While the entire share of responsibility might be 1% you and 99% thief, is is equitable to hold you responsible for the entire judgment and the acts of the intentional tortfeasor caused by your mistake, or should the jury be allowed to consider the context of the situation that led to the damage and apportion fault without such apportionment later being invalidated by the Court of Appeals?

File this under, “Laws Written by Lawyers for Lawyers”.

Of course you don’t want to deal with the entry issue because it shows the weakness of your position even further.

As for the “day care example,” are you really trying to say that a provable, overt act of a day care center (ie handing a kid over to a non-custodial individual) is the same thing as what happened in this case? A non-overt act that was not even shown to be the cause of the killer gaining access to the victim? That is not an apples to apples comparison. That is an apples to plastic meat comparison.

I agree the hotel has a duty. The point you seem to be missing is that just because the hotel has a duty does not mean that duty was broached. In this case, you have said you don’t want to look at the background check which means that you believe the hotel did not broach their duty in that regard. The opinion states the method of entry was not known, so there is no proven broach of duty there either.

In other words, there is nothing proven that the hotel did wrong.

Once again, the jury, for whatever reason, took that “100%” and assigned only 2% of the blame to the hotelier. That is the blame that was assessed. The idea that the 2% grew by 5000% because the hotel has the deep pockets is unconscionable.

Maybe some people believe the killer saw the hotel guest as an “attractive nuisance” and no reasonable person could possibly resist robbing and killing the man. That’s the only explanation I could see for putting the hotel on the hook for the entire award.

As for the entry, I am not really concerned with that. Were I the defendant, I’d sure try to figure out if he did use it to gain entry. If he didn’t, then it’s possible that the victim left his room unlocked (which would increase his fault) or that the murderer pretended to be room service or something.

Once again, I think my proposed jury instruction deals with the competing issues. Allowing a defendant whose responsibility it is to deal with third party wrongdoers to point to an intentional tortfeasor’s wrongdoing seems to allow a decision based on dislike of the murderer, rather than an assessment of how well the defendant performed its duty to prevent the murder.

You are completely missing the argument.

If the jury holds the hotelier 2% responsible for the death, then why are they on the hook for the whole enchilada? That seems to be the point of the original post here and it is a point that you fail to address.

I am not putting aside the duty at all. What I am saying is that when a jury says “the hotelier is liable for 2% of the responsibility,” and then the hotelier gets hit with 100% of the responsibility, that is unconscionable.

Your contention that I am giving in one hand and taking with the other is factually wrong. What I and others are saying is that you “take” in accordance with the jury’s verdict – not some legal garbage of which the jury was most likely unaware. After all, why assign any percentage to the damages if it doesn’t matter in the long run?

(As for the “burden of proof” issues, I brought that up simply because you keep saying the guy got in the room via the key. You are putting forth something that is not true.)

And the issue is not me taking the jury for one bit, but ignoring the other. My point is that if there’s a duty to protect against third party harm that is breached, then the position you advocate obviates that duty. You’re certainly entitled to have that point of view, but I don’t think it’s too much to ask to have you forthrightly admit that you’re giving with one hand and taking with the other. Once again, the daycare hypo seems apt.

As for leaving the actual murderer off the hook being unconscionable, that’s simply hyperbole. It’s easy to flip it around and say that it’s unconscionable to allow defendants who breach a duty to protect others from the predations of third parties to escape liability for that duty simply by pointing to the fault of the predator. Yes, the predator is at fault–but the defendant undertook to take reasonable steps to prevent that predator from hurting the plaintiff. Should a daycare center get to disclaim liability if it is negligent in handing a kid over to a child molester? After all, the daycare center didn’t molest the kid.

You have stated that the hotel is on the hook for the murder because of the key. As stated in the opinion, how the guy gained entrance into the room is unknown.

Even taking your argument at face value, the jury ascribed 2% of the blame at the foot of the hotelier yet you want that to be ramped up to 100%.

That’s the real issue here, spo. You want to hold onto the jury’s findings for blame, but dismiss the jury’s finding for the amount of the blame.

As John Rohan points out the idea that the hotel is now on the hook for the murder and actions of another means the actual murderer is off the hook. That is unconscionable.

Once again, I think my proposed jury instructions get the job done. And while I certainly agree that day care centers have overreacted generally to the child abduction phenomenon, everyone will note that I said “reasonable” precautions. (Of course, in practice, reasonable may mean overreaction, but there’s not much that can be done about that.) My point is that if there’s a duty to protect against the harms inflicted by third parties–it’s not entirely logical to then say that the duty is mitigated by the fault of the third party.

As for the EEOC and criminal background checks–I agree that the EEOC is beyond insane on that point.

Comparative negligence combined with joint and several liability resulted in a variety of absurd cases where the deep pocket with 1% responsibility paid for the negligence or intentional torts of others, so many states, Indiana among them, limited join…