Expert Witness Chronicles: Duty to Warn about Safety Hazards
Editor’s Note: This is the fifth 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
In previous articles, I described the case of a young man we called Paul who suffered a catastrophic injury while swimming in Miami’s South Beach. He hit an underwater sandbar and broke his neck, paralyzing him from the neck down. I was hired by Paul’s attorneys to review the circumstances of the case and testify as to whether the hotel had breached any duty to Paul in not warning him about hazards in the ocean.
The hotel’s attorneys tried to argue that, if there was indeed a burden to warn beachgoers about the hazards of extreme sandbars, it fell on the city of Miami, which managed the beach under an agreement with the state of Florida.
Hotel’s Efforts to Pass Responsibility to City of Miami
Blaming the city was an expected strategy from the defense, as Paul would have been precluded from suing the municipality under the 11th Amendment.
This argument wasn’t without its persuasive elements. After all, the city had installed safety signs at public access points along the beach. These signs warned about adverse weather conditions and riptides. The signs also prohibited visitors from bringing glass bottles onto the beach or allowing pets to defecate on paths. There was no mention of hidden sandbars on any of the signs.
Furthermore, the city maintained a series of lifeguard stands that were manned during daylight hours and used warning flags to indicate how safe the surf was. Don’t these efforts serve to show that the city accepted responsibility for beach safety?
Safety Is Not a Mutually Exclusive Obligation, Nor Should it Be
Paul’s attorneys countered with a more important point, which was that safety is not a mutually exclusive obligation, nor should it be. In other words, just because the city of Miami made efforts to warn beachgoers about beach hazards doesn’t mean that other parties, such as the hotels along the beach, don’t also have a duty to offer beach safety warnings.
After reviewing the logistics of Paul’s visit and his incident at the hotel, the public policy interest in expecting beach hotels to offer their guests safety information becomes abundantly clear. Paul and his friends arrived in Miami by plane. A cab took them directly to Paul’s hotel. When he went to the beach behind the hotel, he did so directly through the hotel’s rear exit. He therefore never had occasion to use any of the public beach access points or to see any of the city’s safety signs posted around them.
On the beach behind the hotel, Paul could see lifeguard stands, but they were positioned more than 100 yards apart from each other. The nearest one was not close enough for him to easily discern any safety information that might have been posted on it.
Of course, one could argue that Paul and his friends could have jogged down to the nearest lifeguard stand and inquired about safety hazards. But would that be a reasonable thing to expect every person who visits Miami’s beaches to do? It’s clear that Paul had no reasonable way of availing himself of safety information from the city, even if it had warned about sandbars.
Now consider the alternative. How easy might it have been for the hotel to offer beach safety warnings to guests? I was actually asked to testify about this, and I provided a list of ways. They included:
- Safety information on the hotel’s website
- Safety posts on the hotel’s social media accounts
- Printed safety information at check-in
- Printed safety information in guest rooms
- Safety videos on the hotel’s directory TV channel
- Safety signs at the hotel exit to the beach
- Safety signs at the beach cabanas where chairs, umbrellas, and towels were available
The fact is that there were numerous easy and inexpensive opportunities to warn guests about beach hazards; these were unique opportunities that the hotel had, and the city of Miami did not.
Predictably, the hotel’s attorneys attempted to counter this claim by asserting that such warnings were neither customary nor expected for hotel beach resorts. They provided evidence in discovery which showed that very few hotels within a few blocks’ radius of their location on the beach offered any type of beach safety information to their guests. This was the classic “nobody else does that” argument.
But the hotel’s attorneys didn’t count on the research that Paul’s attorneys had done. Opening that “nobody else does that” can of worms turned out to be a big mistake by them.
On my recommendation, Paul’s lawyers sent an investigator to visit the other major beach resort properties belonging to the same parent company and the same franchise as the hotel where Paul was injured. The investigator went to more than a dozen properties around the world, and what he found was that a large percentage of them offered safety signage at their beach entrances, including notices about ocean conditions and “no diving” warnings.
Even more damning, some of these properties were in Florida, creating a point of comparison that was hard to refute. So the hotel company had clearly established a precedent for warning guests about beach hazards. It just was a precedent that the company seemed to have no interest in following consistently.
The hotel’s attorneys countered that in some of the locations we researched, the safety signs may have been the result of either different property ownership circumstances (the hotels might have had actual ownership of their beaches) or legal requirements (the hotels might have been required by local laws to post safety signs).
But this argument really isn’t a well-thought-out defense. Think about it. Maybe those other hotels were required to post signs because of land ownership or legal requirements. But then were they implying that because no such circumstances were present in Miami, they didn’t care about the safety of their guests on the beach?
A sign similar to that found at the hotel’s sister properties would not have been costly. But it would seem that the hotel where Paul stayed didn’t put one up for no other reason than management didn’t have to. This is not the argument an attorney wants to lead with when representing a major corporation in a jury trial.
So what else was there? Well, as it turns out, the city of Miami wasn’t the only other party involved to which the hotel could attempt to pass the buck. In the next part, we’ll see how the hotel attempted to avoid liability by blaming its business partners on the beach.
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.