Hospitality-related Businesses have New Obligations to Protect Guests
Christian Stegmaier
Collins & Lacy, PC
December 27, 2011
South Carolina Supreme court case creates new requirements for operators to protect guests from foreseeable harm.
This New Years weekend many people will be traveling to visit family and
friends, some of whom will be staying in hotels. As the travel and
celebration season continues, South Carolina hotels and other
hospitality-related businesses need to be aware of a Supreme Court
opinion that puts new obligations on businesses like hotels to protect
their guests. The opinion concerns guest safety and third party assault.
In Bass v. Gopal,
a guest of an Orangeburg motel was shot in the leg by a third party
assailant. The guest had answered the door to his room after the
assailant had knocked on it three separate times over the course of 15
minutes. The assailant - a stranger to the guest – had asked for money
from the guest, which was met by the guest’s refusal. After shooting
the guest with a small caliber pistol, the assailant fled from the
property - an exterior-corridor style motel – on foot.
The guest filed suit against both the franchisee and the franchisor,
alleging negligence. Specifically, the guest maintained the defendants
owed him a duty to protect him from the criminal act of a third party,
which the guest asserted had been breached.
At the trial court stage, the motel’s owner moved for summary judgment,
averring he was not aware of any criminal activity at the motel prior to
the night the guest was shot. The owner also testified in a discovery
deposition that he was not aware of any criminal complaints filed by
anyone in the general area. Additionally, the guest admitted in his
deposition that he had been staying at the motel for a few months prior
to the shooting and he had not noticed any criminal activity at the
motel during this time period.
The guest hired a security expert to aid in his prosecution of his case
against the motel. This expert admitted that if no significant criminal
activity had occurred at the motel for a period of time prior to the
guest’s shooting, then the motel's management would have no reason to
expect the shooting to occur or to spend money to enhance security. The
security expert also conceded that: the motel's perimeter lighting was
appropriate; the motel's room doors were appropriate and met statutory
requirements; the guest would have stayed safe in his motel room had he
not opened the door; he should have stayed in his motel room; and he
should have telephoned for assistance.
The circuit judge concluded neither the franchisee nor the flag had a
duty to protect the guest because they did not know or have reason to
know the shooting would occur. The Circuit Court also held the guest’s
negligence in opening the door to the stranger exceeded any negligence
on the part of the franchisee or the flag. Additionally, the trial
judge found there was no evidence the franchisor owned or operated the
motel. Therefore the flag could not be held legally responsible for the
motel’s operation on the date of the shooting.
On appeal to the Court of Appeals in Columbia, the appellate tribunal
upheld the Circuit Court’s grant of summary judgment. See Bass v. Gopal, 384 S.C. 238, 680 S.E.2d 917 (Ct. App. 2009).
Aggrieved by the Court of Appeals’ decision, the guest took his case to
the Supreme Court. Following briefing and argument to the five
justices, the Court affirmed the decision of the Court of Appeals. However, in doing so, the Court adopted a new legal test for trial
courts to apply in future cases when analyzing the existence of operator
liability for injuries to guests and patrons as a result of third party
assault. This new analysis, known as the “Balancing Test,” creates a
completely different measure for determining liability in these types of
cases.
In South Carolina, while a hospitality-related entity is not the insurer
of the safety of its guests, it has been well settled that such an
entity is under a legal duty to its guests to take reasonable action to
protect them against unreasonable risk of physical harm. The extent of
this duty may be determined with an analysis of whether the property
owner knew or had reason to know of a probability of harm to its guests
following an incident. Specifically, the courts have held a business
owner has a duty to take reasonable action to protect its invitees
against the foreseeable risk of physical harm.
As it pertains to third party assault, South Carolina has historically
applied the “Imminent Harm Rule.” Under this rule, the landowner owes
no duty to protect patrons from the violent acts of third parties unless
the owner is aware of specific and imminent harm about to befall the
guest or patron. As noted by the Supreme Court in this opinion, this
standard has been criticized by courts around the country as imposing
too minimal a duty on business owners to protect patrons.
The “Balancing Test” is an approach, which acknowledges that duty is a
flexible concept and seeks to balance the degree of foreseeability of
harm against the burden of the duty imposed. Under this test, the
presence or absence of prior criminal incidents is a significant factor
in determining the amount of security required of a business owner;
however, the absence of such incidents does not excuse the property
owner from the duty to provide some level of security if other factors
support a heightened risk. Such factors may include: the type of
operation run by the owner; the location of the business; use of the
business by guests and patrons at night, etc.
In adopting a balancing approach, the Court writes that such an analysis
appropriately weighs both the economic concerns of businesses and the
safety concerns of their patrons. In replacing the Imminent Harm Rule
with a Balancing Test, the Court states it “hope[s] to encourage a
reasonable response to the crime phenomenon without making unreasonable
demands.”
The bottom line for operators is this: Based on
the adoption of the Balancing Test, hotels, restaurants, clubs, and
other hospitality-related operations cannot rely on the absence of past
criminal incidents alone to determine their duty to protect guests and
patrons from third party harm in the present day and in the future. Operators must recognize and respond to the “crime phenomenon” that
exists in our modern society. Accordingly, these establishments must
acknowledge the forseeability of such crimes occurring on their premises
and take reasonable steps to protect the safety of guests and patrons
from such harm. These steps may include both the implementation of both
preventative and responsive measures and protocols.
Christian Stegmaier is chairman of the Retail/Hospitality/Entertainment Practice Group at Collins & Lacy, PC, a South Carolina-based law firm that represents some of the largest national and regional leaders in the hotel, restaurant and bar, department store and specialty retail, private club, and live music presentation sectors operating in the Palmetto State. He is also adjunct professor of hotel and restaurant law at the University of South Carolina’s nationally-acclaimed College of Hospitality, Retail & Sport Management. Stegmaier can be reached by phone at (803) 255-0454 or by email at cstegmaier@collinsandlacy.com.


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