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.
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