Erin Andrews From Ten Thousand Feet

March 04, 2016

Beyond doubt, Erin Andrews was emotionally injured by the conduct of Mr. X when he surreptitiously altered Ms. Andrews’ hotel room door peephole so that he could video her o’natural and then publish the video on the internet.  Ms. Andrews was a sports reporter for a national sports network at the time and, thus, was arguably a target for perverts such as Mr. X.  Subsequently, Mr. X was incarcerated for his conduct.  Currently a trial is ongoing wherein Ms. Andrews seeks monetary damages for the harm done to her.  There is little doubt that Ms. Andrews is entitled to damages from Mr. X and the trial should be very straightforward in that regard.  It is simply a matter of how much.  Unfortunately, the likelihood is that Mr. X will never have the capacity to pay Ms. Andrews the amount awarded in a judgment.  Consequently, while for her it may be a moral victory, it will be an expensive moral victory with little material success.

Recognizing the above, Ms. Andrews also brought suit against the hotel wherein she and Mr. X were staying when he committed his illegal acts.  The hotel can pay.  The question is:  Should it have to?  An overview on the law related to this issue is the purpose of this note.

As a general rule under the law of every state, a person is liable to another for the injuries caused by their negligent or intentional misconduct.  Your routine automobile accident case rests upon this principle.  The negligent driver, having not exercised reasonable care in the operation of the motor vehicle, must pay whomever is injured as a result of that negligent conduct.  That principle applies to Mr. X here, except in this instance Mr. X’s conduct was intentional.  He would still be required to pay.  The law is clear.

The law gets much more complicated in Ms. Andrews’ case against the hotel.  As a general rule, no person has a duty to protect another person from injury by a third party.  A corollary to that rule is that under the law, no person has a duty to render aid and assistance to a stranger in distress but that is a matter for another day.   Yet another general rule is that no person has a duty to protect another from the criminal conduct of a third party.  That general rule rests upon the hypothesis that one cannot predict criminal conduct.  So, under the general rules of law, it would appear that the hotel would have no duty to protect Erin Andrews from Mr. X and certainly would not have a duty to protect Erin Andrews from criminal conduct.

However, the general rule does have exceptions.  Persons can assume responsibility for the safety of others under a number of circumstances.  Guardians can be responsible for their wards.  Similarly, certain businesses because of the nature of their business may be held to a higher duty of caution.  Because of the circumstances of the relationship with paying customers, the law will often impose a duty of reasonable protection.  That duty is one of negligence – that is the business (here a hotel) must take reasonable steps to protect someone who is paying money for a room which they would assume would be reasonably safe from intrusion.  Certainly, this duty would be clear if the hotel had a known history of violence to its guests by third parties.

In  Erin Andrews’ case, the question comes down to whether the hotel had a duty or breached its duty to keep Ms. Andrews reasonably safe from a criminal act of which the hotel had no prior knowledge or reason to believe would occur.  Or did it?  Should the hotel have reasonably believed that someone would, in fact, remove the peephole so that they could see into her room with a camera?  It has been reported that Mr. X called the hotel and asked to be placed in a room next to Ms. Andrews.  Should that have signaled some danger to Ms. Andrews?  Should the hotel have accommodated his request?  Did placing Mr. X in a room next to Ms. Andrews facilitate or allow the intrusion into her privacy to occur?  Mr. X did not access Erin Andrews’ peephole via a camera from his room.  He accessed it from the hallway.  He could have done that even if he had not been a guest in the hotel.  Did the hotel actually have to foresee this particular method of harm or is it enough that the hotel should have known that they placed Ms. Andrews in danger of some sort?

Frequently in circumstances such as this, parties settle cases.    Certainly, the hotel is not enjoying the publicity of having Ms. Andrews tearfully testifying about the intrusion of Mr. X while she was a paying guest at the hotel.  There are rational reasons why the hotel has not settled the case and is willing to endure this public trial.  Those reasons may be financial, legal or other.  The hotel’s defense may be resting upon the theory that it did nothing that would have endangered Ms. Andrews and it is not responsible for unforeseeable criminal conduct by third parties.  Time will tell if that defense holds up.