CHAPTER 5
Principles of Negligence
CONTENTS
A. Chapter Competencies
B. Introduction
C. Negligence
D. Negligence Doctrines Generally
Favoring the Plaintiff
E. Negligence Doctrines Generally
Favoring the Defendant
F. Answers to Case Example
Questions
G. Answers to End-of-Chapter
Questions
Chapter Summary
This chapter lays an excellent foundation for the concept that hotels and restaurants face substantial liability
for negligence. If a customer is injured by a hotel or restaurant’s failure to act reasonably, the business will be
obligated to compensate the customer.
If a negligence case is to be successfully resolved, a plaintiff must prove four elements: (1) the existence of
a duty owed by the hotel or restaurant to the plaintiff to act reasonably; (2) a breach of that duty; (3) injury to
the plaintiff; and (4) proximate cause, meaning the plaintiff’s injury was caused by defendant’s breach of duty.
Hospitality students who are educating themselves to become industry professionals are taught to avoid
liability for negligence. They must constantly be vigilant to ensure they are exercising reasonable care to pro-
tect the safety of their patrons. States continue to recognize varying standards of duty depending on the status
of the injured party. For invitees, the hospitality facility must inspect the premises, remove any risks of injury
that exist, and make the premises reasonably safe. For licensees, the facility must disclose any known defects and
refrain from causing willful or wanton injury. The duty owed to a trespasser by a facility is to refrain from
causing willful or wanton injury. In states that no longer recognize the difference among invitees, licensees, or
trespassers, a varying duty of care is owed to all three.
There are a variety of legal doctrines that are associated with negligence. Those doctrines that aid the
plaintiff are:
1. Res ipsa loquitur, which means “the thing speaks for itself ” and relieves the plaintiff of the need to
prove specific acts of negligence
2. Higher duty of care owed to children because of their relative lack of judgment and experience.
3. The attractive nuisance doctrine, which obligates occupiers of land to exercise reasonable care to
protect trespassing children.
4. Negligence per se, which in most states eliminates the need for a plaintiff to prove negligence where
the defendant violated a safety law.
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5. Strict liability, which under limited circumstances renders a defendant liable without fault.
6. Respondeat superior, which obligates an employer to compensate persons injured by the negligent
acts of its employees.
7. The doctrine of last clear chance, which applies in states that follow the contributory negligence rule
and holds that, even if a plaintiff is negligent a defendant may be liable if he knew of the plaintiff’s
peril and had an opportunity to prevent the injury but failed to do so.
The legal doctrines related to negligence that aid the defendant include:
1. Assumption of risk, which, in contributory negligence states, relieves a defendant from liability for
injuries incurred by a plaintiff when the plaintiff voluntarily engages in conduct known to presents
risks of injury.
2. Contributory negligence, which relieves a defendant from liability if the plaintiff is at all negligent.
This doctrine is followed in only four states and the District of Columbia.
3. Comparative negligence, which lessens a negligent defendant’s liability if the plaintiff is also negli-
gent. This doctrine results in only partial liability on the defendant.
4. Good Samaritan Statutes, which restrict exposure to liability for rescuers who come forward in an
emergency to assist a person in distress.
5. Choking laws, which relieve a restaurant from liability for failing to perform the Heimlich
procedure on a chocking patron, provided only that the restaurant summons emergency
assistance.
A. Chapter Competencies
After studying Chapter 5, the student should be able to
1. explain the meaning of the statement “the hotel or restaurant is not an insurer of guests’ safety.”
2. define the term “tort.”
3. define “negligence.”
4. explain, giving examples, the concept of negligence.
5. list the elements of a negligence case.
6. explain the duty of the hospitality business to act reasonably.
7. explain the concept of foreseeability.
8. explain the element of breach of duty.
9. define “standard” as it refers to a criterion provided by law to help judges.
10. explain the meaning of the phrases “reasonable person,” “prudent person,” “person of average
prudence,” and “person of ordinary sense using ordinary care and skill.”
11. explain who decides what constitutes reasonable behavior.
12. describe the principle of burden of proof as it relates to breach of duty.
13. define “proximate cause.”
14. explain the element of proximate cause.
15. explain the terms “intervening occurrence” and “superseding occurrence.”
16. list the forms and legal terms of injury.
17. list the terms used to identify the legal status of an injured person.
18. define “invitee.”
19. give at least three examples of an invitee.
20. describe the duty a hotel or a restaurant owes to an invitee.
21. list the three conditions necessary for liability.
22. explain the concept of active vigilance.
23. explain the concept of open and obvious conditions.
24. define “licensee.”
25. give at least three examples of a licensee.
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26. describe the duty owed to a licensee.
27. compare the duty owed to an invitee to the duty owed to a licensee.
28. distinguish the applications of majority and minority rules.
29. define “trespasser.”
30. give at least three examples of trespassers.
31. describe the duty owed to a trespasser.
32. list at least three negligence doctrines favorable to plaintiffs.
33. explain the doctrine of res ipsa loquitur.
34. list the elements of proof in the use of the doctrine of res ipsa loquitur.
35. explain each element of proof in the use of the doctrine of res ipsa loquitur.
36. describe the degree of care owed to children.
37. explain the concept of attractive nuisance.
38. list the elements of an attractive nuisance doctrine.
39. define “negligence per se.”
40. state the reasoning supporting the negligence per se doctrine.
41. state the requirements for liability of a hotel or restaurant under the negligence per se doctrine.
42. explain the doctrine of obligation beyond regulation.
43. describe strict or absolute liability.
44. list and describe the three objectives on which strict product liability is based.
45. define “respondeat superior.”
46. explain the doctrine of respondeat superior.
47. define “independent contractor.”
48. list the additional factors used to determine the status of a worker.
49. define the term “nondelegable duty.”
50. explain the duty to aid a person in distress.
51. explain the duty to invitees in danger.
52. cite the limitations on duty to invitees in danger.
53. define “Good Samaritan statutes.”
54. explain the rescue doctrine.
55. explain the rule for helping a choking victim.
56. list negligence doctrines generally favoring the defendant.
57. explain and distinguish between the doctrine of contributory negligence and comparative negligence.
58. explain the doctrine of last clear chance.
59. list the four elements that must be established before the doctrine of last clear chance comes into play.
60. explain the doctrine of assumption of risk.
61. list at least three of the conditions required to establish assumption of risk.
B. Introduction
❊Explain the meaning of the statement “The hotel or restaurant is not an insurer of guests’
safety.”
■This means the hotel is not necessarily liable for all injuries that occur while guests are on the
premises.
❊Discuss the term “tort.”
❊Use examples of likely accidents in hotels and restaurants to explain legal duty.
C. Negligence
❊Giving examples, “define negligence.”
❊Discuss the key words in the definition.
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❊Ask students how to avoid or remedy problems due to carelessness.
■Management by walking around.
■Eye for details.
■Training.
❊Explain the four elements of negligence.
■Failure to prove any one of the elements is fatal to the plaintiff’s case.
■Existence of a duty to act reasonably.
•We do not owe everyone the duty to act reasonably. We owe the duty only to those people
who would foreseeably be injured by our actions.
•Give examples of unforeseeable and unexpected events under which there is no duty to pro-
tect guests.
■Breach of duty.
•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.
•Explain, giving examples, what constitutes breach of duty.
– Failure to take reasonable measures to prevent injury.
•The law provides a standard to help judge whether a defendant’s actions were or were not
within the bounds of the law. Though difficult to apply in some cases, it is a helpful guide.
– A reasonable person does not have bad days; he is always up to standard, a personification
of a community ideal of reasonable behavior.
■Injury to plaintiff.
•Breach of duty has to result in an injury.
•Explain the types of injuries covered by law.
■Proximate cause.
•The requirement of proximate cause 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 in-
jury and the unreasonable conduct. The connection also must be direct or immediate, so that
a reasonable person could foresee the potential danger of the careless act.
•Discuss the role of preexisting conditions in determining proximate cause in injury claims.
•Events independent of and occurring after the defendant’s alleged negligence may be the di-
rect cause of the injury, rather than the defendant’s negligence. Such an event is called an in-
tervening or superseding occurrence and has the effect of breaking the chain of liability (the
causal connection between the defendant’s negligence and the plaintiff’s injury).
❊Remember, before a hotel or restaurant will be liable to a plaintiff for negligence, all four elements
must be present: (1) the existence of a duty, (2) breach of that duty, (3) proximate cause, and
(4) injury. If any element is missing, the hotel or restaurant is not liable.
❊Legal status of plaintiff.
■The duty of care owed by a hotel or restaurant for the safety of its patrons depends, in many
states, on the legal status of the person injured.
■Invitee: In the hospitality industry, 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.
•The greatest degree of care is owed to an invitee.
•Explain the necessary conditions under which liability may result.
•The necessary reasonable care (lack of negligence) encompasses both repair of and warning
about the dangerous condition.
•Explain the importance of active vigilance.
– The hotel or restaurant owes a duty to its invitees to reasonably inspect the premises for
dangerous conditions and to exercise reasonable care to eliminate them.
– Ignorance on the part of a hotel or restaurant management may not relieve them of liability.
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•Explain the duty of care on the part of the invitee.
– Invitees must also exercise some care in protecting themselves. Generally a hotel or restau-
rant will not be liable for injuries caused by a condition that is “open and obvious,” mean-
ing that the dangers are so obvious that the invitee can reasonably be expected to discover
them.
■Licensee: someone who has been given permission by the owner or occupier of a facility to en-
ter or remain on the property, but his or her presence does not further the defendant’s business.
•The degree of care owed to a licensee is greater than the degree of care owed to a trespasser
but less than that owed to an invitee.
•According to the majority rule, the hotel or restaurant’s only duty is to warn of those dangers
about which it knows. Thus, the hotel or restaurant must disclose known defects but need not
make any effort to determine what defects exist.
•In states where the minority rule applies, the hospitality facility does not even owe a duty to
disclose and warn of known dangers.
■Trespasser: a person who enters a place without the permission of the owner or occupier.
•Explain the duty owed to trespassers.
•A landowner or possessor does not owe a duty to safeguard a trespasser from injury caused by
conditions on the land.
■Explain the minority position.
•Some states have abolished the distinction between licensees, invitees, and trespassers and the
duties owed to each. Instead, in those states the occupier of land owes a duty of care to all
three. However, even in these states the standard of reasonable care may vary with the circum-
stances of the visitor’s entry on the premises.
■Explain that no special duty is owed to others who do not qualify for any one of the three sta-
tuses, or on property not owned or maintained by the hospitality facility.
•No duty is owed to people who do not qualify as invitee, licensee, or trespasser.
•A hotel or restaurant is generally not liable for injuries that occur to patrons on property not
owned or maintained by it, even if the property is near the hotel or restaurant’s facility.
D. Negligence Doctrines Generally Favoring the Plaintiff
❊Explain that numerous legal doctrines are associated with negligence. In any negligence case one
or more of these doctrines may apply and affect the outcome. Some doctrines favor the plaintiff by
making the plaintiff’s case easier to prove. Others benefit the defendant.
❊Explain the doctrine of res ipsa loquitur.
■The legal doctrine of res ipsa loquitur aids the plaintiff in situations where evidence of negligence
does not exist. It applies to cases in which the circumstances suggest the defendant was negli-
gent but no proof of specific acts of negligence exists.
■Explain that to use the doctrine the plaintiff must prove the three elements.
•Injury caused by accident that would normally have happened without negligence.
•Cause of the injury was within exclusive control of the defendant prior to the accident.
■Explain that where the doctrine applies, the defendant does not automatically lose. Rather, the
defendant has an opportunity to rebut the inference that it was negligent. If the defendant can
prove that the cause of the accident was some factor other than its own negligence, the defen-
dant will not be liable.
❊Explain the doctrine of children and the reasonable person test.
■A person injured by a young person’s conduct is not entitled to compensation. Similarly, the duty
imposed on adults to act reasonably is usually greater when young children are involved.
■While a proprietor of a hospitality facility owes an enhanced duty to protect the safety of chil-
dren, some young people may have a duty to act reasonably to protect themselves from harm.
The existence and extent of that duty depends on the age and circumstances of the child and on
the relevant facts.
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■A hotel must anticipate dangers and use reasonable care to protect against them when furnish-
ing a room that will be occupied by children.
❊Explain the attractive nuisance doctrine.
■A landowner generally owes no duty to a trespasser other than to refrain from causing him or
her willful injury. There is an exception to this rule for child trespassers called the attractive nui-
sance doctrine.
■This doctrine is an outgrowth of youngsters’ limited capability to detect danger and protect
themselves from risk.
■If an attractive nuisance exists on the property, the owner or occupier is required to exercise rea-
sonable care to protect a child from associated risks.
❊Explain the negligence per se doctrine.
■When applicable, this doctrine is of great help to the plaintiff because he or she does not have to
prove that the defendant failed to act as a reasonable person. Instead, the only facts the plaintiff
needs to prove are the existence of the law or ordinance, the defendant’s violation of it, the ex-
tent of the injury, and proximate cause between the violation and the injury.
■Under the minority view, noncompliance with the safety law or ordinance is not conclusive on
the issue of the defendant’s breach of duty, but is some evidence of such a breach. In some states,
such noncompliance is prima facie evidence of negligence, which means it alone is sufficient ev-
idence if un-rebutted, to support a judgment for the plaintiff. In addition, a business can request
a lawyer to perform a legal audit in which the attorney will examine the business and its compli-
ance with applicable laws and advise the owner of any deficiencies.
❊Explain the doctrine of obligations beyond regulation.
■Explain that simple compliance or satisfying the law does not release the hotel/restaurant of the
liability.
■The hotel has a duty to exercise reasonable care to protect guests from injury. If satisfying the
law falls short of reasonable care, the hotel must do more than what the statute requires.
Failure to provide that added measure of safety will result in liability for negligence, not
negligence per se.
■Emphasize that proprietors must stay abreast of new and state-of-the-art products and
techniques, and should always be asking, “What new practice or procedure can I be performing
to enhance the safety of my patrons?”
❊Explain the doctrine of strict or absolute liability.
■This doctrine imposes liability for resulting injuries even if the defendant took every precaution
and was not negligent. The principle supporting this rule is that the ultra hazardous activity
could be outlawed because of the danger it creates. Sometimes the ultrahazardous activity has,
despite its danger, a useful purpose. In such circumstances, in lieu of outlawing the activity, the
law may impose liability for the activity on the party who engages in it, without regard to fault.
❊Explain the doctrine of strict products liability.
■A product is defective for this purpose if it is designed or manufactured improperly or if it con-
tains inadequate warnings of the dangers it presents.
■Liability in these circumstances is a matter of social policy and based on three objectives. The
objective is to spread the cost of losses suffered by individuals from defective products. The
expenses associated with an injury may be an overwhelming burden to an individual,
whereas manufacturers and retailers can purchase insurance and allocate the cost over all
its sales.
■Note that the product causing the injury must be defective for the strict products liability to
apply. Sometimes a product malfunctions for reasons other than a product flaw.
❊Explain the doctrine of respondeat superior.
■Respondeat superior means “let the master (employer) answer.”
■In general, an employer is liable for the acts of its employees done in furtherance of their jobs.
Thus, employers are liable to their customers, guests, and other invitees for the negligence of
their employees.
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■The doctrine is founded on the theory that an employee is an agent of the employer; whenever
an employee is performing the duties of his job, he is acting on behalf of the employer. The law
in effect renders acts of the employee as if they were acts of the employer. Stated differently, the
employer is vicariously (through a substitute) liable for the employee’s wrongful conduct.
■Provide the definition of “independent contractor.”
•An independent contractor is someone who contracts to do one or more specific projects for
someone else and maintains control of the method for doing the work.
•A company is generally not liable for the acts of any independent contractors it hires to do var-
ious jobs.
•Explain that determining whether a worker is an employee or independent contractor is often
not easy. Additional factors to consider are provided by the Restatement (Second) of Agency,
a compilation of recommended rules of agency law.
•If the employer supplies tools and place of work, the worker is more likely to be considered
an employee.
•The longer the engagement, the more likely the worker will be considered an employee.
•If payment is made according to units of time, it is more likely the worker will be considered
an employee.
•If the work being performed is part of the regular business of the employer it is more likely
the worker will be considered an employee.
•The intentions and beliefs of the parties concerning their relationship are also considered.
❊Explain the doctrine of nondelegable duties.
■An exception exists to the general rule that an employer is not liable for the acts of an independ-
ent contractor.
■For policy reasons, the employer is not permitted to avoid liability on the ground that an in-
dependent contractor failed to properly perform the work. The rule is intended to motivate the
hotel or restaurant to carefully monitor the work of the independent contractors it hires.
❊Explain the duty to aid a person in distress.
■The law does not impose a legal duty on individuals to rescue someone in trouble.
■Moral duties are a matter of conscience and not of law.
■Explain that liability will result if a rescue attempt is done negligently.
■The reason for this rule is the expectation that, had the rescuer not attempted to help, someone
else with requisite skills would likely have offered to assist. Once others observe that a person in
need is being tended to, they are less likely to come forward to help.
❊Explain the duty to invitees in danger.
■The law in a growing number of states requires business owners to lend a hand under certain cir-
cumstances. These include situations where the proprietor’s lack of care would aggravate the
harm.
■The rationale for this duty is that the business owner is deriving some economic benefit from the
presence of the customer, and ensuring that invitees are safe is a cost of doing business.
■Explain the statutory protection for Good Samaritans.
•According to these statutes, the rescuer will not be liable for any injuries caused in the attempt
to render assistance if the means used were reasonable in relation to the emergency conditions
at the time. Many such statutes further provide that the rescuer is not liable for ordinary neg-
ligence, but only for gross negligence (excessive negligence). The purpose of these statutes is
to encourage voluntary aid to persons in danger by removing the rescuer’s fear of potential
liability.
•Explain the rescue doctrine.
•The policy benefits a rescuer who is injured while administering aid. It provides that a person
who negligently creates a peril and thereby endangers another person is liable for injuries to a
rescuer who comes forward to offer assistance to the person in need.
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■Explain the rule in choking situations.
•The law throughout the country does not require a restaurant to administer first aid to a chok-
ing patron. Instead, a restaurant whose employees summon medical assistance for the hapless
diner will be free from liability.
•If a restaurant comes to the aid of a choking patron, but does so negligently, the restaurant
will be liable in many states.
E. Negligence Doctrines Generally Favoring the Defendant
1. Explain that these doctrines benefit the defendant by shifting some or all of the responsibility for
an injury to the plaintiff.
2. Explain the doctrine of contributory negligence and comparative negligence.
■In some situations where a plaintiff is injured, not only is the defendant negligent but the plain-
tiff is as well.
■Each state follows either the rule of contributory negligence or the rule of comparative
negligence.
■According to the rule of contributory negligence, if the plaintiff’s carelessness contributed to
the injury, the plaintiff cannot successfully sue a negligent defendant. Instead, the case will be
dismissed. The defendant will not be liable for the plaintiff’s damages and the plaintiff must ab-
sorb the full loss associated with the injuries. This is true regardless of how slight or insignificant
the plaintiff’s negligence may have been.
■The reason for the trend away from the contributory negligence role is that the all-or-nothing
effect of this rule is considered unduly harsh to the plaintiff.
■According to the rule of comparative negligence, a plaintiff’s negligence will not defeat the law-
suit. Instead, the jury will allocate the liability between the plaintiff and the defendant depend-
ing on their relative degrees of culpability.
■In a “pure system” of comparative negligence, the plaintiff will collect the appropriate share of his
or her damages regardless of the percentage of fault attributed to him or her. Some states that fol-
low the comparative negligence rule provide that, for the plaintiff to recover, the percentage of lia-
bility allocated to the plaintiff must be less than that assigned to the defendant (i.e., a maximum of
49 percent assigned to the plaintiff ). This is known as the “less-than” rule. Other states allow the
defendant to recover if her percentage of fault is equal to or less than the defendant’s (i.e., a maxi-
mum of 50 percent assigned to the plaintiff ). A few states follow a “slight-gross” system in which
the plaintiff can recover only if her share of the fault is slight and the defendant’s share is gross.
■Explain the doctrine of last clear chance.
•While the contributory negligence doctrine greatly benefits defendants by barring plaintiffs
from suing, in certain circumstances plaintiffs can use the doctrine of last clear chance to sup-
port their cases.
•Four elements must be established before the doctrine will come into play:
– The plaintiff has been negligent.
– As the result of this negligence, the plaintiff is in a position of peril that cannot be escaped
by the exercise of ordinary care.
– The defendant knew or should have known of the plaintiff’s peril.
– The defendant had a clear chance, by the exercise of ordinary care, to avoid the injury to
the plaintiff, but failed to do so.
3. Assumption of risk.
■The doctrine benefits the defendant and applies in cases where the plaintiff voluntarily engages
in conduct known to present a risk of injury.
■If the plaintiff is injured as a result of that risk, the plaintiff, according to the doctrine, cannot
successfully sue for the loss. Instead, the plaintiff is said to have assumed the risk; that is, accepted
the chance that injury might occur and impliedly agreed not to sue if it does.
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■Most states that have adopted the comparative negligence rule have abolished assumption of risk
as a total bar to recovery in tort lawsuits. Instead, assumption of risk is treated as another factor
for the trier of fact (jury or judge) to consider when making a comparative negligence allocation
of liability. Thus, in some cases where assumption of risk fits the facts, the defendant’s negligence
may nonetheless be a partial cause of the injury. In such a case, an apportionment of fault
between the plaintiff and defendant will be made. “Thus, there is no arbitrary bar to recovery
and no sweeping exemption from duty accorded a defendant.”
F. Answers to Case Example Questions
5-1-1. What changes in the facts might have resulted in the Gillespies being liable?
If there had been similar incidents of sexual assault by their son and if the plaintiff had showed
that there was a pattern of such illegal behavior, then the Gillespies would have been liable.
Also, if the son was older in that he was of the age where the doctrine of children and the rea-
sonable person test could not be applied.
5-2-1. What more would the plaintiff need to prove to establish that the defendant in this case
breached a duty?
The plaintiff needs to prove carelessness on the part of the hotel for failure to maintain
floors in its building in a safe condition. The plaintiff also needs to prove that the duty to
act reasonably existed in this event; that is, the hotel should have identified and corrected
the carpeting problem or at least warned patrons of the problem by putting up a sign or
cordoning off that area.
5-5-1. What is meant by constructive notice, as used in the fourth paragraph?
Constructive notice means that the defendant had knowledge of the dangerous conditions or
they could have acquired knowledge had they exercised reasonable care. Active vigilance is a
required duty to invitees. The resort must regularly inspect the premises to locate and iden-
tify dangerous conditions and correct them.
5-5-2. We are told that Montes had two or three drinks the afternoon of the accident. What
effect do you think that should have on the outcome of the case?
If the resort had constructive notice of the conditions, they would still be liable if the Montes
were able to prove the existence of duty to act reasonably on the part of the resort and on
grounds of “breach of duty” even if Montes had consumed alcohol. Depending on the state’s
negligence laws, there might be contributive negligence.
5-5-3. What does the term “active vigilance,” used by the court, in the penultimate paragraph,
mean?
It is a duty to inspect and discover problems to protect guests from resulting risks.
5-7-1. What change of facts would be necessary to make Mrs. Steinberg an invitee at the time
of her injury?
She would be an invitee if she were accompanied by the guest at the guest’s invitation at the
time she fell, or if she had still been in the lobby in the process of delivering the message.
5-7-2. If Mrs. Steinberg was an invitee, what duty would the hotel have owed to her?
The hotel would have owed her the duty to exercise reasonable care to prevent injury. The ho-
tel could meet this duty by alerting plaintiff of the steps, as by a sign and/or special lighting.
5-8-1. Why do you think the duty imposed on businesses vis-à-vis trespassers is significantly
less than that imposed on invitees?
The trespassers do not often have the objective to visit a business establishment for the pur-
pose for which the business is open to the public, or for a purpose directly or indirectly con-
nected with that business. They are viewed more as an intrusion by businesses because their
presence is not anticipated for business purposes.
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