Chapter § 4.04 LIABILITY OF HOTELS AND RESORTS FOR COMMON TRAVEL PROBLEMS

• Jurisdiction: United States
• Publication year: 2021

§ 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...