INTRODUCTION
Certain hotels are sited in city centres or close to the main road networks. They are easily accessible and some are vulnerable to misuse by those engaged in crime. Bookings can be made late at night; guests might arrive in large groups; they are sometimes able to bypass reception either on arrival or on departure; there may be no night receptionist to check who might be brought in. It is not unknown for particular hotels in particular areas to be used for the exploitation of vulnerable persons. It may be argued that certain hoteliers are on notice of a possible problem relating to the exploitation of young people within the network. The question is what is to be done to protect young people who might be taken to an hotel and there abused and to limit the exposure of the hotelier to liability for any claim which might be made against them. Some hoteliers actively seek the assistance of bodies such as the NSPCC in the preparation of training for staff. Training is not enough. Nor is the fact that guest accompanying a child may be obliged to identify the child and their relationship with the child.
COOPERATION WITH THE POLICE
The police have used certain hotels for the surveillance of those engaged in the exploitation of young people. Sometimes they get it right and abusers are arrested. Sometimes it goes spectacularly wrong and innocent couples might be intercepted
Local police forces may wish to enlist the assistance of local managers to assist in operational matters without reference to senior management. Such assistance may be given in a way which may expose the hotelier to liability where for example it involves surveillance of individuals, which results in a crime being committed before police intervention and for which the hotelier might be held liable. Such assistance might put the manager outwith the terms of his employment. As an individual the manager might be exposed to risk.
The hotelier should have a protocol for assisting the police and a senior manager or director who is in a position to deal with the police and take such advice as may be necessary for the protection of young people, the investigation of crime and the protection of the hotelier's interests. The existence of the protocol and means of communicating with the senior manager/director should be communicated to all local police forces and CEOP.
The Antisocial Behaviour, Crime and Policing Act 2014 Section 116 provides that a police officer of at least the rank of inspector may issue a notice to the owner, operator or manager of a hotel that the officer reasonably believes has been or will be used for the purposes of child exploitation or conduct that is preparatory to or otherwise connected with child exploitation. The notice will specify the hotel, the date on which it comes into effect and expires. The notice cannot last more than 6 months. The notice may require details of guests' names and addresses and certain other information about guests. That information may include information which is readily available from the guests. "Guest" is defined as "a person who, for a charge payable by the person or another, has the use of a guest room at the hotel..". "Child exploitation" is defined as conduct which constitutes the whole range of offences under the Sexual offences Act 2003 and Protection of Children Act 1978. If the hotel fails to comply with the notice, an offence is committed. There is a mechanism for appeal to the Magistrates Court.
LIABILITY FOR NEGLIGENCE AND STEPS NEEDED TO PROTECT THE HOTELIER AND ITS REPUTATION
Any collusion by employees will render the hotelier liable for a resulting claim. Where staff have direct knowledge of the age of a young person who is obviously in the hotel for the purpose of abuse, the hotelier will be liable. The only way to reduce exposure is to manage recruitment in such a way as to render it less likely that criminals or those likely to be vulnerable to coercion will be employed in a position of responsibility. This will involve interviews and the taking of references and where possible background checks.
CCTV is used as a means of at least monitoring those who might come into the hotel but it cannot be used in hotel rooms for obvious reason. Images must not be kept for more than is strictly necessary bearing in mind the purpose for keeping them. Hotels frequently retain images for 30 days. It is too short a period. Any longer period must be a matter for discussion with the Commissioner. To keep all images for the entire limitation period, whether primary or extended by reason of a claimant being a minor at the date of the incident may be said to be too long. In most cases it is likely that a claim will be intimated within a shorter period and a period of 12 months might be considered. In U.S. hotel litigation one looks for daily records for the previous year.
Hotels have a general duty to protect guests and those brought onto the premises. It is a duty which is hedged round by the concept of reasonableness, fault and the concept of reasonable foreseeability. The hotelier is not an insurer in respect of every criminal act committed by third parties.
LEGAL PRINCIPLES
The sort of duty owed to certain people is never the same. It is, to an extent elastic.
UNITED KINGDOM
In the UK Court of Appeal case, EVERETT V COMOJO (UK) T/A THE METROPLITAN BAR 2011 PIQR the managers of a night club were sued by guests who had been stabbed by another guest. The claim was in negligence in that it was alleged that they had failed to take sufficient steps to protect the guests. It was alleged that the doormen had not been instructed to search guests coming in; one of the waitresses had failed to report concerns she had about the assailant to the door supervisor rather than the bar manager. The first allegation was rejected by the judge. The appeal concerned the second point. The Court held that the test for liability was threefold. First was the risk of injury foreseeable; second was there a sufficiently close relationship between the parties; third was it fair, just and reasonable to impose a duty of care. The answer to each of the questions was in the affirmative. The management did owe its guests a duty of care; there was always a risk that a guest might injure another; the level of risk would depend on the type of club involved. The club was required to take such care as, in all the circumstances of the case, is reasonable to see that the visitor will be safe. However in that case because the waitress had spoken to her manager and she had no reason to think that a confrontation was imminent there was no liability.
This case provides an illuminating discussion on the liability of corporations who receive guests for financial reward for the criminal acts of third parties. In the case of child exploitation the mood of society is such that companies and institutions will be expected to go further than they might have done in the past in taking proactive measures to protect the vulnerable.
It is instructive to see how other jurisdictions, and in particular the U.S., deal with this type of problem.
AUSTRALIA
The Supreme Court of New South Wales in ORCHER V BOWCLIFF PTY LTD (2012 NSWSC 1088, 2013 NSWCA 478) was dealing with an assault on a hotel customer by an employee of the hotel beyond the boundary of the hotel. The employee (P) was a glass collector. The assault occurred across the street from the hotel, about 15 metres from its entrance. Shortly before the assault, the claimant had been asked to leave the hotel following an argument. The claimant had only been there for around 10 minutes before being asked to leave. The claimant left through the hotel entrance and crossed to the opposite side of the street. He became involved in an altercation in which P also became involved. P assaulted the claimant. The claimant sued the hotel and the security company responsible for security at the hotel. The Court of Appeal overturned the decision at first instance (in favour of the claimant).The court found that neither the hotel nor the security company, had breached their respective duty of care to the claimant. The hotel was responsible for designing and implementing the security system. One of the special conditions attaching to the hotel licence was that the licensee was required to take all reasonable steps to ensure 'that the patrons depart[ed] the hotel and the neighbourhood in a quiet and orderly manner' and that 'patrons [did] not congregate on the footpaths of the street surrounding the hotel, to the disturbance of the neighbourhood.' Four security guards were on duty. Two were employed by the hotel and two were supplied by the security company. The claimant argued that the hotel and security company were negligent in permitting P, an untrained, unqualified and unlicensed employee of the hotel, to deal with the altercation in circumstances where there was a foreseeable risk that the employee might overreact and assault the claimant. In the case of the hotel, it was said that the security personnel were under the control of the hotel management in that they were a part of the hotel security system. Considering inter alia NEW SOUTH WALES V LEPORE (2003) HCA 4; (2003) 212 CLR 511 the judge at first instance held that the hotel was not vicariously liable for the employee's (P) actions as the assault was a 'gratuitous and unprovoked attack' which did not appear to have been done 'in furtherance of [the hotel's] interests.' The judge then considered the duty of care owed by the hotel and the security company respectively. The judge considered that the hotel owed a duty to the claimant to take reasonable care to prevent injury to him from the violent, quarrelsome or disorderly conduct of other persons on the premises of the hotel, and that the duty was not necessarily confined to the boundary of the hotel. That duty was said to arise from the hotel's capacity and statutory obligation to control conduct upon licensed premises pursuant to the LIQUOR ACT 2007. In relation to the security company, the judge found that it owed a duty to patrons such as the claimant to take reasonable measures to protect them from foreseeable harm. The judge found that both the hotel and the security company had breached their respective duties to the claimant by failing to take any or any reasonable steps to prevent the assault. The judge held that it was 'entirely foreseeable that (the employee's) 'interest' in the altercation... was likely to lead to an escalation of the disturbance rather than to its reduction' and that 'an alert or vigilant security guard should have reacted to prevent (the employee) from ever becoming involved. The judge considered that a just and equitable apportionment of damages was 70% to the hotel and 30% to the security company. The liability of the hotel was held to be greater on the basis that it designed and implemented the security system. In the Court of Appeal Tobias AJA, who gave the leading judgment, stated that the relevant scope of the duty of care of an occupier of licensed premises was to be derived from the following passage in the judgment of the High Court in ADEELS PALACE V MOUBARAK (2009) HCA 48; (2009) 239 CLR 420 at (26):
"In the circumstances reasonably to be contemplated before the restaurant opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes. No question arises of translating a statutory power given to a statutory body into the common law "ought". The duty is not absolute; it is a duty to take reasonable care. It is not a duty incapable of performance. .... Although it is a duty directed to controlling the conduct of others (for the avoidance of injury to other patrons) it is a duty to take reasonable care in the conduct of activities on licensed premises, particularly with regard to allowing persons to enter or remain on those premises."
The court held that the duty imposed on the hotel and/or the security company was to prevent injury to the claimant from the violent, quarrelsome or disorderly conduct of the employee. In relation to the claim against the security company, Tobias AJA accepted that there was a duty of care to take reasonable steps to prevent harm to patrons of the hotel in the vicinity. Security personnel were not aware and could not have been aware of the employee's intention when he commenced to cross the road, and were not in breach of the duty of care to the claimant by failing to intervene at an earlier stage. In relation to the claim against the hotel the claimant, relying on the decision in McDONALD V THE COMMONWEALTH argued that there had been a substantial transfer of control by the security company to the hotel in respect of the services of the security personnel to justify a finding that the hotel was vicariously liable for the acts or omissions of the security personnel. Tobias AJA disagreed, finding that the evidence fell short of establishing the necessary degree of transfer of control. MacFarlane JA disagreed with Tobias AJA on this issue. Both appeals were allowed.
It has been commented that previous decisions in which it has been found that the duty extended beyond the hotel's boundaries have generally involved prior incidents between the relevant parties within the hotel. This was not the case in ORCHER. Although the claim failed in that case, if the security personnel or the hotel's employees had been aware that P had a propensity to become violent, or that the altercation across the road was potentially violent and the security personnel failed to intervene, the claim might have succeeded.
The decision at first instance and on appeal, make it clear that a hotel's duty of care can extend beyond its boundaries in circumstances where there have been no prior incidents between the parties.
UNITED STATES
In the U.S. it is said that a hotel owes minor children staying at the hotel a duty of "extraordinary care" (Am. Jur 2d Hotels 81 (2007)). The foreseeability test is as in the UK. It was said in ANN M V PACIFIC PLAZA SHOPPING CENTRE 863 P2d 207:
"The creation of a legal duty requires more than a mere possibility of occurrence since through hindsight everything is foreseeable...A proprietor of premises is not the insurer of the safety of persons on those premises. His duty to control the acts of third persons is a duty of reasonable care to protect against known or reasonably foreseeable risks. He is not required to take precautions against attacks by third persons which he has no reason to anticipate".
In her study of 1086 cases from 1992 to 2001 taken from a variety of sources, TERESA ANDERSON discusses the then trend in liability law suits and in robbery cases says that the top 5 categories of litigants were hotels and retail stores. Whilst in the UK the risk of a claim might not be great, there is no doubt but that in the US, hotel claims for acts of third parties form a significant body of business litigation.
Thus by way of examples in SIMMS V PRIME HOSPITALITY CORP the Florida District Court of Appeals (1997) dealt with the Wellelsy Inn owned by Prime Hospitality Corp. The claimant returned to her room at 9.30pm and as she left the lift she saw a man, well dressed and clean who pointed a gun at her, took her to her room and raped her. The hotel was sued for inadequate security. The claimant adduced evidence of 53 crimes in the premises over 3 years. She was awarded $400,000 which award was upheld on appeal.
In MC v YEARGIN (Missouri Court of Appeals 1999) a woman in a hotel tried to leave her room but was forced back. She screamed and another guest alerted security. Two security officers arrived, called the police and waited in the lobby. In the meantime she was raped and sodomized by the man who left the hotel before the police arrived. The hotel was sued (Torts Business Premises Open to Public (Acts of Third Parties) Section 344 1995) for inadequate security and was awarded $11M which was reduced to $3M on appeal and settled whilst a further appeal was awaited.
In his review of the law of premises liability, F Robert Radell quotes the "Restatement of
"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose for physical harm caused by the accidental, negligent or intentionally harmful acts of third parties...and by the failure of the possessor to exercise reasonable care to:
- Discover that such acts are being done or are likely to be done, or
- Give a warning adequate to enable visitors to avoid the harm or otherwise protect them against it."
A commentary to the Restatement reads:
"Duty to police premises. Since the possessor is not an insurer of the visitors safety he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring or are about to occur. He may however know or have reason to know from past experience that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor even though he has no reason to expect it on the part of any particular individual. If the place or character of his business or his past experience is such that he should reasonably anticipate careless or criminal conduct on the part of third persons either generally or at some particular time he may be under a duty to take reasonable precautions against it and to provide a reasonably sufficient number of servants to afford reasonable protection"
Thus there are two situations says Radell in which the special duty may arise. The first is when the owner knows or has reason to know that a third party is harming or is about to harm a guest. At this point the owner can warn the guest or call the police or employ available security measures. The second is when the nature of the business or experience provides a basis for the reasonable anticipation that prior or potential criminal activity may put the guest at risk. The distinction between these situations he says is crucial because the duty to foresee a general risk of criminal activity and take reasonable steps to safeguard guests may require substantial expenditure.
There is a tension between two rules. The first is the "similar acts or prior similar incidents rule" where the owner knows or has reason to know of prior incidents of the same or substantially similar kind committed in or near the premises and without which liability will not attach.
Under this rule the court inquires into the location, nature and extent of the prior criminal activity and its likeness, proximity or other relationship to the crime in question
Many of the cases involve shootings or fights or attacks in adjacent parking lots. In one Michigan case it was said that the owner "does not owe a duty to their invitees to make their parking lots safer than the adjacent streets" and the Tennessee Supreme Court refused to speculate upon the appropriate number of prior criminal acts which would give rise to the duty to protect patrons from a particular criminal act.
The Supreme Court of Virginia opined that a business invitor whose method of business does not attract or provide a climate for violent crimes does not have a duty to protect a guest from criminal assault "unless he knows that criminal assaults against persons are occurring or are about to occur on the premises which indicate an imminent probability of harm to the invitee" and two prior isolated attacks on the premises would not lead a reasonable owner of a theatre parking lot to believe that there was an imminent danger of assault.
Then there is the more expansive "totality of the circumstances" rule.
Under this rule even absent any prior similar acts a landowner may be held liable for criminal acts depending on an analysis of all the surrounding facts and circumstances. The totality of circumstances includes the nature, condition and location of the property as well as any other relevant factual circumstances bearing on foreseeability.
The courts reasoned that the prior similar incident rule had the effect of discouraging land owners from taking adequate measures to protect premises which they know are dangerous. It contravened the policy of preventing future harm. Under the prior incident rule the first victim was the loser while subsequent victims were able to recover.
Thus back in 1987 in MEYERS V RAMADA HOTEL OPERATING CO (US COURT OF APPEALS FOR THE 11TH CIRCUIT), the court was dealing with the rape of a woman in a hotel room. The court took into account the fact that there had been a number of threats to safety in the previous 17 months; the fact that personal attacks are more common in hotel rooms and a number of other matters such as compliance with industry standards; the presence of suspicious people in the vicinity; particular security problems of the hotel such as stairwells which were available to the public and not just for emergency use.
Other courts have taken into account the design of the facility, the nature of the hotel and crime rates and types of crime in other hotels.
In ISAACS V HUNTINGTON MEMORIAL HOSPITAL 695 P2d 653 (Cal 1985) the Court took into account the fact that the hospital was in a high crime area, several threatened assaults had occurred in the emergency room near the parking lot, prior thefts in the area, common incidents of harassment, expert evidence that the area was inherently dangerous, burnt out lights in the parking lot, lack of security.
It was recognised that this totality of circumstances test placed a heavy burden on landowners and the Californian Supreme Court retreated from the totality of circumstances test in the ANN M case where the claimant had been raped at her place of employment and filed a complaint in relation to lack of security. The court commented that "random violent crime is endemic in today's society" and in the light of the increase in violent crime the court refined the test and concluded that there was no requirement to provide security guards, holding that foreseeability was the crucial factor in determining the existence of a duty and retreated to the prior similar act test.
It has been commented that the rationale of this case is that "the societal issue of crime is simply too great a burden to place at the feet of a given property owner. If all the resources of federal state and local resources are insufficient to deal with eliminating crime it is simply unreasonable to ask a simple property owner to eliminate the same" (ROBERT FOSTER "DEFENDING THE PREMISES LIABLITY CLAIM").
However it now seems that most jurisdictions adopt the "totality of circumstances" rule.
MEASURES
In hotel litigation in the U.S. the hotel will be expected to have security log books, periodic security reports prepared by officers and management, neighbourhood crime statistics which may show similar crimes in the area, records of prior incidents in the hotel. The claimant will look for internal memos which might show what the hotel management should have foreseen and evidence of a failure to take precautions which the management itself had in mind to take. There is a focus on crime statistics, crime surveys, the development and implementation of a security programme, the appointment of a security director, the use of patrols, any failure to report the presence of unauthorized persons on the premises, screening and training, logs, audits, policies and procedures (all in no particular order of significance).
What one is looking for is whether the particular hotel is thought to be an easy target and why; whether there was a failure to display "security awareness" in management and staff and an emphasis on the provision of a safe environment for people rather than the hotel's property.
What the hotel must show is that security was taken seriously and that a sophisticated analysis was undertaken to determine what security measures should be taken and that such measures were actually taken.
An advertisement for a "guest liability and safety manager" for a hotel and casino complex in Nevada lists the accountabilities as including, planning and coordinating risk control and loss prevention activities and developing policies and procedures related to risk control; staying abreast of developments in the insurance field, maintaining logs of incidents, monitoring and liaising with third parties including risk management services, 1nalysing and making changes in existing risk control and risk financing techniques, developing and administering written safety and policies, identifying safety training needs and programmes, promoting awareness, reviewing daily reports, auditing practices.
SUMMARY
The essence of the litigation is this:
- There is obviously a problem with certain criminals using certain hotels for criminal purposes. They use them by reason of ease of access and escape and because they have inadequate security such as to protect the victims of crime.
- If that is right then there is no doubt but that the hoteliers concerned are vulnerable to claims being made against them.
- Hotels are private premises to which the public has access. Access cannot be uncontrolled and unmonitored.
- It is advisable to undertake an audit of the hotels within a chain from a protection point of view. Such an audit will take into account local crime statistics and involve consultation with local police forces and other relevant organisations to see whether there is anything about the area which might make the hotel an easy target.
- The hotelier must then act on the audit and put all relevant measures in place.
- The management structure must be such as to be able to deal with the problem as it develops.
- There can be no shaving of resources in the form of staff which might make the hotel an easy resource for the criminal. An empty reception area is likely to present risk both in respect of vulnerable individuals and liability of the hotelier.
In this area of vulnerability the problem arises, how does one monitor the people who might be accompanied by a minor or someone who appears to be a minor? Thus what to do if an older man accompanied by a young girl comes into the hotel where a double bed has been booked. Ultimately it has to be a matter for the individual manager but provided it is made clear perhaps in the entrance that questions may be asked, most members of the public would understand why.
To be taken into account is the race discrimination legislation particularly in the light of the recent convictions for grooming and other offences of individuals of a particular ethnicity. One cannot assume that simply because a group of young Asian men come into the hotel with a young girl then she is to be abused. However if a group of young men of any racial background bring a young girl into the hotel then even bearing in mind that hotels are no longer the guardians of the nation's morals, the manager is entitled to ask questions and if there is suspicion consult upwards and where appropriate the Police.
Richard Barraclough QC has advised a major hotel chain in relation to protection of vulnerable persons, child exploitation and liability mitigation systems.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
