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Click to edit Master title style Hotel, Restaurant, and Travel Law: A Preventive Approach, Seventh Edition Chapter 5 Principles of Negligence Many slides Copyright © 2008 by Delmar Learning

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Introduction • Hotels and restaurants are not the insurers of guests’ safety • Tort—many types of noncriminal wrongs done by one person that injure another

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

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

Breach of Duty • Defendant must not only owe a duty to the plaintiff to act reasonably • But also must also breach that duty

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

Breach of Duty (continued) • Standard is the mythical “reasonable person of ordinary prudence”

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

Proximate Cause • Refers to direct and immediate cause • There must be a cause-and-effect relationship between the unreasonable conduct and the injury • Breach of duty has to result in injury to the Plaintiff

Premises Liability (Florida Law) • • • 768. 0755 Premises liability for transitory foreign substances in a business establishment. — (1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that: (a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or (b) The condition occurred with regularity and was thereforeseeable. (2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

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

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

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

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

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

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

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

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

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

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 • Only a rebuttable presumption

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

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 • Hotel/Motel magazine Article (Shocking Tale)

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

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

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

Negligence Per Se Doctrine • Conduct that violates a law or ordinance designed to protect the safety of the pubic • Under the majority view, noncompliance with the safety law or ordinance is not conclusive on the side of the defendant’s breach of duty, but is some evidence

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

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

Obligations Beyond Regulation (continued) • Proprietors must stay abreast of new and stateof-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? ”

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 • Imposes liability for injury caused by an ultrahazardous activity without regard for or wrongdoing by the party engaging in the dangerous conduct

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

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

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

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

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

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

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

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

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

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

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

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

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

Statutory Protection for Good Samaritans (continued) • • • 768. 13 Good Samaritan Act; immunity from civil liability. — (1) This act shall be known and cited as the “Good Samaritan Act. ” (2)(a) Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment…in direct response to emergency situations. . . shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

Rescue Doctrine • Benefits a rescuer who is injured while administering aid

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

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

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

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

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

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

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

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

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