HTM 411 Law Exam 2

• What is an intervening or superseding occurrence and describe the effect it can have on the outcome of a negligence suit.

- If there is an intervening or superseding occurrence then the defendant may not be liable. Determining if an intervening or superseding event has reduced or eliminated a defendant's liability is for the courts to decide

• What is an attractive nuisance?

-A potentially dangerous object or condition of exceptional interest to young people -The landowner is required exercise reasonable care to protect children from danger posed by and attractive nuisance

• Injury to the plaintiff

-After the first two standards, the person must prove that they were injured

11. What reason can a restaurant not use as the basis for denying service to an individual?

-Discretionary based on race, color, national origin, religion, gender, marital status, and disability.

• List and describe the four factors that must be established for the assumption of risk doctrine to apply.

-Four factors to establish the assumption of risk, the defendant must prove that the plaintiff: 1. Had knowledge of the risk 2. Understood the risk 3. Had a choice of either avoiding the risk or engaging in conduct that confronted the risk 4. Voluntarily chose to take the risk

• What are hotel responsibilities in relation to public beaches? Be sure and know the majority and minority positions.

-If a hotel provides items for guests to use then they have a responsibility to protect the guests or others from injuries related to those items. -If a hotel invites guests to swim in a particular location then the hotel must make sure that the area is safe.

• Describe when a defendant may or may not be liable to person other than the person directly injured by the defendant's action.

-If a person is traumatized by witnessing an injury to another, then the defendant's actions that led to the injury to the first person can be considered the proximate cause of the injury (mental trauma) to the witness. The defendant may be liable to both the original injured party and the witness.

8. Can a hotel be held liable if it allows police to warrantless search of a guest's room without the guest's permission?

-If a representative of the hotel lets a the police do a warrantless search of a guest room while the guest still has the right to occupy the room the hotel may expose itself to civil liability

• What effect can an "open and obvious" hazard as the proximate cause of the injury have on the outcome of a negligence suit?

-If it is open and obvious you are more likely not liable

• Describe the effect a plaintiff's preexisting condition can have on the outcome of a negligence suit.

-If the injury was due to preexisting conditions then the defendant may not be liable. If the negligence aggravated a preexisting condition then the defendant is liable for the additional injuries.

1. Describe the limiting statute?

-Limited liability statutes are designed to restrict the innkeeper's liability for items which disappear under mysterious circumstance while in the hotel. In most states they are not designed to protect the hotel from losses due to negligence on the part of the hotel staff.

• Define res ipsa loquitur and describe how it is applied to negligence cases?

-Means the thing speaks for itself -This frees the plaintiff from proving the specific breach of duty committed by the defendant -Basically, the plaintiff must show that the incident would not have happened without some sort of neglect by the defendant -If the plaintive invokes this doctrine the defendant will have the opportunity to prove that they're the cause of the accident was some factor other than the defendant's negligence

• Proximate cause

-Once the first three elements have been established, the final element is that the defendant's negligence cause the injury This can be a challenge; the proximate cause refers to a direct and immediate cause of the injury If the plaintiff doesn't know the cause of the injury it is harder to hold the defendant liable If the injury was due to preexisting conditions then the defendant may not be liable. If the negligence aggravated a preexisting condition then the defendant is liable for the additional injuries

• When does the innkeeper-guest relationship terminate?

-Relation is terminated when any of the following occur: -Contracted time for the room has expired. -Bill is due but not paid -Proper notice is given to the guest to leave -A reasonable amount of time has passed since the guest has checked out -The bill has been paid

• What is an "open and obvious" hazard?

-Something that is clearly marked, out in the open

b. If they search the item what should they be looking for?

-The owners name

• What is the assumption of risk doctrine?

-This applies when the plaintiff knowing engages in conduct known to present a risk of injury in states with contributory negligence

• What is negligence per se and how does that impact the case?

-This deals with violations of the law or ordinances designed to protect the safety of the public -In majority of states noncompliance with safety laws is sufficient and such acts are treated as neglect without further proof of a breach of duty -In some states noncompliance with safety laws is not sufficient to prove a breach of duty -Even if negligence per se is invoked the plaintiff must show that it was the proximate cause

• Define respondeat superior and describe how it has been applied to negligence cases.

-This means let the master answer. -It means that employers are responsible for the negligent act of employees. -For this doctrine to apply the employee must act within the scope of his/her duties. -Generally does not extend to independent contractors

3. When does a guest's right to occupy the hotel room without disruption end?

-This right is terminated when the agreement to use the room ends (checkout time).

• The existence of a legal duty to act reasonably owed by the defendant to the plaintiff

-We have a duty to protect people who could be injured by our action (or lack of actions) if the connection between those actions and the injury could have been foreseen

11. A guest leaves and item in the room after checking out. a. Does the hotel have the right or obligation to search the item?

-Yes

• Describe a person's responsibility to aid another in distress/danger?

-You are not generally required to come to the aid of a person in distress. -However, if you come to the aid you are required to exercise reasonable care.

• Describe a hotel's responsibility to aid a guest in distress/danger?

-You are responsible for coming to the aid of an invitee in distress or danger. -You are not required to administer aid directly; you only need to promptly call for help. -If someone else is already providing aid and the person looks competent then your do not have to provide aid as well.

• Which two elements of a negligence case must have a cause-and-effect relationship (proximate cause)?

-breach of duty -injury to the plaintiff

• What is constructive notice and how does it apply to a negligence case?

-guy dove and hit in anchor in the water and if they would've done routine maintenance they would've known about it and told people it was there, Defendants fault

• A breach of that duty

-if is has been estabilished that there was a legal responsibility (duty), then the next thing that must be proved was that the defendant was in breach of the duty -In determining the breach of duty, judges apply the reasonable person standard -There has been no breach of duty then the operation is not legally responsible for the injury. However, this can create an ethical dilemma where a company may want to assume financial responsibility even if there is no legal responsibility

• What precautions should a restaurant take when serving hot beverages?

-label it as hot -put a lid on it -put out of reach of children

3. What information must be provided a guest for a hotel to claim limited liability?

-must provide that you have limited liability -provide info you have a safe -tell the guest how much limited liability you have, posted in public and in a room, recent

• Name four causes of swimming-pool accidents and state how each could be avoided.

-no running -good signs -having a lifeguard

• Describe the factors that distinguish a guest from a tenant.

-ones an employee -ones a guest

6. What are the consequences if a guest fails to put valuables in a safe and they are lost or stolen? How would the consequences change if the hotel is negligent?

-the hotel isn't liable if they posted all the signs they need to

• When must a hotel employ a security guard to protect the guests?

-when there is foreseeable danger

• What is the significance of someone qualifying as a guest?

-when they display interest of being a guest -if they made a reservation a month in advance

9. When can law enforcement inspect a guest register?

-when they have a warrant -when they are evicting Patriot act, homeland security

• List the different events that mark the beginning of the innkeeper guest relationship.

-when they walk into the hotel -book reservation -luggage delivered

• List the three elements of an attractive nuisance.

1. A condition exists that is attractive to children and is likely to cause them injury 2. The owner or occupier of the land knows or should know of the condition 3. Due to a child's immaturity, he does not appreciate the danger

• List and describe the three elements of res ipsa loquitur.

1. The plaintiff's injury was caused by an accident that would not normally have happened without negligence 2. The thing that caused the injury was within the exclusive control of the defendant 3. The plaintiff did not provoke the accident

• What areas of your grounds should you pay particular attention to as they relate to guest safety?

1. Walkways 2. Visibility 3. Holes 4. Changes in elevation 5. Ramps and stairs 6. Drain grates

3. Trespasser

3. Trespasser: a person who enters a premises without permission

• Describe how the last clear chance doctrine applies to negligence cases based on contributory and comparative negligence.

A. Also called the subsequent negligence rule: designed to balance the playing field in states where contributory negligence applies. B. It looks at how had the last clear chance to act to avoid injury to the plaintiff. C. Four element that must be established to use this doctrine (1) Plaintiff has been negligent. (2) As a result of this negligence, the plaintiff is in a position of peril that cannot be escaped from by the exercise of ordinarily care. (3) The defendant knew or should have known of the plaintiff's peril. (4) The defendant had a clear chance, by the exercise of ordinary care, to avoid the injury to the plaintiff, but failed to do so.

• Define contributory and comparative negligence and compare and contrast the two.

Comparative: a) This seeks to divide responsibility between defendant and plaintiff based on their relative degree of culpability. b) Pure system—the plaintiff can collect even if the majority of the culpability was assigned to him/her. c) Some states require the defendant to be assigned more than 50% of the culpability to collect damages. d) Other state will allow the damages to be collect if the defendant is assigned at least 50% of the culpability. e) Still other state use the slight-gross rule: the defendant's share of the culpability must be gross and the plaintiff's slight Contributory: A. This is a law in a minority of the states. B. States that if the plaintiff was negligent and that negligence contributed to that accident that causes the injury then the defendant is not liable.

• Does meeting current ordinances and regulations protect a business from negligence liability? Explain.

No, ordinances and regulations may not keep up with new technology; it is up to businesses to keep up with technology to protect patrons. Just being in compliance with the law will not always protect you.

4. What is the best way to exclude a nonguest/patron from a hotel or restaurant?

Politely ask them to leave and if you don't call the police

12. What is the difference between the torts of assault and battery?

Torts of assault: is a verbal threat Battery: actually taking actions

-To determine if a person is a independent contractor or an employee the courts use the following factors:

Who supplies the tools and place to work. The length of time for which the person was hired. The method of payment—by the job or by time Whether or not the work being performed is part of the regular business of the employer The intentions and beliefs of the party concerning their relationship.

1. Invitee:

a person who enters an establishment for the purpose for with the business is open to the public, or for a purpose directly or indirectly connected with that business

2. Licensee

a person who's presence does not further the defendant's business, but rather for the person's own benefit. The person has permission to access the premises

10. When can items found in a room after a search without the guest's permission be used in court?

a. An exception to need a warrant would be searching the contents of a trash discarded in the appropriate receptacle that has been removed from the room as part of requested housekeeping services

8. What are the best practices for evicting a guest from a hotel?

a. Avoid verbal and physical confrontations if at all possible. b. You are allowed to use force, but you are much better off contacting the police if you believe that force is required.

11. Define bailor and bialee.

a. Bailor is the person who is transferring the property to another person. b. Bailee is the person receiving the property with the intent of returning it to the bailor.

3. When can an innkeeper or restaurateur exclude a nonguest/patron from their establishment?

a. Because of the nature of the business, innkeepers and restaurateurs have an implied invitation for the public to enter the establishment. b. If a person enters an establishment for his/her own benefit or convenience rather than to further the establishment's business then that person is a licensee. c. A licensee who is ask to leave and does not becomes a trespasser.

14. What are the rules for bailment concerning cars?

a. For a bailment to have occurred, the keys must be transferred with the car. b. If a bailment has occurred, hotels are not allowed to limit liabilities simply by posting a sign.

18. What are the rules for bailment concerning coatrooms?

a. If a guest checks his/her coat and does not receive a receipt then no bailment exists. b. If a bailment exists then limited liability may also exist.

6. What must a manager do upon learning that there are illegal activities going on or illegal items in one of the hotel rooms from an employee that legally entered the room?

a. If the innkeeper or staff who have legally accessed a room notice illegal activity or item then they are required to notify the police, failure to do so may result in a loss of the hotel's right to conduct business.

4. Identify which property that is required to be put in a safe?

a. Money b. Jewels c. Ornaments d. Bank notes e. Bonds f. Negotiable securities g. Precious stones h. Articles of similar value

16. What are the rules for bailment for the content of cars?

a. The bailee is only responsible for items inside the bailed property if he/she was aware of them.

8. What is a bailment?

a. The transfer of personal property from one person to another with the expectation that the property will be returned.

5. When can an innkeeper enter a guest's room?

a. To address an emergency. b. To perform routine maintenance and repairs. c. When the guest's has not paid for the accommodations. d. When entry is requested by the guest (room service, housekeeping, etc.) e. To move the guest's belonging to another room (not recommended without consulting with guest first). f. To remove the belongings of an evicted guest.

1. What guest rights if violated can result in liability for the innkeeper?

a. To occupy the hotel room without disruptions b. To privacy in the room to include the right to restrict access by the innkeeper, police, and others c. To be treated with respect and not be insulted or humiliated by hotel staff d. To be free from false arrest or detention without cause e. To be free from credit card fraud, identity theft, and other criminal activities committed by hotel staff f. To be informed of fees and charges before they are imposed g. To have hotel employees process their mail properly

9. What are the consequences for using too much force to evict a person from a hotel?

a. Use of excessive force or threats can result in civil and possible criminal action against the hotel and the individual involved. b. Watch what you say, if you are verbally abusive then you may be guilty of slander.

12. What restrictions does a hotel have concerning the fees it charges?

a. You have to notify the guest of fees and charges before they are imposed. b. You cannot charge for services a guest did not receive. c. Telephones must be provided in each guest room. Charges related the use of the phone is regulated by states. The widespread use of cell phones has caused some states to relax regulations; however that does not eliminate the need to tell guests prior to the use of the phone.

5. When can a hotel manager/employee enter a guest's room without that guest's permission?

i. An emergency ii. Disruptive behavior within the room iii. The guest no longer has the right to occupy the room

7. When may the police enter a guest's room without that guest's permission?

i. An emergency ii. Disruptive behavior within the room iii. The guest no longer has the right to occupy the room

12. Describe the three different classifications of bailment and the duty owed by the bailee in each.

i. Bailment for the sole benefit of the bailor: bailee must exercise only a slight degree of care. Liability will occur only if gross negligence occurs. ii. Bailment for the sole benefit of the bailee: bailee accepts a high degree of responsibility for the property iii. Mutual-benefit bailment: this is also called bailment for hire. The bailee must exercise normal care in maintaining the property.

1. To whom can an innkeeper refuse to rent to?

i. Criminals ii. Intoxicated individuals iii. Disorderly individuals iv. Unclean (not bathed) and unkempt individuals v. Individuals suffering from contagious diseases vi. People of bad reputation vii. People who are not willing or able to pay

7. What are the allowable reasons for evicting a guest from a hotel?

i. Failure to pay bill ii. Overstaying iii. People of ill repute (be careful with this one) iv. Intoxicated and disorderly conduct v. Disorderly conduct vi. Contagious illness (be careful with this one) vii. Breaking house rules viii. Persons without baggage (in some states) ix. Business competitors

c. When can illegal items are discovered when searching the item be admissible in court?

i. Illegal items found as part of that search may be used against the owner. Once the identity of the owner has been established the search should stop without the owner's permission to continue. Anything found after the owner's identity has been establish will not be admissible if the owner did not give permission for a continued search of the item.

2. What must a hotel do to ensure it can claim limited liability for a guest's valuables?

i. It provides a safe for the guests' use. ii. It posts notices announcing to guests the availability of the safes. iii. It posts notices of the hotel's limited liability and the maximum amount collectable is prescribed by statute.

9. What are the essential elements for a bailment to take place?

i. Personal property: property that is tangible and moveable. ii. Delivery of possession: the property must physically be transferred from the bailor to the bailee. iii. Acceptance of possession by the bailee: the bailee must knowingly accept possession of the property. iv. Bail agreement: both the bailor and the bailee must accept the agreement that can be expressed or implied.

2. Identify which actions violate a guest's right to occupy a hotel room without distraction.

i. Unauthorized entry by another person ii. Unauthorized viewing of guests in their room iii. Disturbances outside the room that prevent the room from being used for its intended purpose

4. Children:

minors are a special category and responsibilities change with the child's age

2. What are the potential consequences for wrongfully refusing to rent a room to a would-be guest?

they can sue your ****ing ass

• Describe the duties owed a guest in hotel and given an example determine if the hotel will likely be held liable for an injury related to the following areas:

• Cleanliness • Bed, chairs and other seats -Must be inspected and maintained regularly, any defects must be repaired or replaced. -If it is reasonable for a hotel to assume that a bed, chair, or other seat may be use for a purpose than it was originally intended, then the hotel must make sure it is safe for that purpose. • Windows, window fixtures, and screens -Hotels must properly maintain windows, window fixtures, and screens -Hotels must ensure that each item meets current safety standards. • Electrical and heating hazards • Animal and insects -Hotels have a duty to exercise reasonable care to keep guest from being injured by animals and insects. -Hiring a licensed pest control company is a good first step, but it does not relieve you of responsibility. • Bathrooms a) Water faucets and showers i) The faucets must be in good working order and inspected regularly ii) Water temperature must be controlled b) Hand bars and grips i) Must be properly installed, inspected regular and repaired/replaced as required. c) Bathroom doors d) In-room hot tubs and whirlpools i) Heating element must be inspected regularly and properly maintained. ii) All safety devices must be regularly inspected and properly maintained.

• Describe the duties owed to individuals and given an example determine if the hotel will likely be held liable for an injury related to the following public areas:

• Lobby • Elevators • Escalators • Doors • Stairways • Floors in general

• List and describe the following elements of a neglect case:

• The existence of a legal duty to act reasonably owed by the defendant to the plaintiff • A breach of that duty • Injury to the plaintiff • Proximate cause