6 minute read
Who's Responsible for Damages?
A fallen tree branch, a rough edge on a playground slide, a showerhead in the bathroom, a door jamb that was improperly installed, or a broken bench – one of your guests was hurt, now what? Who is responsible? Unfortunately, these are common scenarios that face many business owners, and in fact attorneys and insurance carriers see similar incidents all the time. But are you liable? Is there any way to lessen liability? Or share it? As with all things legal – it depends!
To narrow the issue, let’s pick one of the examples mentioned above, a guest tripping over the threshold of a yurt and getting injured at World’s Best Glamping Resort (“WBGR”).
First, what did they sign? Before the guests ever enter the yurt, whether via electronically in advance or paper when they arrive, you should have your guests sign what we generally refer to as a liability waiver (though the name and content requirements are state specific). Although liability waivers are not “valid” in every state, having a liability waiver can help to deter people from bringing legal action against you.
Additionally, this waiver should contain an acknowledgment that if the guest sustains an injury due to their own fault (like crashing a golf cart because they were driving intoxicated) or by a third party (if they were the person who got hit by another guest in a golf cart because the driver was intoxicated), you are not liable. So, in the case of our injured yurt guest, they signed a waiver that said roughly “I understand that glamping is inherently dangerous, and I chose to partake in the activity anyway, as such I understand that WBGR is not liable.”
So, what happens? Maybe our glamping guest fully believed they could not sue us due to this document or at a minimum it provided a defensive document for our insurance carrier to use against the claim.
Second, do you check your facilities? Your glamping sites and units should be monitored regularly. Your employees (or you) should check to ensure each site is stable and that there isn’t uneven terrain or anything that could cause a guest injury. You should make sure each unit is safe, that nothing was damaged and that it is in the best possible repair. You should have a routine that you follow such as every time a guest checks out, or once a week on Wednesday, something that in the event of a lawsuit you can point to and say, “there’s no way there was something dangerous – I checked it Wednesday.”
You as an owner have a duty to maintain your premises. If injury occurs because you failed to retile a jagged pathway, cover exposed wire, stabilize a tent, and you would reasonably have knowledge of the same if you were doing what you were supposed to, then you will likely be held liable for the injury. In the case of our yurt guest, we checked the unit every time someone checked out, there were no loose boards, nothing that would have caused the guest to get injured. Because we have a record of our maintenance checks, when defending the lawsuit, we can create doubt in the jury that there was something to get injured on – and yes, lessen our liability.
Third, did you use a contractor or vendor? If you are the one who sets up your tents on your glamping site, you may have more liability than if you were to hire someone to do it for you. Read your contracts with these vendors and figure out what liability remains with them. For instance, referring again to our yurt guest, if the guest tripped on the entryway of your yurt because it was improperly installed by you, then you are likely liable for the failed installation because you set it up. However, if a contractor was the one who set up the yurt, you may be able to share or shift the liability on the contractor, as they were the ones who made the mistake. Additionally, if it was a failure in design or manufacturing, they too might have to share in the liability for the injury.
Fourth, do you know the applicable law? If a customer does get injured on your site, know that some states recognize “comparative negligence.” What does this mean? Let’s use the yurt example again. If a guest were to trip on the entryway of the yurt, and it was improperly installed, but the guests were too intoxicated to see where they were going, you may be able to pass some of the liability to the guest.
The court may look at whether or not a reasonable person would see the faulty entryway and not trip. In that case, you could be liable for the entryway being improperly installed, but you would be less liable because a reasonable person would have seen the improperly installed entryway and avoided it. Courts are “comparing” the guests’ share of fault ( being too intoxicated to walk) to your fault (entryway improperly installed).
In conclusion, you might be liable, but if you planned properly, notified guests properly, collected signatures on waivers, and are aware of the law in your state, you can help avoid taking on the liability for injuries all by yourself or in some instances avoid liability altogether. Contact The Towne Law Firm (TLF) today at info@townelaw.com or (518) 452-1800 to ensure that your business is protected with the proper legal safeguards. Let TLF’s dedicated hospitality attorneys take care of your legal matters so you can get back to taking care of your guests!
About Christine Taylor
Christine Taylor is a Partner at The Towne Law Firm, P.C. (headquartered in Albany, NY) who focuses her practice in the areas of Hospitality, Business, Labor and Employment, Real Estate Law, Estate Planning, and Litigation. Ms. Taylor grew up within the outdoor hospitality industry as her parents have owned three campgrounds, her experience within the industry gives her insight from both the legal and camping perspectives. Ms. Taylor has spoken at various outdoor hospitality conferences including the Glamping Show USA, KOA, CONY, NCA, ARVC, PCOA, as well as the Mid-Atlantic conference. She additionally authors a column that appears in Woodall’s Campground Management
