Our Summary Paper, What Does the Plaintiff Hope the Defendant Does Not Have in a Premises Security Liability Lawsuit?, was prepared in conjunction with our presentation at the April 24, 2024, The Hospitality Lawyer conference in Houston, Texas.
The audience demographics represent in-house hospitality counsel, outside counsel with a specialty in hospitality law, risk managers and insurers. Continuing Legal Education Credits are earned for this presentation.
Presented By:
Brad Bonnell, Principal Hotel Security Group, LLC
Salvatore Caccavale, Principal Global Hospitality Security Solutions, LLC
A Site-Specific Risk Assessment, also known as a Threat and Vulnerability Assessment, defines what constitutes a reasonable, proportionate and commonly accepted method in conducting a site-specific risk assessment that functions to identify unmitigated risks which then guides in the development of policies, procedures and training to mitigate identified risks.
A site specific risk assessment is critical in demonstrating, particularly during litigation, that an intelligence led strategy guided in the development of a coherent security program integrated throughout the enterprise and which functioned to provide and maintain a reasonable level of care.
What are the 5 parts of a risk assessment?
Identify hazards
Assess the risks
Control the risks
Record your findings
Review the controls
The FBI describes in their “Developing Emergency Operations Plans – A Guide For Businesses” document:
“Effective emergency planning depends on an analysis and comparison of the threats and hazards a particular business faces. This is typically performed through a threat and hazard identification assessment process that collects information about threats and hazards and assigns values to risk for the purposes of deciding which threats and hazards the plan should prioritize and subsequently address.”
As provided by the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) in its “Recommended Practices for Safety and Health Programs – Hazard Identification Assessment” document:
“One of the ‘root causes’ of workplace injuries, illnesses and incidents is the failure to identify or recognize hazards that are present, or that could have been anticipated. A critical element of any effective safety and health program is a proactive, on-going process to identify and assess such hazards.”
How does a restaurateur or a hotel owner or general manager raise awareness in these areas, and other heart-of-house hotel and dining establishment encounters to provide a safe work environment for their associates, and welcoming experience for their guests? Let us use the crawl, walk, run analogy to express how owners and operational leadership can make progressive changes to minimize potential exposure:
The absence of a risk assessment reveals that the Defendant failed to put into place an intelligence led security function integrated throughout the operation of the property or enterprise to provide a reasonable and proportionate mitigation of reasonably anticipated threats through policy, procedures, and procedures that are consistent with common and reasonably accepted practices of security.
· Crawl – Acknowledge, or at least recognize that a variety of potential exposures may likely be topics that ownership and property leadership are not overly familiar with on how to identify. The extent to which the hotel may be exposed to these issues, and understanding the potential legal ramifications for failing to be aware of what is going on at a hotel is a bold first step in learning how to walk.
· Walk – Ownership or leadership should engage a restaurant or hospitality expert in the respective areas of examination, as well as other heart-of-house challenges, to assist in detecting the extent of exposure through a risk assessment.
Through awareness, the following is a partial listing of considerations that may potentially prevent, or at least diminish risk by ownership and their leadership.
Crime Interior/Exterior Lighting Fire Life Safety Systems
Foreseeability Hazards Insurance Coverages
Insurance Disputes Guest Room Security Employment Matters Employee Trainings Record Retention Property Maintenance Government Relations OSHA Compliance Ingress/Egress Security
Employee Safety Guest Safety Legal Exposure
Contracts Camera Systems Parking Lots
Working in conjunction with an expert, and under attorney/client privilege, the written risk assessment will perhaps uncover vulnerabilities that may potentially harm employees and/or guests and diners. It will also provide counsel with a path to mitigate litigation and create an even safer environment for associates and guests.
· Run – You acknowledged your call for assistance and are fervent to engage a hospitality and restaurant expert to guide and assist on minimizing your potential exposures of your investment(s). Yes, there is an out-of-pocket expense to conduct these assessments. However, the expenses are significantly less in comparison to retaining counsel when the hotel or bistro is presented with a lawsuit that may have been prevented through an initiative-taking review of documents.
Imagine the financial impact from the fallout of litigation against your hotel. Litigation payouts may or may not be covered by insurance and the costs may directly impact the bottom line. This is particularly true with OSHA fines and other government entity violations that are not covered by insurance.
Brand reputation is a hidden financial burden and likely poses the highest risk for the impacted venue. The possibility of ownership shuttering their life’s investment is greater when media exposes and continually hammers away at the eatery or hotel’s negligence, and intensified on a slow news day or slow news week.
Would a risk assessment have identified failures and breaches in the following incidents?
· April 2022 – Marriott Charlotte City Center
Guest checks into the hotel and claims that the “…self-closing door wasn’t working quite right and didn’t close all the way….” Guest woke up to find another man in his bed . A fight ensues and the intruder takes off with the guest’s wallet, cell phone, shirt, and pants. It is alleged that hotel staff informed the guest that “…we know who he is. He was previously trespassed at the hotel and known to burgle or assault guests….”
· Blogger, Gary Leff, writes in his June 15, 2023 View From The Wing
A guest at an undisclosed Home2Suites engaged with the front desk agent shortly after checking-in to the hotel. Later, the guest was in his room when the front desk agent knocked on his door. The guest did not answer or respond to the knock. The front desk agent used a keycard and attempted to gain access to the room, however, the night latch was engaged. The guest acknowledges the attempted entry by the front desk agent who claimed that he “…got a notification that the fire alarm went off in the room…” The guest claims there were no alarms.
March 23, 2024 – DoubleTree Brookhollow (Houston)
An 8-year old girl is sucked 20’ into a 12” wide pool pipe in the hotel’s lazy river. The malfunctioning pipe was designed to discharge water, rather, it was sucking water into the pipe. Open source documents revealed numerous violations issued by the Houston Health Department at the hotel’s pool and lazy river and over several years.
Does the tragic and preventable downing of the 8-year old girl at the DoubleTree require further explanation?
The two most prevalent types of claims in domestic restaurants are slips, trips, and falls, and food borne illnesses. Both are preventable, provided the restauranteur follows their sanitation protocols and creates a safe environment for their employees and patrons. A robust risk assessment will identify known hazards and actions or steps to take to mitigate the risk.
Partial responsibility is directed towards the occupants of the guest rooms where unauthorized access was made and attempted, and using the deadbolt and night latch may have prevented these situations. Were the hotel’s maintenance staff regularly documenting an inspection of the guest rooms? Were housekeeping staff educated on performing a cursory inspection of the in-room safety features and how to escalate when they find a malfunctioning device?
Risk assessments are designed to seek out a multitude of deficiencies and to make certain that policies and procedures have been developed and are in place and implemented to reduce potential hazards and to maintain a safe and healthy environment for employees and guests. Risk assessments are not limited to the physical aspect of a property, but may include detailed background checks along with other on-boarding requirements for newly hired employees are properly documented and performed.
In summation, and to satirize a Fram Oil Filter television commercial from yesteryear, “…you can pay me now, or you can pay me later….” Fram’s purpose was to remind automobile owners to preventively maintain their vehicles. If not maintained, the mechanic is delighted to charge a higher cost to repair your vehicle due to faulty maintenance while simple steps are available to reduce the likelihood of vehicle failure. A similar analogy can be applied to restaurateurs and hoteliers to the degree that ownership and leadership must maintain a nourishing and preventive environment to minimize employee and guest exposure from unhealthy situations.
In a cost controlled and cost savings exercise, utilize your hospitality expert’s resources to assess your vulnerabilities before you are exposed to civil, and in some cases, criminal litigation. Alternatively, experience an inconceivable and exorbitant monetary loss, perhaps an out-of-pocket P&L loss because of potentially preventable conditions.