PRINCIPLES OF NEGLIGENCE When does a hotel/restaurant operation have to compensate a guest or patron for injuries suffered on the premises? Depends upon whether the operation owed the guest or patron _____________________ ____________________ whether the operation violated its legal duty of reasonable care hotel/restaurant operations are not _____________ of the safety of guests or patrons KEY DEFINITIONS TORT is defined as ________________ ________________________________ but does not include breach of contract actions NEGLIGENCE is a form of tort defined as breach of ________ to use __________ resulting in the direct or proximate cause of injury to another person. INTENTIONAL TORT is a form of tort defined as ______________________ leading to the injury of another person. Basically the law requires that businesses act or conduct their operations with reasonable care under the circumstances to prevent injury to others. THE CRITICAL ELEMENTS OF NEGLIGENCE 1. EXISTENCE OF A LEGAL DUTY TO ACT WITH REASONABLE CARE 2. BREACH OF A LEGAL DUTY TO ACT WITH REASONABLE CARE 3. BREACH OF A LEGAL DUTY WAS THE PROXIMATE CAUSE OF INJURY TO ANOTHER PERSON 4. INJURY TO ANOTHER PERSON PROVABLE IN MONETARY DAMAGES IF ANY ONE OF THESE ELEMENTS IS MISSING OR CANNOT BE PROVED-NO LEGAL ACTION FOR NEGLIGENCE WILL EXIST. THE DUTY OF REASONABLE CARE 1. EXISTENCE OF A LEGAL DUTY TO ACT WITH REASONABLE CARE LEGAL DUTY OWED ONLY TO THOSE WHO ONE COULD ___________________ BEING INJURIED BY HOTEL/RESTAURANT OPERATIONS THE KEY IS ________________________ OF RISK SOURCES OF REASONABLE STANDARDS OF CARE REASONABLE STANDARDS OF CARE ARISE FROM MOST DEVELOPED AS ________________ OVER VERY LONG PERIODS OF TIME One of the most fundamental standards of care in hospitality operations relates to the ____________ _______________________________ SOME STANDARDS EVOLVE THROUGH ____________________ SOME STANDARDS OF CARE EVOLVE INTO THE LAW THROUGH DEVELOPING COMMUNITY STANDARDS EVOLVING COMMUNITY STANDARDS OF CARE Weston AED ordinances Common practices in business (some times to remain competitive) LOCAL BUSINESS/COMMUNITY PRACTICE OF USING OFF-DUTY DETAIL OFFICERS FOR PREMISES SECURITY 2006 murder of DJ at Miramar private high school academy dance – school failed to consider the local business practice of providing off duty detail security for social events- a local practice (this is a function of business awareness) SOURCES OF REASONABLE STANDARDS OF CARE (Cont) NOV 2005 SUN SENTINEL – LOCAL SECTION- “Woman gets $1.08 million in attack” ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF EXISTING DANGEROUS CONDITIONS- After shopping at Saks 5th Ave plaintiff went to her car in the Town Center Mall, Boca Raton where two men struck her in the head and took her purse containing $800. Despite the Mall being upscale “crime was rampant.” In the 2 years before the attack in the same parking lot there were 31 robberies, 27 batteries/assaults, two rapes, a riot, arson, 61 stolen cars and 16 burglaries, six lewd and lascivious acts. Mall officials were oblivious to the amount of crime in the parking lot. Verdict for plaintiff emphasized that the mall management has to know what is happening in their parking lot and take reasonable action to deal with risk of danger. THE PARKING LOT MURDER AT HOUSTON’S On the evening of Dec. 10, 2006 Dr. Bradley Timpf was shot to death in his car as he was leaving Houstons on Biscayne Blvd. His family announced the intention to sue Houstons and would allege that “on the night of the shooting, the restaurant had inadequate lighting and there was no security present” in the parking lot. The family will allege that the owners of the restaurant should have known better because there had been 189 criminal incidents at and near the restaurant in the 5 years prior to the shooting. Florida Man Sues Wal-Mart Over In- Store Snake Attack FORT LAUDERDALE, Fla. — February 15, 2009 A 42-year-old man bitten by a snake in a Pembroke Pines Wal- Mart garden center is suing the company for negligence. Jay Richitelli says he is the third Floridian in three years to be attacked in a Wal-Mart by a pygmy rattler. Two others were bitten in 2006 at the retailer's stores in Central Florida. Wal-Mart wouldn't comment on the litigation filed in Broward County Circuit Court, but said customer safety is its top priority. Richitelli says he still has respiratory problems and scars from the 2008 bite. But he's been back to Wal-Mart several times, saying their prices are too good to shop elsewhere. Richitelli's attorney says the Bentonville, Arkansas company should have taken steps to prevent the attacks after they happened before. FORSEEABILITY IN SECURITY SITUATIONS IN ORDER FOR A CRIME TO HAVE BEEN FORSEEABLE: It must be ________________________ ____________________________________on or near the location of the crime on the premises Substantially similar means the nature and extent and relevance of prior criminal activity at or near the location of the crime – similar criminal activity does not mean the same i.e. crimes of violence versus crimes against property Such that a reasonable person would take ordinary precautions to protect invitees from risk posed by the criminal activity VIOLENT ATTACK BY 3RD PARTY IS NOT ALWAYS ACTIONABLE AS NEGLIGENCE A student at a private college in Georgia was kidnapped from a college parking lot and raped. Prior to this incident there were no reported incidents of kidnapping, rape or other violent crimes that occurred in that parking lot. The only crimes that occurred in that lot were property crimes without person-to-person contact. The victim sued the college for negligent failure to keep its premises safe. Camille Stearns Miller, A Violent Attack by 3rd Party is Not Always Actionable (10/12/2005) VIOLENT ATTACK BY 3RD PARTY IS NOT ALWAYS ACTIONABLE AS NEGLIGENCE THE APPELLATE COURT HELD- A landowner has a duty to invitees to exercise ordinary care to keep its premises safe The landowner is not an insurer of an invitees safety The landowner is not liable for the criminal act of a 3rd party UNLESS ____________________ ___________________________________ WITHOUT FORESEEABILITY THAT THE CRIMINAL ACT COULD OCCUR, NO DUTY ARISES ON THE PART OF THE LANDOWNER TO EXERCISE REASONABLE CARE TO PREVENT THAT ACT. Camille Stearns Miller, A Violent Attack by 3rd Party is Not Always Actionable (10/12/2005) VIOLENT ATTACK BY 3RD PARTY IS NOT ALWAYS ACTIONABLE AS NEGLIGENCE IN ORDER FOR THE CRIMINAL ACT OF A 3RD PARTY TO BE FORESEEABLE It must be be substantially similar to previous crimes occurring on or near the premises such that a reasonable person would take ordinary precautions to protect invitees from the risks posed by the criminal activity For criminal acts to be substantially similar to previous crimes at that specific location The nature and extent of criminal activity occurring there And their similarity to the crime at issue (no requirement that it be identical) Similarity must be sufficient enough to cause a reasonable person to perceive that a dangerous condition existed. Camille Stearns Miller, A Violent Attack by 3rd Party is Not Always Actionable (10/12/2005) BREACH OR VIOLATION OF A LEGALLY IMPOSED DUTY 2. BREACH OF A LEGAL DUTY TO ACT WITH REASONABLE CARE STANDARD TO DETERMINE WHETHER LEGAL DUTY BREACHED – WHAT WOULD A REASONABLE PERSON OF ORDINARY PRUDENCE DO UNDER SAME OR SIMILAR CIRCUMSTANCES? THE ELEMENT OF CAUSATION 3. BREACH OF A LEGAL DUTY WAS THE PROXIMATE CAUSE OF INJURY TO ANOTHER PERSON CLAIMED INJURY RESULTED DIRECTLY AND IMMEDIATELY FROM BREACH OF DUTY SO THAT A REASONABLE PERSON COULD SEE FORESEE THE POTENTIAL DANGER FROM DEFENDANT‟S CONDUCT THE ELEMENT OF PROVABLE DAMAGES 4. INJURY TO ANOTHER PERSON PROVABLE IN MONETARY DAMAGES MUST BE PROVABLE BODILY INJURY, PAIN AND SUFFERING, PROPERTY LOSS, EMOTIONAL INJURY AND/OR ECONOMIC LOSS FORSEEABILITY OF DANGER- Determining the Scope of the Reasonable Duty of Care Owed THE TEST OF FORSEEABILITY- OBVIOUS DANGERS AND THE REASONABLE DUTY OF CARE: HIDDEN OR NONVISIBLE DANGERS AND THE REASONABLE DUTY OF CARE AND THE DUTY TO DO A________________ _____________________: Didthe operation know? Under the circumstances, should the operation have known of the danger? FORSEEABILITY OF ICY FALL Icy Fall Norwich, CT: (Feb-20-07) Michael Bowman, a Kentucky horse veterinarian, broke his ankle in an icy fall in 2002 Super Eight Motel in Waterbury. He claimed that he broke his ankle in three places when he fell on ice outside the hotel. on a patch of ice about 1 a.m. in a poorly lit area. Bowman claimed that Motel owners and the general manager had been aware of the icing problem for four years, but did nothing to fix it or to warn pedestrians of the potential slipping hazard. doctors had testified Bowman's injuries would not heal and would worsen over time. They said Bowman's decreased ability will hamper his ability to earn a living. As part of a settlement reached, a jury ordered the owners and general manager to pay for Bowman's injuries amounting to nearly $2 million, resolving the personal injury claim. [METRO WEST DAILY NEWS: ICY FALL] THE DEPTH AND REACH OF THE FORSEEABILITY DOCTRINE: Terrorism Half a Globe Away In Spring of 2006, Hilton Hotels Corp. was sued in the Circuit Court of Miami-Dade County by several American families that were victims of a terrorist bombing at a Hilton Hotel in Taba City, Egypt in 2004. The suit alleges that Hilton Hotel Corp. was negligent in protecting its guests enabling a suicide bomber to drive an explosives-laden car into the hotel lobby and detonate the explosives killing 35 guest and wounding another 100. The suit claims Hilton breached its duty to protect its guests by failing to adopt reasonable and adequate security Despite numerous recommendations for improved security from security consultants and Prior warnings of terrorist threats to all hotels in the region. Are such incidents foreseeable under the circumstances? Are special security plans needed? Hotels are now targets. Aronson, Mort, Hiltion Suit Warning to Hospitality Industry, www.hotelmotel.com , May 15, 2006 FORSEEABILITY OF DANGER- Determining the Scope of the Reasonable Duty of Care Owed THE “OPEN AND OBVIOUS” DOCTRINE- Business owner has _____________ To warn customers/patrons of dangerous conditions That are ________________ Because the very nature of the dangerous condition serves as a warning to the public i.e. the obvious defect or condition which would be unreasonable not to see. DID THE BUSINESS OWNER OWE A DUTY CRITICAL INQUIRIES (1) FORSEEABILITY OF INJURY, (2) LEGAL STATUS OF PLAINTIFF & (3) SITE OF INJURY WAS THE CAUSE OF THE PATRON‟S INJURY ____________________ TO THE BUSINESS OWNER? WHAT WAS THE ____________ OF THE INJURED PERSON- Invitee, Licensee or Trespasser? WHAT WAS THE LOCATION OF THE INCIDENT-Did the business owner have __________________? STATUS OF THE PLAINTIFF: The Business Invitee-Invitee Defined BUSINESS INVITEE-person who comes to the business for ___________ for which the business is operating and open to the public Hotel - guest and visitors of guests, employees delivery persons delivering items necessary to the business Restaurant - diners, employees delivery persons delivering items necessary to the business STATUS OF THE PLAINTIFF: The Business Invitee-Duty Owed DUTY OF CARE OWED - Reasonable ______________ for dangerous conditions and Exercise of reasonable care (diligent inspection and adequate warning) to eliminate known dangerous conditions STATUS OF THE PLAINTIFF: The Business Invitee-Knowledge of Danger LIABILITY RESULTS ONLY IF THE FOLLOWING OCCUR: Business knew or with reasonable care should have discovered („should have know” ie _________________________) presence of dangerous condition presenting unreasonable risk of injury to business invitees; no reasonable expectation that invitees would discover the danger or would be able to protect themselves; and business fails to use reasonable care to protect business invitees from known danger STATUS OF THE PLAINTIFF: The Business Invitee WITH REGARD TO THE BUSINESS INVITEE THE CRITICAL ISSUE IS WHETHER THE BUSINESS OWNER OWED A LEGAL DUTY TO INSPECT IN A REASONABLY DILIGENT MANNER- This is the specific duty most often at issue in slip and fall cases ACTIVE VIGILANCE/DUE DILLIGENCE REQUIRED BY LAW- ________________ will not be a defense to liability- Hotel/Restaurant have a duty to inspect and discover foreseeable risks STATUS OF THE PLAINTIFF: The Licensee LICENSEE-someone who has permission by the owner of the premises or owner‟s agent (employees) to enter or remain on the property whose presence is not necessary to business operations DUTY OF CARE OWED TO LICENSEE-Most States define duty owed as 1. ______________________________________ licensee or acting in way to increase peril AND 2. Warn of latent (non-obvious) dangers known by the property owner Minority of States merely require refraining from willful or want injury to licensees NO AFFIRMATIVE DUTY TO INSPECT PREMISES FOR SAFETY OF LICENSEE ( AS REQUIRED FOR BUSINESS INVITEE) THE ONLY DUTY IS TO WARN OF KNOWN DANGERS STATUS OF THE PLAINTIFF: The Trespasser TRESPASSER-person coming onto or remaining on the premises ____________________________________ DUTY OF CARE OWED TO TRESPASSER General rule- property owner owes no duty to trespasser for injury due to condition on the premises Some states require duty to refrain from willful or wanton injury to trespassers Other states only impose duty to refrain from willful or wanton injury to trespassers if the trespassers presence is known or should have been know by the property owner DEPENDING UPON THE CIRCUMSTANCES THE STATUS OF A PERSON ON THE PREMISES CAN CHANGE FROM INVITEE TO LICENSEE OR TO TRESPASSER VERY RAPIDLY I.E. INVITEE GOES INTO AN AREA CLEARLY MARKED “EMPLOYEES ONLY” BECOMES A TRESPASSER WHERE DID THE CLAIMED INJURY OCCUR: Was it on or off premises/did the business owner have control? NEXT TO THE STATUS OF THE PLAINTIFF AS INVITEE, LICENSEE OR TRESPASSER - THE SITE OF THE CLAIMED INJURY ON OR OFF THE BUSINESS PREMISES IS THE SECOND MAJOR ISSUE IN ALL PREMISE LIABILITY LAWSUITS GENERAL RULE- hotel/restaurant owes no legal duty of care on property not owned or maintained by the business operation exceptions- All routes of travel used by guests and known to property owner if the property traveled is owned by hotel/restaurant it has a duty of care NEGLIGENCE DOCTRINES (RULES OF LAW) THAT FAVOR PLAINTIFFS RES IPSA LOQUITOR CHILDREN AND THE REASONABLE PERSON TEST THE “ATTRACTIVE NUISANCE” DOCTRINE NEGLIGENCE PER SE DOCTRINE THE DOCTRINE OF STRICT OR ABSOLUTE LIABILITY THE DOCTRINE OF RESPONDEAT SUPERIOR THE LEGAL PRINCIPLE OF NONDELEGABLE DUTIES RES IPSA LOQUITOR RES IPSA LOQUITOR-is a legal rule that Recognizes the serious difficulties of proof which an injured plaintiff faces in a negligence lawsuit Applies in cases where circumstances strongly indicate that defendant was negligent but no direct proof is available RES IPSA LOQUITOR- “_________________________” IS A LEGAL DOCTRINE THAT CREATES A REBUTABLE PRESUMPTION THAT A DEFEDANT BREACHED A DUTY OF CARE (NEGLIGENCE) OWED TO THE PLAINTIFF AND SHIFTS THE BURDEN OF PROOF TO DEFENDANT TO SHOW IT WAS NOT NEGLIGENT IN ORDER TO USE THIS DOCTRINE THE PLAINTIFF MUST PROVE THE FOLLOWING: injury occurred under circumstances suggesting it would not have happened but for the defendant‟s negligence; the direct cause of the injury was under the direct and exclusive control of the defendant; plaintiff did not contribute to his/her injury in anyway SPECIAL LEGAL DUTIES OWED TO CHILDREN CHILDREN AND THE REASONABLE PERSON TEST: The law of negligence recognizes that _____________ _______________________________________ Hotel/restaurant operations will be held to a greater or enhanced duty of reasonable care toward children non-comprehending, impulsive behavior of children is The law conclusively presumes that children under the age of 7 years are not capable of contributory negligence. higher duty of reasonable care requires anticipation of the impulsive acts of children “When a child of tender years is accepted as a guest, the inexperience and the natural tendencies of such a child become a part of the situation and must be considered by the innkeeper.” “[The innkeeper] is bound to consider whether the premises present any reasonably avoidable dangers to the child guest This doctrine is tempered by the contributory or comparative negligence of the parent who has general control and responsibility for the child‟s safety. THE “ATTRACTIVE NUISANCE” DOCTRINE REASONABLE ACCOMMODATIONS FOR CHILDREN- duty to anticipate danger where children are involved accommodations including furniture must be suitable (safe) in anticipation of the impulsive acts of children - special high chairs in restaurants THE “_____________________” DOCTRINE- is a specialized negligence doctrine that recognizes the impulsiveness of children AN ATTRACTIVE NUISANCE IS DEFINED AS a potentially dangerous object or condition which can be anticipated to be of special interest to children BEST EXAMPLE IS A SWIMMING POOL ie liability still held to exist even if child climbed a locked fence. THE “ATTRACTIVE NUISANCE” DOCTRINE IF AN ATTRACTIVE NUISANCE EXISTS ON THE PREMISES-the owner owes an enhanced duty to anticipate and protect a child from associated risks. ELEMENTS OF THE ATTRACTIVE NUISANCE DOCTRINE: 1. Conditions exists which attractive to children and is likely to cause injury 2. Premises owner knew or should have know of the attractive and dangerous condition 3. Due to _______________ he/she cannot appreciate the danger NEGLIGENCE PER SE DOCTRINE NEGLIGENCE PER SE DOCTRINE NEGLIGENCE PER SE IS DEFINED AS an act of negligence that violates a _______________ designed to specifically protect the safety of the public. INNKEEPERS ALWAYS HAVE A DUTY TO COMPLY WITH THE REQUIREMENTS OF THE LAW DESIGNED TO PROTECT GUESTS. THIS DUTY APPLIES EVEN WHEN THE OWNER IS UNAWARE OF THE EXISTENCE OF THE SAFETY LAW ie ignorance of the law is no defense. Requires innkeepers to have current knowledge of laws application to hotel or restaurant operations Have a legal expert conduct a legal audit NEGLIGENCE PER SE DOCTRINE THIS DOCTRINE ELIMINATES THE GENERAL REQUIREMENT OF PROOF THAT THE DEFENDANT BREACH A DUTY OF REASONABLE CARE BY FAILING TO ACT REASONABLY - The elements of a negligence case are modified by this doctrine: 1. Proof of existence of a law or ordinance 2. Proof of defendant‟s violation of the law or ordinance 3. Proof that this violation was the proximate cause of the injury 4. Proof of the the extent of the injury NEGLIGENCE PER SE DOCTRINE OBLIGATIONS BEYOND MERE REGULATION- COMPLIANCE WITH THE LAW IS NOT PER SE EXERCISE OF REASONABLE CARE-if satisfying the requirements of existing law falls short of a duty of reasonable care ie anticipating foreseeable dangers then the OPERATION MUST DO MORE THAN THE LAW REQUIRES THE DOCTRINE OF STRICT OR ABSOLUTE LIABILITY THE DOCTRINE OF STRICT OR ABSOLUTE LIABILITY- in operating an activity recognized as ULTRAHAZARDOUS even though a defendant observed every applicable regulation and took every possible precaution, they will be held liable if their activity was the cause of injury to another. THIS DOCTRINE ELIMINATES ANY REQUIREMENT FOR A PLAINTIFF TO PROVE THAT THE DEFENDANT OWED A REASOANBLE DUTY OF CARE AND BREACHED THAT DUTY. ___________________________ IS DEFINED AS handling explosive material keeping wild animals on the premise UNDER THE DOCTRINE OF STRICT LIABILITY PROOF OF DEFENDANT‟S FREEDOM FROM NEGLIGENCE IS NOT A DEFENSE. THE DOCTRINE OF STRICT OR ABSOLUTE LIABILITY THE DOCTRINE OF STRICT PRODUCTS LIABILITY-the doctrine of strict liability has been extended to sellers of defective products- IMPOSES LIABILITY ON SELLERS OF DEFECTIVE PRODUCTS WITHOUT REGARD TO NEGLIGENCE A PRODUCT IS DEFINED AS DEFECTIVE IF it is designed or manufactured improperly OR it contains inadequate warnings of dangers it presents THE DOCTRINE OF STRICT PRODUCT LIABILITY APPLIES TO THE SALE OF UNSAFE, TAINTED OR CONTAMINATED FOOD STUFFS OR OTHER PRODUCTS SOLD BY HOTEL OR RESTAURANT OPERATIONS THE DOCTRINE OF RESPONDEAT SUPERIOR OR VICARIOUS LIABILITY THE DOCTRINE OF RESPONDEAT SUPERIOR (Let the master answer) OR CONCEPT OF VICARIOUS LIABILITY-an employer is liable for the acts of its employees done within the furtherance of their jobs (“WITHIN THE ________ OF THEIR EMPLOYMENT”). WHAT DOES “WITHIN THE SCOPE OF EMPLOYMENT MEAN? THE DOCTRINE OF RESPONDEAT SUPERIOR OR VICARIOUS LIABILITY THE DOCTRINE OF RESPONDEAT SUPERIOR is based upon the legal theory that –an employee is the agent of the employer whenever the employee is performing duties with in the scope of his/her employment – THE ACTS OF THE EMPLOYEE ARE BY LAW THE ACTS OF THE EMPLOYER. RESPONDEAT SUPERIOR ENCOURAGES EMPLOYERS TO EXERCISE REASONABLE CAUTION IN SELECTING EMPLOYEES ENCOURAGES EMPLOYERS TO PROPERLY TRAIN THEIR EMPLOYEES DID THE INCIDENT OCCUR WITHIN THE SCOPE OF THE EMPLOYEES DUTIES? This is always the main issue in such cases. IS AN EMPLOYER LIABLE FOR ACTS OF ITS INDEPENDENT CONTRACTORS – depends on the degree of control the employer has over the independent – this is also a difficult question to resolve in these cases DRIVING WHILE CALLING: the Need for a Company Cell Phone Policy Settlements and Verdicts Posted Mar 31, 2008 Fulton, GA: (Mar-21-08) Debra Ford brought a personal injury claim against International Paper Co. and its employee Vanessa C. McGrogan, alleging that she rear ended her car while driving, and using a cell phone (Vicarious Liability). McGrogan was using her company-supplied cell phone as she drove west on Interstate 16 near Dublin when she crashed into Ford's car, overturning it so that the driver's side hit and then slid along the roadway. trapping Ford's arm between the door and the asphalt leading to Ford having her arm amputated almost up to the shoulder. There was a cell phone statute in Georgia that says the driver is not to do things that are distracting. Ford's attorneys said that McGrogan's cell phone use was not reasonable as her cruise control was set at 77 miles per hour, in a 70 mph speed zone. The personal injury suit stated that there was intentional negligence on the part of the employee and International Paper, and sought punitive damages. In its defense, International Paper said that the employee was not actually on the phone at the moment the collision occurred. . . . However, a witness testified that he had seen her with the phone to her ear at the time of the collision. VICARIOUS LIABILITY FOR THE CONDUCT OF CLUB BOUNCERS APRIL 7, 2008 – THREE BOUNCERS FROM THE MANSION CLUB ON SOUTH BEACH WERE ARRESTED FOR FOR THE AGGRAVATED BATTERY OF THREE CLUB PATRONS THE THREE VICTIMS WERE TOLD TO MOVE FROM THEIR TABLE TO MAKE IT AVAILABLE TO OTHER CLUB PATRONS. THE VICTIMS WERE PRESENTED WITH A $700 BAR TAB WHICH THEY DISPUTED. AT THAT TIME THEY WERE PHYSICALLY REMOVED AND BEATEN IN THE PROCESS. THE WHOLE EVENT WAS CAPTURED ON SURVEILLANCE CAMERAS THIS IS A CONTEMPORARY EXAMPLE OF THE REASON WHY A GOOD RISK MGT PROGRAM WOULD DISCOURAGE THE USE OF PRIVATE BOUNCERS IN FAVOR OF HIRING POLICE OFFICERS FROM THE CITY WHERE THE CLUB IS LOCATED FOR OFF DUTY DETAIL SECURITY AT SUCH CLUBS THE LEGAL PRINCIPLE OF NONDELEGABLE DUTIES THE LEGAL PRINCIPLE OF _______________DUTIES- THE DUTY IMPOSED UPON A HOTEL/RESTAURANT OPERATION TO KEEP THE PREMISES REASONABLY SAFE FOR GUESTS IS NONDELEGABLE-BY LAW THIS DUTY CANNOT BE TRANSFERRED TO INDEPENDENT CONTRACTORS OR OTHER PERSONS This rule is intended to motivate the hotel or restaurant to monitor carefully the work performed by hired independent contractors. DUTY TO AID A PERSON IN DISTRESS- there is no general legal duty to rescue a person in peril IF A PERSON DOES COME TO THE AID OF ANOTHER IN PERIL - they must use reasonable care in making an attempt to help DUTY TO INVITEES IN DANGER- a business open to the public owes a duty to its patrons to aid them if in danger while on the premises. SOUTH FLORIDA $1million award upheld in sex assault on ship MIAMI. A federal appeals court has upheld a $1 million jury award for a woman who accused her waiter on a Celebrity Cruise ship of sexual battery. The woman, who was not named in the lawsuit, claimed that the waiter sexually assaulted her in a park near the docked Zenith t..", while she was a passenger traveling from New York to Bermuda. The suit alleged that the ship's medical staff treated her and flew her home from Bermuda on July 21,1999. She sued for negligence, sexual assault and sexual battery. A jury in November 2002 awarded the woman $1 million for her claim of sexually battery. In its 59-page opinion, the 11th U.S. Circuit Court of Appeals in Atlanta wrote Wednesday that "we conclude that the defendants owe a non-delegable duty to protect their passengers from crew member assaults and thereby safely transport their cruise passengers. "The jury award is expected to be split among four defendants, including Zenith Shipping Corp.and Celebrity Cruises, which is owned by Royal Caribbean Cruises : Ltd. STATUTORY PROTECTION FOR GOOD SAMARITANS STATUTORY PROTECTION FOR GOOD SAMARITANS- extends protection from liability for persons who react in an emergency situation by trying to help a another person in peril. A rescuer will not be liable for injuries caused in the attempt to render assistance if the means used were reasonable under the emergency circumstances that existed at the time. THE RESCUE DOCTRINE -places liability on the person who negligently put himself/herself in peril inviting a rescue- if the rescuer is injured in the attempt to rescue - the person negligently put in peril will be liable to the rescuer for injuries. CHOKING SITUATIONS-generally no duty to aid a choking guest or restaurant patron. If the employees do try to aid a choking victim they must do so with reasonable care. NEGLIGENCE DOCTRINES FAVORING DEFENDANTS RAISING PLAINTIFF‟S OWN NEGLIGENCE AS A PARTIAL OR COMPLETE DEFENSE: CONTRIBUTORY NEGLIGENCE Any __________________ by plaintiff that contributed in any way to the injury that is the subject of negligence action against the defendant will be a complete defense and prevent any recovery of damages All but ___ states have abandoned this doctrine in favor of some form of comparative negligence because the defense of contributory negligence was considered to be to harsh in its effect Defenses to Negligence A business may defend against a negligence claim by attacking any of the four negligence elements. Possible defenses include (1) challenging the status of the plaintiff (e.g., invitee v. licensee) and the corresponding duty of care, (2) asserting that it acted in accordance to the requisite standard of care, (3) attacking the causal link between act or omission and harm or injury, or (4) questioning whether the plaintiff suffered any actual loss. Comparative or contributory negligence-In addition, some jurisdictions allow an otherwise negligent party to escape some or all of its liability if it can prove that the injured party was also negligent. Florida is a comparative negligence state. THE MODERN DOCTRINE OF COMPARATIVE NEGLIGENCE COMPARATIVE NEGLIGENCE-plaintiff‟s own negligence contributing to his/her injury will not be a complete defense to a suit for negligence. “Pure system” rule of comparative negligence- plaintiff will receive an award of damages that reflects the total amount of provable damages less than percentage equal to plaintiff‟s own negligence that contributed to the injury. “Less-Than” rule – if plaintiff‟s percentage of negligence contributing to his/her injury is more than 49% then no damages will be awarded ie that degree of negligence by plaintiff will be a complete defense to the entire suit. DOCTRINE FAVORING THE DEFENSE ASSUMPTION OF THE RISK A law doctrine that corresponded with contributory negligence THE RULE – IF A PLAINTIFF __________________________ ENGAGES IN CONDUCT THAT PRESENTS A RISK OF INJURY As a matter of law a plaintiff would be denied recovery for injury sustained from assuming that risk ELEMENTS TO PROVE ASSUMPTION OF THE RISK THE PLAINTIFF KNEW OR SHOULD HAVE KNOWN OF THE RISK THE PLAINTIFF UNDERSTOOD THE CONSEQUENCES OF THE RISK THE PLAINTIFF COULD CHOOSE THE AVOID OR ASSUME THE RISK THE PLAINTIFF VOLUNTARILY ASSUMED THE RISK THESE ELEMENTS __________________ __________________________ TO AFFIRMATIVELY NOTIFY A PLAINTIFF OF A RISK (an existing obvious or inherent dangerous condition) MODERN DOCTRINE OF COMPARATIVE NEGLIGENCE HAS MODIFIED THE DEFENSE OF ASSUMPTION OF THE RISK LIKE THE OLD DEFENSE OF CONTRIBUTORY NEGLIGENCE, THE ABSOLUTE NATURE OF THE DEFENSE OF ASSUMPTION OF THE RISK HAS BEEN SOFTENED. However, even under the doctrine of comparative negligence – evidence that a plaintiff assumed the risk that caused the injury is a very powerful factor in the defendant‟s favor especially if coupled with other evidence that the defendant acted reasonably under the circumstances. IGNORANCE OF RISK NEGATES ASSUMPTION OF RISK IF THE PLAINTIFF IS ____________________ OF THE RISK THE DEFENSE WILL NOT APPLY.