Primer on hotel law: The common law – courteous treatment & safe accommodation

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Written by Linda Hohnholz

As noted in Travel Law 4.04, modern hotels and resorts are wedded to the past in terms of the law which defines the traveler’s rights and remedies [Sherry, The Law of Innkeepers, Cornell University

As noted in Travel Law 4.04, modern hotels and resorts are wedded to the past in terms of the law which defines the traveler’s rights and remedies [Sherry, The Law of Innkeepers, Cornell University Press (1972)]. Last week we began our journey through the common law as applied to Innkeepers focusing in on the duty to accommodate travelers if there is a room available at the Inn. This week we continue our journey focusing in on additional common law duties including a duty to render courteous treatment and a duty to provide safe accommodations.

Travel Law Update
Airbnb Growing

In Corbett, Meet The Unlikely Airbnb Hosts of Japan, www.nytimes.com (2/18, 2015) (“Brian Chesky, Airbnb’s CEO (recently stated) ‘We believe in a world where all seven billion of us can belong anywhere’. He described Airbnb not as a business but rather as a movement, noting how people once lived in villages and understood what it was to feel a sense of belonging, but that over time-thanks to the Industrial Revolution-everything became depersonalized and dispersed and the good stuff eroded…

Airbnb, which makes its money by charging service fees of 9 to 15 percent on every booking, is reportedly valued at $13 billion, more than Wyndham Worldwide or Hyatt. Since its founding six years ago, the company has booked stays for 30 million people, 20 million of them last year. It now has about 1,500 employees in 20 cities worldwide”).

Hotel Market Staggers

In Ember, Hotel Market Staggers in New York City, www.nytimes.com (3/3/2015) it was noted that “analysts and industry experts are scrambling to explain abysmal January performance for the New York markets. The average revenue for available room—fell sharply by 12.0 percent, according to STR, a leading hotel research company. Average occupancy fell 4.7 percentage points to 68 percent and average daily room rates decreased 8.6 percent, to $190.16 from $208.11″. Could competition from Airbnb be the reason?

Duty To Render Courteous Treatment

Courteous treatment means that the guest must receive safe accommodations that protect him or her and their property. When appropriate, courteous treatment also extends to the provision of food and drink fit for the consumer. If there is a fire or other emergency, the hotel’s servants must be able to enter any room in order to protect the guests of the hotel. The protection of other guests also permits the hotel to establish rules that prohibit acts of indecency and immorality. The enforcement of such rules may require that the hotel have access to the guest’s room. However, the hotel must be very careful in enforcing its rules, since the guest has the right to receive respectful and decent treatment from the employees and servants of the hotel [DeWolf v. Ford (1908); Adams v. New York City Transit Authority (1996)].

Generally, hotels are liable for the willful misdeeds of their servants and substantial damages may be recoverable for the infliction of emotional distress [Emmke v. DeSilva (1923)]. Hotels often provide telephone service, deliver messages, mail and telegrams. Hotels are under no duty to provide these services, but if they do, then they are bound to perform them in a reasonable manner [Perrin v. Hilton Hotels International (1992)].

Duty To Provide Safe Accommodations

As a general rule the hotel is not an insurer of the safety of the guest, but must take reasonable precautions in protecting the guest from harm. As noted in Kaden v. Wyndham Conquistador Resort & Country Club (2005), a case involving a guest’s slip and fall on a Jacuzzi platform, “A guest staying at a hotel expects the latter to take all necessary security measures to [prevent] foreseeable risks”.

To Whom Are The Duties Owed

The degree of reasonableness will depend on to whom the duty is owed [Santos v. Posadas De Puerto Rico Associates, Inc. (2006)(slip and fall entering pool)], whether the hotel had notice and/or caused the condition that resulted in an accident [Wolf v. Fairfield Inn (2010)(trip and fall on wire beneath computer table)], whether the guest was contributorily negligent [Mlincek v. CC2 Tree Tennant Corp., (2005)(guest falls stepping down to hotel curb from tour bus)], whether the accident was foreseeable [Oskoui v. Red Roof Inns, Inc. (2011)(slip and fall in shower)], whether there are industry or statutory standards [Davis v. Accor North America, Inc. (2010)(guest drowns in pool trying to save wife and daughter from drowning)] or hotel policies [Olivarus v. Tharaldson Property Management, Inc. (2010) (guest entering bathroom steps “on an object underneath the carpet…felt a searing pain and her foot began to bleed”)] which were violated, failure to warn [Bielby v. Saginaw Plaza Group, LLC (2011)(guest slips and falls in bathtub; “we find that a reasonable jury could conclude that the defective condition existed for a length of time such that defendant should have discovered this dangerous condition”)], whether the hotel had actual or constructive notice of the dangerous condition [Fratesi v. Circus Mississippi, Inc. (2011)(guest slips on pool of water)], whether the danger was open and obvious [Dooley v. Spirit of the North Resort, Inc. (2010)(guest at resort “after consuming six beers dives from dock into shallow water rendering himself quadraplegic”)], whether defendants are subject to spoilation of evidence sanctions [Enstrom v. Garden Place Hotel (2006)(guest falls in whirlpool tub when plastic grab bar detaches as guest lifts himself from tub)], whether there was a dangerous or defective condition [Rosa v. Embassy Suites Hotel (2011)(guest falls waking on uneven ground “roughly two and a half feet deeper than their preceding step”)], whether houseboats are considered innkeepers [Yang v. Voyagaire Houseboats, Inc. (2005)(houseboat renter suffers carbon monoxide poisoning on board houseboat)], whether hotel rooms should have a back door [Allen v. Greenville Hotel Partners, Inc. (2005)(guests killed in hotel fire: “While there may be no duty for an innkeeper to provide security in the form of a back door that only guests can enter, the evidence supports that the innkeeper undertook a duty to provide security in this case”)], whether the hotel has assumed a duty to prevent spread of Legionella [Sudbeck v. Sunstone Hotel Properties, Inc. (2006)(“in the absence of a suspicion that Legionella exists, there is no law or regulation that compels a hotel operator to periodically test for Legionella or take other steps to prevent a guest from contracting Legionnaires’ Disease”)], whether the hotel negligently failed to summon emergency medical services [Room v. Caribe Hilton Hotel (1981)](the hotel directory stated “A registered nurse is on duty and a qualified physician is available at all times”; a guest in distress called the telephone operators two times and was advised to take a taxi to the hospital which he did where he stayed for a month after being diagnosed with myocardial infarction)], whether the hotel failed to adequately exterminate bed bugs [Grogan v. Gambler Corp. (2008)(guests sue for damages after being bitten by bed bugs)] and whether causation can be proven [Imperial Investments Doaville, Inc. v. Childers (2010)(guest fell through plate glass window in lobby)], for exposure to MSRA infection [Frederick v. InterContinental Group Resources, Inc. (2011)(guest allegedly contracts MRSA in hotel)], or to prevent a suicide [Schwenke v. Outrigger Hotels Hawaii LLP (2010)(non-guest commits suicide jumping off of hotel roof injuring plaintiff and damaging his vehicle)].

Child Care, Parking, Shuttles, Pools

Hotels may provide child care services for guests [Flanagan v. Wyndham International, Inc. (2005) (sexual assault by hotel employee of guest’s child entrusted to hotel in “Kids Klub day-care program at the Wyndham Sugar Bay Resort in St. Thomas”)]. In addition, the jury may consider whether the parents were negligent in supervising the child [Turner v. Parish of Jefferson (1998) (12 year old drowned in hotel pool; parents contributorily negligent)]. Hotels which provide parking may be liable for thefts of vehicles and assaults on guests if there have been prior instances of similar criminal conduct [Hardy v. Pier 99 Motor Inn (1995)(guests stabbed in hotel parking lot; hotel’s knowledge of prior criminal acts critical in establishing foreseeability)]. Hotels which provide shuttle bus service are responsible for providing safe transportation but its duties are not necessarily those of a carrier [Kerns v. Hyatt Corp. (1999)]. Hotels have escalators, revolving doors and elevators which may cause accidents [Weinstein v. PVA I, LP (2005) (guest injured exiting from automatic revolving doors)]. The hotel which provides a swimming pool, beach or water sports activities is not an insurer of the safety of those patrons who use these facilities [Milberger v. KBHL, LLC (2007)(guest injured by large wave)].

Conclusion

Next week we will finish our review of the common law focusing in on a hotel’s duty to protect guests from others. And we will begin a review of a hotel’s modern duties to its guests. Stay tuned.

The author, Justice Dickerson, been writing about Travel Law for 38 years including his annually-updated law books, Travel Law, Law Journal Press (2014), and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2014), and over 300 legal articles many of which are available at www.nycourts.gov/courts/9jd/taxcertatd.shtml .

This article may not be reproduced without the permission of Thomas A. Dickerson.

About the author

Avatar of Linda Hohnholz

Linda Hohnholz

Editor in chief for eTurboNews based in the eTN HQ.

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