Hospitality law cases

Hospitality law cases DEFAULT


  • October 08, 2021

    Promoter Wants 2nd Circ. To Save US Soccer Antitrust Suit

    A sports promoter urged the Second Circuit to revive its suit accusing FIFA and U.S. Soccer of engaging in a worldwide conspiracy to boycott leagues, clubs and players who participate in unsanctioned matches.

  • October 08, 2021

    Santa Fe Resort Equity Owner Says Ch. 11 Deal A 'Sham'

    An equity owner in a luxury New Mexico resort Friday asked a Delaware bankruptcy judge to stop what he called a proposed "sham" bankruptcy sale of the property, claiming the company is unreasonably rejecting a superior offer for the assets.

  • October 08, 2021

    NY Judge Doubts Challenge To Vax Mandate But Grills City

    A Brooklyn federal judge on Friday appeared skeptical of a legal challenge to New York City's indoor COVID-19 vaccination requirement, but asked city attorneys some pointed questions about the rule's exemptions for visiting artists and athletes.

  • October 08, 2021

    9th Circ. Says Judge Used 'Shortcut' To Ax Attys From Fee Bid

    The Ninth Circuit has ordered that a trio of lawyers be included in the attorney fee calculations for an Americans with Disabilities Act case, saying a lower court had used an arbitrary "shortcut" to cut off the lawyers after finding their firm had overbilled and overstaffed the case.

  • October 08, 2021

    Insurer Says It Needn't Cover $17M Verdict For Texas Shooting

    An insurance company has told a Texas federal court that it doesn't have to cover a now-shuttered bar-restaurant following a $17 million jury verdict finding it liable for a mass shooting, arguing that the venue's policy includes a firearms exclusion.

  • October 08, 2021

    Meet The Attys Bringing COVID Suit Under Conn. Workers Law

    Three workers laid off by a Connecticut McDonald's franchise after decades of employment are bringing what may be the first suit to make use of a state workers' rights law requiring that those let go due to COVID-19 be hired back in order of seniority.

  • October 08, 2021

    Real Estate Rumors: Wheelock, Apollo, X Caliber Funding

    Wheelock Street Capital has reportedly paid $106.4 million for a Florida hotel, Apollo Commercial Real Estate Finance and Prospect Ridge have reportedly loaned $133 million for a Boston condo building, and X Caliber Funding is said to have loaned $23 million for a Florida assisted living property.

  • October 08, 2021

    1st 'Varsity Blues' Trial Ends With Guilty Verdict

    A Boston federal jury on Friday convicted a former casino magnate and a hedge fund founder in the first trial over the "Varsity Blues" college admissions scandal, handing prosecutors a signature victory in a case that has ensnared dozens of corporate titans and celebrities and raised issues of wealth, class and corruption at elite American universities.  

  • October 08, 2021

    UK Litigation Roundup: Here's What You Missed In London

    This past week in London has seen Facebook hit with a new copyright claim, retail rivals Next and Matalan go toe-to-toe over clothing designs and currency exchange provider ICE collapse into administration. 

  • October 07, 2021

    Subway Beats Tuna Label Suit As Judge Notes Fishy Citations

    A California federal judge Thursday dismissed for now Subway customers' proposed class action alleging the sandwich chain misrepresented its tuna as sustainable, saying the customers didn't plead reliance on the purported misrepresentations and admonishing plaintiffs' attorneys that it makes him "suspicious" to see parties citing cases outside the circuit.

  • October 07, 2021

    Pa. Hotel Insurer Wrongly Excluded From Sex-Trafficking Suit

    A Pennsylvania appellate panel ruled Thursday that Nationwide Property and Casualty Co. was wrongly blocked from intervening in a suit accusing three hotel chains that it insured of turning a blind eye to sex trafficking of underaged girls.

  • October 07, 2021

    PPP Loan Scammer Who Faked Suicide Gets Nearly 5 Years

    A man who applied for more than half a million dollars in fraudulent pandemic relief loans before faking his own suicide following his arrest and going on the run for three months was sentenced Thursday to close to five years in prison by a Rhode Island federal judge.

  • October 07, 2021

    Hyatt Regency's Virus Science Can't Revive Coverage Suit

    The Hyatt Regency Seattle couldn't persuade a Washington federal judge to change her decision tossing a suit against a Zurich Insurance Group unit over pandemic-related losses, according to a decision Thursday that found the hotel owner's "newly discovered" evidence that COVID-19 is airborne wasn't enough to move the needle on the case.

  • October 07, 2021

    Greenspoon Marder Adds 2 Corporate Attys In LA, Atlanta

    Greenspoon Marder LLP has brought aboard former partners at Howard & Howard Attorneys PLLC and Taylor English Duma LLP to strengthen the firm's transactions, tax and estate planning, and tax controversy services, the firm announced this week.

  • October 07, 2021

    3 Ways To Navigate Tipped Wages Obligations

    Calculating pay for gratuities-earning workers can be a "nightmare," and with a recent Eleventh Circuit decision reaffirming a longstanding formula for determining tipped wages and an imminent overhaul of federal regulation, employers should rigidly structure workers' duties or even consider doing away with tips altogether, attorneys said.

  • October 06, 2021

    McDonald's Gets Win In Blind Man's Drive-Thru Bias Suit

    An Illinois federal judge has favored McDonald's in its latest bid to toss a blind man's suit claiming the burger giant violates the Americans with Disabilities Act by limiting late-night services to drive-thru windows, ruling that the company's franchise unit doesn't "operate" restaurants under the ADA.

  • October 06, 2021

    Calif. Restaurant's Insurer On Hook For $960K Injury Verdict

    An insurer must pay out nearly $1 million in damages to a diner who injured his right knee in a fall at a California buffet restaurant after a state appellate court on Wednesday dismissed its argument that the jury was "tainted."

  • October 06, 2021

    Ariz. Restaurant's Own Revenue Reports Sink H2-B Request

    A Board of Alien Labor Certification Appeals judge upheld a decision to deny a Mexican-Japanese fusion restaurant's H2-B request Tuesday, saying the company's revenue reports contradicted its assertion that the jobs were temporary, as the visa program requires.

  • October 06, 2021

    In 'Varsity Blues' Closings, It's 'Common Sense' Versus 'Setup'

    A prosecutor urged a jury to use "common sense" to convict two parents on trial in the "Varsity Blues" college admissions case, while the defense claimed during closing arguments Wednesday that their clients were "set up" by investigators and the scheme's corrupt ringleader.

  • October 06, 2021

    Kelley Drye Helps With $61M Manhattan Hotel Loan

    A KSL Capital Partners entity has loaned $61 million to an entity affiliated with Arnold & Porter for a Manhattan hotel, and Kelley Drye worked on the matter, according to records made public in New York City on Wednesday.

  • October 06, 2021

    Insurers Beat Hotels' Suit Over COVID-19 Contamination

    A New Jersey state judge has ruled that the alleged presence of COVID-19 at Highgate Hotels LP's properties across the country does not constitute "direct physical loss or damage" to trigger pandemic-related insurance coverage under a $600 million program from a Liberty Mutual unit and other insurers.

  • October 06, 2021

    Marriott Beats Stockholder Suit For Data Breach Damages

    Stale claims and failure to show a complete lapse of board oversight have sunk a stockholder suit accusing Marriott Corp. directors of failing to protect the company from a massive data hack, uncovered after Marriott's acquisition of the Starwood Hotels chain, that exposed 500 million guests' personal information, Delaware's Chancery Court has ruled.

  • October 05, 2021

    King & Spalding Nabs Dechert International Arbitration Atty

    Érica Franzetti has joined King & Spalding LLP as a trial and global disputes partner from Dechert LLP.  She's an international arbitration attorney who focuses on international commercial and investor-state arbitrations and looks forward to developing her practice in Brazil.

  • October 05, 2021

    Cruise Co. Can't Escape Suit Over Employee's Death

    A Florida federal judge has refused to dismiss a lawsuit brought by the father of a seaman who died while aboard the college student-focused MV World Odyssey cruise liner, finding that the United States is the proper venue for the case, not the Bahamas.

  • October 05, 2021

    NY High Court Explores Whether Daily Fantasy Is Gambling

    New York's highest court on Tuesday hammered a lawyer for the state over whether daily fantasy sports contests like those offered by DraftKings and FanDuel are gambling, raising doubts about the constitutionality of the 2016 law legalizing the contests.

  • Sours:

    Hospitality Case Review: The Top 100+ Hospitality Cases That Impacted Us in 2018

    Written by Karen Morris, J.D., LL.M. and Diana S. Barber, J.D., CHE, CWP

    1. Brito v. Wyndham Hotels and Resorts, LLC, 2018 WL 317464 (D. Colo., 01/08/2018). Plaintiff is a paraplegic and requires the use of a wheelchair to ambulate. While at defendant hotel he encountered multiple violations of the Americans with Disabilities Act (ADA) that effected his use and enjoyment of the premises and sued. The hotel challenged plaintiff’s standing. To establish standing, a plaintiff must show, inter alia, that he suffered an injury in fact. To prove that, plaintiff must establish a likelihood that he will return to defendant’s premises. Factors a court considers are the proximity of the business to plaintiff’s residence, the plaintiff’s past patronage of the business, the definitiveness of plaintiff’s plan to return, and the plaintiff’s frequency of travel near defendant. In the complaint plaintiff stated he lives in the same county as defendant, he has frequented defendant hotel for “pleasure purposes,” he was a guest at the premises for a two day stay, and he alleges an intention to return within four months. This constitutes a personal stake in the outcome to constitute standing and avoid dismissal of the complaint.

    2. In Re Lorraine Hotel 2017 LLC, 2018 WL 5288893 (N.D. Ohio, 10/22/2018). Plaintiff hotel filed a Chapter 11 petition in bankruptcy. The debtor’s sole asset was a 93-room hotel, of which 54 rooms were rentable. The debtor did not have casualty insurance covering destruction of, or damage to, the facility. The Bankruptcy Code, Section 1112(b) authorizes a judge to dismiss or convert a Chapter 11 case to Chapter 7 “for cause.” Cause exists where a debtor fails to maintain appropriate insurance resulting in risk to the estate. The court stated appropriate insurance coverage is of “paramount importance” in this case because of the single asset in the estate and the status of the business as a struggling downtown hotel. The court thus dismissed the Chapter 11 case and denied conversion to Chapter 7. Instead, creditors can pursue their state remedies.

    Class Action
    3. Valverde v. Xclusive Staffing, Inc., et al, 2018 WL 4178532 (D. Co., 08/31/2018). Plaintiff is an employee of Omni Hotel. Per the written employment policies of the management company that operates the hotel, a $3.00 processing fee is deducted from each paycheck plaintiff and other employees receive. Plaintiff objected and seeks certification of a nationwide class of plaintiffs. Defendant objected arguing the allegations were insufficient to show that plaintiffs from other states were subject to the same policy. The court noted that defendant management company’s policies are national and controlled centrally from its Colorado headquarters. They are contained in its written employment policies used nationwide. The court thus found the evidence sufficient to certify a nationwide class.

    4. Murphy Elevator Co., Inc., v. Coco Key Hotel & Water Resort, 2018 WL 1747924 (Ohio Appls Crt, 04/11/2018). The parties had a two-year elevator maintenance contract. After the first year and a half, the hotel failed to pay. The elevator company stopped performing and sued for breach of contract. The hotel argued that it should only be liable for the unpaid moneys up to the time plaintiff stopped performing. The court rejected this argument and granted the elevator company lost profits. Noted the court, an award of damages should put the injured party in the same position it would have been in had there been no breach.

    5. Stanciel v. Ramada Lansing Hotel and Conference Center, 2018 WL 842907 (Mich. Appls, 02/13/2018). Plaintiff fell when entering a hot tub at defendant hotel. Plaintiff attributes the fall to a broken support bar leading into the tub. Plaintiff sued, and the parties purportedly agreed to a settlement. Defendant prepared a written settlement agreement and submitted it to plaintiff. The documents included a “Medicare addendum.” Defendant’s attorney told plaintiff’s counsel to advise if he had a problem with any of the wording. Plaintiff returned the signed documents to defendant but unilaterally crossed out language in the addendum. Plaintiff now seeks to enforce the settlement agreement. Defendant argued the agreement was not valid because defendant was not willing to agree to the settlement without the eliminated clause. Plaintiff argued the clause that was crossed out was not an essential term of the settlement agreement so there was still a meeting of the minds on all the essential terms. The court ruled the parties did not reach an enforceable settlement agreement. Case dismissed.

    6. Claris, Ltd. v. Hotel Development Services, LLC, 2018 WL 3203053 (Crt. Appls, Ohio, 06/29/18). Per contract dated 8/2005, defendant agreed to build plaintiff a 4-floor, 122 room hotel which plaintiff planned to operate as a Candlewood Suites. The construction was completed in late summer 2006. In 2013 the hotel began experiencing water penetration when rain occurred. Plaintiff’s expert witness investigated defendant’s construction work of the hotel’s walls and identified five deficiencies. The expert excluded one of the five as the cause of the water problem but did not identify the extent to which the other four may have contributed to the damage. Therefore, plaintiff failed to establish that a breach of contract by defendant caused the leakage. Thus, the court reversed a jury verdict in favor of plaintiff and directed a verdict for defendant.

    7. Couture Hotel Corporate v. US, 2018 WL 3076847 (Crt. of Fed. Clms, 06/21/2018). Plaintiff purchased a $9 million hotel near Nellis Air Force Base intending to participate in the off-base lodging business for visitors to the base utilized when on-base lodging is full. To meet the base’s requirements, plaintiff made modifications costing in excess of $1 million. When the work was completed, defendant advised plaintiff that, due to lowered demand, it was not adding any new facilities to its overflow listings at the time. Plaintiff sued, claiming that defendant’s refusal to permit plaintiff to compete for off-base services violated the Competition in Contracting Act, various associated procurement regulations, and a contract implied-in-fact. The court held for the government finding procurement rules were not violated, and a contract-in-fact did not exist. While the government representative talked to plaintiff about prerequisites to qualify for the lodging overflow business before plaintiff purchased the facility, documents provided to plaintiff clearly stated that a prerequisite to the government signing a contract were various inspections and approvals. Said the court, “[I]n negotiations where the parties contemplate that their contractual relationship would arise by means of a written agreement, no contract can be implied.” The complaint was thus dismissed for failure to state a claim.

    Default Judgment
    8. Travelodge Hotels, Inc. v. Durga, LLC, 2018 WL 5307809 (D. NJ, 10/26/2018). Defendant was a franchisee of plaintiff. Defendant ceased operating and plaintiff filed suit for damages for breach of contract. Plaintiff ultimately received a default judgment. Defendant now seeks relief from that judgment. He argued his failure to defend was excusable because he was traveling the world searching for experimental medical treatments for their daughter who suffers from a rare anoxic brain injury which worsened about the time of the lawsuit. Per defendant, this search “consumed” his life. The court granted the relief, noting that the defendant’s inattention to the lawsuit was excusable given the daughter’s illness.

    Eminent Domain
    9. North Carolina Dept. of Transportation v. Laxmi Hotels, Inc., 2018 WL 2207793 (05/15/2018). Defendant operates a Super 8 Motel. The Department of Transportation (DOT) sought to widen and improve the street on which the hotel was located. As a result of the work, the hotel lost several parking spaces. Also, due to a 15-foot tall retaining wall installed, visibility of the facility from the nearby thoroughfares was totally lost. The DOT claims it explained the extent of the work to be performed. The hotel’s president stated the DOT assured him the hotel would not lose any parking spaces and failed to explain the height of the retaining wall. As a result of the lost parking and street visibility, the hotel claims the DOT significantly underpaid for the taking since the loss of parking and visibility severely impacted the value of the hotel. The court agreed that the DOT did not adequately inform the hotel of the extent of the taking of hotel property. The court thus ordered the DOT to provide just compensation. The case was remanded for further calculation of appropriate reimbursement for the hotel.

    Employment/Actual Employer
    10. Frey v. Hotel Coleman, et al, 2018 WL 4327310 (7th Cir., 2018). Plaintiff worked at a Holiday Inn Express in Algonquin, Illinois. The hotel was owned by Hotel Coleman, Inc. which hired Vaughn Hospitality, Inc. to manage the facility. Vaughn Hospitality consisted of Michael Vaughn and his wife. Plaintiff’s paychecks came from Hotel Coleman; she was trained, supervised, evaluated, assigned, etc. by Vaughn Hospitality. Plaintiff claimed Michael Vaughn sexually harassed her and she filed a claim with the EEOC. She was thereafter fired and sued Hotel Coleman and Vaughn Hospitality for retaliatory discharge. The lower court determined Vaughn Hospitality was not plaintiff’s employer and dismissed the charges against it. Following trial against Hotel Coleman, plaintiff appealed Vaughn Hospitality’s dismissal. The appeals court reviewed several factors to consider when determining who is an employer, the most important being the right to control and supervise the worker. The court vacated the ruling that Vaughn Hospitality was not a joint employer and remanded the case. In doing so the court commented that the district court will “likely” conclude that Vaughn Hospitality was plaintiff’s employer.

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    (585) 256-0160
    [email protected]

    Karen Morris is an elected Town Justice in Brighton New York, a Professor of Law at Monroe Community College (MCC), and an author. She was elevated to the title of Distinguished Professor, awarded by the Chancellor of the State University of New York.

    She has written several textbooks including numerous editions of Hotel, Restaurant and Travel Law, the latest of which was published in 2017 by Kendall Hunt and won a Textbook Excellence Award from Text and Academic Authors Association. She also wrote two editions of New York Cases in Business Law for Cengage Publishing. In 2011, she published Law Made Fun through Harry Potter’s Adventures, and in 2017, Law Made Fun through Downton Abbey. She also co-authors Criminal Law in New York, a treatise for lawyers. She writes a column for Hotel Management Magazine entitled, Legally Speaking, and a blog for Cengage Publishing Company on the law underpinning the news.

    Among the courses she has taught are Hotel and Restaurant Law, Business Law I and II, Constitutional Law, Movies and the Law, “The Michael Jackson Trial” and “O.J. Simpson 101; Understanding Our Criminal Justice System.” Her course offerings include some in traditional classroom settings and others online. She won the Excellence in Teaching Award in 1994, having been selected by her peers, and the Chancellor’s Award for Teaching Excellence in 2002, conferred by the Chancellor of the State University of New York.

    (404) 822-0736
    [email protected]
    [email protected]

    Diana S. Barber, J.D., CHE, CWP is currently an adjunct professor teaching hospitality law and hospitality human resource management at Georgia State University in Atlanta, GA. In addition, she conducts a one-day workshop on contracting and risk management for the Events and Meeting Planning Certificate Program offered by The University of Georgia in Athens, Georgia.

    In 2017, Diana became a co-author of Hospitality Law, Managing Legal Issues in the Hospitality Industry (5th Edition), along with Stephen Barth.
    Ms. Barber is a recipient of the J. Mack Robinson College of Business Teaching Excellence Award in 2011 and was awarded 2011 Study Abroad Program Director of the Year by Georgia State University. In addition, Ms. Barber is the recipient of the 2010 Hospitality Faculty of the Year award and in 2012, received a Certificate of Recognition from the Career Management Center for the J. Mack Robinson College of Business. Ms. Barber is a member of Phi Beta Delta, an honor society for international scholars. Diana also completed her certification as a Certified Wedding Planner through the nationally recognized [the] Bridal Society.

    Ms. Barber has recently launched a consulting/speaking company called LodgeLaw Consulting using her combined academic and hospitality legal skills; specializing in providing education to hospitality companies on preventative measures to reduce legal exposure, as well as a full range of legal services to hotels, motels, restaurants, event planning companies and private clubs. She has over thirty years of legal hospitality experience. Diana began her law practice as an associate attorney at King & Spalding in Atlanta, Georgia after graduating cum laude from Walter F. George School of Law at Mercer University in Macon, Georgia. She then spent over fourteen years with The Ritz-Carlton Hotel Company, LLC serving as vice president and associate general counsel. She is a member of the State Bar of Georgia, G.A.H.A., and the Georgia Hotel & Lodging Association (“GHLA”).

    TagsADAContractsDiana BarberEminent DomainEmployment LawFranchisors/FranchiseesHospitality IndustryInsuranceKaren MorrisLitigationTips & TippingWage & Hour

    Karen Morris

    "For 22 years as Brighton Town Judge I have enforced the law, applying the rules without favor. As a judge, I blend fairness, impartiality, diligence, caring and firmness in all my decisions. Like you I am concerned about the safety of our community, the future of our young people, and the wellbeing of our residents. To those ends, I hold convicted defendants accountable, and for nonviolent offenders I include mandatory rehabilitation programs to help eliminate repeat criminal behavior" Additionally,

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    Four woman sued the Pierre Hotel in the United States District Court For The Southern District Of New York trying to prove that the hotel did not hire them as banquet servers because of their gender.

    In late summer of 1998, the Pierre Hotel had interviewed 37 applicants, 30 men and 7 women, for six banquet waiter positions. From that group, six men were hired. The woman presented evidence at the trial intended to show that the Pierre Hotel had hired very few women as banquet servers in the past, that they were treated differently in their interviews and were evaluated by different standards than their male counterparts, and that they had significantly more experience as banquet servers than the male applicants who received job offers.

    Pierre Hotel presented evidence to show that the woman were treated similarly to male applicants in their interviews, that the successful applicants presented themselves better than the woman did in their interviews, and that the interviewer generally gave great weight to prior experience at the Pierre Hotel, even in positions other than banquet server. At the end of the trial, the jury returned a verdict for the Pierre Hotel.

    Following the verdict, the attorney for the women and the attorney for hotel approached the jurors and talked with some of them. Juror Number 1 and Juror Number 6 told the attorney for the women that Juror Number 9, characterized by the attorney as a "corporate travel consultant," communicated her personal knowledge of the New York hotel industry to the jury. In particular, they said that Juror Number 9 told the jury that the hotels in which one of the women, Nancy Cocconi, had worked, including the Roosevelt Hotel, the Algonquin Hotel, and the Hilton Hotel, were not of the same quality as the Pierre Hotel. The jurors also discussed with the attorney for the women their level of familiarity with the hotel industry and the extent of their reliance on the information communicated by Juror Number 9.

    The attorney for the women called these events to the district court's attention in a letter. Upon learning of the attorneys' conversations with jurors, the district court on February 28, 2001, ordered the parties to refrain from further contact with jurors without special permission from the district court. Soon thereafter, the attorney for Nancy Cocconi filed legal proceedings to set aside the verdict and grant a new trial on the grounds that extraneous, prejudicial information was communicated to the jury.

    Based on the evidence presented and the pertinent legal precedents, the district court decided not to grant a new trial. Here, in part, is what the district
    court said:

    "Any statements made by Juror Number 9 regarding the relative quality of New York City hotels were not improper. Such information concerns the general reputations of well-known public places in New York City. [The four woman] could not have expected that no jurors had heard of these hotels or were aware of their relative degrees of prestige. The fact that Juror Number 9 was a "corporate travel consultant" does not change the nature of the information imparted."

    Source: Cocconi v. Pierre Hotel, 2001 U.S. Dist. LEXIS 8512
    (United States District Court For The Southern District Of New York)
    (June 26, 2001)
    Stephen Gibson, President, Ornel,Inc.,,,

    Hotel, Hospitality, and Tourism Law Principles and Cases

    Parker v. Manchester Hotel Co.

    [Civ. No. 10605. First Appellate District, Division One. November 30, 1938.]

    JULIA PARKER, Respondent, v. MANCHESTER HOTEL COMPANY (a Corporation), Appellant.


    Charles V. Barfield for Appellant.

    McCarthy, Richards, & Carlson for Respondent.


    Conlan, J., pro tem.

    Plaintiff commenced this action against the defendants, Manchester Hotel Company, owners of the Claridge Hotel, and Westinghouse Electric Elevator Company, serviceors of the elevators in the Claridge Hotel, for personal injuries which she received when she fell in the lobby of the hotel on May 21, 1936.

    The complaint alleged, in part, that on May 21, 1936, and for several years prior thereto, plaintiff was a guest in the Claridge Hotel; that on said day defendants so negligently maintained, regulated and operated said elevator as to cause it to stop with its floor uneven with the floor of the [29 Cal. App. 2d 448] lobby and that the defendant, Manchester Hotel Company so negligently maintained the floor of the lobby immediately adjacent to the door of said elevator as to cause the same to be slippery and uneven and to be hazardous and unsafe for passengers leaving the elevator; that on the date in question, as the result of the automatic elevator having stopped uneven with the level of the lobby floor, and as a result of the slippery, uneven and unsafe condition of the floor, both of said factors concurring in producing and directly and proximately contributing to this result, plaintiff, while leaving the elevator was caused to slip, trip and to fall to the floor of the lobby, thereby sustaining certain alleged injuries.

    The defendants, Manchester Hotel Company and Westinghouse Company, filed separate answers to plaintiff's first amended complaint, wherein each of the defendants denied any negligence and alleged that the plaintiff at the time and place had been guilty of contributory negligence.

    The trial court granted the motion of the defendant, Westinghouse Company, for a nonsuit, but denied the motion for nonsuit of the defendant, Manchester Hotel Company. The jury returned a verdict in favor of the plaintiff and against the defendant, Manchester Hotel Company, in the sum of $2,000. Thereafter the trial court denied the motion of the defendant, Manchester Hotel Company for a new trial, whereupon the defendant, Manchester Hotel Company duly filed notice of appeal from the judgment pursuant to the provisions of section 953a of the Code of Civil Procedure.

    After alleging negligence against both defendants as above stated, there is an allegation in plaintiff's complaint as follows:

    [1] "That as a result of said elevator having stopped uneven with the level of said lobby floor as aforesaid and as a result of the slippery, uneven and unsafe condition of said floor as aforesaid, both of said factors concurring in producing and directly and proximately contributing to this result, plaintiff, while leaving said elevator, was caused to slip, trip and fall to the floor of said lobby with great force and violence."

    The above allegation sufficiently alleges that each of the alleged acts of negligence was a proximate cause of the injury. It is unnecessary to prove all the allegations of negligence. (Criss v. Angelus Hospital Assn., 13 Cal.App.2d [29 Cal. App. 2d 449] 412 [56 PaCal.2d 1274], Potvin v. Pacific Greyhound Lines, 130 Cal. App. 510 [20 PaCal.2d 129], and Froeming v. Stockton Electric R. R. Co., 171 Cal. 401 [153 P. 712, Ann. Cas. 1918B, 408].)

    Parker had knowledge of the defective condition of the elevator, the question of her contributory negligence should have been decided by the court as a matter of law; that the trial court committed prejudicial error in its instructions to the jury.

    Appellant relies upon the following testimony of the respondent, Julia Parker, to show that the respondent was guilty of negligence as a matter of law: "Q. I take it, from what you have told us here a little while ago, that the elevator must have been uneven or you would not have fallen, but you actually did not look to see as you stepped? A. Of course, I would not look to see, no sir. I did not look to see, I never did, carelessness that is what it was, I ought to have done that."

    Plaintiff and respondent relied upon the following testimony of Mrs. Parker, the plaintiff, to show that plaintiff had only momentarily forgotten a known danger. Appellant contends that this testimony does not show that plaintiff momentarily forgot, but that she negligently disregarded what she claims to be a known danger. This testimony is as follows: "Q. In times previous to this accident, had you [29 Cal. App. 2d 450] ever noticed that the elevator did not come quite flush with the floor of the lobby? A. Dozens of times. Q. Dozens of times? A. Yes. Q. You were aware of the fact that it was necessary to gauge your step accordingly, were you not? A. Why, you don't think of such a thing when you are in the elevator. You just-- Q. Second nature, you do gauge yourself? A. I expect it was, yes. Q. In accordance with the slight variation between the level of the elevator and the level of the surrounding floor? A. I should expect the elevator to be right. Q. Beg your pardon? A. I should expect it to be right. Q. No, but you had seen it just a trifle up or a trifle down on numerous occasions? A. Oh, lots of times. Q. It had become a habit with you to gauge your step accordingly, when it was off level a little bit, hadn't it? A. In fact, I never thought of it. You never think of such a thing as being off. I never thought of such a thing."

    Appellant further contends the following testimony of the respondent proves that "Plaintiff failed to prove that the defendant was guilty of negligence as alleged in the complaint." "Q. And did you fall as you stepped out into the lobby? A. I may have taken two or three steps first--I do not know--I know I stumbled. Q. And you lost your balance, did you? A. I lost my balance, yes. Q. Did you feel yourself stepping down or up from the elevator floor? A. Well, I was stepping down, of course, to get to the lobby. Q. Do you know how far off of even or flush the elevator floor was from the lobby floor? A. I was just looking ahead, but it never was very far."

    In the deposition which was introduced into evidence Mrs. Parker testified that the elevator was a little bit higher than the floor; that she could not say whether it was about half an inch, but it was enough to make her fall; that she was not quite certain how much higher; that she fell out of the elevator because it was not flush with the floor, she stumbled on the tile floor, it was the elevator's fault.

    Appellant further contends: "Mrs. Parker's conclusion that the elevator was not on a level with the floor when she stepped out is not entitled to any weight or credence when opposed to the direct testimony of eye-witnesses to the contrary, especially when coupled with her admission that she did not look to see as she stepped out, could not tell how much higher the elevator was than the floor and walked a [29 Cal. App. 2d 451] distance of six or seven feet before she fell," and quotes Mrs. Parker's testimony as follows:

    "Q. I take it, from what you have told us here a little while ago, that the elevator must have been uneven or you would not have fallen, but you actually did not look to see as you stepped? A. Of course, I would not look to see, no sir. I did not look to see, I never did, carelessness that is what it was, I ought to have done that."

    Appellant quotes from witness Siddoway's testimony as follows in support of appellant's contention: "There is no evidence that appellant negligently maintained the lobby in front of the elevator." "Q. Well, when did you last polish this floor before May 21st? A. Probably about a week. Q. You say 'probably about a week'--did you remember that it was a week that you polished the floor before May 21st? A. No, sir. Q. It may have been longer than a week? A. It may have been."

    Appellant makes the further contention that plaintiff had no complaint to make of the cleanliness of the floor and attributed her fall solely to the elevator, and quotes her testimony as follows: "I fell out of it because that elevator was not flush with the floor. I stumbled on this tile floor. It was the elevator's fault."

    Appellant further contends the "evidence of alleged negligence in the maintenance and operation of the elevator was insufficient to sustain the jury's verdict" and quotes respondent's testimony as follows: "Q. Now, Mrs. Parker, I believe you said that as you walked out of the elevator you just looked straight ahead of you? A. Yes, sir. Q. You did not look down at the floor, or anything like that? A. No. Q. On the occasion of your unfortunate fall, how do you know that the elevator was not even with the floor? A. Because I fell off, that is why I know it. If it had been even, I would not have fell off. Q. In other words, you did not actually see it, but you knew it was always uneven because you fell as you started to step out, is that it? A. Yes, why certainly, what else would make you fall? What would make you fall unless something caused it."

    Appellant further contends: "In addition to the fact that plaintiff did not look before stepping from the elevator, it further appears that she does not claim that there was any appreciable difference between the level of the elevator floor [29 Cal. App. 2d 452] and the lobby floor." In this regard appellant also quotes the following testimony of Mrs. Parker: "Q. Do you know how far off of even or flush the elevator floor was from the lobby floor? A. I was just looking ahead, but it never was very far. Q. You mean the floor of the elevator was a little bit higher than the floor of the adjoining floor? A. Yes. Q. About a half an inch, would you say? A. I could not say. It was enough to make me fall, that's all I know. Q. Now, as you walked out of the elevator you say that you may have taken a few steps? A. I might, yes, some, yes. Q. And can you tell us just how many steps you took, Mrs. Parker? A. No. Q. And what is your best recollection as to how many steps you took after you left the elevator before you fell, just your best recollection? Mr. Carlson: Objected to on the ground it has already been asked and answered. She said she cannot say. The Court: She may answer. A. I said I could not remember. Mr. Barfield: Q. Do you think that you moved, walked six or seven feet after you left the elevator? A. Yes. Q. In the lobby, what type of a floor is there? A. Just exactly like glass, exactly like glass. He keeps it polished. You can go and see for yourself--terribly smooth, just like glass. Q. You were aware of the fact that it was necessary to gauge your step accordingly, were you not? A. Why, you don't think of such a thing when you are in the elevator. You just-- Q. Second nature, you do gauge yourself? A. I expect it was, yes."

    On the taking of her deposition the respondent, Mrs. Parker, testified in part as follows: "Q. Mrs. Parker, did you see anybody get into the elevator and close the door before you fell? A. That lady was going up. I was the only one that came out. She was the only one that went up. Q. This lady did get into the elevator, did she not? A. Yes. Q. She got in before you got-- A. (Interrupting.) What? Q. She got in before you fell, did she? A. Yes. Q. Then you were outside of the elevator before you fell? A. I was just stepping out. She had just closed the inside door. I was just stepping out of the elevator when I fell. Q. Was the inside door entirely closed before you fell? A. I don't know."

    Mark Siddoway, a witness called on behalf of the plaintiff, testified in substance and in part as follows: [29 Cal. App. 2d 453]

    And on cross-examination, Mr. Siddoway testified in substance and in part as follows:

    That he left the Claridge Hotel about June 6th; that he did not quit of his own volition; that he had a misunderstanding with Mr. Port and he was discharged; that they used wax and a polishing machine on the terra cotta surface; that he did that himself at times; that he polished the floor at the time; that he polished this floor probably a week before May 21st; that after he got through polishing it, it was not rough; that he reported the unevenness of the elevator to Mr. Swelzy or Mr. Port, the assistant manager; that he believed he did mention it to Mr. Port, the manager [29 Cal. App. 2d 454] at one time; that he noticed these variations before the date of the accident and they would vary sometimes above and sometimes below the main floor; that these variations occurred in both operations, either up or down; that sometimes it would be a little above and sometimes a little below; that it usually stopped below or above; that when he went to measure it it was about 5 o'clock in the morning the day after the accident and that at that time he found there was a variation above the main floor and that it stopped a little above the main floor; that the largest variation he observed that day was approximately from four to six inches; that at the time he made those tests on the day following the accident there was no one in the elevator but himself.

    Mr. A. B. Hendrickson, a guest at the hotel, testified in part as follows:

    "Q. And as she fell did she have hold of that door? A. Well, I could not say exactly, but she either had hold of the doorknob or was reaching for it. Q. And was the outer door of the elevator open as she fell? A. Yes sir."

    [2] The case of Haag v. Harris, 4 Cal. 2d 108 [48 PaCal.2d 1], answers the contention of appellant that the testimony shows that the appellant was not guilty of negligence in the maintenance of the elevator because appellant had a service contract with the Westinghouse Company by which the elevator company serviced the elevators and made all the necessary repairs and adjustments.

    We believe the rule announced in this case (Haag v. Harris, supra) applies to the evidence in the record and is controlling in the instant case as to the liability of the appellant for the condition of the elevator.

    [3] There is no question about the rule in California that the owner of an elevator is responsible for injury occasioned by the slightest neglect which human care and foresight might have guarded, and that, though not insurers of the absolute safety of passengers, they are bound to utmost care and diligence of very cautious persons. (Gregg v. Manufacturers Bldg. Corp., 134 Cal. App. 147 [25 PaCal.2d 1014], and cases therein cited. See, also, Jacobi v. Builders' Realty Co., 174 Cal. 708 [164 P. 394, L.R.A. 1917E, 696], and White v. Red Mountain Fruit Co., 186 Cal. 335 [199 P. 318].) [4] Even if respondent had knowledge of the defective [29 Cal. App. 2d 455] condition of the elevator, it is still a question for the jury whether she used ordinary care for her own safety.

    The case of Perrault v. Emporium Department Store Co., 71 Wash. 523 [128 P. 1049], cited by the appellant, does not sustain appellant's contention that the respondent in the instant case was guilty of contributory negligence as a matter of law. An examination of the facts in this case shows that the plaintiff "facing her companions within, and attempted to step into the elevator without looking at its floor". The third floor of the store was level, carpeted and adequately lighted. The floor of the elevator was uncarpeted. She says that she did not notice the elevator was lower than the floor, that she thought it was level with the floor until she fell, and that she then looked and observed that it was four or five inches below the surface of the floor, etc. The facts in the Perrault case do not differ much from the facts in the instant case except that in the Perrault case the lady was getting into the elevator and there was an elevator attendant at his post. It was held that the contention that the plaintiff was guilty of negligence as a matter of law could not be sustained. The dissenting opinion quotes certain evidence wherein the plaintiff admits she did not look and paid no attention as to whether the elevator floor was level with the storeroom floor or not. The majority opinion held under the circumstances she was not guilty as a matter of law.

    The case of Williams v. Sleepy Hollow Min. Co., 37 Colo. 62 [86 P. 337, 11 Ann. Cas. 111, 7 L.R.A. (N. S.) 1170], cited by respondent, is not particularly helpful in the instant case except that it declares the general rule, viz.: "It is only when the facts are undisputed and are such that reasonable men can honestly draw but one conclusion from them that the court should consider the question of negligence one of law, and not of fact." (Page 340.) This same rule is recognized in California. The case of Lindemann v. San Joaquin Cotton Oil Co., 5 Cal. 2d 480 [55 PaCal.2d 870], cited by the respondent, quotes Smellie v. Southern Pac. Co., 212 Cal. 540 [299 P. 529], wherein it is stated: "Contributory negligence is a question of law only when the court is impelled to say that from the facts reasonable men can draw but one inference, and that an inference pointing unerringly to the negligence of the plaintiff contributing to the injury [29 Cal. App. 2d 456] ... in all other cases the question of contributory negligence is a question of fact for the jury." (See, also, Kanopka v. Kanopka, infra, and Whiteacre v. Boston Elevated Ry. Co., infra.)

    Appellant contends that the rule applied in the case of Mautino v. Sutter Hospital Assn., 211 Cal. 556 [296 P. 76], should apply.

    There is sufficient evidence in the record to uphold the implied finding of the jury that the defendant hotel company was negligent in the maintenance of the elevator so it is unnecessary to consider the application of the rule announced in Mautino v. Sutter Hospital Assn., supra, as to respondent's knowledge of the condition of the floor in the lobby of the hotel.

    Taking the testimony as a whole most favorable to the respondent, there is sufficient testimony to sustain an implied finding that when the respondent opened the door to step into the lobby, the elevator was at a sufficient height from the level of the lobby floor to cause her to lose her balance; that that lack of control of her balance caused her to fall, and that her loss of balance, caused by the elevator's not stopping at the floor level, caused her to fall regardless of the condition of the floor. There is evidence in the record tending to show that the action of the elevator in stopping at the floors was intermittently faulty, and that periodically, but not all of the time, it did not stop at the floor level. There is a clear conflict in the evidence as to how many feet respondent was away from the door of the elevator or how many steps she took before she fell. While it is true there is abundant evidence upon which reasonable men and women might have concluded respondent was guilty of contributory negligence, the implied finding of the jury was to the contrary.

    [5] The plaintiff is not bound by her own testimony. See Whicker v. Crescent Auto Co., infra, and cases cited therein; Kanopka v. Kanopka, infra, and Whiteacre v. Boston Elevated Ry. Co., infra.

    [6] Appellant complains of the following instruction which was given to the jury:

    "The law presumes that the plaintiff and the defendant, and each of them, were free from negligence. Such presumption is a species of evidence, and continues with the respective [29 Cal. App. 2d 457] parties in this case unless and until overcome by contradictory evidence", and cites the cases of Paulsen v. McDuffie, 4 Cal. 2d 111 [47 PaCal.2d 709], Varner v. Skov, 20 Cal. App. 2d 232 [67 PaCal.2d 123], and Whicker v. Crescent Auto Co., 20 Cal. App. 2d 240 [66 PaCal.2d 749].

    It is stated in Varner v. Skov, supra, as follows: "It has also been held in a number of cases in this state that under the circumstances thereof the giving of such an instruction, even if erroneous, was not sufficiently prejudicial to justify a reversal." In the Varner v. Skov case the reversal was for other reasons. The Varner v. Skov case was not reversed on account of the giving of the instruction regarding the presumption and the question of its being prejudicial error although erroneous was not passed upon.

    In Whicker v. Crescent Auto, supra, the case was not reversed. The instruction regarding the presumption was given. The Whicker case involved an injury to an elderly woman who stepped from a safety zone in an attempt to reach the sidewalk. This case states, in part:

    "The automobile driven by Vaughn rounded a corner of Powell and Market streets in San Francisco and turned into the latter street at a speed estimated at thirty miles an hour. The distance from this corner to the place where plaintiff was injured was between twenty-five and thirty feet. The plaintiff was struck as she stepped from a safety zone on Market street in an attempt to reach the north sidewalk. Due apparently to the confusion attending such a casualty, her recollection of the precise details of the accident was far from clear; that of Vaughn created a conflict in certain particulars; and the testimony of a third witness to the occurrence differed in some respects from both.

    "Vaughn's testimony, though evidenced in the case which the jury might consider, did not of itself destroy the probative weight of the fact presumed, the question whether his testimony proved facts sufficient to overcome the presumption being one for the jury. (Smellie v. Southern Pac. Co., 212 Cal. 540 [299 P. 529]; Tuttle v. Crawford, 8 Cal. 2d 126 [63 PaCal.2d 1128].) According to numerous cases it is only where facts are admitted or established by proof (the effect of evidence, Code Civ. Proc., sec. 1824), which are irreconcilable with the presumption that it loses its evidentiary [29 Cal. App. 2d 458] weight. (Mar Shee v. Maryland Assur. Corp., 190 Cal. 1 [210 P. 269]; Smellie v. Southern Pac. Co., supra; 10 Cal.Jur., Evidence, sec. 64, p. 747.) As held in the Smellie case, the calling of an adverse party under the code section does not have that effect, nor in cases of this character is a party who is merely giving a narration as to how events appeared to him rather than making an admission or testifying to a fact peculiarly within his own knowledge, bound by his own testimony as against circumstantial or other evidence which the jury might fairly believe. (Kanopka v. Kanopka, 113 Conn. 30 [154 Atl. 144, 80 A.L.R. 619]; Whiteacre v. Boston Elevated Ry. Co., 241 Mass. 163 [134 N.E. 640]; Hill v. West End Street Ry. Co., 158 Mass. 458 [33 N.E. 582].)"

    The case of Kanopka v. Kanopka, (1931) 113 Conn. 30 154 Atl. 144, 80 A.L.R. 619, holds as follows:

    "The practice in this state conforms to the view expressed by Professor Wigmore. A judicial admission may be made by a party as well as by his counsel. If a party, as a witness, unequivocally concedes a fact, such concession, for the purposes of the trial, has the force of a judicial admission, and a party is bound thereby unless the court, in its reasonable discretion, allows the concession to be later withdrawn, explained or modified, if it appears to have been made by improvidence or mistake. (State v. Marx, 78 Conn. 18, 27 [60 Atl. 690]; State v. Chapman, 103 Conn. 453, 478 [130 Atl. 899].) Unless it amounts to such a stipulation or waiver as to have the force of a judicial admission, the testimony of a party to a fact is ordinarily no more conclusive upon him than the evidence given by any other witness; and it is the duty of the court or jury to determine the fact, not alone from the testimony given by the party, but from all the evidence in the case. (Lampe v. Simpson, 106 Conn. 356, 358, 359 [138 Atl. 141]; Connelly v. Connecticut Co., 107 Conn. 236, 239 [140 Atl. 121]; Clark v. Torrington, 79 Conn. 42, 45 [63 Atl. 657].)"

    This rule is followed in the case of Whiteacre v. Boston Elevated Ry. Co., supra. This case is cited with approval in Kanopka v. Kanopka, supra, at page 146 Atlantic. [29 Cal. App. 2d 459]

    In the instant case, the testimony of the respondent comes within the rule stated on page 146 of Kanopka v. Kanopka, supra, which quotes the rule in Hill v. West End St. Ry. Co., supra, with approval as follows: "There is no sound reason why the familiar doctrine that a party may contradict, though not impeach, his own witness, should not, if the circumstances are consistent with honesty and good faith, be applied when he is himself the witness. Nor, under the same circumstances, is there any reason why, to prove material facts denied by his own testimony, he may not rely on the testimony of a witness called by the adverse party. ... In other words, the law recognizes the fact that parties, as well as other witnesses, may honestly mistake the truth, and requires juries to find the facts by weighing all the testimony, whatever may be its source. In Missouri, where the doctrine is recognized to some extent, it is held that, if a party, through ignorance, oversight or mistake, makes statements against his interest, which are not true, the jury are not bound to give conclusive feet to such statements."

    In our opinion the instruction given in the instant case even if erroneous is not sufficiently prejudicial to justify a reversal. As pointed out by the respondent the instruction applied equally to both parties, and would apply to defendant's benefit to dispel the res ipsa loquitur rule. The testimony of the plaintiff, who was 83 years of age at the time of the accident and approximately 84 years of age at the time of the trial, tends to show she was or may have been confused as to just how far she was from the elevator when she fell.

    Where confusion may have prevented the plaintiff giving a clear and uncontradictory narrative of the events concerning the accident the rule announced in Whicker v. Crescent Auto Co., supra, and cases cited therein, with reference to "confusion" would seem to apply.

    We find no prejudicial error in the other instructions complained of or in the record warranting a reversal of the case.

    The judgment appealed from is affirmed.

    Knight, Acting P. J., and Cashin, J., concurred.


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