JurisdictionUnited States
Publication year2021

§ 4.04 Liability of Hotels and Resorts for Common Travel Problems

[1] Domestic Hotel Law

[a] Common Law Tradition

[i] Historical Background

Modern hotels and resorts are wedded to the past in terms of the law which defines the travel consumer's rights and remedies. The origin of hotel law187 can be understood by accepting this simple concept: a hotel must be as safe and secure as one's home.188 The only difference between a hotel and the home is that the hotel is under the control of another party. At common law, the innkeeper was regarded as an insurer of the property and person of the traveler.189 To escape liability, he had to demonstrate negligence or fraud on the part of the traveler or the intervention of a public enemy or an act of God. In sum, the innkeeper's liability amounted to strict liability.190

Under common law, the innkeeper was under a duty to provide accommodations without discrimination to all those who requested them. The only excuse for not providing accommodations was that the hotel was fully occupied. Once the traveler was received as a guest, the innkeeper was bound to perform additional duties including treating the guest in a courteous manner, providing safe premises, and providing wholesome food and drink. With some exceptions, these duties exist today in every state.191 The impact of these common law duties has been lessened over the years by modern state statutes, which permit innkeepers to limit some of their liability.192 Generally, hotels are governed by the standard of reasonable care.193

[ii] Duty to Accommodate

Hotels are under a common law duty to provide accommodations to travelers who request them. As long as there is a room available, the innkeeper cannot discriminate between travelers but must accept those who properly apply.194 As a practical matter, hotels do not turn away travelers. It is hardly in the hotel's interest to have empty rooms. (On occasion, labor strife or anti-government protests may result in a lock- out.195 ) On occasion, however, there have been instances of discrimination based upon race and ethnic background.common law prohibited discrimination of this kind.196 Today the problem of discrimination is prohibited by statute.197 As applied to hotels, the Civil Rights Act of 1964 is a codification of the common law duty to provide accommodations to all travelers without discrimination.198 This principal applies to restaurants found to be operating within interstate commerce.199

[A] Americans with Disabilities Act

The Americans With Disabilities Act (ADA)200 was enacted "to ensure full and equal enjoyment of public facilities to all citizens [and] prohibits discrimination in existing facilities by holding accountable all owners, operators . . . of public accommodations who fail to create accessibility for disabled individuals to that establishment's 'goods, services, facilities, privileges, advantages or accommodations.'"201 The ADA applies to old and new construction and has been used by the federal government202 and private individuals and organizations203 to encourage hotels, resorts and casinos to make their facilities more handicapped accessible.

[B] Common Law Duties

The hotel must receive the traveler's baggage that is needed for the traveler's convenience or is necessary for a business purpose.204 The innkeeper may not examine the contents of the traveler's baggage,205 although the hotel's liability can be limited by statute for the loss of property based on the innkeeper's lack of knowledge of the contents of the luggage.206

The hotel can properly refuse to accommodate travelers if no rooms are available, the traveler is objectionable,207 the traveler's companions are objectionable,208 the traveler has brought with him an animal,209 the traveler has brought with him a person of the opposite sex and they refuse to identify themselves as husband and wife,210 and if, under some circumstances, the traveler is a business competitor.211

The ejectment of a guest is proper if the conduct of the guest affects the convenience or safety of other guests,212 affects the moral reputation of the hotel,213 or involves drunkenness and the use of profanity214 or involves a guest's refusal to pay for the services rendered by the hotel.215 Hotel guests improperly ejected and arrested may sue the hotel for wrongful eviction,216 false arrest and imprisonment and civil rights viola- tions.217 In addition, guests who refuse to pay their bills may be charged and convicted of the crime of theft of services.218 Ejectment of a guest who overstays must be based upon a clear understanding, usually in writing, of the actual intended duration of the stay. This principal also applies to the guest who stays for many months and, in effect, takes up residence in the hotel.219

The proper termination of the relationship between the hotel and the guest commences at some reasonable point after the guest has paid his bill and departed. Although the guest may have departed, the relationship continues as to his baggage, especially if the hotel has undertaken to deliver the baggage on behalf of the guest.220

[iii] Duty to Render Courteous Treatment

Courteous treatment means that the guest must receive safe accommodations that protect him and his property.221 When appropriate, courteous treatment also extends to the provision of food and drink fit to consume. If there is a fire or other emergency, the hotel's servants must be able to enter any room in order to protect the guests of the hotel. The protection of other guests also permits the hotel to establish rules that prohibit acts of indecency and immorality. The enforcement of such rules may require that the hotel have access to the guest's room. However, the hotel must be very careful in enforcing its rules, since the guest has a right to receive respectful and decent treatment from the employees and servants of the hotel.222 Generally, hotels are liable for the willful misdeeds of their servants, and substantial damages are recoverable for the infliction of emotional distress.223

Hotels often provide telephone service,224 deliver messages, mail and telegrams. Hotels are under no duty to provide these services, but if they do, then they are bound to perform them in a reasonable manner.225

[iv] Duty to Provide Safe Accommodations

As a general rule, the hotel is not an insurer of the safety of the guest, but must take reasonable precautions in protecting the guest from harm.226 The degree of reasonableness will depend on to whom the duty is owed,227 whether the hotel had notice and/or caused the condition that resulted in an accident,228 whether the guest was contributorily negligent,229 whether the accident was foreseeable,230 whether there are industry or statutory standards231 or hotel policies232 which were violated, failure to warn,233 whether hotel had actual or constructive notice of dangerous condition,234 whether the danger was open and obvious,235 whether defendants are subject to spoliation sanctions,236 whether there was a dangerous or defective condition,237 whether houseboats are considered innkeepers,238 whether hotel rooms should have a back door,239 whether the hotel failed to provide a handicapped accessible room,240 whether the franchiser hotel company is liable for the negligence of franchisee hotel,241 whether the hotel has assumed a duty to prevent spread of Legionella,242 whether the hotel negligently failed to summon emergency medical services,243 whether the hotel failed to adequately exterminate bed bugs,244 and whether causation can be proven245 for exposure to MRSA infection,246 to prevent a suicide,247 or to clear walkways of ice.248

If a child guest is injured, then the jury may consider whether the innkeeper properly took into consideration that a child might be injured by its lack of care.249 Hotels may provide child care services for guests.250 In addition, the jury may consider whether the parents were negligent in supervising the child.251 Hotels which provide parking may be liable for thefts of vehicles and assaults on guests if there have been prior instances of similar criminal activity.252 Hotels which provide shuttle bus service are responsible for providing safe transportation but its duties are not necessarily those of a carrier.253 Hotels have escalators, revolving doors, and elevators, which may cause accidents.254

The hotel which provides a swimming pool, a beach or water sports activities is not an insurer of the safety of those patrons who use the facilities.255 The innkeeper's standard of care is that of a reasonable person under the circumstances. The doctrine of res ipsa loquitur may or may not apply.256

[v] Duty to Protect Guests from Others

As a general rule, the hotel, although not considered an insurer, must protect the guest from the assaults to others, if possible. However, the hotel owes that duty to guests, not to persons who come onto the premises for an illegal purpose.257 More recently, the liability of hotels and resorts to guests that have been raped or assaulted has increased.258 Hotels must provide the quality of security procedures commensurate with the level of crime in the local environment.259 The greater the crime level in the area, the greater the standard of care owed to the guest.260 Hotels must have notice of the incidence of criminal activity inside its premises.261 In addition, hotels must respond to escalating noise levels, continuing threatening behavior by intoxicated patrons,262 and the presence of guns.263 Further, hotels that provide security systems, such as back door exists, may be liable for breaches of security.264 Hotels should prevent unauthorized persons from having access to room keys.265 Hotels should seek to remove mentally ill guests that harass other guests.266 Hotels have a duty to use reasonable care in the hiring, training and supervising of employees or concession- aires.267

Hotels are under a duty to reasonably protect guests...

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