Chapter § 4.01 PROBLEM AREAS

• Jurisdiction: United States
• Publication year: 2021

§ 4.01 Problem Areas

[1] In General

Hotels and resorts sell rooms and other services that may be marketed by a complex system,¹ raising numerous issues such as jurisdiction,² choice of law,³ forum non conveniens,⁴ franchisor/franchisee relations,⁵ and so forth. Travel and the hotel and resort business are big business, indeed.⁶ Among the peripheral services provided by many of these institutions are food, entertainment, concierge services,⁷ sports activities, gambling, property storage, vehicle and equipment rentals, telephone services, vehicle parking and security, and tours and sightseeing events. More recently, some resorts are supporting eco-tourism,⁸ sustainability,⁹ free breakfast,¹⁰ spas,¹¹ and providing face lifts,¹² smoke-free environments,¹³ fitness centers,¹⁴ new check-in procedures,¹⁵ extras,¹⁶ accommodations for pets,¹⁷ iPads and iPhone apps,¹⁸ and virtual hotel tours.¹⁹ These services may be provided directly by employees, joint venturers, independent contractors or by entities completely unrelated to the hotel or resort. In addition to the more traditional suppliers such as hotels and resorts, tourist accommodations may be provided by resort timeshare facilities,²⁰ home swapping,²¹ houseboats,²² vacation home rentals,²³ condo-hotels,²⁴ camp resorts,²⁵ hybrid homes,²⁶ hostels,²⁷ vil- las,²⁸ private rentals,²⁹ co-op-ships,³⁰ fractional residences,³¹ bed and breakfasts³² and apartment sharing companies such as Airbnb and Homeaway.³³

Some hotels and resorts have come under greater scrutiny by such internet sites as TripAdvisor.com.³⁴

[2] Safety and Security Post-September 11, 2001

[a] The September 11, 2001, Disaster

On September 11, 2001, four regularly scheduled domestic commercial aircraft were hijacked by terrorists. Two of the aircraft were flown into both towers of the World Trade Center in New York City resulting in their collapse. A third hijacked aircraft was flown into the Pentagon in Washington, D.C. And a fourth aircraft crashed into a field near Pittsburgh. The total number of dead exceeded 3,000. The ease with which the hijackers boarded the aircraft and seized control with knives and box cutters highlighted just how vulnerable our airports and commercial aircraft are to terrorist acts.

[b] Increased Security at Hotels and Resorts

Hotels and resorts are, clearly, potential terrorist targets, both before³⁵ and after September 11, 2001, requiring increased security.³⁶

"Coordinated terrorist attacks struck the heart of Mumbai, India's commercial capital, on Wednesday night, killing dozens in machine-gun and grenade assaults on at least two-five star hotels, the city's largest train station, a Jewish center, a movie theater and a hospital. Even by the standards of terrorism in India, which has suffered a rising number of attacks this year, the assaults were particularly brazen in scale and execution. The attackers used boats to reach the urban peninsula where they hit and their targets were sites popular with tourists. The Mumbai police said Thursday that the attacks killed at least 101 people and wounded at least 250. Guests who had escaped the hotels told television stations that the attackers were taking hostages, singling out Americans and Britons. . . . Hours after the assaults began, the landmark Taj Mahal Palace & Tower Hotel, next to the famed waterfront monument the Gateway of India, was in flames. Guests banged on the windows of the upper floors as firefighters worked to rescue them. Fire also raged inside the luxurious Oberoi Hotel according to the police. A militant hidden in the Oberoi told India TV on Thursday morning that seven attackers were holding hostages there. 'We want all mujahedeen in India released and only after that we will release the people,' he said. Some guest, including two members of the European Parliament who were visiting as part of a trade delegation, remained in hiding in the hotels, making desperate cell phone calls, some of them, to television stations, describing their ordeal." ³⁷

"The driver of a van filled with explosives pulls up to a Marriott hotel. In moments, he detonates his deadly cargo, killing 10 bystanders, injuring 147 people and damaging surrounding buildings, as well as the hotel. That's what happened on Aug.5 in Jakarta, Indonesia. . . . What can hotels do to prevent it from happening here? . . . [H]otels have intensified security in the wake of 9/11 and the Jakarta incident and are prepared to take more aggressive security steps if need be." ³⁸

The quality of the new security measures may be correlated to the quality of the hotel or resort.³⁹ "When examining price segment, luxury hotels receive the safest rating (82) and tie with upscale hotels for the highest security rating (79). Midprice, fullservice hotels perform the worst in safety (65) and economy hotels perform the worst in security (66). Further, the study revealed there is a direct correlation between the age of a hotel and its safety/security rating. For example, hotels that were constructed less than seven years ago are the safest and most secure (79/76), while those constructed 29 or more years ago are by far the least safe and secure (57/47). . . . [H]otels at airport locations get higher safety/security ratings (77/78) than any other locationincluding resorts which have extraordinarily low ratings (61/46). The study cited the lack of security cameras and electronic locks at some resorts among the reasons for these low scores."⁴⁰ In addition hotels and resorts must consider the level of crime⁴¹ and the potential for terrorist acts in the immediate environment. Americans have⁴² been the target of terrorism at hotels⁴³ but are, clearly and appropriately, concerned about perceived dangers abroad.⁴⁴

[c] Massacre in Las Vegas

On October 1, 2017, Stephen Paddock while a guest at the Mandalay Bay Resort & Casino in Las Vegas, Nevada and occupying a suite on the 32nd floor, with a "Do Not Disturb" sign on the door for three days,⁴⁵ broke open two windows and opened fire on a crowd of some 22,000 people attending the Route 91 Harvest Festival across Las Vegas Strip, killing 59 people and injuring more than 450. It appears that Mr. Paddock was a VIP guest of the hotel and during his stay was able to use a service elevator and transport 17 firearms and hundreds of rounds of ammunition to his suite unde- tected.⁴⁶ A number of lawsuits have been filed in Nevada state court and Los Angeles Superior Court.⁴⁷ While hotels and concert venues are favorite targets for terrorists both home⁴⁸ and abroad,⁴⁹ the Las Vegas incident appeared to be unique featuring a VIP hotel guest turning his suite into a shooting platform to kill and wound hundreds of non-guests enjoying a concert across the street from the hotel.

[i] Providing Safe Accommodations

Hotels in the United States are best viewed as quasi-public institutions wedded to the past in terms of the law which defines their duties and obligations to guests. The origin of hotel law goes back several hundred years.⁵⁰ The legal obligations between the traveler and the hotel depend upon whether the traveler is a guest. If the hotel physically accepts the traveler as a guest and, actually, provides accommodations or services based upon that status, then the hotel is bound to perform its common law duties as modified by statute. A non-guest may have a legal relationship with a hotel but that relationship does not entail the innkeeper's common law duties.⁵¹ Hotels, under a common law duty to provide safe accommodations to their guests, are governed by a standard of reasonable care which may depend upon to whom it is owed; e.g., whether the hotel had notice and/or caused the conditions that resulted in the accident, whether the guest was contributorily negligent, whether the accident was foreseeable, whether there are industry or statutory standards or hotel policies, whether the hotel assumed a duty to prevent the spread of diseases such as norovirus and Legionella, whether the hotel negligently failed to summon emergency medical services, whether the hotel failed to adequately exterminate bedbugs, whether a hotel should provide a lifeguard for its pool and so on. As a general rule, the hotel, although not an insurer, must protect the guest from the assaults of other guests or intruders, if possible. However, the hotel owes that duty to guests, not to persons who come onto the premises for an illegal purpose.⁵² Hotels must provide the quality of security procedures commensurate with the level of crime in the local environment.⁵³

[ii] Nevada Hotel Law

Nevada Public Accommodations statute [NRS-651] sets forth the modern statutory analogue of the common law duties of hotels. NRS 651.015 [Civil liability of innkeepers for death or injury of person on premises caused by a person who is not an employee] states, in part, "2. An owner or keeper of any hotel . . . is civilly liable for the death or injury of a patron or other person on the premises caused by another person who is not an employee under the control and supervision of the owner or keeper if: (a) The wrongful act which caused the death or injury was foreseeable and (b) The owner or keeper failed to take reasonable precautions against the foreseeable wrongful act. . . . 3. For purposes of this section, a wrongful act is not foreseeable unless: (a) The owner or keeper failed to exercise due care for the safety of the patron or other person on the premises; or (b) Prior incidents or similar wrongful acts occurred on the premises and the owner or keeper had notice or knowledge of those incidents."

[iii] Nevada Supreme Court Analysis

In Smith v, Mahoney's Silver Nugget, Inc. ,⁵⁴ a case in which a patron of hotel/casino bar was fatally shot and the estate sued the alleging negligence and wrongful death, the Nevada Supreme Court noted that NRS 651.015(3)'s "definition of 'foreseeable' provides the appropriate framework for [determining responsibility] in the context of innkeeper liability...