Hospitality managers do not want to conduct their businesses in a way that exposes them to legal action. Even for a cautious operator, the possibility of business loss due to lawsuits exists in today’s litigious environment. Although some of the claims are frivolous, others highlight important questions. In either scenario, a successful hotel manager needs to be aware of how lawsuits are initiated, how they go through the legal system, and most crucially what part the manager plays.
Personal Injury
The possibility of damages due to personal injury will be a major source of concern for you as a manager of a hotel business. It’s easy to understand why this is happening: However, the process of offering these goods and services might put a business in possible danger. Hospitality managers offer food and beverages, lodging accommodations, and entertainment to guests. The proverb “accidents can happen” can now be expanded to “accidents can happen, and if they do, the injured parties may sue!” It is preferable to run your company so as to prevent accidents, without a doubt.
Nevertheless, accidents and injuries will occur, and many times determining where to place the responsibility for the accident is unclear. Consider the case of Norman and Betty Tungett. The Tungetts check into a motel, and at about midnight, Mrs. Tungett goes out to her car to get a piece of luggage. While she is in the parking lot, she is assaulted. In addition to being badly frightened, she suffers physical harm, as well as lingering apprehension about being out after dark by herself. Listed here are just a few of the questions that could be raised in a case such as this:
1. Were the lights in the parking lot working well enough to minimize the chance that a guest would be assaulted?
2. Was management vigilant in eliminating potential hiding places for would – be assailants?
3. Were the Tungetts warned on check – in that the parking lot might not be safe, late at night?
4. Were access doors such that Mrs. Tungett could have easily gotten to her room after visiting the lot?
5. Had the motel experienced similar incidents in the past, and if so, what precautions had been taken?
It’s important to note that in this case, there is no glaring evidence that the motel is to blame for the Tungetts issue. The Tungetts and their attorney have the legal right to file a personal injury case in an effort to establish whether or not the motel was entirely or partially to blame for the assault. It is crucial to keep this in mind. The Tungetts will pursue damages brought on by the assault in doing so. Such a case will undoubtedly take up management’s attention and cost money to defend against.Nevertheless, these cases are frequently filed, and it is uncommon for hospitality managers to find themselves at least partially involved in one of these lawsuits at some point in their careers. Due to this, we will look at the structure of a personal injury lawsuit from the beginning to the end.
Demand Letter
Typically, a manager will learn that he, she, and/or the business are being sued when a demand letter is received. The demand letter comes from an attorney who has been contacted by the injured plaintiff and has agreed to take up the plaintiff ’ s cause. As you can see in Figure 9.1 , the typical demand letter sets forth the plaintiff ’ s version of the facts surrounding an alleged personal injury, and may also include the monetary amount of damages being sought and usually a deadline for the manager to respond to the charges.
Attorneys, generally, will accept a personal injury case with one of three payment plans. The first is the hourly fee, whereby the attorney bills his or her client (the plaintiff) at an hourly rate for each hour the attorney works on the personal injury claim. In this case, it is clearly in the best interest of the plaintiff to seek a conclusion to the case as quickly as possible to minimize attorney fees. In a second type of plan, the attorney agrees to take the case for one flat fee. In this situation, it is clearly in the best interest of the attorney to seek a quick resolution of the case. The third payment form is the contingency fee . Lawyers representing defendants charged with crimes may not charge contingency fees, and in most states, contingency fee agreements must be put in writing. Clearly, in a case where the attorney is representing the client on a contingency basis, it is in the best interest of the plaintiff and the attorney to seek the most favorable, rather than the fastest, settlement possible.
Regardless of the form of payment agreed on between the plaintiff and his or her attorney, the demand letter is the first step in the litigation process. If the response to the demand letter does not satisfy the plaintiff, he or she will likely instruct the attorney to file suit against the defendant.
Figure 9.1 Demand letter
July 25, 2022
Via Certified Mail: Z 123 456 789
Gloria Phillips, General Manager
XYZ Hotel
Re: My client: Neha Jose
Date of Accident: July 16, 2000
Dear Ms. Phillips:
Please be advised that I represent Neha Jose. Ms. Jose has retained my firm to represent her in her claim for damages against the XYZ Hotel and others that might be responsible for causing the incident that led to her injuries.
As you are aware, my client attended the reception that was hosted by the XYZ Hotel on July 16,2022. At Evening, and until a few minutes thereafter, employees of the XYZ Hotel began opening champagne bottles by “popping the corks” (releasing the corks and allowing them to fly into the air).
My client was dancing on the dance floor when she was suddenly struck in her left eye by one of the corks. The cork was traveling at a high rate of speed, and when it struck her eye, she lost her balance and fell, striking her head on the wooden dance floor.
As a result of the negligent acts of the employees/agents of the XYZ Hotel, my client suffered severe injuries including a subdural hematoma, a concussion, facial lacerations, and a permanent partial loss of sight in her left eye.
You are further advised that my client’s occupation for the past fifteen (15) years has been as a pilot for a major airline. Airlines require high vision standards to be met by their pilots. Ms.Jose’s physicians have advised her that she will no longer meet the minimum vision standards required to be a pilot (report enclosed), as a direct result of the injuries she sustained while attending the reception.
Accordingly, demand is hereby made for the sum of $25,000,000 (twenty-five million dollars) to compensate my client for the injuries she suffered due to the negligence and gross negligence of the employees of XYZ Hotel Company; including past, present, and future pain and suffering; past, present, and future medical expenses for
both treatment and rehabilitation; and past, present, and future lost wages.
If you have liability insurance, you are strongly urged to advise the carrier of this claim, as most policies require prompt notification when a claim is made.
Please be advised that in the event this matter is not resolved to my client’s satisfaction within ten (10) days of your receipt of this correspondence, that she has authorized me to pursue any and all legal remedies available to her in this regard, including filing suit seeking the recovery of compensatory damages, punitive damages, costs of court, and reasonable attorney fees.
Finally, you are advised that time is of the essence in this regard and that your silence will be deemed an admission. Please contact me or have your attorney contact me as soon as possible if you have any questions.
Thank you for your courtesy and cooperation.
Very Truly Yours,
Ms.Caroline Forbs, Attorney at Law
Filing a Petition
Filing a petition (or pleading or complaint) is the term used to describe the process of initiating a lawsuit. A petition is a document that officially requests a court ’ s assistance in resolving a dispute. The petition will identify specifically the plaintiff and the defendant. In addition, it will describe the matter it wishes for the court to decide. Included in the complaint against the defendant will be the plaintiff ’ s suggestion for settlement of the issue. The plaintiff may, for example, ask for monetary damages. After the petition has been filed with the administrative clerk of the court, the lawsuit officially begins.
Once the complaint is filed with the court, the court will notify the defendant of the plaintiff ’ s charge and will include a copy of the complaint in the notification. Upon receipt of the complaint, the defendant needs to respond in writing within the time specified in the notice from the court.
Discovery
In the discovery phase of a civil lawsuit, both parties seek to learn the facts necessary
to best support their position. This can include answering questions via interrogatories or depositions , requests for records or other evidence, and sometimes visiting the scene of the incident that caused the complaint.
The discovery process can be short or very lengthy. Either side may ask for information from the other, and if necessary, a judge will rule on whether the parties to the suit must comply with these requests. In some instances, one party in a lawsuit may obtain a court order demanding that specific documents be turned over or that specific individuals be called to testify in court. This order is called a subpoena . A subpoena may also be used to obtain further evidence or witnesses while a trial is ongoing.
The plaintiff in the lawsuit has the burden of proving the allegations set forth in the petition. This is the responsibility of proving to the finder of fact (judge or jury) that a particular view of the facts is true. In a civil case, the plaintiff must convince the court “ by a preponderance of the evidence, ” that is, over 50 percent of the believable evidence. In a criminal case, the government has a higher standard, and must convince the court “ beyond a reasonable doubt ” that a defendant is guilty.
Trial and Appeal
The trial is the portion of the injury suit process during which the plaintiff seeks to persuade the judge or jury that his or her version of the facts and points of law should prevail. In a like manner, the defendant also has an opportunity to persuade for his or her side. Most personal injury cases are tried in front of a jury. After a jury is selected to hear the trial, the process, while it may vary somewhat from state to state, is as follows:
1. Presentation by plaintiff
2. Presentation by defendant
3. Plaintiff ’ s rebuttal
4. Summation by both parties
5. Judge ’ s instructions about the applicable law and procedures to the jury
6. Jury deliberation
7. Verdict
8. Judgment or award
9. Appeal of verdict and/or award
Either side has the right to appeal a verdict or award. In the personal injury area, it is common for a losing defendant to appeal the size of the award if it is considered by the defendant ’ s counsel to be excessive.
Alternative Dispute Resolution
There are alternatives to resolving personal injury claims in court. The parties at any time during the litigation process can agree on a settlement. Two other common methods used in the hospitality industry are mediation and arbitration. Both can be highly effective alternatives to the time, cost, and stress involved in going through a trial.
In mediation, a trained and neutral individual (the mediator) facilitates negotiation
between the parties, in order to achieve a voluntary resolution of the dispute. In most cases, one full day of mediation can result in a compromise acceptable to both the plaintiff and defendant. Mediation can involve sessions jointly held with both parties and their attorneys, or separate meetings with each party, their attorneys, and the mediator.
The cost of mediation will vary based on the complexity of the case, but is generally far less than that involved in going to a trial. If the mediation is unsuccessful, the parties may still pursue a trial. If a settlement is made, the parties sign a settlement agreement approved by their attorneys. This agreement, if drafted properly, is an enforceable contract. In arbitration, a neutral third party (usually chosen by mutual agreement of both parties) makes a binding decision after reviewing the evidence and hearing the arguments of all sides.
The Manager ’ s Role in Alternative Dispute Resolution
Make sure that you and your attorney have established guidelines about what you can say, if anything, and when you can say it. Be patient. To be effective, the negotiation process can sometimes appear tedious, but the art of compromise usually takes time. Be flexible and willing to compromise. Many times, an apology at this point in the process will help pave the way for compromises on other significant issues, including the amount of money to be paid.
| The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Contrary to popular belief, filing a personal injury lawsuit does not consist solely of a trip to the courtroom. In fact, resolving a lawsuitis a process which extends beyond the courtroom both before and after atrial – if one even takes place. |