Heightened duty of care: Hotel guest’s slip and fall case heads to jury trial

A federal magistrate judge denied a motion for summary judgment filed by the owners and operators of a Virginia Beach hotel, sending a guest’s slip and fall suit to a jury trial.

The guest, who injured himself tripping over a wet floor sign, alleged a breach of the duty of care the hotel operators owed him.

U.S. Magistrate Judge Lawrence R. Leonard found that each of the claims at issue were reserved for the jury and denied the defendants’ motion for summary judgment.

Leonard authored the opinion in DeCandia v. Remington Lodging & Hospitality LLC (VLW 024-3-221) for the U.S. District Court for the Eastern District of Virginia.

Slip and fall

Albert DeCandia and his wife booked an extended stay at the Hilton Garden Inn in Virginia Beach due to significant repairs to their home from a water leak.

During the three-month stay, DeCandia established a daily weekday routine where he would retrieve tea from the breakfast area for his wife between 5:30 and 6 a.m. After bringing the tea upstairs, he would return to the breakfast area to make himself coffee before going to work.

On days where hot water was not already available, DeCandia would walk to the kitchen window and ask the cook.

The hotel’s schedule was to mop the breakfast area’s floor at night before propping up the wet floor sign. Prior to the start of breakfast service at 6 a.m., the sign was removed, and the lights turned on.

Instead of the conventional yellow color, the wet floor sign at the Hilton Garden Inn had a brown frame with a metallic surface on the front and a plain brown surface on the back. Per the opinion, the sign was specifically chosen “for its aesthetic appeal” and had been used for “approximately five years, including at other hotel properties” with no incidents involving a patron tripping on the sign.

Two months into their stay, DeCandia went to the breakfast area as usual to retrieve tea for his wife. With no hot water out, he took his usual path to the kitchen window to ask for hot water, which the chef gave him.

On his way back to his room, DeCandia tripped over the wet floor sign and fell. He initially declined medical assistance but later was taken to the hospital by his wife.

DeCandia filed suit in March 2023 and an amended complaint in July claiming that, as a guest of the hotel, the defendants owed him a heightened duty of care.

Specifically, he alleged a breach of duty by the defendants by selecting a wet floor sign that “blended in with surrounding décor,” placing it in such a manner that it fell over, placing it where it was a tripping hazard and failing to remove it once the floor was dry.

The defendants moved for summary judgment, contending the sign was open and obvious, and that DeCandia was contributorily negligent by tripping over it. They also argued that DeCandia could not establish a breach of a duty of care or that the defendants were on notice of any hazard.

Duty

In Virginia, there is a long-standing legal relationship between innkeepers and guests dating back to the common law constituting “an elevated duty of care,” Leonard said, citing Taboada v. Daly Seven Inc.

Through that lens, Leonard said innkeepers “will be held liable for the slightest negligence which human care, skill and foresight could have foreseen and guarded against,” quoting the Supreme Court of Virginia’s 1906 decision in Norfolk & W. Ry. v. Birchfield.

Here, the defendants argued that the use of a wet floor sign was proof that the hotel followed the relevant standard of care, and that sign’s size and color were in line with industry standards.

DeCandia, however, contended the selection of the specific sign and location was negligent, adding that the defendants “regularly used yellow caution signs in other areas of the hotels.”

Leonard found the claim constituted a general dispute of material fact.

“A reasonable jury could conclude that Defendants’ actions including: (1) leaving in place a wooden ‘wet floor’ sign against a backdrop of wooden furniture …; (2) in a darkened area where the lights had been turned off; (3) where the hotel knew or should have known patrons would traverse in the early morning hours; and (4) where the hotel knew the sign was no longer needed because the floor had dried hours before, all constituted a breach of their heightened duty of care to those patrons,” the judge wrote.

Leonard denied the defendants’ motion for summary judgment on this ground.

“[C]onsidering an innkeeper’s heightened duty of care under Virginia law, the Court finds that a jury could reasonably determine that Defendants breached their duty of care in selecting and locating the sign,” he explained.

Notice

In a premises liability action, a plaintiff must introduce evidence that the defendant had “actual or constructive knowledge of a defective condition on the premises,” Leonard said, citing Grim v. Rahe, Inc.

The defendants claimed they did not create a hazardous condition and lacked actual or constructive knowledge that the sign was a hazard. In support, they pointed to the fact that no other trip and fall incidents involved the sign and that a hotel employee noticed the sign upright prior to DeCandia’s incident.

DeCandia said the defendants created a hazardous condition by “using a ‘defectively colored’ sign” that was hard to see in the dimly lit area and by leaving it in a walkway that guests used.

Again, Leonard found a genuine dispute of material fact to be resolved by a jury.

“Plaintiff’s testimony that he did not see the sign, that the sign blended in with the surroundings, and that the area was dimly lit, all could lead a jury to infer that under these circumstances, Defendants created a hazardous condition by placing the dark sign in a darkened area and leaving it there long after it was still necessary,” Leonard wrote.

Contributory negligence

As for contributory negligence, the defendants said the sign was of proper size and positioning, and it was located in the same place every day. They claimed DeCandia, who was two months into his stay, should have been aware of the sign.

DeCandia, however, said he had never seen the sign as it blended in with the surroundings. He also cited his age — he was 72 years old at the time — as a “lens” that “his perception must be viewed through.”

Leonard said a reasonable jury could infer that the danger presented by the sign was not open and obvious under these circumstances. And DeCandia’s testimony that he did not see the sign or hear it hit the floor could allow a jury to reasonably infer that the sign was not visible because it had fallen and was lying on the floor.

“While a reasonable jury could conclude that Plaintiff essentially ‘close[d] [his] eyes’ and walked through the breakfast area without care for his surroundings, and therefore find him contributorily negligent, they could just as easily find that because the sign blended in with the surrounding decor, the area was dimly lit, and the sign was laying on its side, that Plaintiff was not contributorily negligent,” the judge explained, saying this issue was reserved for a jury.

Leonard denied the defendants’ motion for summary judgment on all claims.