In recent years, an estimated 10,000 lawsuits per year have been filed against hotels by victims of crimes committed on hotel premises. One survey estimated that the average recovery in such suits is $1.2 million.

Hoteliers may take some comfort from recent tort reform in various states and a possible trend of juries awarding smaller amounts. However, rising incidences of violent crime, together with the potential for terrorist attacks on tourist destinations, increases the likelihood of such lawsuits against hotels. Various websites on the Internet, styled as resource centers for victims of crime, advise victims to file civil suits against the owners of premises where the crimes occurred. Hotel operators should assess their security practices with the goals of preventing crime and of preparing to defend such suits.

In general, a premises owner owes a duty to persons who enter the premises with the owner’s knowledge and for their mutual benefit. The owner must exercise care to protect such persons from foreseeable risks of harm. This duty to registered guests of a hotel is recognized in the law of all states in the U.S., and in many states the duty extends to other persons invited to the hotel by the registered guests.

The law on negligent security varies from jurisdiction to jurisdiction and the outcome of a lawsuit often turns on the details of the facts of the specific incident. In general, the key questions to impose liability are:

Was the crime foreseeable?

A court will find that a crime is foreseeable if the premises owner was aware, or should have been aware, of a dangerous condition that resulted in the crime. A plaintiff can meet this test by showing that the hotel personnel knew or should have known of prior similar crimes that occurred on the hotel premises or in the surrounding area. Courts analyze prior incidents for proximity, recency, frequency and publicity.

Prior crimes need not be identical, but most courts require substantial similarity. One court found that an earlier purse-snatching on an outside stairway of a motel did not show foreseeability of a later armed robbery in the parking garage. In another suit, the court found sufficient evidence of foreseeability of an armed robbery in a hotel parking lot where 81 crimes had occurred in that parking lot in the prior three years and similar numbers of parking lot crimes had occurred at other hotels within a quarter mile radius.

Some courts have stated that prior crimes against property (e.g., burglary) do not necessarily show foreseeability of crimes against persons (e.g., assault or rape). However, courts have held that a prior theft could show foreseeability of an assault by giving notice of defective window or door locks or nonfunctioning exterior lights. The circumstances immediately preceding a crime might also be considered as evidence of foreseeability. For example, a court found that an hour of heated verbal confrontations with shoving and pushing in a resort bar made it foreseeable that a physical fight would occur, in a suit in which the victim of assault was awarded $1.47 million.

Did the owner or occupier of the property fail to meet a “reasonable standard of care’?

If the court finds that the crime was foreseeable, then the hotel had a duty to use ordinary care to protect its guests from criminal acts of others. The courts have found that hotels breached this duty by failing to have in place such features as adequate lighting, surveillance cameras, security guards, secure locks on doors and windows, perimeter fencing, or procedures for summoning security or police. The parties in such lawsuits often offer the testimony of experts in the field of security as to what measures are required by reasonable care and whether the defendant hotel met that standard.

Was the negligence the proximate cause of the crime?

Even if the hotel is found to have been negligent, liability will not attach unless that negligence caused the crime. For example, having inadequate door locks might have been negligent but did not cause the crime if the assailant entered through a window. In a number of cases, testimony by the perpetrator has established causation. For example, a car jacker testified that he was intent on committing that crime but had been deterred at other locations by the level of lighting or the presence of security guards.

Depending on the jurisdiction, there may be a possibility of a court assigning some responsibility for the crime to the criminal or even to the victim. In the resort bar fight case mentioned above, the jury found the assault victim 49% responsible for his injuries and the resort 51% responsible; therefore, the resort was assessed 51% of the total $2.87 million of damages. Under current Texas procedure, a defendant can seek to name the criminal (by name if known or as a “John Doe” if unknown) as a responsible third party and to have the jury apportion some or all responsibility to the criminal.

Did the plaintiff sustain damages as a result of the breach of duty?

If a court finds that a hotel was negligent in providing security, the damages assessed against the hotel can include amounts to compensate the crime victim for lost property, medical expenses, and lost earnings, as well as monetary awards for pain and suffering and emotional distress. Relatives of a victim and survivors of a deceased victim may also recover damages for their loss of support or loss of companionship. If the court finds a high degree of negligence, punitive damages can be awarded.

Avoiding liability

For new construction, safety and security should be considered in the design phase. Existing buildings can be retrofitted as needed with physical and technological security systems. A hotel should consider:

• the use of lighting, mirrors and other reflective surfaces, security gates, secure locking systems;
• training of staff in security protocols;
• security technology (closed circuit television cameras, intercoms, card key or key pad access, alarm systems) and the maintenance of such equipment;
• visible presence of security guards and whether those guards should be armed;
• a professionally conducted security analysis and/or becoming familiar with the body of literature on security standards for the hotel industry.

A hotel should keep records of the purchase and maintenance of security-related equipment and of training of personnel. A well thought out and well executed security program pays off by preventing crimes and, in the unfortunate event that a crime does occur, in strengthening the defense of a lawsuit by the crime victim.