Chapter 5 Principles of Negligence Hospitality Law Study Guide 1 Hotel or restaurant will only be liable when it does something wrong commits a tort many types of noncriminal wrongs done by one person to injure another Negligence a breach of a legal duty to act reasonably that is the direct cause of injury to another Carelessness that causes harm Elements of a negligence case a plaintiff suing in negligence must prove 4 elements o The existence of a legal duty to act reasonably owed by the defendant to the plaintiff o A breach of that duty o Injury to the plaintiff o Proximate cause direct correlation 3 purposes and levels of care o invitees guests employees duty to inspect ex Walmart bathroom management walking around wolf dog eat and break through chain Link fenced not responsible for invitees that get injured on an open and obvious danger o duty owned to licensees come on property but you didn t invite them ex Auditor health inspector off duty employee former employee let them know of danger warn of concealed dangers o trespasser use the pool use the bathroom if you allow trespassers on the property all the time they can rise to the level of licensee can you set a trap NO For a defendant to be liable for negligence the defendant must not only owe a duty to the plaintiff to act reasonably but must also breach that duty Proximate cause of an injury refers to its direct and immediate cause The requirement of proximate cause to prove negligence means that the injury must have been caused by the breach of duty in other words there must be a cause and effect relationship between the unreasonable conduct and the injury If plaintiff falls due to defendant s negligence but her injuries constitute a preexisting condition that is a physical impairment Hospitality Law Study Guide 2 suffered prior to the fall defendants negligence would not be the proximate cause of the injury Invitee someone who comes to an establishment for the purpose for which the business is open to the public or for a purpose directly or indirectly connected with that business Liability may result if and only if the business o Knows a dangerous condition that presents an unreasonable risk of harm to invitees o Should expect that invitees will not discover or realize the danger or will fail to protect themselves against it o Fails to exercise reasonable care to protect its invitees against the danger Licensee someone who is on the premises of another by permission or acquiescence of the owner or occupier and not by invitation Trespasser a person who enters a place without the permission of the owner Res ipsa loquitur the thing speaks for itself The doctrine that frees the plaintiff from the burden of proving the specific breach of duty committed by the defendant It applies where an accident would not normally happen without negligence and the instrumentality causing the injury was in the defendant s exclusive control o Plaintiff must prove the following 3 elements The plaintiff s injury was caused by an accident that would not normally have happened without negligence The thing causing the injury as within the exclusive control of the defendant The plaintiff did not provoke the accident The law excuses a young child from negligence acts o A person injured by a young person s conduct is not entitled to compensation Attractive nuisance potentially dangerous object or condition of exceptional interest to young people The elements of an attractive nuisance o A condition exists that is attractive to children and is likely o The owner or occupier of the land knows or should know o Due to the child s immaturity he does not appreciate the to cause them injury of the condition danger Negligence per se describes conduct that violates a law or ordinance designed to protect the safety of the public Hospitality Law Study Guide 3 o Great help to the plaintiff because he doesn t have to prove that the defendant failed to act as a reasonable person They only have to prove the existence of the law and the defendant s violation of it Negligence per se and proximate cause o For an establishment to be liable under negligence per se it isn t enough that the establishment violated the law The violation must be the proximate cause of the plaintiff s injury Strict liability imposes liability for injury caused by an ultra hazardous activity without regard to fault or wrongdoing by the party engaging in the dangerous conduct o Example using explosives This doctrine imposes liability for resulting injuries even if the defendant took every precaution and wasn t negligent Strict products liability the doctrine that imposes liability on the seller of a defective product without regard to negligence Respondent superior let the master employer answer The legal responsibility of the employer for the acts of its employees o If a waiter carelessly spills her coffee on a customer causing burns the restaurant will be liable The employer is liable only if the employee s negligent act occurred within the scope of employment which means in furtherance of duties performed for the employer Independent contractor someone who contracts to do one or more specific projects for someone else and maintains control of how the work is done Contributory negligence the minority rule o If the plaintiff s carelessness contributed to the injury the plaintiff cannot successfully sue a negligent defendant Instead the case will be dismissed Comparative negligence the majority rule o Rule that apportions damages according to the comparative contribution of the negligence of the parties Chapter 6 Negligence and Hospitality Practices Hospitality Law Study Guide 4 Because the hotelkeeper dialed in the performance of keeping the room clean the hotel was liable for the resulting injuries The cases hold that the hotel or restaurant must regularly inspect the furniture and discard any that s not suitable Failure will result in liability Stairways steps and their coverings o They must make sure the steps are properly constructed o Keep them in good repair o Install railings o Avoid leaving items on the steps o Provide adequate lighting Floors highly dangerous Menu boards on ledges o Make sure floors are mops and use mats when needed o Restaurants are advised not to place items on ledges near tables where customers sit Hanging televisions o Make sure that they are installed properly and can hold a TV or the restaurant will be negligent Flamb Foods Serving hot beverages o Make sure to