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COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Hotel, Restaurant, and Travel Law: A Preventive Approach, Seventh Edition Chapter 5 Principles.

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Presentation on theme: "COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Hotel, Restaurant, and Travel Law: A Preventive Approach, Seventh Edition Chapter 5 Principles."— Presentation transcript:

1 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Hotel, Restaurant, and Travel Law: A Preventive Approach, Seventh Edition Chapter 5 Principles of Negligence

2 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Introduction  Hotels and restaurants are not the insurers of guests’ safety  Tort—many types of noncriminal wrongs done by one person that injure another

3 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Negligence  The breach of a legal duty to act reasonably that is the direct (proximate) cause of injury to another  Nonlegal language—carelessness that causes harm

4 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Elements of a Negligence Case  The existence of a legal duty to act reasonably owed by the defendant to the plaintiff  A breach of that duty  Injury to the plaintiff  Proximate cause

5 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Existence of a Duty to Act Reasonably  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

6 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Breach of Duty  Defendant must not only owe a duty to the plaintiff to act reasonably  Must also breach that duty

7 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Breach of Duty (continued)  The law provides a standard to help judge whether a defendant’s actions were or were not within the bounds of the law  Standard is the mythical “reasonable person of ordinary prudence”

8 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Reasonable Person  Reasonable person does not have bad days  Always up to standard  Personification of a community ideal of reasonable behavior

9 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Proximate Cause  Refers to direct and immediate cause  There must be a cause-and-effect relationship between the unreasonable conduct and the injury

10 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Preexisting Condition  A physical impairment suffered prior to the fall

11 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Intervening or Superseding Occurrence  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

12 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Injury to Plaintiff  Breach of duty has to result in injury

13 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Legal Status of Plaintiff  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

14 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Duty Owed to Invitees  Greatest duty of care owed to invitees  Invitee—someone who comes to an establishment for the purpose for which the business is open to the public  For a purpose directly or indirectly connected with that business

15 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Duty Owed to Invitees (continued)  Hotel or restaurant owes a duty to its invitees to reasonably inspect the premises for dangerous conditions exercise reasonable care to eliminate the danger

16 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Duty Owed to Invitees (continued)  Liability may result if (and only if) the business Knows, or by the exercise of reasonable care would discover, a dangerous condition that presents an unreasonable risk of harm to invitees Should expect that invitees will not discover or realize the danger or will fail to protect themselves against it Fails to exercise reasonable care to protect its invitees against the danger

17 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Duty Owed to Invitees (continued)  Necessary reasonable care (lack of negligence) encompasses both repair of and warning about the dangerous condition

18 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Active Vigilance Required  Ignorance on the part of the establishment normally will not relieve the business of liability  Duty to inspect for and discover problems and then to protect guests from resulting risks

19 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Duty Owed to Licensees  Degree of care owed to a licensee is greater than degree owed to a trespasser but less than an invitee  Someone who is on the premises of another by permission or acquiescence of the owner or occupier, and not by invitation

20 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Duty Owed to Licensees (continued)  States define the duty owed to licensees. In a majority of states, duty owed is twofold Refrain from willfully or wantonly injuring the licensee or acting in a manner to increase peril Warn of any latent dangers on the premises of which the property owner has knowledge

21 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Duty Owed to Trespassers  Least duty owed to trespassers  Person who enters a place without the permission of the owner or occupier  Landowner or possessor does not owe a duty to safeguard a trespasser from injury caused by conditions of the land

22 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Minority Position  Some states have abolished the distinction between licensees, invitees, and trespassers and the duties owed to each  In those states the occupier of land owes a duty of care to all three  Even in these states the standard of reasonable care may vary with the circumstances of the visitor’s entry on the premises

23 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. 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

24 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. 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

25 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Negligence Doctrines Generally Favoring the Plaintiff  Numerous legal doctrines are associated with negligence  In any negligence case one or more of these doctrines may apply and affect the outcome  Some doctrines favor the plaintiff by making the plaintiff’s case easier to prove  Others benefit the defendant

26 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Res Ipsa Loquitur  Literally means “the thing speaks for itself”  Frees the plaintiff from the burden of proving the specific breach of duty committed by the defendant

27 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Res Ipsa Loquitur (continued)  Elements Plaintiff’s injury was caused by an accident that would not normally have happened without negligence The thing causing the injury was within the exclusive control of the defendant The plaintiff did not provoke the accident

28 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Opportunity to Rebut  Where the doctrine applies, the defendant does not automatically lose  Defendant has an opportunity to rebut the inference that it was negligent

29 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Children and the Reasonable Person Test  Children do not comprehend dangers obvious to more mature persons  Nor are children able to weigh cause and effect accurately  Children cannot be expected to recognize risks and take appropriate precautions  The duty imposed on adults to act reasonably is usually greater when young children are involved

30 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Room Furnishings  A hotel must anticipate dangers and use reasonable care to protect against them when furnishing a room that will be occupied by children

31 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Attractive Nuisance Doctrine  A landowner generally owes no duty to a trespasser other than to refrain from causing him willful injury  There is an exception to this rule for child trespassers called the attractive nuisance doctrine

32 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Attractive Nuisance Doctrine (continued)  Doctrine is an outgrowth of the law’s recognition of youngsters’ limited capacity to detect danger and protect themselves from risk

33 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Attractive Nuisance Doctrine (continued)  Attractive nuisance is a potentially dangerous object or condition of exceptional interest to young people Swimming pool Large empty box Snow pile suitable for sliding Equipment or ditches at a construction site

34 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Attractive Nuisance Doctrine (continued)  Elements A condition exists that is attractive to children and is likely to cause them injury The owner or occupier of the land knows or should know of the danger Due to the child’s immaturity, he does not appreciate the danger

35 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Negligence Per Se Doctrine  Conduct that violates a law or ordinance designed to protect the safety of the pubic  Under the majority view, noncompli- ance with the safety law or ordinance is not conclusive on the side of the defendant’s breach of duty, but is some evidence

36 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Prima Facie Evidence  It alone is sufficient evidence if unrebutted to support a judgment for the plaintiff  In addition, a business can request a lawyer to perform a legal audit in which the attorney will examine the business and its compliance with applicable laws and advise the owner of any deficiencies

37 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Obligations beyond Regulation  Can a hotel be found negligent for failing to do more than the law requires? Yes

38 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Obligations Beyond Regulation (continued)  A hotel has a duty to exercise reasonable care to protect guests from injury  If satisfying the law falls short of reasonable care, the hotel must do more than what the statute requires  Failure to provide that added measure of safety will result in liability for negligence, not negligence per se

39 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Obligations Beyond Regulation (continued)  Proprietors must stay abreast of new and state-of-the-art products and techniques  Always ask, “What new practice or procedure can I be performing?”  “What new devices might I be utilizing to enhance the safety of my patrons?”

40 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Strict or Absolute Liability  Normally defendants are not liable unless they do something wrong  If applicable, a defendant will be liable even though they violated no duty and did nothing wrong

41 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Strict or Absolute Liability (continued)  Exception is called strict liability or absolute liability  Imposes liability for injury caused by an ultrahazardous activity without regard for or wrongdoing by the party engaging in the dangerous conduct

42 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Strict or Absolute Liability (continued)  Imposes liability for resulting injuries even if the defendant took every precaution and was not negligent  Principle supporting this rule is that the ultrahazardous activity could have been outlawed because of the danger it creates

43 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Strict or Absolute Liability (continued)  Despite its potential for harm, the ultrahazardous activity has a useful purpose  Such circumstances, in lieu of outlawing the activity, the law imposes liability for the activity on the party who engages in it, without regard to fault

44 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Strict Product Liability  Imposes liability on the seller of a defective product without regard to negligence  A product is defective for this purpose if it is designed or manufactured improperly  Or if it contains inadequate warnings of the dangers it presents

45 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Strict Product Liability (continued)  Liability is a matter of social policy and based on three objectives First—by reason of the retail seller’s continuing relationship with its distributor, the seller is in a position to exert pressure for improved safety of its products Second—a seller of goods assumes a special responsibility to its customers who expect the seller to stand behind its goods Third—spread the cost of damages suffered by individuals from the defect products

46 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Strict Product Liability (continued)  Note—the product causing the injury must be defective for strict product liability to apply  Sometimes a product causes injury for reasons other than a product flaw

47 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Respondeat Superior  Literally means “Let the master (employer) answer”  Founded on theory that an employee is an agent of the employer  Whenever an employee is performing the duties of his job, he is acting on behalf of the employer  Employer is vicariously (through a substitute) liable for the employee’s wrongful conduct

48 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Independent Contractors  Someone who contracts to do one or more specific projects for someone else and maintains control of the method for doing the work  A company generally is not liable for the acts of independent contractors it hires

49 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Independent Contractors (continued)  Determining whether a worker is an employee or independent contract is often not easy

50 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Independent Contractors (continued)  Additional factors to consider: Who, between the employer and worker, supplies the tools and place of work The length of time for which a person is hired The method of payment—by time or by the job Whether or not the work being performed is part of the regular business of the employer Intentions and beliefs of the parties concerning their relationship

51 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Nondelegable Duties  Exception exists to the general rule that an employer is not liable for the acts of an independent contractor  Typically, the duty imposed to keep the premises reasonably safe is nondelegable

52 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Nondelegable Duties (continued)  Duties that cannot be transferred (delegated) to another  For policy reasons, the employer is not permitted to avoid liability on the ground that an independent contractor failed to properly perform the work  Rule is intended to motivate the hotel or restaurant to monitor carefully the work of an independent contractor

53 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Duty to Aid a Person in Distress  Law does not impose a legal duty on individuals to rescue someone in trouble  Courts agreed that moral responsibility is a matter of conscience and not law

54 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Duty to Aid a Person in Distress (continued)  No liability will result if a rescuer chooses to do nothing  Liability will result if a rescue attempt is done negligently

55 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Duty to Aid a Person in Distress (continued)  Reason for the rule is the expectation that, had a rescuer not attempted to help, someone with the requisite skills would likely have offered to help  Once others observe that a person in need is being tended to, they are less likely to come forward to help

56 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Duty of Business Owners to Aid Invitees in Danger  The law in most states requires business owner to lend a hand under certain circumstances  Situations where the proprietor’s lack of care would aggravate the harm  Rationale for this duty is that the proprietor is deriving some economic benefit from the presence of the customer  Ensuring that invitees are safe is a cost of doing business

57 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Limitation on Duty to Invitees  A business owner’s duty to aid a patron in distress is not absolute  If the guest in danger is being cared for by others who appear competent to render the necessary assistance, the hotel or restaurant is relieved from the duty to offer aid

58 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Statutory Protection for Good Samaritans  Laws that protect a person who reacts in an emergency situation by trying to help a sick or injured person or someone in peril  The rescuer will not be liable for any injuries caused in the attempt to render assistance

59 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Statutory Protection for Good Samaritans (continued)  Many statutes further provide that a rescuer is not liable for ordinary negligence, only for gross negligence  Purpose of these statutes is to encourage voluntary aid to persons in danger by limiting the rescuer’s fear of potential liability

60 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Rescue Doctrine  Benefits a rescuer who is injured while administering aid

61 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Rule in Choking Situations  The law does not require a restaurant to administer first aid to a choking patron  The restaurant’s only duty is to summon medical assistance for the diner  If restaurant calls 911, it is free from liability  If a restaurant chooses to administer first aid and does so negligently, it will be held liable in many states

62 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Contributory Negligence  The plaintiff’s carelessness contributed to the injury  Plaintiff cannot successfully sue a negligent defendant  Trend away from contributory negligence is that the all-or-nothing effect is considered unduly harsh to the plaintiff

63 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Comparative Negligence  Plaintiff’s negligence will not totally defeat the lawsuit  Jury will allocate liability between the plaintiff and the defendant depending on their relative degree of culpability

64 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Comparative Negligence (continued)  In a pure system—plaintiffs will collect the appropriate share of their damages regardless of the percentage of fault attributed to them  Some states follow the comparative negligence rule provide that, for the plaintiff to recover, the percentage of liability allocated to the plaintiff must be less than that assigned to the defendant

65 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Doctrine of Last Clear Chance Tempered by Comparative Negligence  Contributory negligence doctrine greatly benefits defendant by barring plaintiffs from suing  In certain circumstances, plaintiffs can use the doctrine of last clear chance to support their cases

66 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Doctrine of Last Clear Chance Tempered by Comparative Negligence (continued)  Elements to be established before the doctrine will come into play Plaintiff has been negligent As the result of this negligence, the plaintiff is in a position of peril that cannot be escaped by the exercise of ordinary care Defendant knew or should have known of the plaintiff’s peril Defendant had a clear chance, by the exercise of ordinary care, to avoid the injury to the plaintiff, but failed to do so

67 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Assumption of Risk  Applies in cases where the plaintiff voluntarily engages in conduct known to present a risk of injury  If the plaintiff is injured as a result of that risk, according to the doctrine, the plaintiff cannot successfully sue for the loss

68 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Assumption of Risk (continued)  Plaintiff is said to have assumed the risk, that is, accepted the chance that injury might occur and impliedly agreed not to sue if it does

69 COPYRIGHT © 2008 by Delmar Learning. ALL RIGHTS RESERVED. Assumption of Risk (continued)  To establish assumption of risk, the defendant must show that the plaintiff Had knowledge of the risk Understood the risk Had a choice of either avoiding the risk or engaging in conduct that confronted the risk Voluntarily chose to take the risk


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