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Archive for the ‘Hospitality’ Category

Colorado Limits Risk Transfer for Snow and Ice Management Services

Posted on: June 13th, 2018

By: Josh Ferguson

Colorado becomes the second state to recently pass an anti-indemnity bill regarding snow and ice management service contracts.  The Snow Removal Service Liability Limitation Act has passed in Colorado and been signed into law by the Governor. The Act provides that it is against public policy and void for a snow and ice removal contract to require a snow and ice management service provider or receiver to: (1) indemnify the other for their own acts or omissions; (2) hold the other harmless for their own acts or omissions; or (3) impose a duty to defend the other for their own acts or omissions. Similar legislation is pending in many other states as indicated by Accredited Snow Contractors Association President Kevin Gilbride.

The Accredited Snow Contractors Association has noted several anticipated benefits to this legislation for the snow and ice management contractors. First, prohibiting transfer of contractual defense and indemnity for a property owner or manager’s own negligence, the property owner and/or manager has an increased reason to make sure the roadways and sidewalks are adequately treated.  Additionally, a potential side effect this statute could have is lowering ever increasing insurance premiums for snow and ice removal contractors by avoiding those tenders of contractual defense and indemnity.

For further information or for further inquiries involving hospitality or premises liability law, you may contact Josh Ferguson of Freeman Mathis & Gary, LLP, at [email protected].

A House of Cards: Stacking Inferences to Prove Liability

Posted on: May 10th, 2018

By: Melissa Santalone

A Florida appellate court recently reaffirmed Florida’s state law prohibition against stacking inferences in personal injury cases with a reversal of a $1.5 million verdict in a slip-and-fall case against Publix.  In Publix Super Markets, Inc. v. Bellaiche, 2018 Fla. App. LEXIS 4233 (March 28, 2018), the Third District Court of Appeal reversed a trial court’s denial of a directed verdict to Publix at the trial of a case involving slip-and-fall accident at a Miami-Dade County store, holding that proof of liability via the stacking of inferences is impermissible, in contrast to federal case law.

The plaintiff in the case, a 70-year-old woman, alleged she slipped and fell on water in an aisle at a Publix store that she did not observe before the fall.  After she fell, she testified she saw a Publix employee holding a mop nearby, but no evidence was offered that the mop was wet or that water from the mop ever made contact with the ground.  The manager of the store testified the employees at the store used dry rayon mops to clean the floors, and not pre-soaked cotton ones.  Video evidence also showed the only janitor on duty at the time, the only employee whose duty it was to mop the floors, was using a broom and dust pan just prior to the plaintiff’s fall.  The Third DCA noted in its decision that the plaintiff had the burden to prove that Publix either created the dangerous condition that caused her fall or had actual or constructive knowledge of it, an opportunity to correct it, and it failed to do so.  At trial, the plaintiff acknowledged she was not proceeding on a constructive knowledge theory, but on the theory that Publix created the dangerous condition or had actual knowledge of the water on the floor via its employee with the mop.  The jury sided with the plaintiff at trial and awarded her more than $1.5 million, and the trial court denied Publix’s motion for a directed verdict.  In Bellaiche, the Third DCA reversed the lower court’s denial of the motion for directed verdict.  The Third DCA held that “[a] jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability.  If the only way that a jury can find that a party was negligent is by stacking inferences, ‘then a directed verdict is warranted.’”

In other forums, however, the stacking or pyramiding of inferences is permissible, including in the courts of the Eleventh Circuit, the federal courts in Alabama, Georgia, and Florida.  In Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (1982), the Eleventh Circuit found that “[a]ccording to federal law there is no prohibition against pyramiding inferences; instead all inferences are permissible so long as they are reasonable.”  Moreover, in Daniels, the Eleventh Circuit further noted that a directed verdict is not required in instances where the jury may choose between allowable inferences including instances where the inference championed by the plaintiff is no more likely than other possible inferences.  The takeaway here is that litigants in personal injury cases must consider the inferences they or their opposition will ask a jury to draw and whether their chosen forum will allow the stacking of inferences to prove liability.  In some venues, like in Florida state courts, more concrete proof of liability is required.

If you have any questions or would like further information, please contact Melissa Santalone at [email protected].

#MeThree?

Posted on: May 1st, 2018

By: Jason C. Dineros

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Chloe Caras, a former female restaurant executive filed a sexual harassment suit last week against celebrity chef and Top Chef Finalist, Mike Isabella.  Caras alleges that Chef Isabella and his company, Concepts, failed to provide sexual harassment training and educate managers to recognize sexual harassment and implement a program to address complaints.  She cites the company’s absence of a human resources department from its inception in 2011, until this past October, and the jovial nature in which the company allegedly handles its sexual harassment training as evidence supporting her allegations.

The #MeToo Movement has brought to the forefront of business operations the need of not only having such training in place but also implementing methods to track its effectiveness and enforce its purpose.  The challenge particularly in the restaurant industry comes in approaching a subject that was frequently a source of humor and typical flirting among those working in it.  In an industry where anyone who has worked in it will agree requires a thick skin and resilient attitude, Caras’ suit falls in line with what has been a steadily rising trend of sexual harassment claims-turned-lawsuits in seemingly every industry—much less the hospitality.

In Meritor Savings Bank v. Vinson (1986) 106 S. Ct. 2399, the landmark Supreme Court case ushering governance over sexual harassment claims, the Court held that 1) a hostile work environment violates Title VII, 2) conduct amounting to sexual harassment must be “unwelcome,” and 3) employers must be on notice of the conduct to be liable for their employees.  While not to be confused with a position that condones any level of sexual harassment—in its unadulterated definition, meaning unwelcome sexual conduct—at what point do the playful flirtatiousness and mutual banter, albeit often immature and often times (in the restaurant industry) perverse, cross the line and become sexual harassment?

As the #MeToo movement continues to gain support, employers can expect to see a rise in employee complaints about workplace behavior.  When faced with such complaints, employers will have to be vigilant in promptly investigating these complaints, fairly assessing their merit and executing a plan that resolves the situation.  Such a protocol will provide employers the best opportunity to identify and resolve workplace conflicts. 

For further information or for further inquiries involving hospitality law or labor and employment law, you may contact Jason C. Dineros, the Chair of the Hospitality Law Practice Team of Freeman Mathis & Gary, LLP, at jdineros@fmglaw.com.

Puff, Puff, Veto!

Posted on: January 10th, 2018

By: Jason C. Dineros

This past Thursday, Attorney General Jeff Sessions rescinded the Obama-era’s relaxations for federal prosecutors of marijuana enforcement. This comes only four days into California’s open recreational use market, and potentially halts what has grown into a niche legal practice as well as a concerted training effort among hospitality operators over the almost five years the federal enforcement relaxations have been in place.

The Obama Administration’s federal enforcement relaxations for marijuana use in 2013, brought with it the development of a viable market industry from what was previously looked upon as taboo—akin to “that stoner stage you went through in high school, but grew out of.” As start-ups were popping up wanting to be frontrunners in an industry that had as much anticipation as whiskey distilleries in the years that followed prohibition, so did the need for legal consultation and representation.  No longer was the idea of marijuana dispensaries becoming as common as corner liquor stores still a far too laughable dream (or overly paranoid nightmare, depending on your take); and concepts such as edible bakeries, “weed lounges,” and cannabis-friendly restaurants were likewise materializing into reality.

But how does an attorney provide advice regarding the sale and distribution of a product that is illegal under federal law, but for all intents and purposes, permitted in 29 different states? Well the fallback rule that developed under the Obama Administration’s relaxations, at least from an ethical perspective, was that providing legal services to the cannabis industry was permissible so long as it did not violate state law.  And with this came an influx in the practice of cannabis law in 29 of the 50 states.

Further expanding to the social aspect of recreational marijuana, while any experienced bartender has likely taught or learned how and when to cut off an overly-imbibed guest, what protocols are in place for training “budtenders”? And even more importantly, for hospitality operators engaged in operations across different states, how can there be any uniform standard operating procedures when what is a legally viable source of potential revenue in one state, can expose the business to significant fines and potential closure in another?  Simply put, until the states begin to react one way or another to Attorney General Sessions’ heightened federal enforcement regulations, the cannabis industry remains one of the most potentially lucrative, risky, and unnavigated industries still in its infancy among the entrepreneurs, attorneys, and hospitality operators involved.

For further information or for further inquiries involving professional liability, commercial liability, or hospitality law, you may contact Jason C. Dineros, the Chair of the Hospitality Law Practice Team of Freeman Mathis & Gary, LLP, at jdineros@fmglaw.com.