By Deborah Iniye Warrie Esq
What is hospitality negligence? It refers to a venue’s/Hotel’s lack of reasonable care/duty of care to ensure the safety of its guests. An injured party does not have to prove that you knew about an unsafe condition if she can prove you did not exercise reasonable care in preventing the problem.
MEANING OF DUTY OF CARE
A duty of care is the responsibility that a person or business has when doing business with, or otherwise interacting with, other people and businesses. Under tort law, duty of care is defined as the responsibility of a person or business to act as a reasonable person would act in a similar situation. A person who violates his duty of care by acting in a negligent or reckless manner is then liable for any harm that another person suffers as a result of his behavior. A duty of care is the legal responsibility of a person or organization to avoid any behaviors or omissions that could reasonably be foreseen to cause harm to others.
Like all businesses, hotels must provide guests with a safe environment in order to avoid injury. This includes making sure that employees are not negligent or careless when dealing with guests and ensuring the safety of their customers.
When does a duty of care arise?
Actually a duty of care has its origin in the concept of foreseeability. This principle was first enunciated in Heaven v. Pender (1883) 11 QBD 503 at 509, where Brett M.R. said:
“Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.”
In Donoghue v. Stevenson (1932) AC 562 at 581 in approving the judgment of the Court in Heaven v. Pender (supra) and Le Lievre v. Gould (1893) 1 QB 491 at 497. Lord Atkin said:
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
See S.B.N LTD. v. DE LLUCH (2004) LPELR-2968(SC) per IGNATIUS CHUKWUDI PATS-ACHOLONU, JSC (Pp 7 – 8 Paras F – E)
The first element that must be met is proving that a hotel is liable for your personal injury claim is to prove negligence. This means you must be able to prove that the hotel breached its duty to prevent the injury and that the breach of duty was responsible for your injury.
A hotel is required to inspect the grounds and keep the property in a reasonably safe condition. If a dangerous condition is identified, they must take steps to correct the problem or at least to protect guests from injury. For example, if a pipe is leaking into a hallway and it cannot be repaired quickly, the hotel must post a sign warning guests that there may be water on the floor. A hotel must follow applicable codes, provide adequate lighting and keep steps unobstructed. This means steps should be dry, clear of debris, ice and other objects that could cause tripping. Hotels must control insect infestations, maintain property security, exercise reasonable care during the hiring process, train pool staff to prevent injuries and maintain locks on hotel room doors. Most importantly a Hotel must ensure the safety of its customers and their property, while they are lodging with them. In this article, we’ll walk you through the elements you’ll typically need to establish in order to bring a successful personal injury claim against a hotel.
Proving That a Hotel Was Negligent
Most personal injury cases require the injured claimant to show that his or her harm was caused by someone’s carelessness or negligence. In order to hold a hotel legally responsible for injuries that occurred on the premises, you’ll probably need to establish that the hotel was somehow negligent. That means showing that the hotel breached a duty owed to you, and that the breach caused your injury. Let’s look at each of these elements separately.
Hotel Duties to Guests
A hotel has a general duty to exercise reasonable care in operating its business and protecting guests. A hotel guest, considered an “invitee” under premises liability law, is legally entitled to a high amount of protection.
A hotel must inspect the hotel grounds and maintain the property in a reasonably safe condition. This duty includes quickly repairing dangerous conditions and taking affirmative steps to protect guests from known or reasonably discoverable conditions. For example, there is a duty to quickly clean up a spilled pitcher of water and a duty to post signs when a pipe located in a hallway is known to leak. In both situations, the hotel could be liable if a guest slipped and fell on the water from the pitcher or the water from the pipe.
Common hotel duties include a duty to maintain adequate lighting, a duty to keep steps dry and unobstructed, and a duty to repair problems with hotel property, furniture, and equipment. Other general hotel duties and responsibilities to guests include:
- Control insect infestation (“bed bugs”)
- Communicate with their guest, first before sending any visitor or transferring any call, to the Hotel room of the guests.
- Maintain proper security (including guards and cameras) to avoid theft and assaults on guests.
- Exercise reasonable care in hiring hotel staff
- Train hotel pool staff to prevent injuries to guests
- Maintain stairs and elevators, and
- Maintain locks on hotel rooms.
There is also a duty to reasonably construct hotel steps or warn guests of unusual staircase locations, or any previous security threat, within and around the Hotel vicinity. When a hotel fails to keep the above responsibilities, it has likely breached its legal duty to guests and can be liable to pay damages for the same.
The Hotel’s Negligence Must Be the Cause of the Guest’s Injury
In all negligence cases, the defendant (the party being sued) must cause the plaintiff’s (the party suing) injury. It must be reasonably foreseeable to the defendant that his or her actions could cause injury to the plaintiff. As a real-world example, a hotel is probably not negligent when a hotel guest slips on another guest’s spilled soda in their individual hotel room. However, the hotel could be liable if the room has just been cleaned by the hotel staff and an obvious spill or other hazard was not remedied.
Injury or Harm to Guest
The final necessary element is harm. To succeed in a case against the hotel, the guest must experience an injury or some other loss. So, in a slip and fall case involving an obvious safety hazard, the guest must have been injured by the fall. It’s not enough to show that there was a hazard, and that a fall occurred.
Cases wherein the Court has held a hotel liable for negligence.
AGURA HOTEL & ANOR v. DIAMBAYA (2015) LPELR-41696(CA) where the court held thus:
“Section 7 of the TORTS LAW REFORM ACT, CAP. 518, LFN 1990 defines duty of care of an occupier to his visitors in the following words: 1. “an occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. 2. The “common duty of care” is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.” The respondent in this case is a licensed visitor of the appellant, within the meaning of the Act; by reason of him being a guest at the hotel, that much is not disputed. See pages 4,8,18 and 75 of the record of proceedings. It will therefore follow that the appellants owed the respondent a common duty of care, to ensure, at least that he will be reasonably safe in the premises he is licensed to enter. “Negligence is a tort. It is complete and actionable when three conditions are satisfied, these are:- (a) the defendant owed a duty of care to the plaintiff; (b) the duty of care was breached; (c) the plaintiff suffered damages arising from the breach. In the instant case, the respondent did not establish the conditions for actionable tort of negligence.” U.T.B. (NIG) v OZOEMENA (2007) 3 NWLR (Pt. 1022) 448 at 464. The generally accepted principle of negligence is that a person owes a duty of care to his neighbour who would be directly affected by his act or omission. In DONOGHUE v. STEVENSON (1932) AC 562 at 580 Lord Atkins said: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then is your neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question; PER KALGO, J.S.C. ANYAH V. IMO CONCORDE HOTELS LTD. (2002) 12 S.C. (PART II) 77. The respondent is by the fact of his license as a visitor to the appellants, a ‘neighbour’, and in a situation where he would be so closely and directly affected, by any act or omission of the appellants, who ought to take reasonable care to have him in contemplation of the consequences of the appellants’ acts or omissions, as a neighbour, within the context of DONOGHUE v STEVENSON supra. The lift provided by the appellants is clearly a faulty one, by the appellants’ own admission; as it can be “forced open”, see pages 18, 23, 60 and 63 of the record of proceedings; and if the appellants’ own claim that there was power outage is accepted, along with the warning, also as claimed, the appellants would as a result owe the respondent a duty of care, to sufficiently warn him of any dangers; and a mere warning cannot suffice in the circumstances. See Section 74 of the TORTS ACT, CAP. 518 LFN 1990 which states: ” a) where a damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not enough to be treated without more as absolving the occupier from liability, unless in all circumstances, it was enough to enable the visitor to be reasonably safe”; clearly the appellants did not comply with the requirements of this section of the law in the circumstances.” Per MOHAMMED MUSTAPHA, JCA (Pp 9 – 12 Paras B – A)
Al-Najar v The Cumberland Hotel: Court of Appeal rules on a hotel’s duty of care to protect guests from injury
The UK Court of Appeal in Al-Najar and others v The Cumberland Hotel (London) Ltd  EWCA Civ 1716 has upheld the high court’s assessment of the standard of care to be expected of a hotel, and in particular the role of the hotel lobby officer, in a case concerning whether a hotel was liable in negligence for guests’ injuries which resulted from a violent attack by an intruder. It was held that while a hotel does have a duty to take reasonable care to prevent guests from injury, there is no absolute duty, and on the facts the hotel was not liable for injuries suffered by the Claimants.
The claim arose out of a violent attack and theft against a group of guests at the hotel, which was committed by an intruder who gained access to the victims’ hotel room. The door had been deliberately left unlocked and open so that another family member could return a hair-dryer that had been borrowed. The victims of the crime claimed that the hotel had a duty of care to protect guests from injury and that the hotel had breached that duty. The question for the court was whether the hotel was responsible in law for the injuries sustained by the Claimants.
At first instance, the trial judge held that when a hotel invites guests to stay it assumes a duty to take reasonable care to protect guests from injury caused by third party criminal acts. A situation where a party has assumed a responsibility to protect another party from a danger is one of a small number of circumstances in which liability for pure omissions is imposed under English law. Liability in such cases arises where a party has failed to take steps to prevent the danger. However, at first instance it was held that while the hotel did have a duty of care, that duty had not been breached in this case as the hotel had taken reasonable steps to protect guests from injury.
The first instance decision included a wide-ranging examination of the steps taken by the hotel to discharge its duty of care, including the adequacy of its security arrangements and steps it had taken to protect guests and compared this to hotels of a similar nature and location. The appeal, however, focussed only on the standard of care to be expected of the hotel lobby officer. The Claimants submitted that the judge had erred in his decision that there was no breach of duty in relation to the failure by the lobby officer to greet the intruder in the lobby.
The Claimants at first instance submitted that the lobby officer had a duty to greet all persons entering the hotel, and such a duty was in fact specified in a document listing the lobby officer’s duties. However, the Court found that the lobby officer could not be expected to be fixed in place in the lobby to greet every person entering the hotel at all times as he had to attend to other areas of the hotel. On appeal, the Claimants limited the level of care which they said should be expected of the lobby officer to a duty to greet every guest after 11PM, where possible, or alternatively where reasonably practicable.
The question of whether it was “possible, alternatively reasonably practicable” for the lobby officer to greet the intruder when he entered was not explored in detail at first instance and as such the evidence on this point was sparse. The Claimants pointed to evidence that the lobby officer had not carried out any security checks between 23.15 and o1.15 and submitted that he had not greeted a sufficient number of people who entered the lobby during that time.
The Court of Appeal held that the trial judge had been correct in his assessment of the duties actually imposed on the lobby officer. The lobby officer could not be expected to remain in a fixed place and greet every guest. The Court held that an appellate court had to be very cautious in differing from the trial judge’s evaluation of the facts. At the appeal, the Claimants had sought to recast the duty of care onto one aspect of the case and impose a more qualified duty on the lobby officer. The Court of Appeal held that recasting the duty of care in such a way would have involved a different approach to that taken to the lobby officer’s evidence at trial. The trial judge was not called upon to assess the particular specific duty which the Claimants sought to impose at the appeal. The Court of Appeal held that the trial judge could not be faulted on his conclusion based on the facts and evidence examined at trial. The appeal was therefore dismissed.
This case is one of great interest for those who operate in the hotel sector regarding the duty of care towards hotel guests. The judgment emphasises that although a hotel does not have an absolute duty to prevent injury to guests caused by third parties, it must take reasonable steps to protect guests. In this case, the hotel had done so. However, the case also serves as a warning to the sector: adequate measures must be in place to protect guests. The result for the claimants hinged on the way that they had set out their original claim before the judge at first instance. If the claim has been presented in a different way, focusing on the duties of the hotel lobby officer, his remit, and what he should have done on the night in question, the result may have been very different.
The Apex Court vide its judgment dated 14th November, 2019 in the case of Taj Mahal Hotel V. United India Insurance Company Ltd. & Ors.
The Court held that a hotel owner cannot contract out of liability for its negligence or that of its servants in respect of a vehicle of its guest in any circumstance.
The Appellant is a hotel. On 1st August, 1998 at 11 pm the Respondent No. 2 – an individual visited the Appellant-hotel in his Maruti Zen car. The car was insured with the Respondent No. 1-insurer. The Respondent No. 2 handed his car and its keys to the hotel valet for parking and went inside the hotel. At 1 a.m. the Respondent No. 2 came out of the hotel and was informed that his car was driven away by another person. The person had picked up the keys of the car from the front desk and stolen the car despite the security guard trying to stop him.
The Respondent No.1 settled the insurance claim raised by the Respondent No. 2. Thereafter, the Respondent No. 2 executed a Power of Attorney and a letter of subrogation in favour of the Respondent No.1. They both approached the State Commission by filing a complaint against the Appellant seeking payment of the value of the car and compensation for deficiency in service.
The State Commission relied on the Supreme Court’s decision in Oberoi Forwarding Agency v. New India Assurance Company Limited1 and dismissed the complaint on the ground that an insurance company acting as a subrogee cannot qualify as a ‘consumer’. The Respondent No. 1 then filed an Appeal before the National Commission. The National Commission noted that since Oberoi Forwarding (supra) was partly overruled in Economic Transportation Organisation v. Charan Spinning Mills (Pvt.) Ltd.2, and it remanded back the matter to the State Commission after holding that the Respondent No. 1 did have locus standi to file the complaint.
The State Commission then allowed the complaint on merits and directed the Appellant-hotel to pay the Respondent No. 1 a sum of Rs. 2,80,000 being the value of the car with interest of 12% per annum, and Rs. 50,000 towards litigation costs. Additionally, a sum of Rs. 1,00,000 to be paid to the Respondent No. 2 for inconvenience and harassment caused to him.
The Appellant-hotel filed an appeal against the State Commission’s order which was dismissed by the National Consumer Disputes Redressal Commission with only a single modification – that the interest awarded to the Respondent No. 1 would be modified from 12% to 9% per annum. Hence this appeal.
CONTENTIONS OF THE PARTIES:
Being aggrieved by the decision of the National Consumer Disputes Redressal Commission, the Appellant filed an SLP (Special Leave Petition means the aggrieved party takes special permission to be heard in Supreme Court against the judgment given by the appeals court) before the Apex Court. The Counsel for the Appellants made a twofold submission. First, that the Respondent No. 1 does not qualify as a ‘consumer’ and that the decision of the National Commission is erroneous as the principle of infra hospitium (Latin for ‘within the hotel’ i.e the doctrine that an innkeeper is liable for goods deposited by a guest) is not established under Indian law. Secondly, since the liability of theft is precluded under the terms of the parking tag, the Appellant cannot be held liable. The parking tag read as follows:
“IMPORTANT CONDITION: This vehicle is being parked at the request of the guest at his own risk and responsibility in or outside the Hotel premises. In the event of any loss, theft or damage, the management shall not be held responsible for the same and the guest shall have no claim whatsoever against the management.”
The Counsel for the Respondent No. 1 on the other hand submitted that it is entitled to file a joint complaint with the original consumer in its capacity as subrogee (the person or entity that assumes the legal right to attempt to collect a claim of another (subrogor) in return for paying the other’s expenses or debts which the other claims against a third party). It was further submitted that the duty of care owed by 5-star hotels is higher and therefore the Appellant must be subject to the highest standard of insurer liability in case of theft of goods from premises.
The Apex Court determined the following issues:
1) Whether the insurer had locus standi to file the complaint as a subrogee?;
2) Whether the Appellant-hotel can be held liable for the theft of a car taken for valet parking, under the laws of bailment or otherwise?;
3) If the second question is answered in the affirmative, what is the degree of care required to be taken by the Appellant-Hotel?; and
4) Whether the Appellant-hotel can be absolved of liability by virtue of a contract?
With respect to the first issue, the Supreme Court had already laid down in Economic Transportation (supra) that even though a consumer complaint filed by an insurer in its own name is not maintainable, a complaint filed by the insurer acting as a subrogee is maintainable if – it is filed by (i) the insurer in the name of the assured, wherein the insurer acts as the attorney holder of the assured; or (ii) the insurer and the insured as co-complainants. Since both the conditions were satisfied in the present case, it was held that the complaint was maintainable.
With respect to the second issue, the Supreme Court noted that this issue had come before the Court for the first time, yet it had received ample judicial and academic attention in other common law jurisdictions. Thereafter, the Court discussed two rules viz. (i) the common law rule of insurers liability – where the innkeeper is treated as an insurer and made responsible for any loss or damage to the vehicle of its guest, regardless of the presence or absence of negligence on his part, (ii) the rule of prima facie negligence – where the innkeeper is presumed to be liable for loss or damage to the vehicle of his guest, but can exclude his liability by proving that the loss did not occur due to any fault or negligence on his part.
The Court observed that keeping in mind the change in socio-economic conditions in India, it doesn’t think it proper to impose a standard of strict liability upon hotel owners. If a hotel is made strictly liable for the safety of vehicles of persons without proof of negligence on its part, it may lead to grave injustice. A hotel cannot be expected to maintain surveillance of each and every vehicle parked on the premises at all times. The strict liability rule under common law should not be given effect in the Indian context but the prima facie rule should apply.
It was also observed that the prima facie liability rule is premised on the existence of a bailment relationship, in cases where such relationship is found to exist between the hotel and its guest, the rule should be applied in respect of vehicles so bailed to the hotel. The burden of proof will be on the bailee to show that he took a reasonable degree of care in respect of the bailed goods. Further, in a situation where the hotel actively undertakes to park the vehicle for the owner, keep it in safe custody and return it upon presentation of a parking slip in a manner such that the parking of the vehicle is beyond the control of the owner, a contract of bailment exists. Therefore, the hotel would be liable as a bailee for returning the vehicle in the condition in which it was delivered. The Court held that this was in line with sections 148 and 149 of the Indian Contract Act, 1872. Further, the car token handed over to the bailor is evidence of a contract by which the bailee/ hotel undertakes to park the car and return it in a suitable condition when the vehicle owner so directs. Since valet parking benefits the hotel by providing an incentive to guests and therefore providing an edge over others there exists an implied consideration for the contract of bailment created in valet service. A hotel can therefore not refute the existence of bailment by contending that it was complementary in nature.
With respect to the third issue, the Supreme Court stated that in light of the fact that a relationship of bailment exists, the burden of proof is on the hotel to show that efforts were undertaken by it to take reasonable care of the vehicle bailed, and that the theft did not occur due to its negligence or misconduct.
The Court noted that the Appellant denied negligence by stating that the guest was aware of the risk of valet parking which was not a service for safe custody of the vehicle. However, it was observed that the manner in which the car was stolen manifested negligence. No steps were taken by the Appellant to ensure the car keys were kept out of reach of outsiders nor was the car parked in a safe location with barriers to verify the owners. Therefore, there was negligence on part of the Appellant.
With respect to the fourth issue, the Court considered whether the bailee/hotel could contractually exclude liability for its negligence or that of its servants. Here, the Court relied on Sheik Mahamad Ravuther v. The British Indian Steam Navigation Co. Ltd.3, a case dealing with goods being damaged on account of negligence of the shipping company.
In the present case the Apex Court observed that a guest has an implicit expectation that the repute and standards of 5-star hotels would entail adequate safety of the vehicles handed over for valet parking. If the hotel is allowed to exclude its liability for negligence, then the standard of care under section 151 of the Contract Act would become illusory and virtually redundant, rendering customers vulnerable without any remedy. Therefore, the standard of care required to be taken by the hotel as a bailee under section 151 is sacrosanct and cannot be contracted out of. The Apex Court held that the hotel-owner cannot contract out of liability for its negligence or that of its servants in respect of a vehicle of its guest in any circumstance. Once possession of the vehicle is handed to the hotel staff or valet, there is an implied contractual obligation to return the vehicle in a safe condition upon the discretion of the owner.
Hotels can be held liable for injuries to guests in a number of situations,if you are able to meet all the criteria necessary to prove that a hotel was negligent, leading to your injury, you may be eligible for compensation. You may be able to recover damages, which include medical bills, lost wages, mental anguish, loss of companionship as well as pain and suffering.
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