Expert Witness Chronicles: Do Hotels Have a Duty to Warn of Hazards?
Editor’s Note: This is the second of seven articles on an expert witness case in the hospitality industry. Start with the first in the series.
By Dr. Gary Deel, Faculty Director, School of Business, American Military University
In the first part of this series, I described the story of Paul, a young man who vacationed in Miami Beach and suffered a catastrophic injury when he collided with an underwater sandbar and broke his neck. The accident left him completely paralyzed. I was hired by Paul’s attorney as an expert witness to review the circumstances of the case and testify in court as to whether the hotel had breached any duty to Paul by not warning him about hazards in the ocean.
First, it’s important to note that the duty of hotels to look after the wellbeing of individuals on their property varies depending on who the individuals are in relation to the hotel.
If an individual is on a hotel’s property but is not a customer (perhaps visiting a friend who is staying there, but not spending money at the hotel) the individual is called a licensee. The hotel’s only duty to licensees is to warn about hazards on the property which it knows about.
However, if the individual is a paying customer, by renting a room, dining in the hotel restaurant, playing golf on the hotel course, etc., that individual is an invitee. In that case, the hotel has a duty to warn such guests about hazards on the property which it knows about. The hotel must also actively inspect the property for hazards and either fix them or warn of them as they are discovered. (Read this series of articles for a more extensive discussion of hotel liability.)
Hotel Had a Duty to Inspect Property for Hazards
In this case, Paul was a paying guest. His name was on the hotel register, so he was indisputably an invitee. Therefore, whether or not the hotel knew about the submerged sandbar that Paul collided with, the hotel had a duty to inspect the property for such hazards and ameliorate or warn about them, right?
Not necessarily. There’s another issue here. Hotels have a duty to invitees to inspect their property and address any hazards they find. But this incident didn’t happen in the hotel lobby or in a guest room. It happened in the ocean behind the hotel. So the next question is whether the beach and the adjacent ocean were hotel property.
After a painful and complicated investigation into laws and zoning regulations, the short answer turned out to be no. The beach and the ocean are not the hotel’s property. The hotel was built on the beach, but technically its property began roughly 100 or so yards from the shoreline.
As for the beach itself, and the waters immediately adjacent, they are owned by the state of Florida and managed by the city of Miami. Unfortunately, the Eleventh Amendment precludes lawsuits of this kind against governments. So, unless it could be legitimately argued that the hotel had some responsibility on the beach, Paul would be without a means of seeking justice.
Fortunately for Paul, however, we discovered an additional important detail. Although the city of Miami manages the beach, it issues licenses for use of the beach to the hotels situated along the South Beach coastline. The hotel that Paul was staying at had such a use license from the city. This license allowed the hotel to set up chairs and umbrellas, and offer concessions to customers on a beach that is otherwise public property.
Finding Case Law to Establish Hotel’s Responsibility
So there was a legitimate means of tying the hotel to the beach itself. But the legal question that remained was whether a hotel could be held responsible for inspecting and addressing hazards on a property it uses but does not own. The attorneys in the case conducted an exhaustive case law search which determined that Florida courts had indeed dealt with this question before. So some case precedents existed. The problem was that some of the precedents were conflicting.
In several cases, including Poleyeff v. Seville Beach Hotel Corp. and Adika v. Beekman Towers Inc., courts determined that a hotel could not be held responsible for warning about hazards not on hotel property, even if the property was immediately adjacent and likely to be used by hotel guests.
However, in the case of McKinney v. Adams, the court found that if a hotel profited from its guests’ use of the property, the hotel could be held accountable for ensuring that the property was a safe place for guests; or at a minimum, that the hotel needed to warn guests about hazards that may exist on the property.
It’s undisputed that the hotel profited from their guests’ use of the beach and ocean. The hotel sold food and drink and rented recreational equipment like boogie boards on the beach.
Marketing Materials Supported Claim that Hotel Promoted Beach and Ocean Access
Additionally, Paul’s attorneys scoured the hotel’s marketing materials and found ubiquitous promotion of the beach and ocean as one of the main attractions for the property. Advertisements featured pictures and videos of the beach. Social media posts used language clearly designed to promote the ocean, including invitations to “dive on in” to the crystal blue waters of South Beach.
So not only was the hotel profiting from the beach and ocean, there was also ample evidence that it was the hotel’s intent to do so. Therefore, it was foreseeable that a court probably would have applied the McKinney precedent in this case.
At this point, it may sound like it was an open and shut case in Paul’s favor. But the hotel was part of a huge franchise. The corporation had tremendous resources and the most expensive lawyers who were certainly not going to submit without a fight.
In the next article, I will examine some of the defenses that the hotel raised against the charges of liability, and how I worked with Paul’s attorneys to try to address them.
About the Author: Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a JD in Law and a Ph.D. in Hospitality/Business Management. He teaches human resources and employment law classes for American Military University, the University of Central Florida, Colorado State University and others. To contact the author, email IPSauthor@apus.edu. For more articles featuring insight from industry experts, subscribe to In Public Safety’s bi-monthly newsletter.
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