Expert Witness Chronicles: The Defense Takes Aim at Third-Party Contractor
Editor’s Note: This is the sixth 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 Military University
We have been examining a case that I participated in as an expert witness. It involved a young man we’re calling Paul. While swimming in the ocean at his vacation hotel in Miami’s South Beach, Paul suffered a catastrophic injury when he collided with an underwater sandbar. The accident left him paralyzed from the neck down. I was hired by Paul’s attorneys to review the circumstances of the case and to testify as to whether the hotel had breached any duty to Paul in not warning him about hazards in the ocean.
In previous parts of this series, I examined how the hotel could be found responsible for safety on the beach adjacent to the hotel property. I posited that Paul could not have been expected to assume the risk that caused his injury or that he knew he was on public property at the time the accident occurred.
In the most recent article, I discussed how the hotel attempted to blame the city of Miami for the accident. The defense, however, was undermined by safety precedents in place at other hotel properties in the company’s portfolio.
Hotel Attempts to Blame Beach Partner
There was yet another scapegoat that the hotel attempted to sacrifice in the legal dance of pre-trial discovery. It turned out that the hotel had a third-party contractor that handled all beach services for its guests. The hotel asserted that, if anyone had a duty to post safety warnings on the beach behind the hotel, it was the partner beach contractor company’s responsibility.
The argument relied on an assumption that the beach contractor operated independently of the hotel, which did not supervise or control the work of the beach partner. In theory, if the hotel simply had created an arrangement with the beach contractor to manage the beach area and left the beach partner to its own discretion on operations, the argument might have been compelling.
But that wasn’t the case. Through discovery, Paul’s attorneys learned that the hotel was heavily involved in the beach partner’s daily activities. First, the beach partner’s employees wore hotel uniforms and name tags. Second, they rented umbrellas, chairs, and towels that bore the hotel logo and colors. Finally, they sold food and drink to guests on the beach that came from the hotel’s restaurants.
All this was done so that hotel guests would not be able to distinguish the beach partner’s operations from those of the hotel. The intent was to create a seamless impression that the hotel was managing their guests’ experience inside the hotel and on the beach.
The beach contractor was a large company used by many hotels in Miami and a few others outside Florida. But as a defendant, the beach partner was nowhere near the size or the market cap of the hotel’s parent company. If Paul were limited to recovery only from the beach contractor, it’s likely his potential compensation would have been a fraction of what it could have been if the hotel had remained an accountable defendant. But it wouldn’t have been fair to let the hotel off the hook in this regard.
When Paul checked into the hotel, he had no idea that he would be dealing with the covert beach partner on the beach. Consequently, he had no notice that, in the event of litigation, he would be limited in the justice he could seek due to a hidden technicality. Every cue on the beach suggested that he was under the trusted care of the hotel.
Paul’s life was completely shattered by his injury. His quadriplegia meant he would need millions or even tens of millions of dollars’ worth of medical care for the rest of his life. To pay for this care, he and his family would need all the help they could get.
So after learning of the beach partner’s involvement, Paul’s attorneys decided to name the beach contractor company as an additional defendant in the suit. By taking this action, the defendants would be jointly and severally liable for any compensation owed to Paul.
What that meant in non-legal speak was that once an appropriate award amount was determined, Paul and his family didn’t have to worry about which company paid which portion; The hotel could fight and argue with its beach partner over that.
But “jointly and severally liable” meant that if the beach contractor had insufficient insurance coverage and assets to satisfy the damages, the hotel would be liable for anything above and beyond that amount, up to and including the entire award if for any reason the beach partner was unable to pay. The hotel’s liability would likely be needed to cover the entire amount.
By this point, the hotel’s attorneys had thrown just about everything at this case, and had, in my opinion, come up relatively empty-handed. Paul’s attorneys did some excellent discovery work. Consequently, they were able to counter virtually every defense argument with a legitimate claim to liability.
But these kinds of cases never end quickly, easily, or cheaply. Both sides hired a wealth of expert help. They conducted hours and hours of legal analysis, and zealously defended their client’s interests. It is an attorney’s duty to “leave it all on the field” for the parties they represent. They owe their clients every effort — short of illegal or unethical behavior — to prevail. There is no doubt that both sides gave it everything they had in terms of building a case to establish the outcome they sought.
So what happened? In the final article, I will reveal the outcome of this laborious, complicated case. I will also share what lessons can be gleaned from the events, so that beachfront hotels and resorts can avoid tremendous liability and properly prepare their beach safety strategies.
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.