HOSPITALITY LAW: Know what to expect in a personal injury case

HOSPITALITY LAW: Know what to expect in a personal injury case

A litigious environment makes the threat of lawsuits more real.

By Stephen Barth and David Hayes, Ph.D.

Contents
How do personal injury claims arise?
How does the lawsuit process unfold?
What happens during a personal injury trial?
What are the alternatives to a trial?
How should I respond when an accident occurs at my property?

In today's litigious society, even for a prudent operator, the threat of loss to the business because of lawsuits is very real. Some lawsuits filed are frivolous, while others raise serious issues. In either case, the effective hotel operator must be aware of how lawsuits are filed, how they progress through the court system and, most importantly, the role the hotel owner or manager plays in the process.

How do personal injury claims arise?(Back to Top)
Much of your concern as a hospitality manager will focus on the potential for damages resulting from personal injury. The reason for this is fairly straightforward. Hotels provide guests with food and beverages, lodging accommodations and entertainment. Yet, the process of providing these goods and services can place a business in potential jeopardy.

Certainly it is best to manage your business in such a way as to avoid accidents. But accidents and injuries will occur, and often the responsibility for an accident is unclear. Consider the case of Norman and Betty Tungett.

The Tungetts check into a motel, and at about midnight, Tungett goes out to her car to get a piece of luggage. While she is in the parking lot, she is assaulted. She suffers physical harm, fear during the attack and a lingering apprehension about being out after dark by herself. Here are a few of the questions that a case such as this could raise:

  1. Were the lights in the parking lot working well enough to minimize the chance that a guest would be assaulted?
  2. Was management vigilant in eliminating potential hiding places for would-be assailants?
  3. Were the Tungetts warned on check-in that the parking lot might not be safe late at night?
  4. Were access doors such that Tungett could have easily gotten to her room after visiting the lot?
  5. Had the motel experienced similar incidents in the past, and if so, what precautions had been taken?

Notice that, in this example, there is not a clear-cut reason for believing the motel is in any way responsible for the Tungetts' problem. It is important to remember, however, that the court system gives the Tungetts and their attorney the right to file a personal injury lawsuit in an effort to determine if, in fact, the motel was totally or partially responsible for the assault.

How does the lawsuit process unfold?(Back to Top)
Generally, an operator will learn that he, she and/or the business is being sued when a demand letter is received. The demand letter comes from an attorney who has been contacted by the injured plaintiff and has agreed to take up the plaintiff's cause. The typical demand letter sets forth the plaintiff's version of the facts surrounding an alleged personal injury. It may also include the amount of damages being sought and usually a deadline for the manager to respond to the charges.

If the response to the demand letter does not satisfy the plaintiff, he or she will likely instruct an attorney to file suit against the defendant.

Filing a petition (or pleading or complaint) is the term used to describe the process of initiating a lawsuit. A petition is a document that officially requests a court's assistance in resolving a dispute. The petition will identify specifically the plaintiff and the defendant. In addition, it will describe the matter it wishes the court to decide. Included in the complaint against the defendant will be the plaintiff's suggestion for resolution of the issue. The plaintiff may, for example, ask for monetary damages. When the petition has been filed with the administrative clerk of the court, the lawsuit officially begins.

Once the complaint is filed with the court, the court (and/or the plaintiff, through counsel) will notify the defendant of the plaintiff's charge, and will include a copy of the complaint in the notification. Upon receipt of the complaint the defendant needs to respond in writing within the time specified in the notice from the court.

The next step is the discovery phase, when both parties seek to learn the facts necessary to best support their position. This can include answering questions via interrogatories or depositions, requests for records or other evidence, and sometimes visiting the scene of the incident that caused the complaint.

The discovery process can be short or very lengthy. Either side may ask for information from the other, and if necessary, a judge will rule on whether the parties to the suit must comply with these requests. In some instances, one party in a lawsuit may obtain a court order demanding that specific documents be turned over, or that specific individuals be called to testify in court. This order is called a subpoena. A subpoena may also be used to obtain further evidence or witnesses while a trial is ongoing.

The plaintiff in the lawsuit has the burden of proving the allegations set forth in the petition. This is the responsibility of proving to the finder of fact (judge or jury) that a particular view of the facts is true. In a civil case, the plaintiff must convince the court "by a preponderance of the evidence" that is, over 50% of the believable evidence. In a criminal case, the government has a higher standard, and must convince the court "beyond a reasonable doubt" that a defendant is guilty.

What happens during a personal injury trial?(Back to Top)
Most personal injury cases are tried in front of a jury. After a jury is selected to hear the trial, the process, while it may vary somewhat from state to state, is as follows:

  1. Presentation by plaintiff
  2. Presentation by defendant
  3. Plaintiff's rebuttal
  4. Summation by both parties
  5. Judge's instructions about the applicable law and procedures to the jury
  6. Jury deliberation
  7. Verdict
  8. Judgement or award
  9. Appeal of verdict and/or award

Either side has the right to appeal a verdict or award. In the personal injury area, it is common for a losing defendant to appeal the size of the award if it is considered to be excessive.

What are the alternatives to a trial?(Back to Top)
First, the parties at any time during the litigation process can agree on a settlement. Two other common methods used in the hospitality industry are mediation and arbitration. Both can be highly effective alternatives to the time, cost and stress involved in going through a trial.

In mediation, a trained and neutral individual (the mediator) facilitates negotiation between the parties to achieve a voluntary resolution of the dispute. In most cases, one full day of mediation can result in a compromise acceptable to both the plaintiff and defendant. Mediation can involve sessions jointly held with both parties and their attorneys, or separate meetings with each party, their attorneys and the mediator. The cost of mediation will vary based on the complexity of the case, but is generally far less than that involved in going to a trial. If the mediation is unsuccessful, the parties may still pursue a trial. If a settlement is made, the parties sign a settlement agreement approved by their attorneys. This agreement, if drafted properly, is an enforceable contract.

In arbitration, a neutral third party (usually chosen by mutual agreement of both parties) makes a binding decision after reviewing the evidence and hearing the arguments of all sides.

If you choose one of these alternatives, make sure that you and your attorney have established guidelines about what you can say, if anything, and when you can say it. Be patient. To be effective, the negotiation process can sometimes appear tedious, but the art of compromise usually takes time. Be flexible and willing to compromise. Many times, an apology at this point in the process will help pave the way for compromises on other significant issues, like the amount of money to be paid.

How should I respond when an accident occurs at my property?(Back to Top)
Due to the explosion of litigation and the large jury awards that can result, owners and operators of hospitality facilities have spent great amounts of time, energy and money to implement training and procedures that will reduce accidents. However, when accidents do occur, you must be prepared to act in a way that serves the best interest of both your operation and the injured party.

In his book Accident Prevention for Hotels, Motels, and Restaurants, author Robert L. Kohr states that the first 15 minutes following an accident are critical in eliminating or greatly limiting your legal liability. He is correct. It is your job to know what to do--and just as importantly, what not to do--during this critical time period.

The moments following an accident are often confusing and tense. For a manager, they will demand excellent decision-making skills. The steps in the box describe how control people (owners, managers, and supervisors) should react during this crucial time period. Remember, the objective is to act in such a way as to protect both the business and the accident victim.

About the author: Stephen Barth, founder of HospitalityLawyer.com, is an attorney and professor of hospitality law at the University of Houston. He has more than two decades of experience in the hospitality industry, including line positions, management and ownership. David Hayes, Ph.D., has spent more than 20 years in the hospitality education and operations fields. Since 1997, he has served as a hotel manager for a real estate investment company in Lansing, MI.

Note: The information contained in this article is provided as a service to the hospitality industry and the general Internet community. It is not and does not constitute legal advice, nor is it a substitute for legal advice. For a more detailed discussion of personal injury liability and other legal, safety and security issues, visit www.hospitalitylawyer.com.

Have you been slapped with a lawsuit after a guest was injured on your property? Share your experience in a discussion group .

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