by Jonathan T. Howe, Esq. | August 01, 2016
One question the courts often grapple with concerns "foreseeability," or whether an action or injury could have been anticipated, therefore indicating negligence.

Two recent cases dealing with this issue touched upon the hospitality industry. The first dealt with whether hotels are responsible for the actions of security guards who have been retained by an event sponsor. The second looked at whether avalanches are foreseeable on ski slopes in Colorado.

In the first year of law school, one of the cases aspiring young lawyers read is the venerable Palsgraf v. Long Island Railroad, dealing with the question of negligence on the part of a railroad guard. The guard, in assisting a passenger to board a train, accidentally knocked the passenger's package to the ground; unfortunately, the box contained fireworks and exploded on impact. The concussion injured would-be passenger Helen Palsgraf.

In this hallmark case, the New York Court of Appeals adopted the principal that negligent conduct resulting in injury only leads to liability if the defendant could have reasonably foreseen that his or her actions would cause injury. This 1928 decision by Chief Justice Benjamin Cardozo, who later became a U.S. Supreme Court  justice, changed a longstanding rule. The railroad attendant, said Cardozo, could not have possibly foreseen the injury to Palsgraf, and therefore he could not have breached any duty of care. Case dismissed.

Similar principles applied in a California case in which a meeting room was rented to serve as a "voting booth for a presidential election" and the planner hired an outside security company. The event, it turned out, was an absentee ballot for the election of the president of Iran.

Protesters assembled on the morning of the vote; security guards ended up using elbows and pepper spray to quell the unrest. Two protesters sued, alleging the hotel failed to provide reasonable protection from the security guards' aggressive behavior. The California Court of Appeal, 2nd District, found in favor of the hotel, saying it was impossible for the hotel to foresee that the security guards would act aggressively.

In Colorado, a skier was killed by an avalanche in 2012, and his estate contended that the ski run should have been closed and warnings posted. The Colorado Supreme Court disagreed, observing that skiers take on a certain amount of risk themselves on the mountain, as it is common knowledge that snow conditions can change at any moment -- conditions that already are noted in the state's Ski Safety Act. Thus, while the deceased should have foreseen the possibility of the avalanche, it was not the obligation of the mountain's operator to warn him.

Jonathan T. Howe, Esq., is a senior partner of the Chicago and Washington, D.C., law firm of Howe & Hutton Ltd., specializing in meetings and hospitality law. Email questions to him at [email protected]