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Hotel guest assaulted by massage therapist

Hotel guest assaulted by massage therapist

In this week’s article, we examine the case of Elena Myers Court v. Loews Philadelphia Hotel, Inc., Civil Action No. 16-4848 (E.D. Pa. (December 15, 2017)) wherein the Court noted that “A hotel guest was assaulted by a massage therapist during a massage session at a spa-gym on the hotel premises. The guest sued both the gym and the hotel. Both the gym and the hotel filed motions for summary judgment and the issue of their notice of the therapist’s violent history looms largest. Because a reasonable jury could find the gym should have been on notice of-and, arguably, should have taken action on-the therapist’s history of sexual assault denies summary judgment for the gym except as to claims against the gym’s owner. But because the guest provided no cause of action to hold the hotel liable for the torts of the independent-contractor, the Court grants summary judgment for the hotel”.

Terror Targets Update

Las Vegas Massacre

In Browne, Reneau, Goldman & Jordan, How the La Vegas Gunman Planned a Massacre, nytimes (3/22/2018) it was note that “Using exclusive surveillance footage, we pieced together the last days of Stephen Paddock, the Las Vegas gunman. He plays video poker, laughs with hotel staff and hauls bag after bag of weapons into his suite”. Amazing video.

Trebes, France

In Gunman takes hostages at supermarket in southern France: reports, travelwirenews (3/23/2018) it was noted that “A gunman claiming allegiance to the Islamic State of Iraq and the Levant (ISIL) has taken hostages at a supermarket in the southern French town of Trebes, French media reports”.

Alexandria, Egypt

In Egyptian police kill 6 militants linked to Alexandria bombing, travelwirenews (3/25/2918) it was noted that “Egyptian police have killed six militants attached to a group which, the country’s interior ministry says, carried out a bombing in the coastal city of Alexandria on Saturday”.


In ISIS-linked militant neutralized in Dagestan counter-terrorist operation, travelwirenews (3/24/2018) it was noted that “Russian special forces have neutralized the leader of an Islamic State-affiliated cell in the Russian Republic of Dagestan, which had been operating in the mountainous region of the North Caucasus”.

Kabul, Afghanistan

In Nordland & Faizi, Kabul Bombing Kills 29 in Holiday Crowd, Officials Say, nytimes (3/21/2018) it was noted that “A suicide bomber killed at least 29 people among a crowd in Kabul celebrating the Persian New Year on Wednesday…The Islamic State claimed responsibility for the bombing”.

Austin, Texas

In Montgomery, Pena & Bromwich, Austin Bomber Suspect Blew Himself Up, Police Say, nytimes (3/21/2018) it was noted that “A suspect in the series of bombings that have terrorized the city of Austin, Tex., died early Wednesday, blowing himself up in his vehicle as officers closed in on him…A law enforcement official identified the suspect as Mary Anthony Conditt, a 24-year-old white man…The first explosions hit African-American residents whose families are well-known in the city’s black community”.

In Fernandez, Goldman & Montgomery, Lucky Breaks, Video and Pink Gloves Led to Austin Bombing Suspect, nytimes (3/22/2018) it was noted that “It was not much-surveillance footage in and near an Austin area FedEx store showing a man in disguise dropping off packages. But for investigators…who had been hunting a mysterious and prolific bomb-maker, it was what they needed-their first big break. Up to that point in a two-week investigation, officials never laid eyes on the man they believed was responsible for terrorizing the Texas capital since March 2″.

Honeymooners Die In Helicopter Crash

In Hawaii couple dies in tour helicopter crash in Australia, travelwirenews (3/23/2018) it was noted that “Honeymooners from Kona, Hawaii died yesterday…when the tour helicopter they were on crashed near the Great Barrier Reef off Australia. The helicopter was attempting to land on a pontoon near Hardy Reef, a popular tourist spot to view coral, when it crashed”.

Iowa Family Found Dead In Mexico

In Fortin, Iowa Family Died of Toxic Gases in Mexican Condo, Authorities Say, nytimes (3/23/2018) it was noted that “Four members of an Iowa family whose bodies were recently found in a condominium in Mexico died of inhalation of toxic gases, the authorities said on Saturday. Kevin Sharp, 41; his wife, Amy 38; and their children, Sterling, 12, and Adrianna, 7, had been vacationing in Akumal, a small coastal town on the Yucatan Peninsula…The state prosecutor’s office of Quintana Roo, where Akumal is, said on Twitter on Saturday that the cause of death was suffocation by inhalation of toxic gases, ruling out violence or suicide”.

Drunk Pilot In Stuttgart

In Pilot at Stuttgart airport narrowly prevented from taking off drunk, travelwirenews (3/24/2018) it was noted that “A Lisbon-bound flight with over 100 passengers was severely delayed at Stuttgart airport after a drunk co-pilot was hauled off the plane. He was rumbled due to his ‘unsteady gait’ and a strong smell of alcohol, police said”. Bravo.

Russian Shopping Mall Fire

In 64 dead, bodies remain trapped under rubble after shopping mall fire in Russia’s Kemerovo, rt (3/25/2018) it was noted that “As rescuers continue to search the burned-out shopping mall in the city of Kemerovo, many have been frantically trying to reach their relatives, including children who were in the mall’s cinema or play area when the fire started. The death toll of the deadly blaze in Kemerovo has risen to 64 people”.

Restaurant Food Sharing

In Williams, Thanks for Not Sharing! My Fine Dining Isn’t Your Fork Orgy, nytimes (3/21/2018) it was noted that “As anyone who has dined out in New York, Los Angeles and other cool cities in the past decade knows, sharing is in. Small plates, large plates, starter or main-they’re all meant to be sampled table wide. The shift is most evident at those buzzy restaurants that feature tattooed servers, craft cocktails and lots of sunchokes and grass-fed beef. But it is not limited to them. Mass-market restaurants, whose entree portions tend to be big enough to fee an N.B.A. starting five, are getting into the sharing craze too…Sharing, the argument goes, is more communal, lets diners taste more dishes and is more in tune with the way large swaths of the world eat. So, who could possibly be against it?” nytimes

Restaurant Tip Sharing

In Scheiber, Trump Administration Retreats on Tip-Sharing Plan in Compromise, nytimes (3/23/2018) it was noted that “The Trump administration has backed away from a proposed regulation that would have allowed restaurant owners and managers to pocket the tips of their workers. The change was negotiated by Senator Patty Murray…and Labor Secretary R. Alexander Acosta after the proposal encountered months of opposition. Labor advocacy groups argued that the regulation would transfer billions of dollars from workers to employees. The restaurant industry backed the proposal…Under the compromise…federal law would be revised to make clear that employees cannot under any circumstances keep any portion of the tips earned by their workers”. Bravo

150 Whales Beached In Australia

In Goldman, 159 Whales Beached in Australia. As Rescuers Fight To Save Them, nytimes (3/23/2018) it was noted that “More than 150 whales became stranded on a Western Australian beach, wildlife officials said Friday, as poor weather and the threat of frenzied sharks prevented rescuers from saving scores of them. The short-finned pilot whales were spotted Friday morning on the coastline of Hamelin Bay, about 160 miles south of Perth. But by nightfall, all but seven of the whales were dead”.

Squaremouth Travel Report

In Travel is surging to these 5 destinations, according to Squaremouth, travelwirenews (3/26/2018) it was noted that “Squaremouth’s newly released report also includes the average trip cost for the top 5 fastest growing destinations. The data shows a significant increase in traveler spending in Nordic countries. 5 Fastest-Growing International Destinations for U.S. Travelers who Purchased Travel Insurance (1) Israel (+48%), (2) Iceland (+43%), (3) Portugal (+42%), (4) Vietnam (+39%). Norway (+36%)…Average Trip Cost Year Over Year Increase (1) Israel $3,318 (+5.6%), Iceland $3,938 (+19.55%), Portugal $3,527 (-10.19%), Vietnam $3,233 (-3.10%), Norway $6,360 (+12.30%)”.

Uber Self-Driving Cars Struggling

In Wakabayashi, Uber’s Self-Driving Cars Were Struggling Before Arizona Crash, nytimes (3/23/2018) it was noted that “Uber’s robotic vehicle project was not living up to expectations months before a self-driving car operated by the company struck and killed a woman in Tempe, Ariz. The cars were having trouble driving through construction zones and next to tall vehicles, like big rigs. And Uber’s human drivers had to intervene far more frequently than the drivers of competing autonomous car projects. Waymo, formerly the self-driving car project of Google, said that in tests on roads in California last year, its cars went an average of nearly 5,600 miles before the driver had to take control from the computer to steer out of trouble. As of March, Uber was struggling to meet its target of 13 miles per ‘intervention’ in Arizona, according to 100 pages of company documents obtained by the New York Times and two people familiar with the company’s operations in the Phoenix area but not permitted to speak publicly”.

Uber Quits In Southeast Asia

In Uber has called it quits in another market, travelwirenews (3/25/2018) it was noted that “Following months of speculation, Uber will be no longer in Southeast Asia. Uber has sold its ride-hailing and food delivery business in the region to competitor Grab…While the sale price wasn’t revealed, Uber will retain a 27.5 percent stake in Grab and Uber’s CEO Dara Khosrowshahi will join Grab’s board”.

Orange Snow, Anyone?

In Weird orange snow captivates skiers in eastern Europe, travelwirenews (3/26/2018) it was noted that “About every five years, the snow turns orange in parts of eastern Europe. That happened again over the weekend, stunning skiers in Russia, Romania, Bulgaria and other places in the region… According to The Independent, the phenomena is understood to be the result of Sahara Desert sand and dust being carried into the atmosphere, where it mixes with snow and rain, and is then dumped over areas in eastern Europe”.

Catalan Separatist Rebels

In Spanish Supreme Court judge to try 13 Catalan separatist leaders ‘for rebellion’, travelwirenews (3/23/2018) it was noted that “A Spanish Supreme Court judge said on Friday that he would try 13 Catalan separatist leaders for rebellion, after they enabled Catalonia’s banned independence bid last year. The crime is punishable by up to 25 years in jail, Reuters said. In total, 25 separatist politicians will be tried for rebellion, embezzlement or disobedience, according to a court ruling. The judge also requested that 14 members of the previous Catalan regional administration deposit E2.1 million ($2.59 million) in a bank account to pay back the money used to hold an illegal independence referendum on October 1 and to cover judicial costs”.

Drowning In A Moat In Bermuda

In Salam, Pennsylvania College Athlete in Bermuda Died From Fall, Officials Say, nytimes (3/22/2018) it was noted that “A 19-year-old American college athlete, found dead at the base of a 35-foot cliff in a dry moat in Bermuda on Monday, died from the fall…There was no evidence of foul play in a post-mortem examination”.

Flight Attendants Awarded $800,000

In Matyszcyzk, These 2 United Airlines Flight Attendants Sued the Airline and Got $800,000, msn (3/21/2018) it was noted that “Then they were on a flight from Denver to San Francisco in September 2013. Their lawsuit…says they were suddenly fired for watching an iPad for 15 minutes during the flight. Oh, and not wearing an apron when they were serving passengers…Last week…a jury decided that their firing was unfair. So unfair that Stroup was awarded $200,000 in damages and Lee $190,000. The jury…decided United’s behavior was willful, so it doubled the back-pay damages and suddenly the amount became $820,000″.

Ocean Kayaking, Anyone?

In Weil & Eskilden, Alone At Sea, nytimes (2/22/2018) it was noted that “When Aleksander Doba kayaked into the port in Le Conquet, France on Sept. 3, 2017, he had just completed his third-and by far most dangerous-solo trans-Atlantic kayak trip. He was a few days shy of his 71st birthday. He was unaccustomed to wearing pants. He’d been at sea 110 days, alone, having last touched land that May at New Jersey’s Barnegat Bat…Kayaking is an absurd form of long-distance ocean travel. All the big muscles in the body are useless”. Carry On.

U.S. Airline Passengers Owed $

In Reed, Airline owe passengers half a billion dollars, msn (3/15/2018) it was noted that “When an airline cancels a flight, it owes ticketed passengers compensation and best efforts to get them booked on another plane…This is especially true in the European Union where the law is strict on passengers’ rights. Many travelers do not know this. The result, according (to) one company, is half a billion-dollar tab owed to Americans alone that the industry still has not yet paid. And it is growing. Per a recent report from Airhelp, a firm that specializes in European Airfare compensation issues. ‘Data shows more than 1 million passengers travelling from the United States in 2017 may be entitled to a total of 555 million USD for missing heir connecting flights…Every passenger affected may be eligible for claims for alternative transportation and compensation up to $700″.

Sick Air Travelers Stay Home, Please

In Sheridan, Sick air travelers mostly likely to infect next row: study, medicalxpress (3/19/2018) it was noted that “People who fly on airplanes while contagious can indeed get other people sick, but the risk is mainly to those next to them or in the adjacent row, US researchers said Monday. The study in the Proceedings of the National Academy of Sciences (PNAS) is the first to quantify the odds of getting sick based on a passenger’s proximity to an infectious person. Researchers studied 10 transcontinental flights and meticulously tracked passenger movements to estimate the likelihood of common respiratory infections like severe acute respiratory syndrome (SARS) and influenza, which are spread by tiny droplets in the air and on surfaces. ‘Passengers seated within one row and within two seats laterally of the infected passenger had an 80 percent or greater probability of becoming infected’, said the study”.

Airline Coach Class Ratings

In Winship, Survey Confirms That Coach Seating Sucks, smartertravel (3/19/2018) it was noted that “Consumer Reports turned to its readers for a review of U.S. airlines. The publication queried 55,000 travelers on a range of factors, including service, legroom, seating comfort, pricing, transparency, Wi-Fi connectivity and cabin cleanliness and ranked the 11 U.S. airlines accordingly…Coach Class…(rating based on scale of 1-100): Southwest-85, Alaska-84, JetBlue-83, Virgin America-83, Hawaiian-80, Delta-75, Allegiant-70, American-68, United-67, Frontier-63, Spirit-62″.

The Great Pacific Garbage Patch

In Alback-Ripka, The ‘Great Pacific Garbage Patch’ Is Ballooning, 87,000 Tons of Plastic and Counting, nytimes (3/22/2018) it was noted that “In the Pacific Ocean between California and Hawaii, hundreds of miles from any major city, plastic bottles, children’s toys, broken electronics, abandoned fishing nets and millions more fragments of debris are floating in the water-at least 87,000 tons’ worth, researchers said Thursday. In recent years, this notorious mess has become known as the Great Pacific Garbage Patch, a swirling oceanic graveyard were everyday objects get deposited by the currents. The plastics eventually disintegrate into tiny particles that often get eaten by fish and may ultimately enter the food chain. A study published Thursday in the journal Scientific Reports quantified the full extent of the so-called garbage patch: It is four to 16 times bigger than previously thought, occupying an area roughly four times the size of California and comprising an estimated 1.8 trillion pieces of rubbish…And they say, it is growing ‘exponentially’”.

Hitchhiking Statistics

In Enzimma, King of the Road, nytimes (3/22/2018) it was noted that Juan Villarino counts cars. If one passes him every minute, that’s excellent; one every five minutes, and he gets worried. One every 20 minutes, and he knows he’s really in the middle of nowhere. He once waited for two days in Tibet before a single car stopped. Based on notes he keeps in pocket-size spiral journals, he compiles statistics, including average wait times in every country he has ever hitchhiked across…As he noted in a ‘Guide to Hitchhiking’, a primer published in 2016…the countries with the shortest average wait times are: Iraq: 7 minutes; Jordan: 9 minutes; Romania: 12 minutes; The longest: Norway: 46 minutes, Afghanistan: 47 minutes; Sweden: 51 minutes”.

Travel Law Case Of The Week

In the Court case it was noted that “In 2014, The Loews Philadelphia Hotel contracted with the 12 Fit Gym to operate a spa inside the hotel. 12fit, in turn, hired Jerome McNeil as a massage therapist, but did so without conducting a criminal background check. Mt. McNeil had a checkered past. In 2007, he was arrested and charged with the alleged rape of a minor. The charges were ultimately withdrawn. In 2013, he was convicted of reckless endangerment for fleeing a police officer on a motorcycle. In 2014, shortly before joining 12Fit, Mr. McNeil was fired from his job as a massage therapist at Hand & Stone Spa for sexually assaulting a patron, an accusation as to which he was acquitted in late 2016″.

No Background Check

“Before hiring Mr. McNeil, 12Fit did not verify Mr. McNeil’s employment history. Nor did 12Fit contact his prior employer Hand & Stone to inquire into why Mr. McNeil no longer worked there. The extent of 12Fit’s research on Mr. McNeil was to note that he had a then-valid Pennsylvania massage license”.

Three Sexual Assaults

“On September 14, 2014, Mr. McNeil sexually assaulted Elena Myers Court, a Loews hotel guest, during a massage session. Loews and 12Fit largely ignored Ms. Court’s on-site report of what happened. In the weeks that followed, Mr. McNeil sexually assaulted two more women, each of whom reached settlements with Loews”.

Claims Against The Gym

“The Gym Defendants’ primary argument is twofold: they had no notice of the danger posed by Mr. McNeil, and even if they had notice, they were prohibited by Pennsylvania law from acting on it. They use this argument to attack Ms. Court’s claims for negligent hiring, negligent retention and supervision and negligent infliction of emotional distress”.

Negligent Hiring

“In Pennsylvania, a negligent hiring claim requires a plaintiff to show the usual elements of negligence: duty, breach, causation and damages…In addition, a plaintiff must demonstrated that the employer was on notice of the employee’s propensity for violence and created a situation where the employee could harm someone…The notice requirement relates to the usual elements of negligence in two ways: (1) but for the defendant’s breach of duty of reasonable care, the defendant would have known about the employee’s dangerousness and (2) failure to know of (and act on) the dangerousness caused the plaintiff’s injury”.


“Two incidents from Mr. McNeil’s past would have put the Gym Defendants on notice of his propensity for sexual violence: his 2007 arrest for molesting a minor and his 2014 firing from his previous employer (Hand & Stone) for allegedly sexually assaulting a client. The Gym Defendants only two avenues for discovering these prior incidents were for the Gym Defendants to have checked Mr. McNeil’s criminal records and asked Hand & Stone why Mr. McNeil was fired. It is undisputed that the Gym Defendants did not do so and did not otherwise verify Mr. McNeil’s criminal or employment history. Thus, the issue here turns on whether the Gym Defendants should have been obliged to perform such verification, and they done so, would have learned 9and then been legally able to act on) any material investigation.

Breach Of Duty To Investigate

For the reasons that follow, the Court holds that (1) the Gym Defendants breached their duty to conduct a reasonable investigation; (2) that breach caused Ms. Court’s injuries and (3) Mr. Court’s damages may include punitive damages…Ms. (Also) alleges negligent retention, supervision and failure to warn. But these claims rise and fall with the claim for negligent hiring, hinging on whether the Gym Defendants had notice of the threat posed by Mr. McNeil and could have acted on that threat…Ms. Court brings a claim for negligent infliction of emotional distress (NIED) with her ordinary negligence claim…The parties agree that (the NIED) claim rises and falls with the negligence claim.”

Claims Against The Hotel

“Ms. Court argues that the Loews Defendants are liable in four separate ways: (1) For the acts of its independent contractor (the Gym Defendants), (2) Under premises liability, (3) For negligently hiring the Gym Defendants, (4) Under a theory of apparent authority for holding itself out as the operator of the spa. Each argument is considered below…the Court grants summary judgment to the Loews Defendants.

Vicarious Liability

“Ms. Court argues that Loews should be liable for the torts of the Gym Defendants. The usual rule is that a property owner who engages an independent contractor is not responsible for the acts of the independent contractor…Ms. Court must therefore shoehorn this case into one of two exceptions to the usual rule: (1) Loews exercised such control over the means and method of 12Fit’s work that Loews itself can be said to have committed the tort or (2) the work of the independent contractor was unusually dangerous…Neither exception applies here”.

Premises Liability

“The general rule is that a business owner owes his invitees a duty to maintain the premises in a reasonably safe condition…As was the case for the Gym Defendant’s liability for negligent hiring, the issue boils down to notice, whether Loews had reason to know that the assault committed by Mr. McNeil was going to occur…Loews contends that it no notice that Mr. McNeil was a danger, After all, he had worked at 12Fit for two months with no incidents before he assaulted Ms. Court. The Court agrees with them”.

Liability For Negligently Hiring 12Fit

“The general rule is that an injured third party can recover from a property owner for injuries caused by an independent contractor if the owner failed to use reasonable care in selecting the contractor…Loews counters that (the owner of 12Fit) had extensive experience in the hospitality industry as a restaurant and gym manager. Loews had no reason to believe that 12Fit would fail to conduct adequate background checks of its employees. The Court agrees with Loews”.

Apparent Authority

“Liability based on apparent authority has two elements: (1) the defendant ‘held itself out’ as a principal and (2) the plaintiff reasonably relied on the defendant’s representations…[H]ere, there is no evidence that Loews represented that 12Fit would be its agent. The lease stated that the spa would operate under the name 12Fit. In the spa, Loews was never mentioned. The spa’s intake form was labeled the ‘12Fit Gym and Spa’. In addition, Ms. Court has not demonstrated that she relied on 12Fit being the agent of Loews when she booked the massage…She simply wanted to go to a convenient spa in the hotel, which she booked before arriving at the Loews”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles. For additional travel law news and developments, especially, in the member states of the EU see

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