Expert Witness Chronicles: Assessing Risk and Playing the Blame Game
Editor’s Note: This is the fourth of seven articles on an expert witness case in the hospitality industry. Start by reading the first article in the series.
By Dr. Gary Deel, Faculty Director, School of Business, American Public University
While swimming in the ocean in Miami Beach, Paul broke his neck on a sandbar and became paralyzed. As an expert witness and specialist in hospitality litigation, I was hired by Paul’s attorneys to review the case and to testify as to whether the hotel had breached any duty to Paul in not warning him about hazards in the water.
Assumption of risk is a well-established legal doctrine. It may be invoked to indemnify an accused party when the victim knew, or should have known, that injury was a possible outcome of his or her actions. So when Paul was injured, the hotel’s attorneys argued that Paul should have known when he went into the water that he might get hurt.
But the assumption of risk doctrine requires an element of foreseeability. In other words, in order for an aggrieved party to assume a risk, by definition he or she must foresee and appreciate the risk. So the question that was presented in this case was whether Paul could have foreseen the possibility that he could be injured, as he ultimately was.
Was Paul’s Injury the Result of Foreseeable Risk?
Swimming in the ocean is not a risk-free activity. There are natural forces that no one can predict with perfect accuracy, such as undertows and shark attacks. These events can happen without warning, and they claim lives every year. So a certain assumption of risk—of drowning from a strong undertow or being bitten by a shark—is indeed present in every adult ocean swimmer.
However, what about the risk of breaking one’s neck on an unusual and undetectable sandbar? Was that within the scope of foreseeability for Paul? Probably not, unless he was given some advance notice about the presence and peculiarity of the sandbars in that part of the Atlantic Ocean.
By analogy, imagine you buy a trampoline. A foreseeable risk might be if you bounce too high and fall off you could hurt yourself. This would be a clear assumption of risk for a trampoline purchase. But if, by contrast, the trampoline spontaneously bursts into flames and burns you while you’re bouncing on it, it is unlikely there is an assumption of risk because fire is not a foreseeable risk associated with trampolines.
If the hotel had provided Paul some kind of prior warning about the sandbar hazard, and he chose to go swimming anyway, then he really would have assumed the risk. But in this case, no such warning was given, and—as discussed in the previous article—the hazard was not obvious, so there was no assumption of risk.
The Injury Happened on a Public Beach, Is the Hotel Still Responsible?
Another claim that the hotel tried to use was that Paul knew—or should have known—that he was on a public beach, and therefore not subject to any protection from the hotel. This claim would have made sense if the property line between the hotel and the state-owned beach were clear and unambiguous.
For example, when you pull out of the parking lot of a store and into traffic, you would not expect the store to be responsible for your safety on the road because it’s generally assumed that the store does not own the road.
However, this was not the case between the hotel and the beach. It is true that the beach was not technically owned by the hotel. But the hotel had a use agreement with the city to conduct business on the beach. The hotel had umbrellas and chairs set up, sporting hotel logos, for guest use. Hotel employees were selling guests food and drinks. There were also hotel attendants renting beach and ocean equipment.
So when Paul walked onto the beach, did he transition from hotel property to public property? Sure he did. But did he know it? No, he did not. And should he have known it? Also no.
The only clue to the transition from private to government property was a generic City of Miami safety sign near the beach entrance. But it wasn’t visible from the rear of the hotel, and regardless, it was still far overshadowed by the hotel’s ubiquitous presence that suggested just the opposite. No, Paul was completely justified in believing he was still vacationing under the watchful care of the hotel, which was charging him hundreds of dollars a night to stay there.
At this point, many of the hotel’s preliminary objections and defenses had been adequately countered. However, there was another angle that the hotel attorneys intended to pursue. That was the strategy of shifting blame to other parties that could be implicated in the lawsuit.
What about the city of Miami? Where was its participation in beach safety? If in fact there was a duty to warn beachgoers about hazards, then wouldn’t the city be the most appropriate entity to shoulder that burden?
In the next part, I’ll share how Paul’s attorneys addressed this argument with thorough research and careful preparation.
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.