Chapter 9 Your Responsibilities as a Hospitality Operator.

Chapter 9Chapter 9

Your Your ResponsibilitiResponsibilities as a es as a Hospitality Hospitality OperatorOperator

© 2005 Stephen C. Barth P.C. and John Wiley & Sons, Inc.All Rights Reserved

Your Responsibilities as a Your Responsibilities as a Hospitality OperatorHospitality Operator

Duties And Obligations Of A Duties And Obligations Of A Hospitality OperatorHospitality Operator

Theories Of LiabilityTheories Of Liability Legal DamagesLegal Damages Anatomy Of A Personal Injury LawsuitAnatomy Of A Personal Injury Lawsuit Responding To An Incident Responding To An Incident


In This Chapter, You Will Learn:In This Chapter, You Will Learn:

1.1. To differentiate between the types To differentiate between the types of legal duties required of a of legal duties required of a hospitality operator, and the hospitality operator, and the consequences of the failure to consequences of the failure to exercise reasonable care in fulfilling exercise reasonable care in fulfilling these duties. these duties.

2.2. To evaluate operational activities in To evaluate operational activities in light of their impact on guest safety light of their impact on guest safety and potential legal damages. and potential legal damages.


In This Chapter, You Will Learn:In This Chapter, You Will Learn:

3.3. To understand how a lawsuit is To understand how a lawsuit is initiated and moves through the initiated and moves through the U.S. court system.U.S. court system.

4.4. To create a checklist of the steps To create a checklist of the steps that should be initiated immediately that should be initiated immediately following an accident.following an accident.


Duties and Obligations of a Duties and Obligations of a Hospitality OperatorHospitality Operator

Legalese:Legalese:

Duty of Care Duty of Care - A legal obligation to - A legal obligation to protect protect against harm.against harm.


Duties of CareDuties of Care

1.1. Provide a reasonably safe premise.Provide a reasonably safe premise.

2.2. Serve food and beverages fit for Serve food and beverages fit for consumption.consumption.

3.3. Serve alcoholic beverages Serve alcoholic beverages responsibly.responsibly.

4.4. Hire qualified employees.Hire qualified employees.


Duties of CareDuties of Care

5.5. Properly train employees.Properly train employees.

6.6. Terminate employees who pose a Terminate employees who pose a danger to other employees or the danger to other employees or the guest.guest.

7.7. Warn of unsafe conditions.Warn of unsafe conditions.

8.8. Safeguard guest property, Safeguard guest property, especially when voluntarily especially when voluntarily accepting possession of it.accepting possession of it.


Analyze the Situation 9.1Analyze the Situation 9.1

Alan Brandis arrived at the Golden Alan Brandis arrived at the Golden Fox restaurant for a Friday night fish fry. Fox restaurant for a Friday night fish fry. During his meal, a severe thunderstorm During his meal, a severe thunderstorm began, which caused the ceiling of the began, which caused the ceiling of the men's restroom to leak. After finishing his men's restroom to leak. After finishing his meal, Alan entered the men's room to meal, Alan entered the men's room to wash his hands. He slipped on some wet wash his hands. He slipped on some wet tile, which was caused by the leak in the tile, which was caused by the leak in the roof. Alan struck his head during the fall, roof. Alan struck his head during the fall, and was severely injured. and was severely injured.



One week later, Mr. Brandis's One week later, Mr. Brandis's attorney contacted the owners of the attorney contacted the owners of the Golden Fox with a claim for damages. The Golden Fox with a claim for damages. The restaurant owners maintained the fall was restaurant owners maintained the fall was not their responsibility, claiming they were not their responsibility, claiming they were not the insurers of guest safety. While the not the insurers of guest safety. While the owners knew of the condition of the roof, owners knew of the condition of the roof, they said it leaked only during extremely they said it leaked only during extremely heavy thunderstorms and was too old to heavy thunderstorms and was too old to fix without undue economic hardship. fix without undue economic hardship.



Most important, because the storm was Most important, because the storm was not within their control, the owners not within their control, the owners maintained that it was not reasonable to maintained that it was not reasonable to assume they could have foreseen the assume they could have foreseen the severity of the storm, and thus could not severity of the storm, and thus could not be held liable for the accident.be held liable for the accident.



1.1. Was the severity of the storm a Was the severity of the storm a foreseeable event? foreseeable event?

2.2. What duty of care is in question What duty of care is in question here? here?

3.3. Did the restaurant act prudently? Did the restaurant act prudently?

4.4. Are the restaurant's defenses valid? Are the restaurant's defenses valid? Why or why not? Why or why not?


Duties and Obligations of a Duties and Obligations of a Hospitality OperatorHospitality Operator

Legalese:Legalese:

Standard of Care Standard of Care - The industry-- The industry-recognized, reasonably accepted recognized, reasonably accepted level level of care used in fulfilling a of care used in fulfilling a Duty of Care. Duty of Care.


Theories of LiabilityTheories of Liability

Legalese:Legalese:

Reasonable Care Reasonable Care - The degree of - The degree of care that care that a reasonably prudent a reasonably prudent person would use person would use in a similar in a similar situation.situation.



Legalese:Legalese:

Tort Tort - An act or failure to act (not - An act or failure to act (not involving a breach of contract), that involving a breach of contract), that

results in results in injury, loss or injury, loss or damage to damage to another (i.e. negligence another (i.e. negligence is an is an unintentional tort; whereas unintentional tort; whereas battery, battery, physically touching physically touching someone is usually someone is usually an intentional an intentional tort). tort).



Legalese:Legalese:

Negligent (Negligence) Negligent (Negligence) - The failure - The failure to use to use reasonable care.reasonable care.



Legalese:Legalese:

Proximate Cause Proximate Cause - The event or - The event or activity activity that directly contributes to that directly contributes to (causes), (causes), the injury or harm.the injury or harm.



Legalese:Legalese:

Gross Negligence Gross Negligence - The reckless or - The reckless or willful willful failure to use even the failure to use even the slightest slightest amount of reasonable amount of reasonable care.care.



Paul and Beatrice Metz took their Paul and Beatrice Metz took their 11-year-old daughter Christine on a 11-year-old daughter Christine on a weekend skiing trip and stayed at weekend skiing trip and stayed at the St. Stratton ski resort. The St. the St. Stratton ski resort. The St. Stratton owned and maintained four Stratton owned and maintained four ski trails and a ski lift on its property. ski trails and a ski lift on its property.



One morning, Mr. and Mrs. Metz were One morning, Mr. and Mrs. Metz were having coffee in the ski lodge while their having coffee in the ski lodge while their daughter was riding the ski lift to the top daughter was riding the ski lift to the top of the mountain. On the way up, the car of the mountain. On the way up, the car containing Christine Metz and one other containing Christine Metz and one other skier jumped off its cable guide and skier jumped off its cable guide and plunged 300 feet down the mountain. As a plunged 300 feet down the mountain. As a result of the fall, Christine was result of the fall, Christine was permanently paralyzed from the neck permanently paralyzed from the neck down. down.



The Metzs filed a lawsuit against the The Metzs filed a lawsuit against the resort. Their attorney discovered that the resort. Their attorney discovered that the car's connections to the cable were car's connections to the cable were checked once a year by a maintenance checked once a year by a maintenance staff person unfamiliar with the intricacies staff person unfamiliar with the intricacies of ski cable cars. The manufacturer of the of ski cable cars. The manufacturer of the cable car recommended weekly cable car recommended weekly inspections, performed by a specially inspections, performed by a specially trained service technician. trained service technician.



The ski resort's corporate owners The ski resort's corporate owners maintained that all skiers assumed risk maintained that all skiers assumed risk when skiing, that the manufacturer's when skiing, that the manufacturer's recommendation was simply a recommendation was simply a recommendation, and that their own recommendation, and that their own inspection program demonstrated they inspection program demonstrated they had indeed exercised reasonable care. In had indeed exercised reasonable care. In addition, they maintained that Christine's addition, they maintained that Christine's paralysis was the result of an unfortunate paralysis was the result of an unfortunate accident for which the cable car's accident for which the cable car's manufacturer, and not the resort, should manufacturer, and not the resort, should be held responsible.be held responsible.



1.1. Did the resort exercise reasonable care? Did the resort exercise reasonable care? 2.2. What level of negligence, if any, was What level of negligence, if any, was

present? Ordinary negligence? Gross present? Ordinary negligence? Gross negligence?negligence?

3.3. What amount of money do you think a What amount of money do you think a jury would recommend the resort be jury would recommend the resort be required to pay to compensate Christine required to pay to compensate Christine Metz for her loss, if it is found to have Metz for her loss, if it is found to have committed a tort against her?committed a tort against her?

4.4. Are the resort's defenses valid ones? Are the resort's defenses valid ones? Why or why not?Why or why not?



Legalese:Legalese:

Contributory Negligence Contributory Negligence - Negligent - Negligent conduct by the complaining conduct by the complaining

party party (plaintiff) that contributes to (plaintiff) that contributes to the cause the cause of his or her injuries.of his or her injuries.



Legalese:Legalese:

Comparative Negligence Comparative Negligence - Shared - Shared responsibility for the harm that responsibility for the harm that results from negligence. The results from negligence. The comparison of negligence by the comparison of negligence by the defendant with the contributory defendant with the contributory negligence of the defendant. (Alsonegligence of the defendant. (Alsoknown as comparative fault.)known as comparative fault.)



Legalese:Legalese:

Strict Liability Strict Liability - Responsibility arising - Responsibility arising from the nature of a dangerous from the nature of a dangerous

activity activity rather that negligence or an rather that negligence or an intentional intentional act. (Also known as act. (Also known as absolute liability absolute liability or liability without or liability without fault.)fault.)


Search the Web 9.1Search the Web 9.1Log on to the Internet and enter Log on to the Internet and enter ww.findlaw.com.ww.findlaw.com.1.1. Select: Legal Subjects.Select: Legal Subjects.2.2. Select: Injury and Tort Law.Select: Injury and Tort Law.3.3. Select: Findlaw Firms Online- Personal Injury Select: Findlaw Firms Online- Personal Injury

and Torts.and Torts.a)a) Select the name of an attorney practicing in a geographic Select the name of an attorney practicing in a geographic

area in which you have an interest.area in which you have an interest.b)b) Contact the attorneyContact the attorney’’s office by telephone or letter and s office by telephone or letter and

ask if they can help you understand how the state and/or ask if they can help you understand how the state and/or local courts view comparative negligence in their practice local courts view comparative negligence in their practice area via information on a web site address or in a area via information on a web site address or in a publication.publication.



Legalese:Legalese:

Intentional Act Intentional Act - A willful action - A willful action undertaken with or without full undertaken with or without full understanding of its consequences.understanding of its consequences.


Intentional Acts of Third PartiesIntentional Acts of Third Parties

ForseeabilityForseeability Reasonable careReasonable care



Legalese:Legalese:

Negligence Per Se Negligence Per Se - When a rule is - When a rule is violated by the operator; such violated by the operator; such violation violation of a rule is considered of a rule is considered to be far outside to be far outside the scope of the scope of reasonable behavior that reasonable behavior that the the violator is assumed to be negligent.violator is assumed to be negligent.


Legal DamagesLegal Damages

Legalese:Legalese:

Compensatory Damages Compensatory Damages - Are - Are awarded to awarded to restore the injured restore the injured party to the position party to the position they were in they were in prior to the injury (i.e. prior to the injury (i.e. medical medical expenses, lost wages, etc.).expenses, lost wages, etc.).


Legal DamagesLegal Damages

Legalese:Legalese:

Punitive Damages Punitive Damages - A monetary - A monetary amount amount used as punishment and to used as punishment and to deter the deter the same wrongful act in same wrongful act in the future by the the future by the defendant and defendant and others.others.


Anatomy of a Personal Injury Anatomy of a Personal Injury LawsuitLawsuit

Legalese:Legalese:

Personal Injury Personal Injury - Damage or harm - Damage or harm inflicted inflicted upon the body, mind or upon the body, mind or emotions.emotions.



Demand LetterDemand Letter PetitionPetition DiscoveryDiscovery Trial and AppealTrial and Appeal



Legalese:Legalese:

Demand Letter Demand Letter - Official notification, - Official notification, typically delivered to a typically delivered to a

defendant via defendant via registered or registered or certified mail, that details certified mail, that details the the plaintiff’s case for impending plaintiff’s case for impending litigation. litigation.



Legalese:Legalese:

Contingency Fee Contingency Fee - A method of - A method of paying for paying for a civil attorney’s a civil attorney’s services where the services where the attorney attorney receives a percentage of any receives a percentage of any money awarded as a settlement in money awarded as a settlement in the the case. Typically, these fees case. Typically, these fees range from range from 20-40% of the total 20-40% of the total amount awarded.amount awarded.



Legalese:Legalese:

Interrogatories Interrogatories - Questions which - Questions which require require written answers, given written answers, given under oath, under oath, asked during the asked during the discovery phase of a discovery phase of a lawsuit.lawsuit.



Legalese:Legalese:

Depositions Depositions - Oral answers, given - Oral answers, given under under oath, to questions asked oath, to questions asked during the during the discovery phase of a discovery phase of a lawsuit. lawsuit. Depositions are recorded by Depositions are recorded by a certified a certified court reporter and/or by court reporter and/or by videotape. videotape.



Legalese:Legalese:

Subpoena Subpoena – A court-authorized order – A court-authorized order to to appear in person at a designated appear in person at a designated time time and place, or to produce and place, or to produce evidence evidence demanded by the court. demanded by the court.



Legalese:Legalese:

Appeal Appeal - A written request to a higher - A written request to a higher court to modify or reverse the court to modify or reverse the

decision decision of a lower level court.of a lower level court.


Alternative Dispute ResolutionAlternative Dispute Resolution

ArbitrationArbitration MediationMediation


Search the Web 9.2Search the Web 9.2

Log on to the Internet and enter Log on to the Internet and enter www.spidr.org.www.spidr.org.1.1. Select: Ethical Standards of Professional Select: Ethical Standards of Professional

Responsibility.Responsibility.2.2. Review the document developed by the Review the document developed by the

Society for Professionals in Dispute Resolution Society for Professionals in Dispute Resolution (SPIDR).(SPIDR).

3.3. From the document displayed, determine:From the document displayed, determine:a)a) What are the major responsibilities to the What are the major responsibilities to the

parties addressed in the Societyparties addressed in the Society’’s Ethical s Ethical Statement?Statement?

b)b) Which responsibility do you believe is most Which responsibility do you believe is most important for effective mediation? Why?important for effective mediation? Why?


Responding to an AccidentResponding to an Accident

Step 1 - Do call 911.Step 1 - Do call 911. Step 2 - Do attend to the injured party.Step 2 - Do attend to the injured party. Step 3 - Do be sensitive and sincere.Step 3 - Do be sensitive and sincere. Step 4 - Do not apologize for the accident.Step 4 - Do not apologize for the accident. Step 5 - Do not admit that you or your Step 5 - Do not admit that you or your

employees were at fault. Do not take employees were at fault. Do not take responsibility for that accident.responsibility for that accident.



Step 6 - Do not offer to pay for the Step 6 - Do not offer to pay for the medical expenses of the injured medical expenses of the injured party.party.

Step 7 - Do not mention insurance Step 7 - Do not mention insurance coverage.coverage.

Step 8 - Do not discuss the cause of Step 8 - Do not discuss the cause of the accident.the accident.



Step 9 - Do not correct the employee Step 9 - Do not correct the employee at the scene.at the scene.

Step 10 - Do a complete and through Step 10 - Do a complete and through investigation.investigation.

Step 11 - Do complete a claim report, Step 11 - Do complete a claim report, and submit it to your insurance and submit it to your insurance company immediately.company immediately.



Step 12 - Do not discuss the Step 12 - Do not discuss the circumstances surrounding the circumstances surrounding the accident or the investigation with accident or the investigation with anyone except those who absolutely anyone except those who absolutely need to know.need to know.

Step 13 - Do not throw away records, Step 13 - Do not throw away records, statements, or other evidence until statements, or other evidence until the case is finalized.the case is finalized.


What Would You Do?What Would You Do?

Assume you are a mediator Assume you are a mediator whose job is to help opposing parties whose job is to help opposing parties limit the expense and time of going limit the expense and time of going to trial in matters of personal injury. to trial in matters of personal injury. In your current case, Jeremy and In your current case, Jeremy and Anne Hunter have filed a personal Anne Hunter have filed a personal injury suit against the Fairview injury suit against the Fairview Mayton Hotel’s ownership group and Mayton Hotel’s ownership group and its franchisor, Mayton Hotels and its franchisor, Mayton Hotels and Resorts Inc.Resorts Inc.



According to the Hunters, they According to the Hunters, they checked into their suite at the Fairview checked into their suite at the Fairview Mayton, one of 150 independently owned, Mayton, one of 150 independently owned, franchise-affiliated properties, on a Friday franchise-affiliated properties, on a Friday night. Their daughter Susan, who was 8 night. Their daughter Susan, who was 8 years old at the time, opened a sliding years old at the time, opened a sliding patio door, and upon seeing the outdoor patio door, and upon seeing the outdoor hot tub that was part of suite, asked her hot tub that was part of suite, asked her parents if she could get in. They told her parents if she could get in. They told her yes. yes.



Upon entering the tub (it is agreed by both Upon entering the tub (it is agreed by both parties that Susan “jumped” into the hot parties that Susan “jumped” into the hot tub), she suffered third-degree burns over tub), she suffered third-degree burns over 80 percent of her body, and her facial 80 percent of her body, and her facial features were permanently disfigured features were permanently disfigured because the water in the hot tub was 160 because the water in the hot tub was 160 degrees F., not 102, the maximum degrees F., not 102, the maximum recommended by the tub’s manufacturer, recommended by the tub’s manufacturer, and well above the 105-degree maximum and well above the 105-degree maximum dictated by local health codes. dictated by local health codes.



An investigation determined that the hot An investigation determined that the hot tub safety switch, designed to prevent tub safety switch, designed to prevent accidental overheating, had been accidental overheating, had been bypassed when some wiring repair was bypassed when some wiring repair was performed by the hotelperformed by the hotel’’s maintenance s maintenance staff. (The Hunters are also suing the staff. (The Hunters are also suing the franchise company because a mandatory franchise company because a mandatory inspection of property safety, which, as inspection of property safety, which, as part of the franchise agreement was to part of the franchise agreement was to have been performed annually, had not have been performed annually, had not been done in the three years prior to the been done in the three years prior to the accident.)accident.)



The hotel’s insurance company The hotel’s insurance company takes the position that Susan’s takes the position that Susan’s parents gave her permission to use parents gave her permission to use the tub, despite a written warning on the tub, despite a written warning on the tub’s side saying it was not to be the tub’s side saying it was not to be used by persons under age 14, and used by persons under age 14, and thus they bear a majority of the thus they bear a majority of the responsibility for the accident. responsibility for the accident.



The Mayton franchise companyThe Mayton franchise company’’s s insurance company states it is not insurance company states it is not responsible for the acts of its responsible for the acts of its franchisees, and thus cannot be held franchisees, and thus cannot be held accountable. The hotelaccountable. The hotel’’s manager s manager has been terminated. The Hunters, has been terminated. The Hunters, whose lawyer has accepted the case whose lawyer has accepted the case on a contingency basis, is suing for a on a contingency basis, is suing for a total of $5 million.total of $5 million.



1.1. What would you recommend the What would you recommend the Fairview Mayton’s insurance Fairview Mayton’s insurance company do? company do?

2.2. What would you recommend the What would you recommend the franchise company’s insurance franchise company’s insurance company do? company do?

3.3. What would you recommend the What would you recommend the Hunters do? Hunters do?


Rapid ReviewRapid Review

1.1. Define and explain the difference Define and explain the difference between a breach of contract, a crime, between a breach of contract, a crime, and a tort.and a tort.

2.2. Describe examples of negligence, Describe examples of negligence, gross negligence, and an intentional gross negligence, and an intentional act that could result in the act that could result in the commission of a tort.commission of a tort.

3.3. Detail the essential difference Detail the essential difference between a duty of care and a standard between a duty of care and a standard of care, using an example of each.of care, using an example of each.



4.4. Give three examples of strict liability as it Give three examples of strict liability as it may apply to hospitality managers may apply to hospitality managers serving food, lodging, and entertainment serving food, lodging, and entertainment products.products.

5.5. Using the Web or library, search the Using the Web or library, search the hospitality trade press to find an article hospitality trade press to find an article describing an incident of a jury awarding describing an incident of a jury awarding punitive damages to a plaintiff where a punitive damages to a plaintiff where a hospitality organization was the hospitality organization was the defendant. Explain why you believe the defendant. Explain why you believe the jury came to its conclusion.jury came to its conclusion.



6.6. Outline the process involved in initiating Outline the process involved in initiating a personal injury lawsuit, and discuss the a personal injury lawsuit, and discuss the hospitality manager’s role in that hospitality manager’s role in that process.process.

7.7. List at least five advantages that result List at least five advantages that result from using an alternative dispute from using an alternative dispute resolution process as opposed to going resolution process as opposed to going to trial in a personal injury lawsuit.to trial in a personal injury lawsuit.

8.8. Create a checklist that can be used to Create a checklist that can be used to guide a manager’s actions in the first guide a manager’s actions in the first fifteen minutes after an accident.fifteen minutes after an accident.

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Chapter 9 Your Responsibilities as a Hospitality Operator.

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