Saturday, February 21, 2009

The Search for the Best Coffee in South Carolina - Convenience Stores

by Christian Stegmaier
cstegmaier@collinsandlacy.com


Our practice area includes defending the interests of convenience store retailers. As well, our firm is very active in the South Carolina Association of Convenience Stores. As a result of all of this, we often find ourselves in c-stores.

Within recent years, several c-store retailers have made a concerted effort to enhance their coffee service. This effort has resulted in many of these retailers seeing increased traffic in their stores for the express purpose of coffee purchases. I personally enjoy the coffee service found in:

- Circle K;
- Scotchman/Li'l Cricket;
- Bob Brandi's Pitt Stop locations;
- Kangaroo/The Pantry; and
- Hot Spots

As well, many of the smaller operators are putting out a great product. I've got favorites in just about every county (we're on the road a lot).

We're interested to know: Have you experienced better coffee at these retailers? Do you find yourself stopping at c-stores for coffee? Where are you finding the best coffee?

Of course, many other food service establishments (quick service, casual service, full-service, and club) have a great product. We'll explore those in later posts.

Top Places to Dine in Columbia, Charleston, Greenville, Mount Pleasant, and Myrtle Beach

by Christian Stegmaier

CBS Atlanta reports on the best places to dine in South Carolina. According to the article, "South Carolina has restaurants and cafes that span the culinary universe, from the sublime to the superbly over the top." We concur.

Click here for the full article regarding the best restaurants in Columbia, Charleston, Greenville, Mount Pleasant, and Myrtle Beach: http://www.cbsatlanta.com/southeast-travel/18392527/detail.html

Leave a comment regarding your picks for best restaurants in the Palmetto State.

FYI: Source for Hospitality Law-Related Blog Posts on Nationwide Scale

by Christian Stegmaier
cstegmaier@collinsandlacy.com

We ran across this website this morning, which may interest you. It is http://www.hospitalitylegal.com/. Powered by justia.com, this website is an aggregator of blog posts nationwide, which relate to hospitality law-related news.

Thursday, February 19, 2009

Defending the Coffee Burn Suit

by Christian Stegmaier
cstegmaier@collinsandlacy.com

America is coffee addicted. That fact is plainly evident by the sheer numbers of food service establishments and other retailers serving it. Of course, with more coffee being served, the greater the chances are for patron claims involving alleged coffee burns. Within recent years, we have defended such a claim. In our case, the medical bills were in excess of $80,000 and the claimant was a 3-year-old little boy. Needless to say, in light of the potential exposure, we became knowledgeable in the art of coffee making in a hurry. Notwithstanding the public perception of such claims created by the infamous 1990’s McDonalds case, we found that coffee burn lawsuits are very much defensible.

In the food service setting, coffee is customarily served and intended to be consumed as a hot beverage. Accordingly, to recover in a coffee burn lawsuit, a plaintiff typically must present evidence that the coffee served by a defendant food service operator was defective or unreasonably dangerous by virtue of being hotter than it should have been.

To show the coffee was hotter than it should have been, a plaintiff must demonstrate the beverage exceeded reasonable or customary temperatures. In the absence of such a showing, the coffee cannot be found to have been defective. Merely making the conclusory allegation that the coffee was “too hot” is not sufficient for purposes of proving a case. Further, courts from around the country have held that evidence of burns alone does not establish that the coffee at issue exceeded acceptable temperatures.

Many courts have examined what constitutes the “industry standard” for temperatures of coffee. In New York, a court held a plaintiff failed to show that coffee served between 180 and 190 degrees Fahrenheit exceeds industry standards. In Indiana, a federal district judge concluded the industry standard for coffee temperature is between 170 and 205 degrees Fahrenheit. In Minnesota, a court ruled coffee brewed at 190 degrees and held at 180 degrees is within industry standards. These judicial determinations are supported by the fact that most home coffee machines hold coffee for serving at temperatures between 170 and 185 degrees Fahrenheit. In fact, coffee held for serving at a temperature lower than 170 degrees Fahrenheit has been found too cool for some palettes, as reported within a recently published Consumer Reports.

In our case, the client ultimately won summary judgment. The secret of our success was obtaining an expert able to inspect the coffee maker in question and conclude there was nothing defective in its operation or its product. Further, he was able to opine on the proper industry standards concerning coffee temperatures – our client’s coffee was held in an urn, which was measured to be approximately 170 degrees Fahrenheit. With no evidence propounded by the plaintiff to counter our arguments, the federal judge dismissed the case against our client.

If faced with a similar claim, take the steps necessary to have your coffee maker inspected as soon as possible to determine the brewing and holding temperatures. Folks who can likely undertake this inspection include representatives from the coffee maker’s manufacturer or an independent expert (there are many folks making a living by knowing a lot about coffee making). Franchisees should also contact their franchisors to determine if there is an in-house quality assurance expert who can assist. We learned in our case that large franchisors have full-time coffee experts, as well as extensive protocols and guidelines concerning coffee service, which proved invaluable to our defense.

Of course, to do what you can to prevent these claims from arising, it goes without saying that you should make sure your establishment always follows the manufacturer’s and in-house expert’s guidelines concerning the proper preparation and service of coffee. Additionally, staff should regularly inspect coffee-making equipment to ensure its safe operation and have it fixed as soon as possible if found to be making coffee at temperatures that are too high.

This post does not constitue the giving of legal advice. For advice on this topic, contact counsel in your jurisdiction to discuss the same.

New HRP Owner Wants to Keep Name, Hire 750 Employees to Get Park Up and Running

by Christian Stegmaier
cstegmaier@collinsandlacy.com

From WWAY in Wilmington:

Hard Rock Park's new owner, FPI MB Entertainment LLC, says it wants to keep the rock 'n' roll theme park's name and hire 750 employees to get the Myrtle Beach venture back up and running.

Click here for full story and links to related stories: http://www.wwaytv3.com/hard_rock_park_sale_approved/02/2009

http://www.live5news.com/Global/story.asp?S=9866478&nav=menu1431_3

Wednesday, February 18, 2009

Third Group of Investors Interested in Hard Rock Park

by Christian Stegmaier
cstegmaier@collinsandlacy.com

From the Post and Courier in Charleston:

A third group is interested in buying the bankrupt Hard Rock theme park in South Carolina.

The Sun News of Myrtle Beach reported that the new Coastal Entertainment LLC on Monday filed an objection to the proposed sale of the 55-acre theme park to FPI MB Entertainment LLC.

Surfside Beach water park owner Mark Lazarus is leading another group that wants to make a bid before the deal closes.

Click here for the full story: http://www.postandcourier.com/news/2009/feb/17/third_group_interested_hard_rock_park/

Duties to Delivery Persons on Your Retail/Hospitality-Related Premises - A South Carolina Review

By Christian Stegmaier

A delivery person comes unto your retail or hospitality-related premises and is injured. The question automatically arises: "What is the liability to the delivery person for this injury?" The analysis begins with a review of the delivery person's "status" when he/she was on the property.

Within recent years, the Oregon Court of Appeals decided Johnson v. Short, ___ P.3d ___, 2007 WL 1615852 (Ore. Ct. App. 2007). Johnson was a premises liability case involving a plaintiff delivery driver injured after slipping on stairs at a home on his delivery route. The plaintiff driver brought a negligence action against the homeowner. Specifically, the plaintiff maintained that he was an invitee on the property and that the homeowner failed to maintain a reasonably safe premises and warn him of the potential risk of harm.

The homeowner moved for summary judgment asserting, inter alia, the plaintiff was a licensee and, consequently, because the danger presented by the slippery steps “was open and obvious,” the homeowner owed him no duty either to correct that condition or to warn him of that condition.

The Johnson Court ultimately decided the plaintiff delivery driver was a “licensee,” holding the driver’s presence was for the benefit of the homeowner, which made him a “business visitor.” A “business visitor” is one of the classifications of an “invitee” under the prevailing common law.

Johnson is an important decision inasmuch as it holds a vendor or other third party delivery drivers entering a property enjoys the same status and duties of care as do persons such as guests or customers. Accordingly, retail and hospitality entities should take the necessary steps to ensure their properties free of latent or hidden dangers of which the entity has knowledge or should have knowledge. Because vendors and other third party delivery drivers often venture into areas such as storerooms and kitchens, the duty of care owed to them arguably extends into these areas. We all know that non-public places on properties are sometimes not organized and maintained in the same manner as those areas open to guests; therefore, landowners may need to expend extra effort to organize and maintain their non-public areas in the interest of protecting the safety of their visiting vendors and other third party delivery drivers.

Ordinarily, we don’t advise retailers and hospitality-related entities doing business in South Carolina on decisions emanating from the Oregon Court of Appeals. However, we do so in this case because we note the Johnson Court’s holding was based in part upon the decision of the South Carolina Court of Appeals in Sims v. Giles, 343 S.C. 708, 541 S.E.2d 857 (Ct. App. 2001). For this reason, we imagine that if a Johnson-like dispute arose in South Carolina, the result may very well be the same in the Palmetto State as it was in Oregon.

In Sims, at issue was the status of a meter reader entering a utility customer’s property and the concordant standard of care owed by the landlord to the meter reader. The Sims Court held a meter reader is an “invitee,” rather than “licensee,” for purposes of determining applicable standard of care.

In addition to this case being novel for South Carolina, what makes Sims important is the extended and careful analysis Judge Anderson employed to arrive at the ultimate disposition:

South Carolina recognizes four general classifications of persons who come on premises: adult trespassers, invitees, licensees, and children. Different standards of care apply depending on whether the visitor is considered an “invitee,” i.e., an invited (express or implied) business guest; a “licensee,” i.e., a person not invited, but whose presence is suffered; a “trespasser,” i.e., a person whose presence is neither invited nor suffered; or a child. See Joseph F. Singleton, Liability of Owner or Possessor of Land, 21 S.C. L.Rev. 291 (1969). See also Larimore v. Carolina Power & Light, 340 S.C. 438, 444, 531 S.E.2d 535, 538 (Ct.App.2000)(“The level of care owed is dependent upon the class of the person present.”).

In premises liability cases, the invitee is offered the utmost duty of care by the landowner and a trespasser is generally offered the least. Since meter readers enter premises with some form of acquiescence or permission arising through the landowner’s contract with SCE & G, they are not trespassers. See Smiley v. Southern R.R., 184 S.C. 130, 191 S.E. 895 (1937)(if owner or possessor consents or acquiesces in constant trespasses, an implicit invitation requiring such care as is individually owed to a licensee may be found); Snow v. City of Columbia, 305 S.C. 544, 552, 409S.E.2d 797, 802 (Ct. App. 1991) (“The unwarrantable entry on land in the peaceable possession of another is a trespass.... The entry itself is the wrong. Thus, for example, if one without license from the person in possession of land walks upon it, ... he commits a trespass by the very act of breaking the enclosure.”) (citationomitted). In fact, the contention that a meter reader is not specifically invited onto the premises and is thus a trespasser has been rejected. See 62 Am.Jur.2d Premises Liability § 453 (1990). Sims is not a child; therefore, the only issue presented, which is novel in South Carolina, is whether Sims, in her capacity as a SCE & G meter reader, should be considered an invitee or a licensee.

B. Invitees


“An invitee is a person who enters onto the property of another at the express or implied invitation of the property owner.” Goode v. St. Stephens United Methodist Church, 329 S.C. 433, 441, 494 S.E.2d 827, 831 (Ct. App. 1997). “Invitees are limited to those persons who enter or remain on land upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make them safe for their reception.” Restatement (Second) of Torts § 332 cmt. a (1965). The visitor is considered an invitee especially when he is upon a matter of mutual interest or advantage to the property owner. Parker v. Stevenson Oil Co., 245 S.C. 275, 140 S.E.2d 177 (1965); Landry v. Hilton Head Plantation Prop. Owners Ass’n, Inc., 317 S.C. 200, 452 S.E.2d
619 (Ct. App. 1994).

“Phrased somewhat differently, it may be said that a person is an invitee on the land of another if he enters by express or implied invitation, his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land, and there is a mutuality of benefit or *717 a benefit to the owner.” 62 Am.Jur.2d Premises Liability § 87 (1990). See also Larimore, 340 S.C. at 444, 531 S.E.2d at 538 (“Because Larimore, [who was hired by the property owner to add vinyl siding to his home,] was a business visitor invited to enter or remain on the property for a purpose directly or indirectly connected with [the property owner], Larimore was an invitee.”).

“Invitees include patrons of stores, patients in a physician’s office, persons visiting a filling station to use the restroom or vending machine or to ask directions, and workmen invited to work on the premises.” F.P. Hubbard & R.L. Felix, The South Carolina Law of Torts 112-13 (2d ed.1997)(footnotes omitted).

The law recognizes two types of invitees: the public invitee and the business visitor.“ A public invitee is one who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public.” Goode, 329 S.C. at 441, 494 S.E.2d at 831; Restatement (Second) of Torts § 332(2) (1965). See also Creech v. South Carolina Wildlife and Marine Res. Dep’t, 328 S.C. 24, 491 S.E.2d 571 (1997)(discussing the duty owed a public invitee who was injured when she fell off a public dock; landowner may be liable for an injury arising from an “open and obvious” danger if the landowner should have anticipated the harm that occurred).

A business visitor, on the other hand, is an invitee whose purpose for being on the property is directly or indirectly connected with business dealings with the owner. Goode, 329 S.C. at 441, 494 S.E.2d at 831. See also Parker, 245 S.C. at 280, 140 S.E.2d at 179 (the term “invitee” in premises liability cases usually means the same thing as a business visitor and refers to one who enters upon the premises of another at the express or implied invitation of the occupant, especially when he is there about a matter of mutual interest or advantage); Hoover v. Broome, 324 S.C. 531, 535, 479 S.E.2d 62, 65 (Ct. App. 1996)(“Business visitors are considered invitees as long as their purpose for entering the property is either directly or indirectly connected with the purpose for which the property owner uses the land.”); Restatement (Second) of Torts § 332(3) (1965)(“A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”). However, “[t]he class of persons qualifying as business visitors is not limited to those coming upon the land for a purpose directly or indirectly connected with the business conducted thereon by the possessor, but includes as well those coming upon the land for a purpose connected with their own business, which itself is directly or indirectly connected with a purpose for which the possessor uses the land.” 62 Am.Jur.2d Premises Liability § 88 (1990)(emphasis added).

The business visitor is generally divided into two classes. The first class of business visitor “includes persons who are invited to come upon the land for a purpose connected with the business for which the land is held open to the public, as where a person enters a shop to make a purchase, or to look at goods on display.” Restatement (Second) of Torts § 332 cmt. e (1965). “The second class includes those who come upon land not open to the public, for a purpose connected with business which the possessor conducts upon the land, or for a purpose connected with their own business which is connected with any purpose, business or otherwise, for which the possessor uses the land.” Id. “Thus a truck driver from a provision store who enters to deliver goods to a private residence is a business visitor; and so is a workman who comes to make alterations or repairs on land used for residence purposes.” Id.

The owner of property owes to an invitee or business visitor the duty of exercising reasonable or ordinary care for his safety, and is liable for injuries resulting from the breach of such duty. Larimore v. Carolina Power & Light, 340 S.C. 438, 531 S.E.2d 535 (Ct.App.2000). The landowner has a duty to warn an invitee only of latent or hidden dangers of which the landowner has knowledge or should have knowledge. Callander v. Charleston Doughnut Corp., 305 S.C. 123, 406 S.E.2d 361 (1991). The degree of care required is commensurate with the particular circumstances involved,including the age and capacity of the invitee. Henderson v. St. Francis Cmty. Hosp., 303 S.C. 177, 399 S.E.2d 767 (1990).

In addressing this issue, our Supreme Court specifically adopted the Restatement (Second) of Torts § 343A (1965) in Callander v. Charleston Doughnut Corp., 305 S.C. at 126, 406 S.E.2d at 362.

Section 343A provides:

§ 343A. Known or Obvious Dangers

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.

This duty is an active or affirmative duty. Hughes v. Children’s Clinic, P.A., 269 S.C. 389, 237 S.E.2d 753 (1977); Garvin v. Bi-Lo, Inc., 337 S.C. 436, 523 S.E.2d 481 (Ct.App.1999), cert. granted, March 21, 2000. It includes refraining from any act which may make the invitee’s use of the premises dangerous or result in injury to him. Hughes, 269 S.C. at 397, 237 S.E.2d at 756; Garvin, 337 S.C. at 444, 523 S.E.2d at 485. It is not necessary that the precise manner in which the injuries were sustained be foreseeable. Hughes, 269 S.C. at 397, 237 S.E.2d at 757; Orr v. First Nat’l Stores, Inc., 280 A.2d 785 (Me.1971). Rather, “[i]t is sufficient that there is a reasonable generalized gamut of greater than ordinary dangers of injury and that the sustaining of the injury was within this range.... It was, therefore, a jury question whether the defendant had provided reasonably safe premises ... for the use of the ... invitee.” Hughes, 269 S.C. at 397-98, 237 S.E.2d at 757 (quoting Orr, 280 A.2d at 794).

C. Licensees

A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor’s consent. Neil v. Byrum, 288 S.C. 472, 343 S.E.2d 615 (1986); Restatement (Second) of Torts § 330 (1965). Cf. Bryant v. City of North Charleston,304 S.C. 123, 403 S.E.2d 159 (Ct.App.1991)(since Neil defines standard of care owed licensee, not public invitee, there was no error by trial judge not to charge Neil to jury where 80-year old woman tripped and fell over barricade placed over depression on public sidewalk). When a licensee enters onto the property of another, the primary benefit is to the licensee, not the property owner. Hoover v. Broome, 324 S.C. 531, 479 S.E.2d 62 (Ct.App.1996); Landry v. Hilton Head Plantation Prop. Owner’s Ass’n, Inc., 317 S.C. 200, 452 S.E.2d 619 (Ct.App.1994). A licensee is a person whose presence is tolerated, a person not necessarily invited on the premises, but one who is privileged to enter or remain on the premises only by the property owner’s express or implied consent. Frankel v. Kurtz, 239 F.Supp. 713 (W.D.S.C.1965).

The most common example of a licensee is the social guest. See F.P. Hubbard & R.L. Felix, The South Carolina Law of Torts 111 (2d ed.1997). See also Frankel, 239 F.Supp. at 717 (“A social guest is a licensee”; as such, he enters the premises by virtue of the possessor’s consent). “An injured person has been held to be a licensee where he entered premises to seek a favor, to make inquiries or ask directions, to do volunteer work, to use recreational facilities without asking specific permission, to recover an item of personal property left on the premises, to obtain some article of value given to the licensee by the occupant, or while chasing his dog.” 62 Am.Jur.2d Premises Liability § 111 (1990)(footnotes omitted).

In Neil v. Byrum, our Supreme Court explained:

The possessor is under no obligation to exercise care to make the premises safe for his reception, and is under no duty toward him except:

(a) To use reasonable care to discover him and avoid injury to him in carrying on activities upon the land.
(b) To use reasonable care to warn him of any concealed dangerous conditions or activities which are known to the possessor, or of any change in the condition of the premises which may be dangerous to him, and which he may reasonably be expected to discover.

Neil, 288 S.C. at 473, 343 S.E.2d at 616 (emphasis in original) (quoting Frankel, 239 F.Supp. at 717).

Therefore, “[s]ince a licensee is there for his own benefit, he can be said to accept the premises as they are and demand no greater safety than his host provides himself.” Hubbard & Felix, supra, at 111 (emphasis in original).

Id. at 715-721, 541 S.E.2d at 861-64.



Upon review of case law emanating from other jurisdictions that had addressed the issue of a meter reader’s status, the Sims Court’s conclusion that a meter reader was an “invitee” was bottomed and premised upon the determination that meter readers enter a premises in furtherance of a mutual benefit to the landowner, as well as the utility company. Pursuant to the law enunciated within Parker v. Stevenson Oil Company, 245 S.C. 275, 140 S.E.2d 177 (1965) and Landry v. Hilton Head Plantation Property Owners Association, Inc., 317 S.C. 200, 452 S.E.2d 619 (Ct. App. 1994), a visitor upon property is considered an invitee, especially when he is upon a matter of mutual interest or advantage to the property owner.

Bottom Line Conclusions

- South Carolina recognizes four general classifications of persons who come on premises: adult trespassers, invitees, licensees, and children.

- An invitee is a person who enters onto the property of another at the express or implied invitation of the property owner.

- Invitees include patrons of stores, patients in a physician’s office, persons visiting a filling station to use the restroom or vending machine or to ask directions, and workmen invited to work on the premises.

- The law recognizes two types of invitees: the public invitee and the business visitor.

- A public invitee is one who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public.

- A business visitor is an invitee whose purpose for being on the property is directly or indirectly connected with business dealings with the owner.

- Under our law, a landowner owes an invitee or business visitor the duty of exercising reasonable or ordinary care for his safety, and is liable for injuries resulting from the breach of such duty. The landowner has a duty to warn an invitee only of latent or hidden dangers of which the landowner has knowledge or should have knowledge. The degree of care required is commensurate with the particular circumstances involved, including the age and capacity of the invitee.

- Under Sims v. Giles, a meter reader was found to be an invitee. Applying Sims, the appellate court Johnson v. Short held a package delivery driver was an invitee.

- It is conceivable that a similar suit in South Carolina involving your entity and an individual such as a FedEx driver or a vendor delivery man could result in the same disposition as Johnson; accordingly, take the steps to ensure your premises is free of latent defects and other hazards in the interest of the safety of these visitors. This includes non-public areas such as kitchens and storerooms.

This post does not constitue the giving of legal advice. For advice on this topic, contact counsel in your jurisdiction to discuss the same.

Tuesday, February 17, 2009

Bankruptcy Judge Approves Sale of Hard Rock Park

by Christian Stegmaier
cstegmaier@collinsandlacy.com

From The State:

A judge has approved the sale of Hard Rock Park to FPI MB Entertainment for $25 million.

The sale is scheduled to close no later than 5 p.m. Thursday.

Judge Kevin Carey called the price adequate and the process rigorous. "Anyone who wanted the opportunity to bid had it," he said.

He overruled the objection of Coastal Entertainment, which objected to the sale of the park to FPI and bid $25.5 million. He said the company "comes to the court too little and too late."

FPI has said it wants to reopen the park by Memorial Day.

Click here for full story: http://www.thestate.com/breaking/story/686884.html?RSS=breaking

Help for Defense Counsel at Deposition or Trial with Tricky Medical Terminology

by Christian Stegmaier
cstegmaier@collinsandlacy.com

Defense counsel who deal with personal injury claims also deal with stacks of claimant medical records. These records often contain medical terms, which can be hard to pronounce. There are fewer worse feelings for a lawyer than going to a deposition or trial and mispronoucing medical terms. It can make you feel like a true amateur. While preparing for a deposition the other day, I encountered an unfamiliar medical term in some of the plaintiff's records. I clicked over to dictionary.com to get a pronunciation. I was glad to see that in addition to reading the pronunciation, you can also hear the word. That must be a new feature to the site. It is a welcome addition. I can now go to the depo with full confidence that I can ask as question about the medical condition at issue and know I am pronouncing the word correctly.

http://www.dictionary.com/

Monday, February 16, 2009

Rules of the Road for Caterers: Tips for Effective Contracting

by Christian Stegmaier

Catering is a tough business. With the pressures associated with finding reliable labor, keeping up with soaring food costs, and fighting for business in a saturated marketplace, it’s difficult to turn a profit. Another potential roadblock to profit are flaky, difficult, or indecisive clients who cancel events unexpectedly, short change their caterers on the bill, or alter (and continue to alter) established plans for food and beverage service on a whim. This article’s purpose is to help caterers protect themselves from such circumstances. This protection comes in the form of a written contract.

The key to contracting is to define the respective parties’ expectations. By outlining both the caterer’s and the client’s responsibilities, the parties eliminate ambiguity. Eliminating ambiguity avoids disputes. Doing away with disputes keeps the parties out of court. And that is a good thing.

The devil in a catering contract – like any other service contract – is in the details. Such a contract should be drawn up and signed when the client agrees to hire the caterer. In their contracts, caterers should demand specificity about from their clients about what is expected. Caterers should also be clear about the costs for services rendered – no one likes to be surprised by a bill with charges, which were unexpected. Additionally, caterers need to be clear about their expectations regarding cancelations and refunds.

A catering contract should include these details – at the very least:

· Date, time, location of the event;
· The start time and ending time of the event;
· The number of guests expected at the event;
· If there is food-service, how the food will be served: buffet; tray-passed; service at the table; or otherwise;
· The method by which prices will be calculated: by the guest; the plate; or otherwise;
· The amount charged per unit for this food service;
· The number of courses to be served – including the cocktail hour;
· The menu for each course, which details key ingredients and acceptable substitutions for menu items;
· Whether there will be special menu accommodation for vegetarians or children;
· With market priced items, like lobster or other fish, the maximum amount the client will pay for these items;
· The types of beverages to be served with the food service (e.g., coffee, iced tea, colas);
· An understanding as to what will become of leftover food;
· The total estimated cost for food service, excluding labor;
· The number of staff to be provided by the caterer, their individual job descriptions, and the costs related to labor;
· If there is alcohol-service, whether the alcohol will be provided by the caterer or the client;
· If the alcohol is provided by the caterer, the cost per bottle or drink;
· The ratio of bartenders per guest;
· The types of alcohol that will be served;
· The time period in which alcohol will be served;
· Mixers and non-alcoholic beverages to be served at the bar;
· Corkage fees for each bottle opened, if applicable;
· Whether there is a “buyback policy,” wherein the caterer will “buy back” unopened bottles – if so, what price will the caterer pay for the unopened bottles;
· The total estimated cost for alcohol service, excluding labor;
· Whether the caterer or the client will be furnishing tables, chairs, linens, dinner and glass ware, silverware, and serving pieces;
· The costs related to rentals furnished by the caterer;
· An understanding who is responsible for delivery, set up, clean up, break down, and return of equipment, including rental items;
· The costs related to the caterer’s delivery, set up, clean up, break down, and return of equipment, including rental items;
· The name of the person overseeing the staff, along with contact information;
· The manner in which staff will dress;
· The cost per hour for each staff member, along with a total estimated charge for labor;
· An agreement concerning payment for labor if the event goes into “overtime”; and
· Whether there exists a location fee for the venue and who is responsible for payment of this fee to the location.

Putting the above provisions in an agreement gives the client a clear understanding about what he or she is getting from the caterer and how much it is going to cost. This clarity will go a long ways to avoid the potential for misunderstandings down the road.

Some other tips for effective contracting - - -

It is naive to believe that clients will not seek to make changes to menus or other details relating to the catering service. A good caterer should be accommodating to change in the interest of client satisfaction. However, there should be limits to a caterer’s accommodation. Caterers should therefore create a cut-off date for changes. At a certain point, the caterer has to make arrangements with its vendors in preparation for the event. The failure to create a deadline for changes invites havoc for the caterer in the days leading up to the event. Caterers should also have a deadline for the client to advise it of the exact number of guests expected at the event.

The caterer’s contract should include a clear refund and cancelation policy. Regarding refunds, there may be a sliding scale for the amount to be refunded as it relates to when the event is cancelled. A client’s cancellation six months ahead of the event should likely warrant a 100% refund. To the contrary, a cancellation a day before the event will give the caterer a basis to award no refund. As well, caterers should include language, which is advantageous to it in the event of their non-performance. Caterers can’t always control the circumstances. Weather, Acts of God, and other situations that make service by the caterer impossible or impracticable should be included as reasons to excuse a caterer’s failure to perform.

The contract should be specific concerning payment for services rendered. This specificity should include a deposit at the time of contract, as well as an agreement by the client to promptly pay for services upon completion of the event or shortly thereafter.

In the unhappy event of litigation, a caterer would be wise to include provisions in its agreement to designate the jurisdiction and venue in which a dispute is to be resolved. Litigating claims in a hometown is a cheaper venture. Additionally, the caterer should reserve the right to recover reasonable attorney’s fees and costs in the event it is compelled to litigate over the contract. In many states, the award of attorneys fees are not a matter of automatic right to a prevailing party in a lawsuit - reserving that right in a contract prior to suit will allow a court to make this award to the prevailing caterer.

It is also wise to include a provision requiring the client to defend and indemnify the caterer for any claims for damage to property or other people arising from the acts of the client or the client’s guests. As well, with regard to alcohol service, the client and caterer should arrive at a clear understanding that no minor will be served alcohol and that the caterer reserves the right to take the steps necessary to ensure that no underage guests are served.

As a final note, a caterer shouldn’t go it alone when it comes to formulating client contracts. It should contact a trusted attorney when drafting a template contract. He or she can advise the caterer on specific points needed to be covered in the contract so at to comply with applicable laws. A caterer wants to be sure it has an agreement, which can be enforced by a court in the event of dispute with a client.

Hat tip to resources such as www.weddingchannel.com and various web-based authorities pertaining to catering client agreements were employed as sources for this entry.

Thursday, February 12, 2009

US Retail Sales Improve in January, Stops a 6 Month Slide

by Christian Stegmaier
cstegmaier@collinsandlacy.com

From Bloomberg.com (2/12/09)

Sales at U.S. retailers unexpectedly halted a record six-month slide in January, reflecting higher gasoline prices and more spending on items such as clothing and food.

The 1 percent increase followed a revised 3 percent drop the prior month, the Commerce Department said today in Washington. Purchases excluding automobiles gained 0.9 percent.

Wednesday, February 11, 2009

Hard Rock Park Could Reopen by Spring

by Christian Stegmaier
cstegmaier@collinsandlacy.com

From today's The State (2/11/09):

A buyer for Hard Rock Park has emerged with plans to reopen the theme park by Memorial Day if the sale is approved, according to court documents.

FPI MB Entertainment LLC is offering to pay $25 million for the park, which debuted in April and closed in bankruptcy in September. The company, which is registered in Delaware, is asking the court to approve the sale of the property - free of liens - by Feb. 20. It has requested a hearing at 10 a.m. Feb. 17. The company has given the trustee $2.3 million toward the purchase, according to the documents filed Tuesday.


Needless to say, the reopening of Hard Rock Park would be a very good thing for the Grand Strand.

Click here as well for an informative blog about Hard Rock Park: http://hardrockparkblog.com/

Monday, February 9, 2009

Expect the Unexpected (and Have Insurance to Respond to the Same): Fireworks Destroy Beijing Mandarin Oriental Hotel That Was Set to Open

by Christian Stegmaier
cstegmaier@collinsandlacy.com

Fire consumed a building in Beijing today that formed part of Central China Television's new headquarters, as residents launched fireworks throughout the city to celebrate the Lantern Festival Monday evening. The destroyed building housed the Mandarin Oriental hotel in eastern Beijing, which was supposed to open in 2009. This loss illustrates the fact that anything can happen in the hospitality context, which underscores the need for insurance that protects against all types of contingencies that result in business interruption, destruction of property, physical injury to guests and associates, etc.

http://www.reuters.com/article/newsOne/idUSPEK19411020090209

Sunday, February 8, 2009

Regaining Control Over Your Blackberry: A Primer for Both Client and Counsel

By Christian Stegmaier
cstegmaier@collinsandlacy.com

A very good article found on the ABA's website regarding management of your Blackberry. In the age of the expectation that emails will yield an instant response, a little sanity ...

http://www.abanet.org/lpm/lpt/articles/tch03081.shtml

YouTube and Its Dangers to Your Brand

by Christian Stegmaier

Our retail and hospitality clients spend millions of dollars each year promoting their respective brands. Whether it is through advertising or internal programs that emphasize superior customer service at every point of contact, these corporations allocate tremendous time and resource to create distinctions for themselves in a marketplace filled with competition.

The internet is a huge vehicle for brand development. A big fixture of today's internet is YouTube, the video sharing site owned by Google. I am not a big YouTube user; however, from time to time, I will look at it. Within recent times, I was looking for advertisements a retailer had recently run, which I thought had done a lot to improve its branding message. I searched on the name of the retailer and found the advertisements. The retailer's marketing department had actually placed the ads on YouTube, which improved their visual and sound quality. I also found some entries, however, which obviously had not been placed on YouTube by the company. Of particular interest was a video created by associates in a storeroom of a location telling viewers "what it was really like" to work for the company. The remarks were less than complementary and were in total contravention with the company's branding message. Viewers of this video could conceivably develop negative attitudes about the company after viewing this video. This is not good.

Branding is in the details. Developing, delivering, and preserving a branding message is a game of inches. One small misstep can negate all of the effort expended to build the brand up for those consumers who come into contact with a negative message or experience. If associates or others are using your company as a platform for an unflattering YouTube video, the company can take steps to protect its image and proprietary rights. See http://www.google.com/support/youtube/bin/answer.py?answer=58127&topic=10553 to file a complaint with Google for violation of copyrights. Also, the company can report the video to YouTube for review by clicking the "Flag as Inappropriate" link under the video and then follow up with the site's administrators. Additional steps, such a cease and desist letter from counsel or even the commencement of litigation, are mechanisms the company can use to protect itself, especially in cases where the video is truly negative to the brand image.

We know from the notoriety of last year's "Obama Girl" and her progeny that the media will pick up on what they believe to be interesting/compelling YouTube videos. Folks that make these videos are seemingly always on CNN or Fox News to talk about them. We also know that people are capable of saying and doing just about anything when its comes to the pursuit of their 15 minutes of fame. Outrageousness seems to have no boundaries in today's internet age. The last thing your company needs to be is a punch line for a clever video televised on YouTube for all the world to see. Take steps to have someone in your organizations routinely patrol sites like YouTube and ensure your branding message isn't being injured by associates or third parties.

Tuesday, February 3, 2009

An Exception to the Vicarious Liability Doctrine: Armstrong v. Food Lion

by Christian Stegmaier
cstegmaier@collinsandlacy.com

In the case of Armstrong v. Food Lion, 371 S.C. 271, 639 S.E.2d 50 (2006), the Supreme Court held a supermarket retailer was not liable for an attack upon a customer by employees while the customer was in the store. The Court determined that while the employee was on duty at the time of the incident, his actions were outside the scope of his employment. Accordingly, the store was not responsible via the doctrine of respondeat superior or vicarious liability. This is a decision, which is favorable to retail and hospitality entities operating in South Carolina.

With regard to the facts, the plaintiff, Ronnie Armstrong went to the Winnsboro, South Carolina Food Lion store on December 14, 1998, to purchase groceries with his sister and his mother Tillie Armostrong (Tillie). As Ronnie walked up the aisle of the store, three men in Food Lion uniforms approached him. Ronnie stated that Byron Brown approached and said “What's up?,” and Ronnie replied, “Nothing.” Ronnie testified that Brown then attacked him with a box cutter. Brown cut Ronnie in the face and neck and a second employee, Marcus Cameron, also began attacking him after he fell on the floor. Cameron cut him with another box cutter on his back.

When Ronnie's mother, Tillie, came to his aid, Cameron punched her in the chest and knocked her to the floor. A witness helped Tillie up and pulled Cameron off of Ronnie. Brown then backed off. Ronnie testified that, “I don't know why they cut me. They just attacked me for no reason. I said nothing to provoke anyone.” On cross-examination, Ronnie stated he had a confrontation with Brown two years prior to the incident, and Brown had threatened to kill him.

The witness testified that, when he first entered Food Lion, he saw three employees at the front of the store “goofing off” and not working. Two of those employees were Brown and Cameron. He stated that, after Ronnie and the employees approached each other, he saw one employee hit Ronnie causing him to bleed.

Ronnie and Tillie subsequently filed suit against Food Lion, alleging causes of action for assault, battery, outrage, premises liability, negligence, and negligence per se.

Following the presentation of the plaintiffs’ case, Food Lion moved for a directed verdict, arguing petitioners had failed to present evidence that Brown and Cameron were acting within the scope of their employment at the time of the assault. During the plaintiffs’ argument in response, counsel admitted Brown and Cameron “were goofing off at the time.” The trial court granted a directed verdict in Food Lion's favor as to the plaintiffs’ causes of action for assault, assault and battery, and outrage based on petitioners' failure to show the assault was committed for the purpose of, or in some way furthering, Food Lion's business. The negligence claim went to the jury, which returned a verdict in favor of Food Lion.

The Court of Appeals affirmed. Upon its own review, the Supreme Court agreed:

The doctrine of respondeat superior rests upon the relation of master and servant. Lane v. Modern Music, Inc., 244 S.C. 299, 136 S.E.2d 713 (1964). A plaintiff seeking recovery from the master for injuries must establish that the relationship existed at the time of the injuries, and also that the servant was then about his master's business and acting within the scope of his employment. Id. An act is within the scope of a servant's employment where reasonably necessary to accomplish the purpose of his employment and in furtherance of the master's business. Id. These general principles govern in determining whether an employer is liable for the acts of his servant. Id.

The act of a servant done to effect some independent purpose of his own and not with reference to the service in which he is employed, or while he is acting as his own master for the time being, is not within the scope of his employment so as to render the master liable therefor. Lane, supra. Under these circumstances the servant alone is liable for the injuries inflicted. Id. If a servant steps aside from the master's business for some purpose wholly disconnected with his employment, the relation of master and servant is temporarily suspended; this is so no matter how short the time, and the master is not liable for his acts during such time. Id.

The trial court appropriately granted a directed verdict because petitioners failed to produce any evidence that the Food Lion employees were acting within the scope of their employment or in furtherance of Food Lion's business when they attacked petitioners. The only reasonable inference from the testimony is that Brown and Cameron attacked Ronnie for their own personal reasons and not for any reason related to their employment. They were acting “to effect an independent purpose of their own.” See Lane, supra (act of servant done to effect some independent purpose of his own is not within scope of his employment). Food Lion was not legally liable because the employees stepped away from their job of stocking shelves. See Lane, supra (employer not liable where employee stepped away from the employer's business to play a prank); Hamilton v. Davis, 300 S.C. 411, 389 S.E.2d 297 (Ct.App.1990) (same).

Two cases that have previously found an employer liable for its employee's assault of another person are distinguishable from the instant case. In Crittenden v. Thompson-Walker Co., Inc., 288 S.C. 112, 341 S.E.2d 385 (Ct. App. 1986), an employee assaulted another person in an attempt to collect a debt of the business. In Jones v. Elbert, 211 S.C. 553, 34 S.E.2d 796 (1945), a dairy farm's general manager assaulted the owner of a company contracted to provide a refrigerating system. The assault resulted from a dispute arising over problems with the system. The factor that distinguishes these cases from the instant case is that the assaults in Jones and Crittenden occurred, not merely in connection with the master's business, but with the purpose of in some way furthering the master's business. Here, there is no evidence that Brown and Cameron were furthering Food Lion's business in any manner. Accordingly, the trial court properly granted Food Lion's motion for a directed verdict.
Id. at 276-278, 639 S.E.2d at 52-3.

Armstrong is important to retailers and hospitality entities doing business in South Carolina because the business of retailing and hospitality is built upon the employees. That’s how customer service is provided. Unfortunately, despite the best efforts of the employers to train and supervise its workforce, some employees will from time to time deviate from their work and perform pranks – or worse – commit criminal acts like the one found in Armstrong. While a short and simple opinion, Armstrong is an important one because it reaffirms the rule that assaults and pranks performed by employees while on company time does not automatically mean liability for the employer.