1. Chapter 5 Principles of Negligence
Hotel, Restaurant, and Travel Law: A Preventive Approach, Seventh Edition
Chapter 5
Principles of Negligence

2. 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. 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. 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. 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. Breach of Duty
Defendant must not only owe a duty to the plaintiff to act reasonably
Must also breach that duty

7. 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. Reasonable Person Reasonable person does not have bad days
Always up to standard
Personification of a community ideal of reasonable behavior

9. Proximate Cause Refers to direct and immediate cause
There must be a cause-and-effect relationship between the unreasonable conduct and the injury

10. Preexisting Condition
A physical impairment suffered prior to the fall

11. 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. Injury to Plaintiff
Breach of duty has to result in injury

13. 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. 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. 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. 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. Duty Owed to Invitees (continued)
Necessary reasonable care (lack of negligence) encompasses both repair of and warning about the dangerous condition

18. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Obligations beyond Regulation
Can a hotel be found negligent for failing to do more than the law requires?
Yes

38. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Independent Contractors (continued)
Determining whether a worker is an employee or independent contract is often not easy

50. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Rescue Doctrine
Benefits a rescuer who is injured while administering aid

61. 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. 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. 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. 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. 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. 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. 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. 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. 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