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Expert Witness Chronicles: A Vegas Hotel Room Fall – Part II

Editor’s Note: This is the concluding article in a two-part series examining how a specific legal principle is critical in adjudicated hospitality cases in court. Read the first article here

By Dr. Gary L. Deel, Ph.D., J.D., Faculty Director, School of Business, American Military University

As I explained in the first part, the legal doctrine of res ipsa loquitur, or “the thing speaks for itself,” presents a rebuttable presumption of negligence on the part of a defendant when something in the defendant’s exclusive control becomes unsafe and causes injury to another.

In that first part, I told the story of Janet, who stayed in a Las Vegas hotel casino and slipped and fell on water that had pooled on the tile floor just outside the bathroom. The security investigation determined that the water had dripped down from around a light fixture in the ceiling. But the key question from that point was: Where was the water coming from?

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Janet’s room was on the seventh floor of an 11-story hotel. In Janet’s incident, if the water had come from any of the rooms above her due to a guest spilling water or leaving a faucet running that overflowed, that could potentially undermine a presumption of res ipsa loquitur. After all, the hotel might not have had any reason to anticipate such an event, and therefore it would not have had any way to prevent it before the damage was done.

However, following their investigation in Janet’s room, the hotel security officers visited the rooms directly above hers, and found no evidence of water spills or flooding.

Security Officers Determined that the Leak Was Caused by a Clogged Condensation Drain

So the security officers then asked the hotel engineering staff to investigate the source of the water. When they did, they determined the cause was a clogged condensation drain in an air conditioning unit two floors above Janet’s room. That allowed drain water from the air conditioner to overflow, drip down inside the walls, and seep through Janet’s ceiling by way of the hole in which her foyer light was mounted.

The explanation eliminated any doubt as to whether the source of the water was within the exclusive control of the hotel. Guests don’t have access to the mechanical components of the air conditioning units in their rooms, let alone the condensation plumbing for them. So there was no way the hotel could escape liability on those grounds.

But what about the potential of a manufacturer’s defect? What if the clog was caused by something inherently wrong with this air conditioning unit at the factory where it was built? This wouldn’t necessarily indemnify the hotel, but it could potentially allow the hotel to transfer liability to the manufacturer.

Maintenance Logs Showed the Unit Had Been Serviced Two Days before Janet’s Fall

In my opinion, this wasn’t very likely because the air conditioner was more than 10 years old and the manufacturer had no history of any such issues. So on my recommendation, Janet’s attorney subpoenaed the hotel engineering logs. And what we found — to no surprise — was that the air conditioning unit had been serviced by a technician just two days before Janet’s slip and fall.

When we deposed the technician who completed the service he testified that he did nothing wrong. But we also deposed the technician who investigated the water leaking from Janet’s ceiling after the incident. He testified that he had found a bolt in the drain pan which was blocking the flow of water through the plumbing. The bolt must have been removed from the unit by the technician who performed the service. He left it lying in the drain pan and forgot to reinstall it, so it eventually became lodged in the drain pipe opening.

Following this discovery, the hotel promptly met with Janet’s attorney and settled the case. Having established that the air conditioner that caused the water spill was within the hotel’s exclusive control, and having further established that the hotel technician’s negligence was responsible for the failure, there was no denying res ipsa loquitur in this case.

The Hotel Was also Liable under Another Legal Doctrine called Respondeat Superior

Incidentally, the hotel was also liable for Janet’s injuries by way of another legal doctrine called respondeat superior, which means “let the master answer.” This doctrine holds that an employer may be vicariously liable for the negligent acts of an employee if that employee committed the negligent act within the scope of his employment. Here, the hotel was most assuredly liable for the negligence of its technician when he failed to re-install the bolt that caused the problem.

Some might wonder whether the hotel could have pursued a cross-claim against the technician for his negligence. The answer is maybe. It depends on whether the technician’s mistake was outside the scope of foreseeability for the hotel given his experience, the training that the hotel provided, and a host of other factors. But employers are generally not in the habit of suing their own employees. And given that hotel engineering technicians are usually not particularly wealthy people, this probably wouldn’t have been a very profitable use of the hotel’s legal resources.

None of that was relevant to Janet’s case, though. All that mattered was that the hotel bore responsibility for what happened, and as such Janet was compensated for her injuries. In settlements such as these, the details are usually kept confidential, but we can safely assume that Janet received fair compensation given the certainty of the hotel’s liability.

Competent Maintenance and Upkeep Are Critical to Avoiding Unnecessary Liability

What hotel operators should take away from this story is that competent premises maintenance and upkeep are absolutely critical to avoiding unnecessary liability. If something in your hotel becomes unsafe and causes a guest injury — whether it be a chandelier, an air conditioner, a television, a door knob, or anything else — there is a presumption of negligence under res ipsa loquitur.

This presumption can be overcome, but the hurdles to do so are high. More often than not the ultimate responsibility will still be with the party in control of the unsafe condition. Smart hoteliers would do well to be proactive and thorough in their property maintenance and care programs so as to avoid having to fight an uphill battle over who’s at fault.

About the Author: Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.

Leischen Kranick is a Managing Editor at AMU Edge. She has 15 years of experience writing articles and producing podcasts on topics relevant to law enforcement, fire services, emergency management, private security, and national security.

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