Video On The Docket

Dec 1, 2007 12:00 PM, By Stephanie Silk

Using surveillance cameras in the hospitality industry can help—or hurt—a hotel in a lawsuit

Rose Stone was knocked down in the doorway of a Marriott Hotel in Manhattan because the hotel's interior automatic doors closed on her.

Miranda Shadday was raped by a hotel guest at Washington, D.C.'s Omni Shoreham Hotel, and the hotel showed negligence in having failed to prevent the incident.

Patrick J. O'Connor slipped, fell and injured his shoulder while receiving a massage treatment at a Barbados hotel because the hotel's masseuse left his feet slick with massage oils.

All three of these cases went to the U.S. Court of Appeals, where the plaintiffs faced a judge and a powerful hotel corporation.

Lessing E. Gold, a partner with Mitchell Silberberg & Knupp LLP who has legal expertise on corporate practice with a focus on the closed-circuit television (CCTV) industry, says such cases centering on issues of liability and negligence in the hospitality industry boil down to the need to answer: What is a hotel's duty?

“Hotels do get sued frequently by people who are robbed, beaten, raped and so forth,” Gold says. “When that happens, it raises the question of ‘if there had been a prior crime in that area, wasn't it a duty of the hotel to add cameras?’ That kind of case establishes liability.”

Would cameras help?

Take the case of Miranda Shadday. Would video help the hotel in court in this situation? A hospitality industry expert who specializes in evaluating standards of care and security adequacy, Fred Del Marva, says no. He has worked in more than 600 cases like this one. A video would either show that the rape was caught on video and nothing was done to stop it, or that the video system missed the incident. “I rarely see video help a hotel in court. When I testify as a security expert and hotels are trying to say how responsible they were because they own cameras, it doesn't lend to their credibility because [often] no one is watching them,” he says.

Rather, Del Marva says that hotels mostly install surveillance cameras for two reasons. The first reason being as a crime deterrent, although even that aspect presents questions. “Studies show that camera surveillance can deter crime. But from my experience, I don't find that, because at hotels there is no one monitoring those cameras and it is used as a reactive measure to memorialize a crime that already happened,” Del Marva says.

The second benefit Del Marva gives is the use of video surveillance related to internal theft, citing that hotels can place cameras behind the front desk, around certain areas of equipment and near money to prove to a judge who stole from them.

But, even in cases where the hotel has video showing a crime being committed against a patron, what appears on the video might show the hotel that they needed more than just a camera to prevent the crime.

Gold says it is up to the hotel to determine whether cameras — or say, just lights — are necessary for certain areas of a property that have been deemed by guests as unsafe, either from opinion or previous experience.

“There have been many cases over the years of a woman who stays in a motel by herself and walks to her room and is accosted. That leaves the question of whether there should have been lights or cameras,” Gold says. “Then the question becomes, was there any previous activity to put the owner on notice? Or, if there hasn't been any crime, what would a reasonable person have done anyway to keep it safe? Is it too dark? Are there bushes to hide in?”

Normally, this issue can be determined by finding out whether or not there has been any amount of crime in that area or establishment over a period of time prior to the event that occurred. Gold says that most hotels are installing cameras in public hallways, particularly where lighting is inadequate, or where criminals could hide. In court, if there is proof the hotel hasn't done that, it hurts them.

In the case of Patrick J. O'Connor, if a video could show that his feet were cleaned and that he should have been able to walk safely, it could potentially save the hotel in court. But in his case, it may not be easy to say, ‘Let's go to the video,’ Gold says. “[Placing cameras] brings up the issue with a person's right to privacy. In a public place, you don't have the right to privacy. But in some places, you can claim you have that right anyway — even if you don't,” he says. “Say an employee is embezzling money from the hotel he works at and the owner installs a camera. The embezzler is going to take the position that the hotel had no business putting a camera there because of his or her right to privacy.”

Respecting privacy

Hotels have to be careful about where they place cameras or CCTV because of the expectation that people have of safety — and courtesy — in a hotel environment. Del Marva says that hotels can put cameras without audio anywhere that is considered a common area. And by law in most states, hotels are not required to tell patrons that there are cameras watching them, nor are they required to have surveillance at all. But in all hotels, one rule is clear — once patrons are in their room, they require privacy.

Gold says that, barring unnecessary placement, cameras are a good move for a hotel. “Unless they are in a place they shouldn't be, like a restroom or dressing room, CCTV is a protection for occupancy as opposed to a hinderance,” he says.

The Stratosphere Hotel in Las Vegas has extensive surveillance. The hotel and casino has 2,200 cameras monitoring everywhere from the facility's outside perimeters to its back hallways. Art Steele, vice president and director of security at the Stratosphere, says they have never been sued by a patron for unreasonable care and that more than just knowledge has to do with that. “We've been lucky, and luck has a lot to do with it. We try to be proactive, not reactive,” Steele says.

Being proactive about monitoring may involve video analytics. The Stratosphere's video feed is continuously monitored by guards, but most hotels, don't have that luxury. And in court, if it is shown that a hotel has video of a crime in progress, and no one was there to watch it and stop it, it can be a problem for the hotel.

Gold says video analytics is not making as much progress as it should to address the problem. “Would I say that hotels are using video analytics to their benefit? Yes. But they are not maximizing it the best that they should and they should be using it more.”

Another situation that hotels may see is a “slip-and-fall.” Such an incident often raises eyebrows because of its potential to be fake. Gold says that video has been used to save some hotels in slip-and-fall situations, but that situation would rarely go up to appellate court. Hotels can benefit from catching a slip-and-fall on video in the case that someone takes the position that they fell because it was dark and a camera shows that it wasn't. “This is not a case that comes down to a jury. In this case, the judge has to determine if a hotel was negligent. This includes a hotel not fixing the concrete that the patron slipped on that they knew might have caused a fall, for example.”

Del Marva sees a lot of slip-and-fall cases, many of which are due to people slipping in bathrooms, which of course, is not caught on video.

Del Marva says that most people who take hotels to court for slip-and-falls win, and they win big. “Slip-and-falls are where the money is — from the deep pockets of the hotels. If the injury is great enough, people usually win,” he says.

A lack of cameras may hurt a hotel in many situations, but the one it probably won't hurt is slip-and-falls. Gold says it is a far-fetched idea that a hotel may be liable because a camera was not placed in a certain “slippery” area. “It's more a question of lights during slip-and-falls and more a question of cameras when dealing with intruders,” he says.

Another situation where video may hurt a hotel is proof of use of excessive force against an assailant. Del Marva has seen countless videos of detention room surveillance in casinos and hotels where the conduct of security guards is clearly not up to snuff. “In cases where guards use excessive force and someone is hurt, they can get the hotel in trouble by saying that the hotel showed negligence,” he says.

Del Marva warns frequent hotel-goers not to take for granted that surveillance is just “there.” “That alone may be a deterrent, but that's never the end of the story.” He also tells hotels to make sure if they use surveillance, that it's the right kind for their use. “If you, as a hotel, are going to use it, make sure its use is done properly,” he says.

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© 2008 Penton Media Inc.

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