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Thomas A. Dickerson[/caption] On Oct. 1, 2017, Stephen Paddock, while a guest at the Mandalay Bay Resort & Casino in Las Vegas and occupying a suite on the 32nd floor with a ‘Do Not Disturb’ sign on the door for three days (see Salam, “Disney Hotels, Citing Safety and Other Reasons, Drop ‘Do Not Disturb’ Signs,” New York Times, Jan. 4, 2017 (“Guests of some Walt Disney World hotels no longer have the option of hanging a ‘do not disturb’ sign on their doors, part of a change that requires a hotel employee to enter every room at least once every 24 hours, Disney said on Wednesday.”), broke open two windows and opened fire on a crowd of some 22,000 people attending the Route 91 Harvest Festival across Las Vegas Strip, killing 59 people and injuring more than 450. It appears that Paddock was a VIP guest of the hotel and during his stay was able to use a service elevator and transport 17 firearms and hundreds of rounds of ammunition to his suite undetected (see Wikipedia Gun laws in Nevada)

Recent Lawsuits

A number of lawsuits have been filed in Nevada state court and Las Angeles Superior Court (“Hundreds of victims of the October mass shooting in Las Vegas are suing over the attack, arguing that the owners of the hotel [MGM Resorts International] the gunman used to stage the assault and the organizers of the festival [Live Nations Entertainment] he targeted failed to adequately protect them … . Lawyers for the victims [argued that] [t]he Mandalay Bay staff … did not properly monitor the hotel, resulting in a failure to catch Paddock as he brought guns and ammunition into his room and, subsequently, respond to the attack in a timely manner.” Chokshi, “More Than 450 Las Vegas Shooting Victims Sue Over Attack,” New York Times, Nov. 21, 2017. Is the hotel liable for Paddock’s criminal acts?

Paddock’s Actions Were Unique

While hotels and concert venues are favorite targets for terrorists both home (Pulse Nightclub in Orlando: 50 dead, 53 injured (Santora, “Last Call at Pulse Nightclub, and Then Shots Rang Out,” New York Times, June 12, 2016)) and abroad (Taj Mahal Palace & Tower Hotel and the Oberoi Hotel in Mumbai: 61 dead, 100s injured (Sengupta, “At Least 100 Dead in India Terror Attacks,” New York Times, Nov. 27, 2008); Nasa-Hablod Hotel in Mogadishu, Somalia: 23 dead, 30 injured (Mohamed, “In Mogadishu, Truck Bomb and Gunmen Kill at Least 23 on hotel attack,” New York Times, Oct. 29, 2017; Concert in Manchester, United Kingdom: 23 dead, 500 injured (Callimachi & Schmitt, “Manchester Bomber Met With ISIS Unit in Libya,” June 3, 2017); Concert at Balacian Theatre in Paris, France: 89 dead, 100s injured (Nossiter, Breeden & Bennhold, “Three Teams of Coordinated Attackers Carried Out Assault on Paris,” New York Times, Nov. 14, 2015)), the Las Vegas incident appeared to be unique, featuring a VIP hotel guest turning his suite into a shooting platform to kill and wound hundreds of non-guests enjoying a concert across the street from the hotel.

Common Law Duties

Hotels in the United States are best viewed as quasi-public institutions wedded to the past in terms of the law which defines their duties and obligations to guests. The origin of hotel law goes back several hundred years. Darby v. Compagnie Nationale Air France, 96 N.Y. 2d 343 (2001) (“The duties of innkeepers have developed over centuries. By Chaucer’s time, English law recognized the responsibilities of innkeepers to their customers … . At common law, the innkeeper was required, among other things, to provide food, lodging and safe harbor for its guests … . These principals were carried across the Atlantic and by and large, helped shape our formulations of innkeepers’ duties”).

Guest vs. Non-Guest

The legal obligations between the traveler and the hotel depend upon whether the traveler is a guest. If the hotel physically accepts the traveler as a guest and actually provides accommodations or services based upon that status, then the hotel is bound to perform its common law duties as modified by statute. The act of physical acceptance is critical since it gives the innkeeper an opportunity to accept or reject the traveler. A non-guest may have a legal relationship with a hotel but that relationship does not entail the innkeeper’s common law duties. Dickerson, “Travel Law” §4.03; see also McAndrew v. Pierre Hotel, N.Y.L.J. (July 8, 1998) (“The question then becomes whether the duty of the Pierre Hotel to insure the safety of its guests and business invitees should be extended to encompass individuals like plaintiff, who intend to enter the premises … but who are assaulted on a public sidewalk outside the premises before entering. The court finds that it should not.”).

Duty to Provide Safe Accommodations

Hotels, under a common law duty to provide safe accommodations to their guests, are governed by a standard of reasonable care which may depend upon to whom it is owed, e.g., whether the hotel had notice and/or caused the conditions the resulted in the accident, whether the guest was contributorily negligent, whether the accident was foreseeable, whether there are industry or statutory standards or hotel policies, whether the hotel assumed a duty to prevent the spread of diseases such as norovirus and Legionella, whether the hotel negligently failed to summon emergency medical services, whether the hotel failed to adequately exterminate bedbugs, whether a hotel should provide a lifeguard for its pool and so on. Dickerson, “Travel Law” §4.04[1][a][iv]].

Duty to Protect Guests From Others

As a general rule, the hotel, although not an insurer, must protect the guest from the assaults of other guests or intruders, if possible. However, the hotel owes that duty to guests, not to persons who come onto the premises for an illegal purpose. See e.g., Keller v. Montelean Hotel, 43 So. 3d 1041 (La. App. 2010) (cable technician injured by suicide jumper from hotel roof; summary judgment for hotel; no evidence of hotel’s knowledge of prior suicides or that suicide could have been prevented). Hotels must provide the quality of security procedures commensurate with the level of crime in the local environment. Shadday v. Omni Hotels Management, 477 F. 3d 511 (7th Cir. 2007) (guest raped in hotel elevator; “We can get a better sense of a hotel’s duty’s to protect guests against crimes by observing that the hotel has much better access to information about the danger than its guests do.”).

Nevada Hotel Law

Nevada Public Accommodations statute (NRS-651) sets forth the modern statutory analogue of the common law duties of hotels. NRS 651.015, Civil liability of innkeepers for death or injury of person on premises caused by a person who is not an employee, states, in part: “2. An owner or keeper of any hotel … is civilly liable for the death or injury of a patron or other person on the premises caused by another person who is not an employee under the control and supervision of the owner or keeper if: (a) The wrongful act which caused the death or injury was foreseeable and (b) The owner or keeper failed to take reasonable precautions against the foreseeable wrongful act … . 3. For purposes of this section, a wrongful act is not foreseeable unless: (a) The owner or keeper failed to exercise due care for the safety of the patron or other person on the premises; or (b) Prior incidents or similar wrongful acts occurred on the premises and the owner or keeper had notice or knowledge of those incidents.”

Nevada Supreme Court Analysis

In Smith v. Mahoney’s Silver Nugget, 265 P. 3d 688 (2011), a case in which a patron of hotel/casino bar was fatally shot and the estate sued the alleging negligence and wrongful death, the Nevada Supreme Court noted that NRS 651.015(3)’s definition of “foreseeable” provides the appropriate framework for (determining responsibility) in the context of innkeeper liability by codifying the common-law approach. See Doud v. Las Vegas Hilton, 864 P. 2d 796 (1993). The Nevada Supreme Court concluded: “The district court properly determined that the fatal shooting was unforeseeable under NRS 651.015(3)(b) ‘because there were no prior incidents or similar wrongful acts [that] occurred on the premises’. However, as discussed in Doud, proof of prior incidents of similar wrongful acts are sufficient, but not always necessary, for establishing the existence of a duty … the circumstances surrounding the commission of a wrongful act may provide the requisite foreseeability for imposing a duty where no prior incidents of similar wrongful conduct have occurred on the premises.” The Nevada Supreme Court’s analysis of NRS 651.015 seems to apply only to the hotel’s duties to guests and accidents to them on the premises.

Duties to Protect Non-Guests

There is a line of cases addressing the hotel’s duties to non-guests who are injured by objects thrown by guests from the hotel. In Connolly v. The Nicollet Hotel, 254 Minn. 373 (Minn. Sup. 1959), a passerby was walking in the front of the Nicollet Hotel on the sidewalk when she was struck in the left eye by a substance described “as a mud-like substance or a handful of dirt,” resulting in a permanent loss of vision. At the time the hotel was the venue for the 1953 National Junior Chamber of Commerce Convention at which 350 to 400 delegates were accommodated and more than 4,000 young men attended Convention activities. Regarding the issue of “whether or not the act causing the injury was within the range of foreseeability and, if so, whether the defendants exercised the required degree of care to protect the public from the consequences of such an act,” the court noted the presence of “free intoxicants” and numerous complaints well known to management “that the premises, both inside and out, had been littered with the debris of broken glasses and bottles.” In addition, another pedestrian and policemen complained of water bags being thrown from the hotel onto the sidewalk. “The accumulated effect of these happenings was to the executive director of the hotel a ‘harrowing experience.’ The court concluded that dropping objects from the hotel’s window was “within the range of foreseeability.” See also Gore v. Whitmore Hotel Co., 83 SW.2d 114 (Mo. App. 1935) (paper bag containing water thrown from hotel injures pedestrian; objects thrown from hotel every night of the Veterans of Foreign Wars Convention); compare with Larson v. St. Francis Hotel, 188 P.2d 513 (Cal. App.) (pedestrian injured from armchair thrown from hotel window).

Conclusion

The liability of the Mandalay Bay Resort & Casino for the tragic events in Las Vegas will certainly depend upon the facts that are developed through discovery. However, the uniqueness of Paddock’s reign of terror combined with no prior instances of similar misconduct may also have some impact upon the issue of liability. Thomas A. Dickerson is a former Associate Justice of the Appellate Division Second Department of the New York State Supreme Court and the author of “Travel Law” (Law Journal Press, 2017).