Aug Thu, 2021 Security
In July 2021, the Haggard Law Firm won a $1.32 million lawsuit for its client, Wiley Lowe. The suit was over security negligence at the Elysium Hotel in Fort Lauderdale, where Lowe was attacked and injured. Todd J. Michaels, Esq., senior partner at the Haggard Law Firm, granted Muir Analytics an in-depth interview to explain how they strategized and won the case. He also talked about the future of hotel security negligence lawsuits. Here’s what we learned.
The Haggard Law Firm started in the 1970s as a general plaintiff’s firm. Then, in the early-mid 2010s, it tried a case where a man was shot and paralyzed in a strip mall parking lot, and they won a $102.7 million verdict. “It really changed the nature of our practice,” says Michaels. “Now, about 75% – 80% of what we do is negligent security cases.” Additionally, the Haggard Law firm handles drowning and pool liability, trucking, road construction, cruise ship medical liability, and other wrongful death and catastrophic injury cases.
While based in the Miami-Coral Gables area, the firm handles security cases all over the US, including Indiana, California, Georgia, and Massachusetts. “We handle cases over a wide geographic area where there’s a big injury, a wrongful death, or security negligence,” says Michaels.
Interestingly, the lawyers at Haggard don’t simply stick to knowing the law. They’ve mastered their craft by becoming subject matter experts on security risks as well. They’re involved in multiple security organizations, such as the prolific American Society for Industrial Security –International (ASIS), and the International Association of Professional Security Consultants. Michaels and his partner, Mike Haggard, give talks at large security conventions, such as ASIS’ yearly Global Security Exchange.
Wiley Lowe was staying in the Elysium Hotel in Fort Lauderdale on 31 January 2016. Lowe worked as an on-air personality selling watches on television. He was in town to film a show for one of the home shopping networks. While in his room that evening, Lowe heard a noise in the hotel’s courtyard and went to investigate. There, he encountered a man who attacked him with a brick that was part of the property’s sprinkler system. The attacker’s blow hit Lowe in the hand, breaking his pinky finger and causing other damage.
At the time, however, Lowe didn’t know his pinky was broken. “So,” says Michaels, “he went to the hotel’s outside call box to alert the front desk. Management had, for some reason, removed all phones from the Elysium, and hotel staff said they’d come to his room and check on him. No one ever did. They supposedly assigned a staffer to investigate the incident, but no one ever interviewed Lowe. So, that night, he emailed the front desk to report the attack, but again, no one came.”
“The next day at 8:00 am,” says Michaels, “Lowe went to the front desk and filled out an incident report on the attack. He talked to the front desk staff about it, and that was it.” The next day, because of pain and swelling, Lowe went to the doctor and had his hand X-rayed. That’s when he found out his finger was broken.
Ultimately, Lowe’s pinkie didn’t heal properly, causing permanent deformity, pain, and limitation. His career as an on-air watch salesman – where cameras are constantly focused on his hands – was jeopardized.
Lowe then filed a lawsuit against the Elysium Hotel for security negligence via the Haggard Law Firm.
By surveying the situation, the Haggard Law Firm figured this was a case of security negligence. Florida law has long held that a commercial property owner – including hotel owners and operators – have a non-delegable duty to provide reasonable security to protect their invitees from reasonably foreseeable criminal activity. See L.K. v. Water’s Edge Association, 532 So.2d 1097 (Fla. 3rd DCA 1988).
Michaels explains, “In Florida, there is a firm body of law that’s been developed since the 1980s. The law basically says that when somebody has a foreseeable risk of criminal activity on their property, they need to take reasonable steps to secure the property to keep people safe. That’s been the law for a long time, so that’s the theory that we proceeded under.”
Haggard’s legal team discovered that, one, there had been ‘prior acts of violence’ at the hotel, and two, it appeared to be a property overwrought with high-risk issues. These two factors caused them to begin in-depth research to build a case proving security negligence against the Elysium’s ownership.
The Haggard legal team found two specific reported incidents that helped them prove their case regarding ‘prior acts of violence.’ Both were discovered by accessing police reports. “There had been a fight by the jacuzzi, and a fight where someone walked into the wrong room, and those in the room ended up throwing the victim down the stairs and kicking him,” Michaels said.
While these two cases were compelling anecdotes, they weren’t the standalone, critical pillars of the case.
“Yes, these cases mattered,” says Michaels. “’Prior violent crime’ is important. And some states’ legal statutes require ‘prior substantially similar crime’ to prove security negligence.” But he’s not sold on this concept as the one and only linchpin of proving negligence.
“I always sort of tongue in cheek say, necessitating a ‘prior substantially similar crime’ in order to prove foreseeability essentially allows property owners a ‘one free murder rule.’ They can ignore their risk until after a tragedy occurs. Wait until a murder happens, then increase security to prevent other murders.”
He further explains, “You don’t tell someone who’s starting to drive, ‘Hey, you don’t have to wear a seatbelt until you get into a car accident,’ because every time you get on the road, there’s a risk, whether it’s a drunk driver, or a driver who’s texting. There are risks you have to recognize.”
“For hotel security,” he says, “requiring ‘prior violence’ is like you don’t have to do anything until someone gets pummeled. Or you don’t have to do anything until someone gets killed.” This, he asserts, is backward.
So, the Elysium Hotel’s risk environment is what Haggard’s legal team primarily focused on. “Florida is different from ‘prior violent crime states,'” says Michaels. “In Florida, in assessing foreseeability, you look to the ‘totality of circumstances,’ so that is where we focused. In layman’s terms, ‘totality of circumstances’ demonstrates that something untoward, even violent, is likely. “There were high-risk things going on that we factored in,” says Michaels, “like how the hotel was run and the nature of the activities on the property.”
And the Haggard legal team uncovered copious examples demonstrating high-risk ‘totality of circumstances’ for the Elysium Hotel. Their sources were official Emergency Medical Services and police reports regarding calls to the hotel, Yelp hotel reviews citing bedlam on property, and interviews with former employees. Combined, these four sources demonstrated the Elysium Hotel, at times, fostered an unsafe and chaotic environment.
Specifically, these sources said the Elysium was a male-only, clothing-optional hotel. According to a Yelp review, and confirmed by employees, there were ‘tweaker call boys’ lined up to get into the hotel. Grinder hookups were happening, and prostitution and public sex were going on. More ominously, there were out-of-control people high on crystal meth and crack cocaine on the property, unregistered guests were roaming around, and there was drug dealing going on in various rooms.
“Obviously,” says Michaels, “it’s not that far-fetched to say, ‘Gosh, this could turn into a violent situation!'” And for Wiley Lowe, it did.
But the Haggard legal team’s case building didn’t end there. It investigated the hotel’s property management protocols, too, and found them severely lacking.
The hotel owners came from a finance background. They liked the Miami-Fort Lauderdale area and decided to invest in a cluster of properties there, several of which were hotels. They had no hotel background and, therefore, had little idea of how to keep their guests reasonably safe and secure.
“They were operating 15 different hotels with a total of 500 rooms over a 1.5 square mile area,” says Michaels. “It was six by six blocks of property. Twelve of the hotels were what they call ‘family-friendly.’ Three of them were male-only, clothing-optional resorts.”
Their business plan was to operate these properties as independent hotels in the daytime. In the daytime, each hotel had its own staff, and they ran their own operations. At night, from 11:00pm until 7:00am, management massively reduced staffing at all their hotels. This was shortsighted.
“The purpose of a front desk clerk, or part of it,” says Michaels, “is obviously for convenience regarding late check-in and guest relations.”
“But,” he continues, “they’re also a part of a security scheme. The defendants recognized that in their policy manual. They’re supposed to be trained to monitor ingress and egress to and from the property. And that’s why, no matter where you go, whether it’s the Ritz Carlton or a Super 8 Motel, you generally always have a front desk clerk.”
In contrast, in the nighttime hours, the Elysium Hotel and its 14 sister hotels shared just two front employees with no security background and no security training. They were tasked with doing every single job for all 15 hotels and their collective 500 rooms. “So,” says Michaels, “if somebody needed a towel at one of the hotels, they had to do that. If air-conditioning wasn’t working, they had to tend to that. They had to make sure the rooms were clean. And they had to tend to check-ins as well. They were running around, taking care of every single problem.”
“So, obviously, there was virtually no guardianship at the Elysium,” says Michaels. “There were very few ‘eyes on,’ and the properties were just sort of running themselves in the nighttime hours. This was something that jumped out at us right off the bat. It was really problematic.”
“And what we started to learn,” continues Michaels, “as we dove deeper into it, was that management was aware of these problems, but they weren’t necessarily reported to police.”
The lacking management issues didn’t end there. Michaels explains, “We also discovered internal hotel emails that stated a policy that basically said to the staff, ‘try not to get the police involved’ when problems arise. So, we don’t know what the actual full crime record was, but from the information gathered, it was clear that it was an absolute free-for-all at the Elysium at night. And management knew it. And their solution was for their sparse night shift to float around 15 different properties while guests were left to problem solve on their own.”
The Haggard legal teams’ final assessment was simple. Michaels says, “So, you can’t control access to this hotel. There were lots of security problems. And management never modified hotel security. They never took any steps to make the Elysium safer for guests.”
The defense was in a tough spot. The Haggard legal team had done such thorough research on the Elysium’s high-risk environment and poor security practices that it was reduced mainly to denying that the attack happened – that and maligning Lowe’s character.
“They couldn’t really defend the case on security grounds,” says Michaels. “And they did not really apply ‘reasonable foreseeability.’ They touched on it. They tried to say there were not that many reports of fights and things of that nature going on at the hotel, but they went more with attacking the incident itself and claiming that it didn’t happen.”
To enact this strategy, the hotel’s defense team had to negate the plaintiff’s actions immediately following the attack. More pointedly, the hotel had to show that Lowe’s reports to hotel staff on the assault never happened, or that they happened differently from Lowe’s version of it.
So, the Elysium defense team did not produce the front desk staff who took Lowe’s report of the incident. Neither did it produce the staffer that had been tasked with investigating the attack.
Next, the Elysium said their computer system had crashed, and they lost access to all their records, so the email Lowe sent describing the attack was missing from their end. “They were basically not producing hotel records and witnesses in what seemed like an attempt to make the case go away,” says Michaels.
The defense attacked Lowe and his recollection of the incident as well. “Obviously,” explains Michaels, “in our client’s deposition, which was four years later, there were some things that he remembered a little differently. They tried to find little discrepancies regarding the way he told the story at the time contrasted to four years later.”
Countering the defense, Lowe produced his email to the front desk staff from the night of the event that described the attack on his person. And, he provided the hotel bill the front desk gave him upon check out, and it had an apology from hotel staff written on it referencing the attack. “So, it was pretty well documented that the attack did happen,” says Michaels.
Faced with so much evidence, the Elysium’s defense team failed to generate the needed litigation momentum to win the case.
“And the jury obviously did not buy their defense,” says Michaels. The case began on 20 June 2021, and it finished four days later. Between jury selection and litigation, it was a six-day trial. The jury awarded Lowe $1.32 million, clearly demonstrating the hotel was negligent in protecting its guests from harm.
Muir Analytics keeps track of hotel security negligence lawsuits globally and has noticed that their frequency seems to be increasing. What’s more, the plaintiff’s attorneys in the trumpeted Humphries vs. New York New York Hotel and Casino case from 2017 believe they created a broad precedent by demonstrating, statistically, that previous acts of violence at a hotel can be decisive in proving hotel security negligence. We asked Todd Michaels what he thought about these developments, and if the Haggard legal team had created precedent with their Wiley Lowe victory.
“I would not say that we created a precedent,” says Michaels. “I think that the law in Florida has been in place for a long time, and the law is a good one. The linchpin is always ‘foreseeability.’ And that’s going to be the jury question in every case: ‘What is foreseeable?’”
He explains further, “And it’s not so much about the quantity of past acts of violence on a particular property. It doesn’t matter if you’ve had five cases or none. What matters is the quality of the information that helps make your case, what proves that the act of violence was foreseeable.”
Michaels says there will always be inherent risks at hotels. Petty crime, travelers away from home engaging in disorderly behavior, violent crime, and scores of other perils all come into play at hotels. Michaels says some of these risks are uniquely inherent to individual properties, like a fingerprint, and to avoid violence and the inevitable lawsuits, the risks must be addressed.
To put it succinctly, he says, “Assessing foreseeability is actually about assessing risks.”
Michaels further explains, “Risk doesn’t have to be a prior crime. It doesn’t have to be a similar crime. It doesn’t have to happen on property. If you’re in an area that has all kinds of crime, and you don’t have anything in place to keep that crime off your property, then there’s going to be a risk of the violence spilling onto your hotel.”
So, to avoid Wiley Low type cases where the hotel ends up paying out over a million dollars and having its reputation tarnished, hotel risk assessments are critical.
“My hope is that these lawsuits become less necessary,” says Michaels. “But that’s incumbent on property owners taking the necessary steps to secure their hotels.”
He continues, “What’s needed is an approach based on commonality. Hoteliers don’t want people to get hurt at their hotels. The heads of hotel security don’t want people to get hurt at their hotels. And the same holds true for us. The people who end up as our clients start off as customers of places like the Elysium Hotel. We have a common interest in keeping them safe. No one wants hotel violence.”
“If hoteliers take steps to keep their premises safe,” says Michaels, “and if they look at their risk before something terrible happens to one of their customers, a lot of hotel violence can be eliminated. So, my hope is that property owners can continue to, or start to, act responsibly to assess their risk to keep people safe. If this happens, there’s no need for lawsuits because the criminal acts aren’t happening, or they’re becoming much rarer. That’s obviously the big goal behind all of this.”
Muir Analytics runs the world’s largest, most sophisticated hotel violence database (over 1,800 cases and growing) – the SecureHotel Threat Portal. We can provide the hospitality sector with intelligence that facilitates full-spectrum risk reduction, which helps hotels protect guests, staff, buildings, brands, and revenues. Contact us for a consultation: 1-833-DATA-444.
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