Where Liability Falls When Guest Safety is Compromised

It almost sounds like the beginning of a low-budget horror movie. According to his claims, in 2008 Michael David Barrett gained access to a back-of-the-house phone in the Nashville Marriott at Vanderbilt University to learn sportscaster Erin Andrews’s room number. Without using Andrews’s name, he requested to be placed in the neighboring room, as his original room was not yet ready and he noticed the room next to hers was being cleaned. Barrett manipulated the peephole on her door, which allowed him to easily film Andrews as she undressed without showing signs that the door had been tampered with. This footage would later turn up on the Internet.

In March 2016, Andrews successfully sued hotel owner West End Hotel Partners, former operator Windsor Capital Group, and her stalker for a total of $55 million. The case gained national attention because of its high-profile plaintiff, but for the hospitality industry, it brings to light a crucial issue. The jurors on the Andrews case, widely mimicking public opinion splashed across newspapers and Facebook feeds, operated under the belief that it is legally a hotel’s responsibility to secure guest privacy and safety. But according to experts, it is not so simple.

“Clearly there is a disconnect between what guests expect from the hotel and what the law requires of a hotel to deliver,” explains Stephen Barth, a professor of hospitality law at the Conrad N. Hilton College of Hotel and Restaurant Management at the University of Houston and founder of hospitalitylawyer.com,who testified on behalf of the defense during the Andrews case. “I’ve seen that the public—or at least, part of it—feels differently; that a hotel should guarantee people’s safety in their hotels. And that’s just not the hotel’s obligation under the law.”

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What hotels are obligated to do is provide guests with a duty of reasonable care to protect guest safety and privacy, a standard the industry as a whole has taken seriously for decades. Which entity is responsible for security measures depends on which group runs day-to-day operations, be it a management company or franchisee.

“Liability typically and historically in the law has followed control. The more control an entity or person exerts, the higher the probability is that they will be held liable if something goes wrong,” Barth says. He encourages hotel companies and owners with separate operators to provide these operators with the freedom to do what they were hired to do—oversee daily functions of the hotel.

Chad Callaghan, principal of Premises Liability Consultants and security consultant for the American Hotel & Lodging Association, has similar recommendations for hotel companies. He says any company that tries to require certain brand standards should not do so unless it has the means to enforce them. “That’s pretty much the standard in the hotel industry, but people shy away from doing that,” he says. “The expectation is the franchise company will have their own standards for safety and security, either through their insurer or a parent company.”

There is also the matter of guest responsibility. Even if a hotel feels like a home away from home, there is a level of expectation that guests, too, will take reasonable measures to ensure safety while on the road. “I’ve always thought of it as a partnership,” Callaghan says. “The hotel has their responsibilities, and the customer has their responsibilities. Most hotels put three locking latching devices on the door, but if the customer doesn’t use them, then they’re not necessarily getting full protection. A hotel can’t make sure every guest latches the door, but it can put the latch there for them.”

In the Andrews case, the plaintiff initially aimed to involve Marriott International in the lawsuit, but the Court of Tennessee did not find the company liable, and dismissed it early from the proceedings. As neither owner nor operator of the Marriott Nashville, Marriott International was involved with the property only for the name on the building. Despite this, Marriott had to work to clear its name in the court of public opinion, releasing a press release as the trial was broadcast to explain its involvement—or lack thereof—in the incident. “We continue to be sensitive to the serious nature of this matter and remain committed to the safety and comfort of our guests,” the company said in a statement on March 7.

“That is the conundrum for the franchise company. If you’re not the one requiring safety and security protocols, but security is violated and your name gets out there, how do you deal with that?” Callaghan asks. His concern, he says, is that the general public is more likely to see the videos and articles about Andrews’s ordeal linked with a Marriott hotel, and less likely to read the company’s press release explaining its innocence.

“Whether you’re a brand, a management company, or a real estate investment company, the person who’s getting the key to a hotel room or booking a hotel doesn’t know who owns it,” says Anthony Melchiorri, host and creator of Travel Channel’s Hotel Impossible

and Five-Star Secrets. “They see a brand on the building, and 90 percent of the people walking around think that hotel is owned by that brand. Whether it’s legally Marriott’s fault or whether it’s perceived, it’s not good for any brand’s reputation when something like that happens.”

Other than a good public relations team, Barth and Callaghan agree that the only way the industry can protect fellow companies and its guests is to continue improving communication and employee training.
“I’m sure [the Andrews case] will have a positive effect with more people doing something about privacy,” Callaghan says. Barth adds, “We have to break silos down and make sure that everyone involved in the industry is communicating in a cross-functional way.”