaintiff has the burden of proving the defendant's wrongdoing. If the plaintiff is unable to prove that the defendant breached a duty, the plaintiff will not be able to recover money for his losses.
Q: What caused you to fall?
A: You tell me. I don't know. My foot slipped.
Q: And you don't know why your foot slipped?
Q: Did you see anything which caused you to fall?
The court held since plaintiff did not know what caused his fall, he is unable to prove that defendant's negligence was the cause of his injury. Therefore the defendant was not liable. A similar outcome resulted where plaintiff fell off a curb on the property of Chick-Fil-A. After learning of the fall the store's owner inspected the area where plaintiff fell. He found no irregularities, bumps, cracks, or gravel on the pavement. It was well-lit and not wet. Plaintiff presented no evidence to establish that her injury was caused by the eatery's negligence. The court determined no breach of duty occurred and dismissed plaintiff 's case.
Case Example 5-2 illustrates that a plaintiff in a negligence case must prove that the cause of injury was the defendant's carelessness. The plaintiff was hurt when someone fell on her at a hotel restaurant. She sued both the hotel and the person who fell on her.
CASE EXAMPLE 5-2 Shadburn v. Whitlow 533 S.E.2d 765 (Ga. 2000) ... [T]he record shows that Shadburn, Whitlow, and Jewel Palmer were on their way to Ormond Beach, Florida. En route, they stopped at New Perry Hotel to eat lunch. The three proceeded up a flight of stairs to the hotel restaurant. Palmer proceeded first, followed by Shadburn. Whitlow, an elderly woman who had impaired vision due to cataracts, followed last. Palmer was waiting in line at the restaurant when she heard a noise. Turning, she saw Whitlow, who had reached the top of the stairs, fall into Shadburn who was standing in the lobby area. Shadburn was injured. Palmer and Shadburn believed Whitlow's fall was caused by loose carpeting, which they noticed at the top of the stairwell the evening after the fall; however, all three ladies testified that they were not actually certain what caused Whitlow to fall. Palmer also averred in her affidavit that Whitlow may have tripped because she may have been inebriated after sipping an unknown beverage from a cup during the trip to Perry. The trial court properly granted summary judgment to New Perry Hotel because Shadburn failed to present any evidence that a condition on the stairs, the loose carpeting, caused Whitlow to fall. The speculation that Whitlow may have tripped on loose carpeting does not sufficiently establish causation. On the issue of causation, as on other issues essential to a cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at least evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant. Similarly, the trial court also properly granted summary judgment to Whitlow because there is no evidence that Shadburn's injuries were caused by an act or omission of Whitlow. There is no evidence in the record of the cause of Whitlow's fall. Shadburn can point only to speculation that Whitlow may have tripped and fallen because she was inebriated. CASE QUESTION 1. What more would the plaintiff need to prove to establish that the defendant in this case breached a duty?
The proximate cause of an injury refers to its direct and immediate cause. The requirement of proximate cause to prove negligence means that the injury must have been caused by the breach of duty; in other words, there must be a cause-and-effect relationship between the unreasonable conduct and the injury. The connection also must be direct or immediate, so that a reasonable person could foresee the potential danger of the careless act. "Proximate cause is a limit on legal liability; it is a policy decision that the defendant's conduct and the plaintiff 's injury may be too remote for the law to allow recovery ... It is well settled that there can be no proximate cause where there has intervened between the acts of the defendants and the injury, an independent act of a third party which was not foreseeable to the defendants, which was not triggered by the defendant's acts, and which was sufficient of itself to cause the injury." (7)
For example, assume a hotel van driver was adjusting the radio while driving and not watching the road. He carelessly swerved up and over a curb and came to a stop near the sidewalk. An inline skater was skating on the sidewalk near the van and looking up at a low-flying plane. She thus failed to see an uneven spot in the cement slabs. She fell due to the jagged edges of the sidewalk. In this example, the hotel employee was negligent and the skater was injured. But the negligence was not the cause of the injury, so the hotel will not be liable.
In another example, shampoo was spilled in a hotel stairwell on the landing and the right side of the first step. The spillage had not been cleaned for more than a day, constituting negligence. A guest using the stairs slipped and was injured as she descended along the right side of the stairway on the third step below the landing. The cause of her fall was a break in the heel of her shoe. Although the hotel was negligent in not cleaning the shampoo, and although the guest was injured, the guest did not trip on the shampoo and thus her injuries were not the proximate cause of the hotel's negligence. Therefore the hotel would not be liable. (8)
Case Example 5-3 provides another illustration of the proximate cause requirement.
CASE EXAMPLE 5-3 Palace Bar, Inc. v. Fearnot 381 N.E.2d 858 (Ind. 1978) ... On January 3, 1974, Garlen Fearnot entered the Palace Bar for the purpose of purchasing and being served alcoholic beverages. According to testimony, Fearnot had consumed two shots of whiskey but did not appear intoxicated when, without saying anything, he abruptly left the bar and started toward the rear of the premises. Witnesses stated that Fearnot staggered as he walked, bumped against a booth and stumbled against a pinball machine as he left the front room of the bar and continued toward the rear door, which was the door he customarily used. Subsequently, the staggering Garlen Fearnot, according to conflicting testimony, either fell down the stairs or, while clutching for the handrail, slid to the landing below. Walters, the bartender and owner-manager of the Palace Bar, watched Fearnot as he left the bar and, thinking something might be amiss because of Fearnot's past history of heart problems, followed him. According to Walter's testimony, he discovered Fearnot on the stair landing and attempted to be of assistance to Fearnot, who was slumped against the rail, by laying him down on the landing. Walters testified that he asked Fearnot if he could help to which Fearnot replied that he would be all right and to just leave him alone. Walters went back to the front of the bar where he discussed the situation with other patrons. Walters and others apparently checked repeatedly on Fearnot's condition although no one called for medical assistance at that time. Thereafter, about an hour later, Walters apparently discovered that Fearnot had lost consciousness whereupon Walters called for the fire department's emergency medical unit, which was located across the alley from the bar. The responding unit was unable to revive Fearnot who was later pronounced dead at the scene by the Greene County Coroner. [This action was brought by Fearnot's widow claiming negligence by the bar in causing Fearnot's death.] The Coroner ruled that upon observing the body it was his opinion that Fearnot died as a result of a natural cause which appeared to him to be a cerebral hemorrhage. He further stated that it was his opinion that the injuries from the fall could not and did not cause Fearnot's death.... Dr. Hanes Benz, an Indianapolis pathologist who performed the autopsy, attributed Fearnot's death to heart disease. He also stated that although there were bruises found on the body [from the fall], these bruises were superficial and that Fearnot did not die as a result of a fall or injury.... Evidence further showed that Fearnot experienced a variety of health problems and was, at the time of his death, on total non-service connected disability from the Veteran's Administration. He had also confided to others that he had a "bad ticker" or heart problems.... Defendant claim that Mrs. Fearnot did not prove any proximate relationship between the [bar's alleged negligent] acts or omissions and Fearnot's death. We agree with this position.... It is basic, of course, that the plaintiff had the burden of proving by a preponderance of the evidence that the defendants had a duty to the plaintiff, that the defendant's conduct failed to fulfill or conform to the requisite standard of care required to fulfill that duty and that the plaintiff sustained an injury as a result of that failure. In order for the plaintiff to carry her burden her evidence must establish that the alleged wrongful act was a proximate cause of the injury.... With these well-established rules in mind, we will examine the evidence presented by plaintiff. The Coroner came to the conclusion that the decedent died of natural causes and not from trauma.... Dr. James Benz, a physician specializing in pathology, gave his opinion that the decedent died of natural causes and not from any injuries he received in the fall. ...In sum, the total evidence is that the decedent died from natural causes and not because of any acts of defendant regardless of whether or not they may have been negligent. Judgment for defendant.
If plaintiff falls due to defendant's negligence but her injuries constitute a preexisting condition, that is, a physical impairment suffered prior to the fall, defendant's negligence would not be the proximate cause of the injury. In this circumstance the hotel would not be liable. (9) If the hotel's negligence aggravated an existing injury, however, the hotel will be liable for the additional injuries it caused.
Events independent of and occurring after the defendant's alleged negligence may be the direct cause of the injury, rather than the defendant's negligence. Such an event is called an intervening or superseding occurrence and has the effect of breaking the chain of causation between the defendant's negligence and the plaintiff's injury. In Case Example 5-4, an intervening occurrence and not the hotel's negligence was determined to be the cause of the plaintiff 's injury.
CASE EXAMPLE 5-4 Smith v. West Rochelle Travel Agency, Inc. 656 N.Y.S.2d 340 (2nd Dept. 1997) ... The plaintiffs commenced an action against all the parties who had any connection with a 1993 spring break vacation trip to the Bahamas in which their 17-year-old son, Thomas Smith, Jr. (hereinafter the decedent), participated.... During the vacation, the decedent purchased a ticket for a "booze cruise", a sunset cruise in international waters where alcoholic beverages were sold to anyone, regardless of their age. The decedent voluntarily leapt overboard and was killed when he came in contact with the cruise vessel's propellers. The evidence indicated that the vessel was not owned or operated by the defendant ... Wyndham Hotel Co., Ltd. The parents sued Wyndham, the hotel at which the decedent was registered, arguing that since the ground handler promoted the "booze cruise" on the hotel premises during an "orientation party" at which alcoholic beverages were served, the hotel bore some liability for facilitating the sale of tickets to the cruise.... [T]he court correctly determined that, as a matter of law, the decedent's action of voluntarily jumping off a moving vessel in open waters was a superseding event which severed whatever causal connection there may have been between the occurrence of the accident and Wyndham's alleged negligence three days earlier in permitting alcohol to be served on its premises during the orientation party....
In another case illustrating a superseding occurrence, a valet parking attendant at a nightclub negligently facilitated the theft of a patron's car. Later the same night a police officer observed the stolen car and attempted to stop it. The thief fled, first in the car and then on foot. The officer fell and was injured. He sued the nightclub for negligence. The case was dismissed because the club's negligence was not the direct cause of the police officer's injury. "The conduct of the thief was an intervening cause which the defendant was not bound to anticipate and guard against." (10)
Another example of a superseding cause of injury is provided by a case involving storage in a vat of used restaurant cooking oil pending pickup by an oil retrieval company. The vat had malfunctioned and the restaurant called for service. The repair company failed to respond in a timely manner. The restaurant continued to add used oil to the vat. A restaurant employee was injured while pouring oil into it. He was not wearing protective clothing and he used a "greasy and wobbly" ladder to reach the top of the vat. He sued the service company for negligence due to their delay in repairing the vat. The court dismissed the case, ruling that the negligence of the repair company was not the proximate cause of the employee's injuries. Instead, his own negligence was the cause. (11)
In another case, the plaintiff was the promoter of a boxing match that was to feature one Beau Jaynes. The night before the fight, Jaynes injured his hand in his room at a Sheraton Hotel when a venetian blind collapsed as he was adjusting it. The boxing commission canceled the fight and the promoter sued the Sheraton to recover lost revenue. The court said that while Jaynes might have a good lawsuit against the hotel, the promoter did not. It is a basic principle of tort law that a wrongdoer is responsible only for the direct and proximate injuries resulting from its acts. When a third person such as a boxing promoter suffers financial loss because of a contractual relationship he has with the injured party, such damage is too remote and indirect to hold the wrongdoer liable. (12)
To win a lawsuit, a plaintiff must have been injured as a result of the defendant's breach of duty. The injury might be bodily harm (the legal term for this is "personal injury"), such as a broken arm or a head wound. The injury could also be property damage, such as a dented car, or it could be emotional suffering or monetary loss.
Summary of the Elements of Negligence
Remember, before a hotel or restaurant will be liable to a plaintiff for negligence, all four elements must be present: (1) the existence of a duty; (2) breach of that duty; (3) proximate cause; and (4) injury. If any element is missing, the hotel or restaurant is not liable.
Legal Status of Plaintiff
The duty of care owed by a hotel or restaurant for the safety of its patrons varies in many states, depending on the legal status of the person injured. He may be an invitee, a licensee, or a trespasser. The greatest degree of care is owed to an invitee, the next greatest to a licensee, and the least to a trespasser.
Duty Owed to Invitees
In the hospitality industry, an invitee is someone who comes to an establishment for the purpose for which the business is open to the public, or for a purpose directly or indirectly connected with that business. For a hotel, invitees include guests and visitors of guests. For example, the friend of a guest invited to dinner at the hotel is an invitee. Likewise, a child who attends a birthday party held at the hotel is an invitee. Thus the hotel owes the same standard of care to the visitor as to the registered guest. Where four unregistered visitors attended a party in the room of a registered guest, the visitors qualified as invitees to whom the hotel owed a duty to maintain the premises in a reasonably safe condition. The in-wall heating/air conditioning unit in the room caught fire and killed one of the visitors. If the cause was negligence by the hotel, it would be liable. (13) If the hotel has stores or a theater ticket service in the lobby and a nonguest enters the hotel to patronize the store or purchase tickets, that person also qualifies as an invitee. For a restaurant, diners are invitees. For a bar, patrons are invitees. For all three types of establishments, employees are invitees, as is a delivery person delivering some item necessary for the business such as food or alcohol.
The hotel or restaurant is not a guarantor of the well-being of its patrons. Instead it owes a duty to its invitees to reasonably inspect the premises for dangerous conditions and to exercise reasonable care to eliminate them. Liability may result if and only if the business: (1) knows, or by the exercise of reasonable care would discover, a dangerous condition that presents an unreasonable risk of harm to invitees; and (2) should expect that invitees will not discover or realize the danger or will fail to protect themselves against it; and (3) fails to exercise reasonable care to protect its invitees against the danger. The necessary reasonable care (lack of negligence) encompasses both repair of and warning about the dangerous condition.
Assume that on a rainy night the floor in the entrance to a restaurant is wet and slippery. A patron entering the restaurant falls and is injured. Is the food establishment liable? The customer is an invitee, so the restaurant owes the duty to make a reasonable effort to discover the condition and eliminate it by mopping frequently, or at the very least, to warn of its presence. Failure to do so will result in liability. To determine if the restaurant is liable, we need to know how frequently it mopped the entrance. The duty to mop on a rainy day would require greater frequency than on a dry evening. If it mopped regularly, the eatery may not be liable even though the guest fell. The duty is to exercise reasonable care, not to be right there the moment drops of water gather.
ACTIVE VIGILANCE REQUIRED
Note that ignorance on the part of the restaurant of the presence of the water (or other substance) on the floor and resulting slipperiness normally will not relieve the restaurant of liability. The restaurant has a duty to inspect for and to discover the wetness or other problem, and then to protect guests from resulting risks. Case Example 5-5 illustrates this point.
CASE EXAMPLE 5-5 Montes v. Betcher 480 F.2d 1128 (Minn. 1973) On the warm Sunday afternoon of July 13, 1968, 35 year old Fernando Montes, a citizen of Nebraska, took a running dive off a short dock which served the Appellants' resort, one of the many enhancing Minnesota's beautiful lakes. He surfaced with a severely lacerated scalp and a vertebral fracture. Shortly after the incident, a jagged piece of concrete was recovered from the lake floor in the general area where plaintiff had entered the water. The concrete piece resembled the homemade boat anchors constructed by Appellants to use in the boats which frequented the boat dock. Plaintiff, Montes, a proficient swimmer and diver, claims that he executed a flat, "racing" dive because he knew he was plunging into shallow water. The water depth was variously described to be from 27 inches to waist level. Montes testified, however, that his ultimate purpose was to grab the ankles of a friend who was standing in the water 15 feet from the end of the dock, a purpose which would require either a deep dive or a subsequent submergence. Montes was very familiar with the swimming area, and had executed dives from the boat dock on numerous previous occasions. Never before had he encountered rocks or blocks in the water. The Appellants, Mr. and Mrs. Betcher, citizens of Minnesota, had owned the resort since 1963. They charged $10 per day for cabin accommodations. Although the area surrounding the boat dock was perennially in use by Appellants' swimmer-patrons and although Mr. Betcher had seen swimmers jump off the boat dock, he testified that he had never made any special attempt to inspect the lake bottom for debris nor had he ever "raked" the shoreline lake bottom. Never had he erected signs warning of the dangers of diving in the shallow water or the possible presence of debris in the swimming area. Never had he placed floats in the water to discourage the intrusion of boats into the swimming and diving area; in fact there was no segregation whatsoever of swimming waters from boating waters.... Appellants ... first contend that a riparian owner [an owner of waterfront property] is not responsible for the safe maintenance of property beyond the ... line ... that marks the boundary between Appellants' shoreline land and submerged land which belongs to the state. But even if Appellants are held responsible for the maintenance of submerged lands, Appellants contend, that responsibility extends only to the remedy of dangerous conditions known to Appellants or of which they could have acquired knowledge had they ... exercised reasonable care. Since there was no evidence that Appellants knew of the presence of the cement block nor that it had been there long enough to mandate ... constructive knowledge, Appellants contend [they breached no duty].... [This argument was properly rejected.] ... A resort owner who avails himself of the advantages of riparian ownership for resort purposes owes to his patrons a duty of reasonable care which includes "active vigilance" in their protection from foreseeable risks.... The jury was perfectly justified in determining that Appellants had violated this duty in any one or more of three respects: (1) their failure to warn of the dangers of diving off the boat dock; (2) their failure to periodically "rake" the swimming-diving area in search of dangerous obstructions; and (3) their failure to segregate swimming areas from boating areas. CASE QUESTIONS 1. What is meant by constructive notice, as used in the fourth paragraph? 2. We are told that Montes had two or three drinks the afternoon of the accident. What effect do you think that should have on the outcome of the case? 3. What does the term "active vigilance," used by the court, in the penultimate paragraph, mean?
This case clearly establishes that, for a resort to satisfy its obligation to an invitee, it is not enough to correct dangerous conditions of which the resort is aware. The business must also regularly inspect the premises to locate and identify dangerous conditions and correct any that are found. If the hotel fails to inspect, it will be liable to invitees for injuries caused by conditions that an inspection would have revealed.
Open and Obvious Exception
Invitees must exercise some care in protecting themselves. Generally a hotel or restaurant will not be liable for injuries caused by a condition that is "open and obvious," meaning that the dangers are so obvious that the invitee can reasonably be expected to discover them. If the hazard is open and obvious, invitees are expected to take appropriate precautions to protect themselves. For example, a patron of a Wendy's restaurant exited the building via a concrete ramp, part of which was cracked. The ramp's condition was easily visible and therefore obvious. Nonetheless, the customer tripped and fell on the cracked portion. The court denied her claim against the restaurant stating, "[I]t was a discrete hazard in an otherwise safe walkway which plaintiff could have easily avoided by stepping over it or walking around it. Because plaintiff tripped over a defect which was an open and obvious condition that could easily have been avoided, no interpretation of the evidence could render that defect an unreasonable hazard [and thus defendant is not liable]." (14)
Similarly, where octogenarian restaurant customers confronted a snow pile in the parking lot and tripped when they tried to step over it rather than going around, the court denied recovery holding the open and obvious doctrine applied. (15)
Case Example 5-6 illustrates another example of an open and obvious condition for which the innkeeper was not liable.
CASE EXAMPLE 5-6 Hudechek v. Novi Hotel Fund Limited Partnership 2007 WL 466108 (Mi. 2007) Plaintiff slipped and fell on a wet sidewalk while leaving defendant's hotel at the conclusion of a professional seminar. The sidewalk had been painted. Plaintiff acknowledged during his deposition that the painted condition of the sidewalk was readily observable. He also acknowledged that as he was exiting the hotel he observed people running from the parking lot to avoid becoming wet from rain. Plaintiff sustained head, neck and back injuries as a result of his fall. The trial court granted summary judgment to the hotel on the basis that any danger posed by the wet painted sidewalk was open and obvious. Plaintiff argues that the trial court erred.... Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered the danger on casual inspection.... The open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger. Plaintiff argues that the trial court erred by granting defendant's motion for summary judgment. We disagree. The undisputed evidence shows that both the painted condition of defendant's sidewalk and that it was raining at the time plaintiff exited defendant's hotel were readily observable. Plaintiff was talking to his daughter as he walked to his vehicle and was not attentive to the conditions of his surroundings. It is reasonable to conclude that plaintiff would not have been injured had he been attentive to the conditions around him, including simply watching where he was walking more closely. Thus, the trial court did not err in concluding that the condition of the sidewalk was open and obvious.
When sued for negligence, hotels and restaurants need to be alert to the possible defense that the alleged dangerous condition was open and obvious. There is however a circumstance in which the hotel may be liable notwithstanding that the plaintiff was injured on a condition that was openly and obviously dangerous. If the condition is also unavoidable, the hotel may be liable. For example, in a case involving a plaintiff who was attending a seminar at a hotel, the only stairwell accessing the conference room was dark. Unable to see, plaintiff fell while descending the stairs. In her lawsuit, the court refused summary judgement to the hotel not withstanding the open and obvious nature of a darkened stairwell. (16)
Duty Owed to Licensees
A licensee is someone who is on the premises of another by permission or acquiescence of the owner or occupier, and not by invitation. His presence does not further the defendant's business. Instead, the licensee is on the premises for his own benefit or convenience. An example is an off-duty employee who goes to the place of employment to pick up a paycheck. At that time the employee is not advancing the employer's business interests but nonetheless is on the premises with the employer's consent. Similarly, a former employee who enters the premises to meet with a current worker is a licensee. (17) A mother who accompanied her adult daughter to an employment interview was a licensee, there being no evidence that the potential employer benefited in any way by the mother's decision to accompany the daughter.
States define the duty owned to licensees differently. In a majority of the states, the duty owed is twofold:
1. Refrain from willfully or wantonly injuring the licensee or acting in a manner to increase peril; and
2. Warn of any latent dangers on the premises of which the property owner has knowledge.
Note that, for the invitee, the hotel or restaurant must inspect for dangerous conditions and either repair them or warn the invitee about them. For the licensee, the duty is less. The hotel or restaurant can dispense with the inspection. According to the rule in a majority of states, the hotel or restaurant's only duty is to warn of those dangers it knows about. Thus, the hotel or restaurant must disclose known defects but need not make any effort to determine what defects exist. Had the plaintiff in Montes v. Betcher, Case Example 5-5, been a licensee rather than an invitee, the resort would have satisfied its obligation and the plaintiff would have lost the case.
In states where the minority rule applies, the hospitality facility does not even owe a duty to disclose and warn of known dangers. In those states the duty owed to licensees is merely to refrain from willful or wanton injury.
Case Example 5-7 explores the circumstances under which a visitor of a hotel guest qualifies as an invitee and when he is treated as a licensee.
CASE EXAMPLE 5-7 Steinberg v. Irwin Operating Co. 90 So.2d 460 (Fla. 1956) ... Appellant, Essie Steinberg, accompanied two friends to the Cadillac Hotel operated by appellee. The purpose of the mission was to enable one of the friends to deliver a message to a registered guest at the hotel. Inquiry at the desk revealed that the registered guest was not in. Thereupon, Mrs. Steinberg and her friends decided to explore various lounges and other rooms adjacent to the lobby. This was done for their own diversion. They first went into a "TV Room." They didn't like the program then showing. They then apparently attempted to enter an adjoining "Movie Room." This room was dark except for the light cast by the movie screen and projector. The floor level of the "Movie Room" was four inches lower than the floor level of the "TV Room." Claiming that she did not see the difference in level, Mrs. Steinberg fell and suffered injuries. She filed a complaint seeking compensation for damages resulting from the alleged negligence of appellee. The alleged negligence was the difference in the floor level.... Appellant contends that at the time of the alleged injury, Mrs. Steinberg was an invitee of the hotel. They seek recovery on the theory that the hotel was obligated to furnish its invitees with reasonably safe premises. Appellee contends that Mrs. Steinberg was merely a licensee. They assert that the only duty owed to her was to refrain from willfully or wantonly injuring her. There is no doubt that a registered guest of a hotel is a business invitee and is entitled to receive the degree of care applicable to invitees. We are of the view that one entering a hotel to communicate with a registered guest is entitled to receive and enjoy the same degree of care. This rule is subject to the limitations hereafter expressed.... [B]y the very nature of the business, the operator of the hotel is bound to anticipate that a registered guest is apt to have business and social callers. The invitation to such callers arises by operation of law out of the relationship between the hotel and its registered guests. The operator of the hotel should provide reasonably safe ways of ingress and egress for those legally entering and leaving the place pursuant to the implied invitation implicit in the relationship between hotel operator and registered guests. However, this implied invitation is not without its limits. The invitation to enter the hotel to visit a guest is circumscribed by the rule that it extends only to appropriate usage of the means of ingress and egress, such as the lobby, elevator, hallways, and room area rented to the guest. It would be stretching the doctrine of implied invitation beyond justifiable limits to hold that such invitation extends to all of the private or semipublic rooms of the hotel. When the visitor crosses the boundaries of the invitation, he ceases to be an invitee. His status then changes to that of a licensee or even a trespasser. He is entitled to the status of an invitee only to the extent justified by the implied invitation. In this case, it is perfectly clear that Mrs. Steinberg enjoyed the status of an implied invitee when she entered the hotel lobby. This status continued so long as she used the facilities of the hotel reasonably included within the invitation. When, for her own pleasure and convenience, she crossed the bounds of the invitation on her own initiative, sought entertainment in the "TV Room," and later in the "Movie Room," she became at most a licensee. While she was in this status, the hotel owed to her only the duty to refrain from willfully or wantonly injuring her. The record is clear that there was no willful or wanton injury. Ruling of the court: The judgment [for the hotel operator] is affirmed. CASE QUESTIONS 1. What change of facts would be necessary to make Mrs. Steinberg an invitee at the time of her injury? 2. If Mrs. Steinberg was an invitee, what duty would the hotel have owed to her?
A Tennessee court dealt with the issue of the status of a guest's visitor. A young man drowned while he was visiting his fiancee, who was a guest at the defendant's motel. Neither could swim. They entered the motel pool together at a time when no one else was in it. He was either walking or standing in the water when he suddenly started to struggle and sank beneath the surface. His survivors sued the hotel for negligence.
The case hinged on whether the deceased was an invitee. A sign at the end of the pool read, "Motel Guests Only." The lower court held that the visitor ceased to be an invitee upon entering the pool and that the motel from that time on owed him only the minimum duty owed to a trespasser. The appellate court reversed, saying that a visitor of a hotel guest is in fact an invitee of the hotel provided the visitor has not exceeded the bounds of the invitation to visit extended by the guest. In this case the visitor was invited by the guest to join her in the pool; thus, the hotel owed the deceased a duty to exercise reasonable care in the maintenance of the pool. (18) Contrast this situation to the case where the hotel guest invites a visitor to lunch and when the meal is through bids him farewell. On his own initiative and unaccompanied by the hotel guest, he utilizes the pool. While in the pool, this visitor is beyond the parameters of the invitation to visit extended by the hotel guest and therefore is not an invitee of the hotel.
In a case discussed earlier in this chapter, the Elks (a service club) requested that the wife of the newly elected Exalted Ruler (the equivalent of president) come to the organization's headquarters to assist in the preparations for her husband's installation dinner. While helping to set the tables, she entered the kitchen seeking matching china. While there, she fell due to a sizeable crack in the floor and suffered substantial injuries. In her lawsuit against the association, the question arose as to whether she was an invitee or a licensee when she entered the kitchen. The court first addressed her status when she entered the building. Since she had been invited to the premises by Elks members, she qualified as an invitee. She remained an invitee when she walked into the kitchen since "it was reasonable to expect as part of her functions that day that she would need to go into the kitchen." (19)
Duty Owed to Trespassers
The least duty is owed to a trespasser--a person who enters a place without the permission of the owner or occupier. Someone who enters a restaurant after it is closed for the night without the owner's permission is a trespasser If an employee who has been fired and ordered not to return to the hotel nonetheless enters the premises, he too is a trespasser. A landowner or possessor does not owe a duty to safeguard a trespasser from injury caused by conditions on the land. Some states impose a duty not to willfully or randomly injure a trespasser, and other states impose this duty only when the trespasser's presence is known or reasonably foreseeable. A trespasser's presence would be known or foreseeable where neighborhood children regularly use for snowmobiling vacant land that is located adjacent to, and owned by, a hotel and the hotel is aware of this use.
Case Example 5-8 illustrates the application of the rule to trespassers.
CASE EXAMPLE 5-8 David Hanson v. Hyatt Corp. 554 N.E.2d 394 (Ill. 1990) [P]laintiff was not a registered guest at defendant's hotel. He entered the pool area sometime after 9:30 p.m. through a gap/hole in a fence surrounding the pool. It was dark, and the lights around the pool area were off.... [H]e dove into Hyatt's pool and sustained injuries which rendered him a quadriplegic; he was 19 years old at the time of the accident.... Hanson argues that he properly alleged the element of duty ... based upon Hyatt's "implied invitation" to him to enter upon its premises "for the purpose of inspection and use of its restaurant, gift shop, meeting rooms, lobbies, and swimming pool," as a licensee or invitee. The implied invitation concerning his use of Hyatt's swimming pool is specifically based on the allegation that the pool "was not fully enclosed and was open to access by the public at large...." Hanson was required to allege facts to support a relationship which imposed a duty on Hyatt to protect him from his injury.... A [business operator] has a duty to exercise reasonable care for the safety of an invitee. The duty owed to a licensee or trespasser is not to willfully and wantonly injure him and to use ordinary care to avoid injuring him after he is discovered in a place of danger. Hanson ... appears to define an implied invitation as a failure by Hyatt to take reasonable steps to secure access to the pool area, presumably by closing up a hole in the fence through which he entered on the date of the accident ... We find this argument without merit ... [T]o be upon premises by an implied invitation means that the person is there for a purpose connected with the business in which the owner of the premises is engaged. Here, Hanson simply failed to allege facts to support a position that he was using Hyatt's swimming pool for a reason connected with Hyatt's business ... Plaintiff is a trespasser. Judgment for the hotel. CASE QUESTION 1. Why do you think the duty imposed on businesses vis-a-vis trespassers is significantly less than for invitees?
In another case, a plaintiff was hungry late one night and left his house to walk to Hardee's Restaurant. He took a shortcut through a parking lot of a then-closed Burger King. After arriving at Hardee's, he discovered he had forgotten his wallet. On this return trip he decided to see if there was any food in the Burger King dumpster. It was shielded on three sides by brick walls that were close to eight feet tall, and on the fourth by a set of wooden hinged gates. In an attempt to enter the dumpster area, the plaintiff jumped up on one of the brick walls, which then collapsed, severely injuring him. Unbeknownst to the plaintiff, the wall had been damaged a month earlier by a trash truck and had not been repaired. Employees had been alerted not to touch the wall. The plaintiff sued Burger King, which in turn argued that the plaintiff was a trespasser and therefore Burger King owed him no duty to keep the wall safe. Agreeing with Burger King, the court stated, "[A] trespasser ... assumes the risk of injury from the condition of the premises.... While a possessor of land may not intentionally set booby traps with the design of causing injury, the possessor owes no duty to adult trespassers for conditions on the premises." (20)
Some states have abolished the distinction between licensees, invitees, and trespassers and the duties owed to each. Instead, in those states the occupier of land owes a duty of care to all three. However, even in these states the standard of reasonable care may vary with the circumstances of the visitor's entry on the premises.
No Special Duty Owed to Others
What about people who do not qualify as invitee, licensee, or trespasser? In most cases, no duty is owed. In Case Example 5-9, the innkeeper had no relationship with the injured party and therefore owed no duty of care.
CASE EXAMPLE 5-9 Callender v. MCO Properties 885 P.2d 123 (Ariz. 1994) ... On March 26, 1988, appellant John Scott Callender was boating with friends on Lake Havasu.... They steered the boat toward the beach at the Crazy Horse Campground. Two women occupants of the boat got out to retrieve an inflatable raft they had left at the beach. The young women attempted to row the raft out into the water. When Callender saw that they were having difficulty, he dived from the boat into the water to assist them. During the dive, however, he struck his head on the bottom of the lake, broke his neck, and was rendered a quadriplegic. At the time of Callender's accident, the State of Arizona owned the land along the Lake Havasu shore where the Crazy Horse Campground was located. The federal government owned and controlled the lake itself.... Appellees Ray and Marie Totah ... operated the Crazy Horse Campground. Callender filed a civil action ... alleging that the defendants failed to adequately warn that it was unsafe to dive in the water near the Crazy Horse Campground.... In response, the Totahs pointed out that Callender's accident occurred between 20 and 50 feet offshore from the campground premises, Callender had not been a guest of the campground, nor had he ever been on the premises nor docked at the campground. Finally, they argued that the lake's waters and subsurface were owned by the United States Department of the Interior and that Crazy Horse had no legal interest in those waters. The Totahs thus argued that they had no duty to Callender. Callender argued in response that because the Totahs reasonably could foresee that patrons of the campground and nonpatrons in the company of patrons would approach the Crazy Horse beach by boat and might dive from the boats, the Totahs had a duty to act reasonably to warn people of the risk of diving.... The campground was a business enterprise. A business invitee "is a person who is invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land." ... Callender was not an invitee of the Totahs. He did not enter the campground before the accident nor did he use any of the campground services or its dock. He was not attempting to enter the campground at the time of the injury. There simply was no relationship between Callender and the campground that would have imposed a duty of care on the Totahs for his benefit.... The trial court correctly granted summary judgment for the Totahs after finding they had no duty to warn Callender of the dangers of diving in waters offshore from the campground. We therefore affirm the trial court judgment in favor of the Totahs. CASE QUESTION 1. How would the liability of the Totahs for the accident have been different if Callender had been a camper at the campground and had been within the campground's beach area at the time of his diving accident? Why would the liability have been different?
In another case, a motel owner rented a room to the proprietor of a used car lot located next door. In the middle of the night, the motel owner was awakened by noises from two unauthorized men on the used car lot. The motel owner called the used car lot owner and informed him of the intruders. The lot owner shot at the intruders from the motel room. One intruder was killed; the other was wounded. The intruders sued the motel owner, among others. The owner contested liability. Since the intruders were not guests of the motel or otherwise connected with it, the court found no duty was owed and entered judgment for the motel. (21)
No Duty Owed on Property Not Owned or Maintained by the Hospitality Facility
A hotel or restaurant is generally not liable for injuries that occur to patrons on property not owned or maintained by it, even if the property is near the hotel or restaurant's facility. Thus, a restaurant was not liable to diners who were assaulted in a parking lot located behind the restaurant but not owned or maintained by it. The court specifically noted that the restaurant did not own, pave, snowplow, clear, or patrol the area where the assault occurred. (22)
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|Title Annotation:||Part 1: Introduction-Negligence|
|Publication:||Hotel, Restaurant, and Travel Law, 7th ed.|
|Article Type:||Professional standards|
|Date:||Jan 1, 2008|
|Previous Article:||Chapter 4 Contract law and the hospitality industry.|
|Next Article:||Chapter 5 Principles of negligence.|