Describe and explain the differences between a crime and a tort using your own Hospitality related examples. Integrate evidence from Chapter 9 in your own words to support your statements i

1. Describe and explain the differences between a crime and a tort using your own Hospitality related examples. Integrate evidence from Chapter 9 in your own words to support your statements in every posting.

2. Describe each of the following concepts using your own hospitality related example: Negligence, gross negligence, or an intentional act that could result in the commission of a tort (use details from Chapter 9 to support your statements in every posting).

3. Detail the essential differences between a duty of care and a standard of care, using your own Hospitality examples for each. Integrate evidence from Chapter 9 in your own words to support your statements in every posting.

Apply details, lessons, and examples from the assigned textbook chapter in every posting (interpreted in your own words).

ch09.pdf

Chapter 9 Your Responsibilities as a Hospitality Operator

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Your Responsibilities as a Hospitality Operator

 Duties and Obligations of a Hospitality Operator

 Theories of Liability  Legal Damages  Anatomy Of a Personal Injury Lawsuit  Responding To an Incident

In This Chapter, You Will Learn: 1. To differentiate between the types of

legal duties required of a hospitality operator, and the consequences of the failure to exercise reasonable care in fulfilling these duties.

2. To evaluate operational activities in light of their impact on guest safety and potential legal damages.

In This Chapter, You Will Learn:

3. To understand how a lawsuit is initiated and moves through the U.S. court system.

4. To create a checklist of the steps that should be initiated immediately following an accident.

Duties and Obligations of a Hospitality Operator

 Legalese: Duty of Care – A legal obligation that requires a particular standard of conduct.

Duties of Care

1. Provide a reasonably safe premise. 2. Serve food and beverages fit for

consumption. 3. Serve alcoholic beverages responsibly. 4. Hire qualified employees.

Duties of Care

5. Properly train employees. 6. Terminate employees who pose a danger

to other employees or guests. 7. Warn about unsafe conditions. 8. Safeguard guest property, especially

when voluntarily accepting possession of it.

Analyze the Situation 9.1 Alan Brandis arrived at the Golden Fox

restaurant for a Friday-night fish fry. During his meal, a severe thunderstorm began, which caused the ceiling of the men's restroom to leak. After finishing his meal, Mr. Brandis entered the men's room to wash his hands. He slipped on some wet tile, which was caused by the leak in the roof. He struck his head during the fall, and was severely injured.

Analyze the Situation 9.1 One week later, Mr. Brandis's attorney

contacted the owners of the Golden Fox with a claim for damages. The restaurant owners maintained the fall was not their responsibility, claiming they were not the insurers of guest safety. Although the owners knew of the condition of the roof, they said it leaked only during extremely heavy thunderstorms and was too old to fix without undue economic hardship.

Analyze the Situation 9.1 Most important, because the storm was not

within their control, the owners maintained that it was not reasonable to assume they could have foreseen the severity of the storm, and thus could not be held liable for the accident.

Analyze the Situation 9.1

1. Was the severity of the storm a foreseeable event?

2. What duty of care is in question here? 3. Did the restaurant act prudently? 4. Are the restaurant's defenses valid? Why

or why not?

Duties and Obligations of a Hospitality Operator

 Legalese:

Standard of Care – The industry- recognized, reasonably accepted level of performance used in fulfilling a duty of care.

Theories of Liability

 Legalese:

Reasonable Care – The degree of care that a reasonably prudent person would use in a similar situation.

Theories of Liability  Legalese:

Tort – An act or failure to act (not involving a breach of contract), that results in injury, loss, or damage to another (i.e. negligence is an unintentional tort; whereas battery, physically touching someone is usually an intentional tort).

Theories of Liability Negligence – all four conditions must exist to prevail:  A legal duty of care is present.  The defendant failed to provide the standard of

care needed to fulfill that duty of care.  The defendant’s failure to met the legal duty

was the proximate cause of the harm.  The plaintiff was injured or suffered damages.

Theories of Liability

 Legalese:

Negligent (Negligence) – The failure to use reasonable care.

Proximate Cause – The event or activity that directly contributes to (causes) the injury or harm.

Theories of Liability

 Legalese: Forseeability – The ability of a reasonable, prudent person to know

or reasonably anticipate that harm, damage, or injury would occur or was likely to occur as a result of an action or omission.

Gross Negligence – The reckless or willful failure of an individual or an organization to use even the slightest amount of reasonable care.

Analyze the Situation 9.2

Paul and Beatrice Metz took their 11- year-old daughter Christine on a weekend skiing trip and stayed at the St. Stratton ski resort. The St. Stratton owned and maintained four ski trails and a ski lift on its property.

Analyze the Situation 9.2 One morning, Mr. and Mrs. Metz were having

coffee in the ski lodge while their daughter was riding the ski lift to the top of the mountain. On the way up, the car containing Christine Metz and one other skier jumped off its cable guide and plunged 300 feet down the mountain. As a result of the fall, Christine was permanently paralyzed from the neck down.

Analyze the Situation 9.2 The Metzs filed a lawsuit against the resort.

Their attorney discovered that the car's connections to the cable were checked once a year by a maintenance staff person unfamiliar with the intricacies of ski cable cars. The manufacturer of the cable car recommended weekly inspections, performed by a specially trained service technician.

Analyze the Situation 9.2 The ski resort's corporate owners maintained

that all skiers assumed risk when skiing, that the manufacturer's recommendation was simply a recommendation, and that their own inspection program demonstrated they had indeed exercised reasonable care. In addition, they maintained that Christine's paralysis was the result of an unfortunate accident for which the cable car's manufacturer, and not the resort, should be held responsible.

Analyze the Situation 9.2 1. Did the resort exercise reasonable care? 2. What level of negligence, if any, was present?

Ordinary negligence? Gross negligence? 3. What amount of money do you think a jury

would recommend the resort be required to pay to compensate Christine Metz for her loss, if it is found to have committed a tort against her?

4. Are the resort's defenses valid ones? Why or why not?

Theories of Liability

 Legalese:

Contributory Negligence – Negligent conduct by the complaining party (plaintiff) that contributes to the cause of his or her injuries.

Theories of Liability  Legalese:

Comparative Negligence – Shared responsibility for the harm that results from negligence comparing the degree of negligence by the defendant with that of the plaintiff; also known as comparative fault.

Theories of Liability

 Legalese:

Strict Liability – Responsibility arising from the nature of a dangerous activity rather than negligence or an intentional act. Also known as absolute liability or liability without fault.

Search the Web 9.1 Go to: www.findlaw.com

1. Select: “Learn About the Law”. 2. Select: “Accidents and Injuries”. 3. Type: Your state and city in the Location field. 4. Select: Find Lawyers

a) Select the name of an attorney practicing in your city b) Contact the attorney’s office by telephone or letter and ask if he

or she can help you understand how the state and/or local courts view comparative negligence in his or her practice area.

http://www.findlaw.com/

Theories of Liability

 Legalese:

Intentional Act – A willful action undertaken with or without full understanding of its consequences.

Theories of Liability

 Legalese:

Negligence Per Se – Violation of a rule of law by the operator; such violation of a rule is considered to be far outside the scope of reasonable behavior that the violator is assumed to be negligent.

Legal Damages

 Legalese:

Compensatory Damages – Monetary amount awarded to restore an injured party to the position he or she was in prior to the injury (e.g.,medical expenses, lost wages); also referred to as actual damages.

Legal Damages

 Legalese:

Punitive Damages – A monetary amount used as punishment and to deter the same wrongful act in the future by the defendant and others.

Anatomy of a Personal Injury Lawsuit

 Legalese: Personal Injury – Damage or harm inflicted

upon the body, mind, or emotions.

Anatomy of a Personal Injury Lawsuit

 Demand Letter  Filing a Petition  Discovery  Trial and Appeal

Demand Letter

 Legalese: Demand Letter – Official notification,

typically delivered to a defendant via registered or certified mail usually in advance of litigation that details the plaintiff’s cause for impending litigation to seek a settlement between the parties.

Attorneys’ Fees

Legal advice and services are generally paid in one of three ways:

1. Hourly fee 2. Flat fee; or 3. Contingency fee.

Attorneys’ Fees

 Legalese:

Contingency Fee – A method of paying for a civil attorney’s services as a percentage of any money awarded as a settlement in the case. Typically, these fees range from 20-40% of the total amount awarded.

Filing a Petition

 The process of initiating a lawsuit is by a pleading or a complaint with the clerk of the court.

 Once the complaint is filed, the defendant must be notified or served by a private process server or the local law enforcement to receive notice of the lawsuit.

 The defendant must respond to the complaint by filing an Answer, usually within 30-days, with the clerk of the court.

 Failure to file an Answer may result in a default judgment against the defendant.

Discovery

 Legalese: Interrogatories –

Questions that require written answers, given under oath, asked during the discovery phase of a lawsuit.

Discovery

 Legalese: Depositions – Oral answers, given under oath, to questions asked during the discovery phase of a lawsuit. Depositions are recorded by a certified court reporter and/or by videotape.

Trial and Appeal

 Legalese:

Subpoena – A court-authorized order to appear in person at a designated time and place, or to produce evidence demanded by the court.

Trial and Appeal

 Legalese:

Appeal – A written request to a higher court to modify or reverse the decision of a lower level court.

Alternative Dispute Resolution

 Arbitration  Mediation

Responding to an Accident

 Step 1 – Call 911.  Step 2 – Attend to the injured party.  Step 3 – Be sensitive and sincere.  Step 4 – Do not apologize for the accident.  Step 5 – Do not admit that you or your

employees were at fault. Do not take responsibility for the accident.

Responding to an Accident

 Step 6 – Do not offer to pay for the medical expenses of the injured party.

 Step 7 – Do not mention insurance coverage.

 Step 8 – Do not discuss the cause of the accident.

Responding to an Accident

 Step 9 – Do not correct the employee at the scene.

 Step 10 – Conduct a complete and through investigation.

 Step 11 – Complete a claim report and submit it to your insurance company immediately.

Responding to an Accident

 Step 12 – Do not discuss the circumstances surrounding the accident or the investigation with anyone except those who absolutely need to know.

 Step 13 – Do not throw away records, statements, or other evidence until the case is finalized.

What Would You Do? Assume you are a mediator whose job

is to help opposing parties limit the expense and time of going to trial in matters of personal injury. In your current case, Jeremy and Anne Hunter have filed a personal injury suit against the Fairview Mayton Hotel’s ownership group and its franchisor, Mayton Hotels and Resorts Inc.

What Would You Do? According to the Hunters, they checked into their suite at the

Fairview Mayton, one of 150 independently owned, franchise- affiliated properties, on a Friday night. Their daughter Susan, who was 8 years old at the time, opened a sliding patio door, and upon seeing the outdoor hot tub that was part of the suite, asked her parents if she could get in. They told her yes.

What Would You Do? Upon entering the tub (it is agreed by both

parties that Susan “jumped” into the hot tub), she suffered third-degree burns over 80 percent of her body, and her facial features were permanently disfigured because the water in the hot tub was 160 degrees Fahrenheit, not 102, the maximum recommended by the tub’s manufacturer, and well above the 105-degree maximum dictated by local health codes.

What Would You Do? An investigation determined that the hot tub

safety switch, designed to prevent accidental overheating, had been bypassed when some wiring repair was performed by the hotel’s maintenance staff. (The Hunters are also suing the franchise company because a mandatory inspection of property safety, which, as part of the franchise agreement, was to have been performed annually, had not been done in the three years prior to the accident.)

What Would You Do?

The hotel’s insurance company takes the position that Susan’s parents gave her permission to use the tub, despite a written warning on the side of the tub saying it was not to be used by persons under age 14, and thus they bear a majority of the responsibility for the accident.

What Would You Do? The Mayton franchise company’s insurance company states it is not responsible for the acts of its franchisees, and thus cannot be held accountable. The hotel’s manager has been terminated. The Hunters, whose lawyer has accepted the case on a contingency basis, is suing for a total of $5 million.

What Would You Do?

1. What would you recommend the Fairview Mayton’s insurance company do?

2. What would you recommend the franchise company’s insurance company do?

3. What would you recommend the Hunters do?

Rapid Review 1. Define and explain the difference

between a breach of contract, a crime, and a tort.

2. Describe examples of negligence, gross negligence, and an intentional act that could result in the commission of a tort.

3. Detail the essential difference between a duty of care and a standard of care, using an example of each.

Rapid Review 4. Give three examples of strict liability as it may

apply to hospitality managers serving food, lodging, and entertainment products.

5. Using the Internet or library, search the hospitality trade press to find an article describing an incident of a jury awarding punitive damages to a plaintiff where a hospitality organization was the defendant. Explain why you believe the jury came to its conclusion.

Rapid Review 6. Outline the process involved in initiating a

personal injury lawsuit, and discuss the hospitality manager’s role in that process.

7. List at least five advantages that result from using an alternative dispute resolution process as opposed to going to trial in a personal injury lawsuit.

8. Create a checklist that can be used to guide a manager’s actions in the first fifteen minutes after an accident.

Think about this on your way out…

A businessman was at your luxury hotel front desk checking into his suite when he abruptly turned around and tripped over his own briefcase that he had placed behind his legs during check-in. He fell on his face sustaining injury and embarrassment. He yelled and screamed that he was going to sue the hotel Can he sue? Does he have a winning case against the hotel?

Chapter 9
Your Responsibilities as a Hospitality Operator
In This Chapter, You Will Learn:
In This Chapter, You Will Learn:
Duties and Obligations of a Hospitality Operator
Duties of Care
Duties of Care
Analyze the Situation 9.1
Analyze the Situation 9.1
Analyze the Situation 9.1
Analyze the Situation 9.1
Duties and Obligations of a Hospitality Operator
Theories of Liability
Theories of Liability
Theories of Liability
Theories of Liability
Theories of Liability
Analyze the Situation 9.2
Analyze the Situation 9.2
Analyze the Situation 9.2
Analyze the Situation 9.2
Analyze the Situation 9.2
Theories of Liability
Theories of Liability
Theories of Liability
Search the Web 9.1
Theories of Liability
Theories of Liability
Legal Damages
Legal Damages
Anatomy of a Personal Injury Lawsuit
Anatomy of a Personal Injury Lawsuit
Demand Letter
Attorneys’ Fees
Attorneys’ Fees
Filing a Petition
Discovery
Discovery
Trial and Appeal
Trial and Appeal
Alternative Dispute Resolution
Responding to an Accident
Responding to an Accident
Responding to an Accident
Responding to an Accident
What Would You Do?
What Would You Do?
What Would You Do?
What Would You Do?

Describe and explain the differences between a crime and a tort using your own Hospitality related examples. Integrate evidence from Chapter 9 in your own words to support your statements i

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