The last time I stayed in a hotel, I was in Florida at the Disney World Swan Resort. That was before I entered law school and my primary source of income became fantasy football. However, some people make more than $100 per year and can afford to stay in a hotel now and then. But if you are one of the lucky few whose livelihoods don’t depend on Ron Gronkowski’s high ankle sprain, you are probably unaware of what your favorite hotel might (or might not) be doing to protect themselves from you.
Arizona follows the Restatement Second, Agency § 213, which in part provides that an employer can be held independently liable for the harm its employee causes if the hotel was negligent in hiring that employee. In order to avoid such liability, a hotel must act as a prudent person would “in selecting the person for the business at hand.”
Acting prudently requires mixing two ingredients: (1) the right employee, with (2) the right job or environment. A hotel will be found independently liable if it hires an employee to do a particular job which creates an undue risk of foreseeable harm to a third party. If that, to you, sounded like “Blah, blah, I want to, blah, watch, blah, cat videos” you aren’t alone. But it is actually simpler than the legal jargon makes it sound. For example, if our hypothetical hotel hires a recent child sex offender to be a sous chef in the attached nightclub, the risk of foreseeable harm is very low. Thus, the hotel would be in a better position to be protected from liability. The same could not be said if the hotel hired that same person to be a lifeguard in the pool. After all, any prudent hotel should reasonably foresee the undue risk of combining that employee with that environment. The key is that the employer must know, or should know, beforehand, that the employee is unfit for the job and poses an undue risk of harm. The range between finding the right employee and placing him or her in the right job is a sliding scale, balancing risk against foreseeability.
So we’ve established that hotels shouldn’t hire bulls to tend their china shops. But since liability depends on an employer’s knowledge of an employee’s prospective risk, do hotels have an obligation to do background checks? The answer lies in the duties of each particular job; does the job give access to customer’s room? Credit card? Or is the job requirement restricted to kitchen duties. Kassman v. Busfield Enterprises, Inc., 639 P.2d 353 (Ct. App. Div. 2 1981). In Kassman, the Court held that an employer was not negligent in hiring a doorman who assaulted a customer without checking his criminal history because a doorman’s work is relatively simple and requires no special training. In a similar case, the Court held a background check wasn’t necessary to protect an employer from liability because the job—security guard—didn’t require carrying a weapon. Olson v. Staggs-Bilt Homes, Inc., 534 P.2d 1073 (1975). In fact, both cases turned on the fact that neither job description included bearing arms. And in both cases, the employee shot someone. How this affects the hospitality industry, where many jobs might be considered “simple” and most don’t require carrying weapons, is hard to say. Is a maid’s work simple enough? What if the maid has served jail time on 5 different occasions for theft? Is it reasonable for a customer to assume that the hotel is going to ensure that their maids do not have a long list of offenses dealing with theft when they decide to leave their laptop on the bed? What about a lifeguard, bellhop, front desk attendant, or valet driver? Are any of these jobs more or less simple than that of a doorman or security guard?
Oftentimes, customers being placed in a vulnerable position will have an impact on an employers duty. What happens when a taxi driver assaults a passenger? In one Michigan case, the court found that the taxi company had a duty to perform a background check. Burch v. A&G Ass. Inc., 333 N.W.2d 140 (1983). The Court’s reasoning was that a carrier extends a promise that its drivers are safe and qualified simply by hiring them.
Basically, customers getting in a taxi are placed in a vulnerable position in reliance on the carrier’s implied promise of safety. Therefore, carriers owe them validation of that trust.
What we can take from this mess is that the duty to perform a background check is decided on a case-by-case basis. The more dangerous, demanding, or complicated the job; or the more vulnerable a customer’s position, the more likely a background check is required to immunize a hotel from liability. This is because the foreseeable risk of harm increases when the job description requires, for example carrying a gun. One could form a very persuasive argument that hotel employees, particularly those with key access to guests’ rooms, also pose a high risk of foreseeable harm.