Guests staying at hotels might find themselves faced with a plethora of possible injuries and dangers. While guests expect that the premises will be reasonably safe for their use and enjoyment, hotels also expect guests to keep a general lookout and use ordinary and reasonable care toward known or obvious dangers.
A guest can be found contributory negligent if he or she acts differently than how a reasonably prudent person would act or acts in a way that is at odds with common knowledge. Though this would impact the level of recovery, a complete bar is a rare occurrence.
Recovery may also be barred in cases where jury members are forced into unreasonable inferences. Plaintiffs must prove the original inferred fact to the exclusion of all other reasonable inferences.
In this article, we look at four cases examples of hotel accident claims that illustrate whether a plaintiff was contributorily negligent and thus barred their recovery, and the extent to which a jury may permissibly infer.
Injury Sustained By Guest Who Slipped and Fell in Hotel Bathtub Found to be Result of Guest’s Own Failure to Exercise Ordinary Care
Miller v. Shull, 48 So. 2d 521 (Fla. 1950)
Dora Miller was a guest at defendant Shull’s hotel when she allegedly slipped and fell in a bathtub at the hotel. Plaintiff based her claim on the theory that the hotel violated its duty to exercise due care and caution for the safety of the plaintiff and that the defendant failed to have the room and bathtub thoroughly cleaned before it was given to the plaintiff. The second count of the lawsuit alleged that the hotel promised daily maid services and failed to thoroughly clean the bathtub after the room was given to the plaintiff.
While a hotel guest is entitled to an expectation that the proprietor will take reasonable care to discover actual conditions on the premise and either make them safe or warn the guest of these dangerous conditions, the proprietor also has a right to assume that the guest will perceive the obvious by the ordinary use of their senses. Hotel owners and operators are not required to maintain their premises in such a way that an accident by a guest is impossible.
In this case, it is a matter of common knowledge that a small amount of water at the bottom of a bathtub will create a slippery condition. The court reasoned that any reasonably prudent person makes at least a quick examination of a bathtub before stepping in it. Ms. Miller presented no evidence or reason why the slippery substance could not have been discovered by the ordinary use of their senses.
Therefore, the court held that the plaintiffs’ injuries were the result of her own failure to exercise ordinary care, and the trial court properly decided the question of negligence in this case.
Plaintiff Whose Heel Was Caught on Loose Staircase Tile Causing a Fall is Found Not to Be Contributorily Negligent and May Recover Damages
Dempsey-Vanderbilt Hotel v. Huisman, 15 So. 2d 903 (Fla. 1943)
Coanraad Huisman was a guest at a hotel maintained and operated by the defendant. The stairway was made of unglazed tiles cemented together. Mr. Huisman alleged that one of the steps on the stairway was in such a broken and defective condition that his heel got hooked and he was thrown down the stairway. Upon trial, the plaintiff received a verdict for $2,500. A motion for a new trial was denied and a final judgment was entered, and the hotel appealed.
The accident occurred around 11:30 AM, plaintiff went down the stairs in a leisurely manner and kept a general lookout. After the accident, he examined the stairway and saw that his heel got caught on a spot where the tiles were loose. Plaintiff informed the manager of the accident and showed him the spot where it happened, to which the manager responded, “I knew about it, I will take care of you, everything.” The manager testified during the trial that he was aware of the broken tile for about a month before the accident and had seen the stairwell on the day of the accident with the tile in the broken condition. This evidence established that the defendant had notice.
The hotel argued that the plaintiff was contributorily negligent, however, the court found this to not be the case as such cases are rare and this was not one of them.
It is not contributorily negligent to fail to look for dangers when the plaintiff has no reason to apprehend any. A Plaintiff has the duty of keeping a general lookout and using ordinary and reasonable care to known or obvious dangers, but he also has the right to assume that a stairway maintained for his convenience will be reasonably safe to travel on and conduct himself according to this assumption. The danger must be so open and obvious that an ordinarily reasonably prudent man would know that care is required to face the danger confronting him. Plaintiff does not have the duty of looking at every spot he steps on in anticipation of danger.
The court found no reversible error in this case, and the judgment for Mr. Huisman was affirmed.
Court Reverses and Remands Verdict in Favor of Plaintiff Due to Improper Pyramiding of Inferences Where Plaintiff Was Struck By Falling Curtain Wall at Hotel Convention
Gelco Convention Services v. Pettengill, 710 So. 2d 581 (Fla. 4th DCA 1998)
A negligence action was brought against the hotel to recover for personal injuries the plaintiff suffered when a falling curtain wall divider installed by the defendant at a hotel convention struck the plaintiff. The hotel motioned for a directed verdict, which was denied, and the court thereafter entered a judgment on a jury verdict awarding the plaintiff damages. The hotel then appealed.
The plaintiff was standing about 10 feet from a curtain wall when the curtain wall fell and landed on the plaintiff. The curtain consisted of metal bases with vertical and horizontal components. There was no direct evidence of the exact equipment used on the day of the accident.
The defendant testified that 24” by 24” bases were standardly used for a curtain wall the size of the one that fell and assumed that is what was used on the day of the accident. The plaintiff however presented the testimony of a previous laborer of the defendant, who was not on this job specifically, but testified that there was defective equipment in the defendants’ inventory that was still being used for installations. The laborer also testified that the proper 24” by 24” bases were rarely used.
The defendant claims that the verdict was based on circumstantial evidence that required the pyramiding of inference upon inference, while even the original inference could not be established to the exclusion of all other reasonable inferences. Since there was no direct evidence of the installation, the first inference that must be drawn to support the verdict is that the defendant was negligent. The mere occurrence of an accident without any additional evidence does not give rise to an inference of negligence.
Plaintiff failed to show that the installer was negligent in their use of defective equipment or in use of improper equipment. There was no testimony from anyone with personal knowledge of equipment used for the specific curtain wall installation, which in turn required the jury to either infer that (1) the defendant used defective equipment and (2) the curtain wall fell because of the defective equipment, or to infer that (1) defendant used 12’’ by 12” bases and (2) minimal force was applied which caused the curtain wall to fall and (3) minimal force would have had no effect if the bases would have been the proper 24” by 24” base.
The plaintiff failed to prove the existence of the original inferred fact to the exclusion of all other reasonable inferences, therefore the trial court erred in failing to grant a directed verdict in the defendant’s favor. The case was reversed and remanded with directions to enter a judgment for the hotel.
In a Slip and Fall Case, Trial Court Erred in Failing to Leave Resolution of Comparative Negligence Issue to The Jury
Cohn v. Surfside Plaza Hotel, 377 So.2d 44 (Fla.App., 1979)
The plaintiff was a 78-year-old woman who was injured while walking on a promenade behind the premises of the defendant. Employees of the defendant had placed a two-inch hose across the public walkway. Previously, when this hose was placed on the public walkway, orange cones were placed to notify passersby of the existence of the hose. Yet, on the day the plaintiff was injured, there were no cones or warnings
The plaintiff testified that just before her fall she was distracted by the noise of the restaurant at this location, which was owned by the defendant. She did not see the hose at any time before the fall.
Because the pleadings raised the issue of comparative negligence of the parties, the trial judge should have left the resolution of this issue to the trial jury. The court found that the final judgment should be reversed and the plaintiff should receive a new trial.
Note: Florida replaced its pure comparative negligence system with a modified comparative negligence system. Consequently, a personal injury victim can now recover in proportion to the defendant’s percentage of responsibility only if the victim’s own share of responsibility is 50 percent or less. If the victim bears more than 50 percent liability, the victim cannot recover from the defendant.
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As a Board-Certified Civil Trial Expert for over 38 years, Alan Sackrin has extensive experience dealing with hotel accident claims. He offers a free initial consultation (over the phone or in-person) to answer your questions. When you’re ready to speak with a civil trial expert about your case, contact Alan today or give him a call at 945-458-8655.
Read: Case Study: 2 cases we handled involving a “sick” situation and a poorly painted poolside.
