It might appear from the previous chapter that as soon as a person becomes a guest or customer of a hospitality business, he or she enjoys an immediate blanket insurance policy such that the business will be liable for virtually any mishap. This is not quite the case, however. Hospitality businesses are not perfect insurers of guests or customers, but certainly owe them a wide-ranging duty of care, and, in some circumstances, the liability is strict.

Much of the law applicable to negligence in the accommodation sector is derived fromoccupiers' liabilitycases. The best way to protect a business from liability is to fulfill the duties and obligations owed by an occupier to invitees, licensees, and even trespassers. Proper training of staff, proper maintenance and regular inspections of the physical plant, commonsense, and good legal and practical advice are the keys to minimizing liability dangers. Daily or regular inspections, which should be part of standard operating procedures, help to ensure that the premises are safe, that staff members are performing their jobs properly, and that the duties owed to the public are being met. Job descriptions should include the obligation to follow the standard operating procedures and to make the relevant inspections.

Maintenance

Employees and Contractors

The hospitality industry employs a vast number of cleaners and maintenance workers. Many businesses have on staff, or ready access to, a person who is responsible for the upkeep and maintenance of the entire property, including the equipment and building systems. In smaller establishments particularly, the owner may fill this role. While many general maintenance workers are quite proficient in a wide variety of tasks including painting and basic repairs, they may lack the skills to maintain or repair sophisticated pieces of equipment and technological systems. Almost any maintenance person with basic training can clear a blocked drain. Greater expertise is required to repair an elevator or calibrate a hot-water booster. Some work can be undertaken only by specially trained and licensed workers such as electricians. The qualifications, training, and skills of both in-house and contracted maintenance personnel should be checked and should withstand scrutiny in a court of law. Some work is subject to a building permit and inspections by a municipal or provincial inspector. Failure to abide by the municipal and provincial regulations can lead to increased tort liability if the work is defective.

Maintenance Records

Ongoing maintenance records for the building, equipment, and mechanical systems such as elevators, heating, and fire alarms should be kept. The records will show the responsible efforts of management to keep everything in excellent running order, and may help to establish that a failure occurred shortly after an outside contractor made a repair. A third-party claim against the contractor may prevent the hospitality business from incurring a large insurance headache. When using outside contractors, innkeepers should require that both the work and the maintenance schedule be recorded in writing by the contractor and given to the innkeeper.

General Maintenance

The only constant is change. No sooner is a physical asset built or installed than it begins to deteriorate. The variable is the rate of deterioration, which in turn varies according to the quality of the material, the workmanship, the maintenance, and the degree of use and exposure to which the asset is subjected. The severe weather changes in Canada's four seasons present serious challenges to the physical plant, increasing the need for continuous maintenance and repair, especially for surfaces exposed to the elements.

The House and Grounds

Hotels are divided into the "front of the house" and the "back of the house." These terms do not mean that thehotelis physically divided into two sections, front and back; rather, the "front" and "back" denote the public and nonpublic areas of the hotel. These areas are not wholly separate but are intertwined like the circulatory and lymphatic systems of the body, with some crossover. The back of the house includes the kitchen, housekeeping closets, freight elevators, service stairwells, loading docks, offices, boiler rooms, electrical rooms, and service tunnels. The front of the house includes fully public areas, semi-public areas, and guest areas.

Fully public areas include the sidewalks, parking lots, entrances, lobbies, stairwells, retail areas, mezzanines, display corridors, restaurants, bars, and banquet halls. The public areas of a hotel handle all the guests of the hotel in addition to all the people who frequent the hotel or its retail areas for any other reason. Proprietors must exercise all due reasonable care to save the public, includingnonguests, from harm arising from negligence.

Semi-public areas include swimming pools, fitness rooms, and rooftop running tracks. Such areas are normally accessible only to registered guests, the guests of registered guests, and other invitees and licensees; however, other people often gain access to semi-public areas, usually with the consent, tacit or express, of the innkeeper.

Guest areas include the guest rooms, guest floor hallways, ice and vending rooms, executive lounges, and other rooms reserved for the use of the guests.

The Grounds

The grounds of any hotel or resort, including the lawns, tennis courts, paths, and municipal sidewalks, must always be safe for use by the guests. Any part of the grounds that are being repaired or that are in need of repair should be effectively closed to the publicand perhaps even to the staffuntil the repairs are completed. Informal walkways or shortcuts should be inspected for dangers. Railroad ties or gardening fences that surround planted areas or trees might be difficult to see and present a risk to guests taking shortcuts from the parking lot to the hotel. It is not enough for the innkeeper to provide well-marked and well-lit walkways. He or she must also ensure that access to other areas is barred or that the other areas are also safe.

Sidewalks

Sidewalks between the building and the street are typically owned by the municipality, which has the responsibility to repair and maintain them. The responsibility for keeping the sidewalks safe from the temporary effects of the weather usually lies with the building owner. Owners are required by legislation and bylaws to shovel snow off the sidewalk, and to spread sand or salt on icy surfaces. Failure to do so can leave the owner, not the municipality, liable for damages.

Steps and Ramps

The steps and ramps leading from the sidewalk to the entrance are owned by the business. As with parking lots, the maintenance and weather challenges are the responsibility of the owner. Steps should be marked with a sign or obvious change of colour or material, and feature a sturdy handrail. Sudden changes in elevation should be clearly marked. Regular inspections are essential. Clear step markings deteriorate over a winter due to shovelling, scraping, and ice-removal chemicals.Nieto v. Bison Properties Ltd. (1995), 56 B.C.C.A. 303, 92 W.A.C.S. 303 (C.A.), suprais a case in point. In order to assist persons who use wheelchairs or who otherwise find steps challenging, an increasing number of owners are building ramps. Railings and automatic doors are also very useful. Given the slant, it is important to ensure that they do not become ski slopes, regardless of the season.

Outdoor Staircases

Outdoor staircases must be in top condition, clearly visible, well lit with light-sensitive lights, and devoid of snow, ice, and debris. Regular inspections are essential.

Harwood v. Westview Holding Ltd. (1991), 61 B.C.L.R. (2d) 115 (C.A.), affirmed (July 13, 1989), Doc. Powell River 86060 (B.C. Co. Ct.)

H suffered an ankle injury when she fell at the foot of an outside staircase beside a hotel. The poorly lit staircase went down a steep slope; at the base was a concrete slab. H had previously worked at the hotel and had used the staircase without incident at least 25 times. The staircase had been used extensively by the public for more than eight years without incident. The trial judge found that H had failed to take proper care to ensure her own safety. Her action and subsequent appeal were dismissed. Neither the accident-free history of the staircase nor the defendant's ignorance of the hazard was necessarily a determining factor. However, there was ample evidence to support the trial judge's conclusion that H had accepted the risk.

Ouelette v. Kinsmen Club of Ladysmith (March 20, 1990), Doc. No. V00885 (B.C.C.A.), affirming (October 18, 1988), Doc. No. Nanaimo CC7451 (B.C.S.C.)

Upon leaving the club, O, who weighed about 225 pounds, descended wooden stairs that were 10 feet wide with treads nailed across three stringers. One of the boards broke, causing her to fall. At trial, the evidence established that the stairs were built by volunteer labour with donated lumber and did not conform to the building code that specified one stringer for every two feet of span. The evidence also established that the accident would not have happened had the building code been followed. The club's appeal was dismissed. The trial judge did not apply too high a standard; he did not err in finding that the club had acted imprudently in not following the building code.

Outdoor Lighting

All walkways that the guest should or might use should be well lit, preferably with light sensors so that the lights will be on during dark periods in the daytime.

Parking Lots and Garages

Hotels have a duty to protect guests and the public. Parking areas should:

1. be well lit, in good repair, and demarked from the neighbourhood, perhaps by fences;
2. be safe and secure and feature staff who can escort guests to and from their cars;
3. be free of bushes, pillars, and alcoves that can hide attackers;
4. be located near the hotel entrance, particularly for guests, such as those with disabilities, who may require proximity to the door;
5. feature notices advising of emergency phones and surveillance cameras; and
6. feature notices that trespassers and miscreants will be prosecuted.

Parking garages suffer more salt damage than outdoor lots because the air temperature inside is usually above freezing, causing the snow and ice to melt and mix more readily with the salt thereby increasing the rate of corrosive oxidation. Stale air should be adequately vented. If the hotel offers valet parking, the valets should be trustworthy, preferably bonded, and hold valid driver's licences. The insurance policy should cover malfeasance by a valet.

Outdoor Recreation Areas

Many hotels and resorts offer tennis courts, lawn bowling, golf courses, and so on. The greater the grassy area, the more likely the groundhog damage. Groundhog holes can cause painful injuries. Tennis court surfaces are often tarmac. Such surfaces must be maintained like parking lots. Tennis courts should be surrounded by fences high enough to stop stray tennis balls from hitting passersby. Balls hit high over the fence are less likely to cause much damage. The net winch should be kept in good condition. A spinning handle can break a wrist.

Garbage and Storage Areas

Dumpsters should have sturdy sides and lids to keep out children and wild animals. Sheds should have secure windows and locks.

Question:

Intro - Employers & contractors, maintenance and record keeping, general maintenance the grounds

(Within the selected accommodation area, describe a business occupier's obligations to invitees, licensees and trespassers and the preventative measures required to avoid occupier's liability lawsuits. Identify specific negligence doctrines, where appropriate, use the case presented to support the adage - 'an ounce of prevention is worth a pound of cure.')