Wednesday, October 17, 2012

When Hard Hits of Football Season End Up Between Fans at Your Business

Post by Charles Appleby

Football season is one of the greatest times of the year for fans and businesses as swarms of people descend on towns across the country to see their favorite teams battle it out on the gridiron. Fans love the camaraderie and cheering their team on to victory, while the hospitality industry loves the increased revenues from packed hotels, restaurants and bars. However, with the increased revenues comes increased liability.  From serving the underage to overserving those of age, to onsite fights and falling down stairs, football season is rife with potential liability for those in the hospitality industry. 

A case pending in San Francisco Superior Court is an example of how a fight can affect several hospitality businesses.  On August 20, 2011 two San Francisco 49er fans were severely injured after one was beaten unconscious in the parking lot, and the other was shot four times while trying to help his friend.  The two fans sued the parking lot security, San Francisco 49er organization and the National Football League for failure to create a safe environment.  The fans cited the March 2011 beating of a San Francisco Giants fan at Dodger stadium in Los Angeles as well as the two shootings, two beatings and numerous fights after last year’s 49ers v. Raiders game to support their allegations that the defendants knew there were security problems at sports stadiums and needed to take additional precautions. 

Since the filing of the lawsuit, the 49ers team has taken additional preventive measures by banning post game drinking and tailgating in parking lots.  While these measures may help prevent future incidents and show the team took action to prevent these types of incidents, it will not be admissible to help in the current case.  When analyzing the existence of operator liability for injuries to guests and patrons as a result of third party assault in South Carolina, courts turn to Bass v. Gopal.

In Bass v. Gopal, a guest of an Orangeburg motel answered the door to his room after a stranger knocked on it three separate times over the course of 15 minutes.  When the guest opened the door, the stranger asked for money, the guest refused, and the stranger shot the guest before running from the property.  The guest filed suit against both the franchisee and the franchisor, alleging negligence.  Specifically, the guest maintained the defendants owed him a duty to protect him from the criminal act of a third party, which the guest asserted had been breached.

In South Carolina, while a hospitality-related entity is not the insurer of the safety of its guests, it has been well settled that such an entity is under a legal duty to its guests to take reasonable action to protect them against unreasonable risk of physical harm.  The extent of this duty may be determined with an analysis of whether the property owner knew or had reason to know of a probability of harm to its guests following an incident.  Specifically, the courts have held a business owner has a duty to take reasonable action to protect its invitees against the foreseeable risk of physical harm. 

The “Balancing Test,” which the South Carolina Supreme Court adopted in Bass, is an approach  which acknowledges that duty is a flexible concept and seeks to balance the degree of foreseeability of harm against the burden of the duty imposed. Under this test, the presence or absence of prior criminal incidents is a significant factor in determining the amount of security required of a business owner; however, the absence of such incidents does not excuse the property owner from the duty to provide some level of security if other factors support a heightened risk.  Such factors may include: the type of operation run by the owner; the location of the business; use of the business by guests and patrons at night, etc.  In adopting a balancing approach, the court states it “hope[s] to encourage a reasonable response to the crime phenomenon without making unreasonable demands.” 

A key element of the defense’s success in the Bass case was the testimony of the security expert, who was coincidentally hired by the guest, not the defendants.  The expert admitted that if no significant criminal activity had occurred at the motel for a period of time prior to the guest’s shooting, then the motel's management would have no reason to expect the shooting to occur or to spend money to enhance security.  The security expert also conceded that: the motel's perimeter lighting was appropriate; the motel's room doors were appropriate and met statutory requirements; the guest would have stayed safe in his motel room had he not opened the door; the guest should have stayed in his motel room; and the guest should have telephoned for assistance.

The important take-aways for restaurant, bar and hotel managers are:
(1)                          Don’t ignore situations, and don’t be afraid to call the police.  Customers and guests during football season are typically more boisterous and their conduct more unruly than typical guests.  Consider conducting additional training for staff working on football game days to make certain they know how to identify potential situations and the actions needed to address them before they get out of control.
(2)                          Be sure to review past problems at your establishment during football season, and consider talking with owners and managers at similar establishments in the area.  Then, take adequate measures to try and prevent those issues and potential liabilities.
(3)                          If your business does not have a lot of experience evaluating potential security issues or instituting preventive and responsive measures, consider consulting with a security expert, legal counsel and other professionals specializing in premises liability and patron safety. 

A long night of football is always fun and exciting, but the hangover of a lawsuit is exponentially more expensive than the typical bottle of Gatorade and Tylenol.  So be proactive and don’t let the additional revenue your business earns during football season go to waste.  If you have any questions, let us know, and we’ll be there for you every step of the way.