This week we will examine several cases (in the United States and the United Kingdom) involving hotel doors and windows that use very thin, often un-tempered, glass which tourists and their small children may come up against causing severe injuries as the glass shatters.
Take A Shower, Take A Fall
The most common tourist injury in a hotel involves a trip, a slip and, inevitably, a fall [Travel Law 4.04[2], 5.05[4]] often in a bathtub/shower [see Clayburgh v. Condado Plaza Hotel and Casino (โclaim that negligent maintenance of the shower resulted in improper drainage which caused her injuryโ); Houlihan v. Marriott International, Inc. (guest falls in shower after soap dish came loose); Galarnyk v. Hostmark Management, Inc. (fall in bathtub after part of rubber mat came loose); Oskoul v. Red Roofs Inns, Inc. (guest falls out of shower, injured and โeye was surgically removedโ); Raybourne v. San Juan Marriott Resort (guest falls in bathtub; award of $500,000 compensatory damages grossly excessive); Tross v. Ritz Carlton Hotel Company, LLC (ceiling tile in bathroom falls on hotel guestโs head); Frummer v. Hilton Hotels International, Inc. (guest slips and falls in โan โovularโ modernistic type bathtubโ); Billings v. Starwood Realty (โall bathtubs are slippery to some degreeโ); Bernard v. Marriott Corp. (slip and fall in bathtub after heat lamp explodes); Bidar v. Amfac, Inc. (guest falls using defective towel rack to lift himself from toilet); Elgandy v. Boyd Mississippi, Inc. (guest slips and falls entering whirlpool bath); Higgins-Barber v. Raffles International (guest injured by malfunctioning shower door); Pearce v. Motel 6, Inc. (slip and fall in tub on soapy film)].
The Exploding Shower Door
In a recent case, Freienstein v. Mandarin Oriental New York Hotel, LLC (8/6/2014), the court noted that the injured guest โrecounted that she and her boyfriend had used the roomโs shower several times a day in the three days before her accident, experienced no difficulties and noticed no cracks in the shower glass door. After showering, she placed her hand on the shower door handle, about to open it, when the door explosively shattered, releasing onto her thousands of small piecesโ.
A Well-Tempered Shower Glass Door
Generally, hotels must have actual or constructive notice of a defect or have created the defect before liability will be imposed for a guestโs injuries. As noted by the Freienstein court in order for the hotel to escape liability for a claim โbased on a dangerous condition on premises, the premises owner must make a prima facie showing that it neither created nor had notice of the dangerous condition (Early v. Hilton Hotels Corp.)โ. In this case the plaintiffโs theory of recovery was that defendants โinstalled an โimproperly tempered glass shower doorโ which was installed in such a manner that the bar could touch the adjoining wall, thereby risking breakageโ.
Causation
In opposing defendantsโ motions to dismiss the complaint Plaintiffโs expert asserted that โtempered glass, when subject to certain stresses, may beak and ultimately shatter, although not at the moment of impact, but weeks later. In his expert opinion, based on Mandarinโs…admissions that the bar was centered on the door, the glass door in room 4606 touched the wall repeatedly when opened, thereby triggering the breakage. He also opines that the bar could have been installed so that it would not touch the wall and that a cushion or door jamb would have softened the impact. He faults (two defendants) for defective installation and Mandarin for allowing the defect to persist which claims would have been apparent to any inspector or engineer opening the doorโ.
The Courtโs Decision
The court denied Mandarinโs summary judgment motion finding that โthe alleged defect, namely, the positioning of the bar in a manner permitting it to come into repeated contact with the wall, would have been apparent to any inspector who opened the shower door, a proposition not actually disputed here. That Mandarin inspected (the) bars and hinges to ensure their safety, and the glass doors for cracks and chips, does not excuse it from inspecting the doors to ensure that they opened without impact… A triable issue of fact exists as to whether Mandarin had constructive notice of the alleged defectโ.
Other Door And Window Accidents
In addition to exploding shower glass doors there have accidents involving glass doors and windows in hotel rooms [see Kenkins v. McLean Hotels, Inc. (child of guest falls through sliding glass door); Imperial Investments Doraville, Inc. v. Childers (guest and friend trip and fall through plate glass window at hotel; judgment for defendant; no duty to inspect and replace windows and no notice of any hazard in glass); Carley v. Theater Development Fund (tourists purchase tour of Russia and during stay at Hotel Pulkovskaya in St. Peterburg โAnne Marie Carley sustained serious injuries while trying to open her hotel window…Mrs. Carley fell approximately six stories when the window swung into the room unexpectedly and she fell outโ)].
Shattering Cases From The U.K.
In Wilson v. Best Travel Ltd. [1993] 1 All ER 353, an important case regarding the duties of British tour operators in selecting foreign hotels, tourists purchased a two week โholiday at the Vanninarchis Beach Hotel on the island of Kosโ in Greece from a British tour operator. While at the hotel one member of the party โtripped and fell against the glass patio door (which) shattered and the plaintiff fell through it, sustaining lacerations from the broken glass to the right shoulder, elbow, hand and, in particular, multiple lacerations f the right legโ. At issue in this case against the British tour operator was what is the proper safety standard to be applied regarding the width of the glass panel through which the tourist fell; is it the standard for hotels in Greece [โThe glass for the doors of the hotel was required to be 5mm thickโ] or is it the standard in England where the travel package was purchased [plaintiffโs glass expert noted โthat there has been a growing awareness over recent years of the dangers of glass particularly in respect of large panes of glass in doors. The resent situation in this country with respect to the type of door through which the plaintiff fell, particularly in a hotel or similar public place, is that safety glass, either toughened or laminated, would always be usedโ].
Duty To Select Safe Hotels
As noted by the Wilson court โIt is apparent from this evidence that the standards currently applied in England in the interests of safety have yet to be adopted in Greece…What is the duty of a tour operator in a situation such as this? Must he refrain from sending holidaymakers to any hotel whose characteristics, in so far as safety is concerned, fail to satisfy the standards which apply in this country? I do not believe that his obligations in respect of the safety of clients can extend this far…The duty of care of a tour operator is likely to extent to checking that local safety standards are complied with. Provided that they are, I do not consider that the tour operator owes a duty to boycott a hotel because of the absence of some safety feature which would be found in an English hotelโ [see also: Japp v. Virgin Islands Holidays [2013] EWCA Civ (guest at hotel in Barbados walks into balcony glass door which shatters causing lacerations)].
Duty To Warn Of Unsafe Glass
In Russell v. Thomas Cook Tour Operations, the Birmingham County Court addressed the issue of how thin can a glass panel be in a hotel room to be unsafe for guests. As noted in Michael Wukoschitzโs Blog [www.ifttablog.blogspot.com] for The International Forum Of Travel And Tourism Advocates (IFTTA) (10/17/2012)(โUK: Birmingham County Court decides in broken glass door case…http://iftta.org/contentThe Russell family booked a holiday package to Spain (and) specifically requested accommodations which (were) suitable for young children…They were duly reassured. At the hotel they were allocated to a room with a glass balcony door. Shortly after arrival while the parents were unpacking, the (4 year old) girl ran towards the door (and) collided with it. The glass which was only 5mm thin and not reinforced with any kind of safety film or wiring, broke and causes serious injury…The claimant was successful before the Birmingham County Court is establishing liability…The Court found that a reasonable holidaymaker in their position, have been specifically reassured that the room was suitable for a young family, should have been told that the glass was not safety glass and was very thin. It was foreseeable that young children would run around and bump into objects and it was not surprising that the family had sought reassurance in what was their first trip abroad. The judge accepted that had they been given an appropriate warning, they would not have chosen to stay in this particular hotel at allโ). See also: Harding, Holidays (and hotels) from hell-the duty to warn (www.lexology.com (9/24/2012).
Conclusion
To avoid a shattering vacation may be difficult since safety standards may vary country to country and locality to locality. Under these circumstances tourists may be careful, indeed, in how they conduct themselves during their vacations abroad.
The author, Justice Dickerson, been writing about Travel Law for 38 years including his annually-updated law books, Travel Law, Law Journal Press (2014), and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2014), and over 300 legal articles many of which are available at www.nycourts.gov/courts/9jd/taxcertatd.shtml .
This article may not be reproduced without the permission of Thomas A. Dickerson.