There were 7,621 cases of human trafficking reported in the U.S. in 2016, the last year for which yearly totals are available. In the United States, human trafficking tends to occur around international travel-hubs with large immigrant populations, notably California, Texas, Florida, and Georgia. Illinois ranked 9th out of the 50 States with 296 reported cases of human trafficking during 2016.
The issue of human trafficking has gained national attention due to cases involving high profile individuals such as prominent investor Jeffrey Epstein and New England Patriots owner Robert Kraft.
Human trafficking is prevalent in the hospitality industry, particularly at hotels. Businesses in the hospitality industry are prime territory for sex traffickers, because they can take advantage of the privacy and anonymity offered to guests, according to the U.S. Department of Homeland Security. Hotels and motels are obvious examples, but sex trafficking also can occur at theme parks, cruise ships, resorts, and nightclubs. The Polaris Project has recorded 3,300 cases of sex trafficking in hotels over a ten-year period. For this reason, federal and state specific laws are law are being implemented, which are taking aim at curtailing sex trafficking in the hospitality industry.
Under the Trafficking Victims Protection Act (TVPA), hospitality business owners can be held civilly and criminally liable for allowing sex trafficking to occur on their property. The law allows the federal government or a survivor to bring a case against the trafficker, but also against any entity that financially benefited from his or her victimization and knew or should have known that the activity was a violation of human trafficking law. Notably, under federal law, buyers of sex are considered traffickers. Therefore, a hotel can be held liable to the victim if an employee rents a room to a trafficker or a buyer and the employee knew or should have known that the room would be used for a commercial sex act State laws, such as a newly passed law in Florida, also directly impact the hospitality industry. This new Florida law requires hotels and other lodging establishments to provide annual training on human trafficking awareness to housekeeping employees and those who work at a front desk or reception area where guests ordinarily check in or out.
A concerted effort must be made at your place of business to eliminate sexual trafficking and mitigate your company’s liability. The first step is to train your employee on identifying general indicators of sex trafficking which include:
Your employee must also be trained on how to act when they suspect a situation of human trafficking. Employees are recommended to: 1) Do not at any time attempt to confront a suspected trafficker directly or alert a victim to your suspicions, (2) Call 9-1-1 for emergency situations—threats of violence, physical assault, emergency medical needs, etc. (3) Follow your corporate protocol, such as by notifying management and security. (4) Call 1-866-DHS-2-ICE (1-866-347-2423) to report suspicious criminal activity to federal law enforcement. Highly trained specialists take reports from both the public and law enforcement agencies. (5) Submit a tip at www.ice.gov/tips or get help from the National Human Trafficking Resource Center (NHTRC), call 1-888-373-7888 or text HELP or INFO to BeFree (233733).
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]]>“An owner, lessee, or occupant of land may be liable for injury to a child caused by a highly dangerous artificial condition on the land if:
(1) the place where the artificial condition exists is one upon which the owner, lessee, or occupant knew or reasonably should have known that children were likely to trespass;
(2) the artificial condition is one that the owner, lessee, or occupant knew or reasonably should have known existed, and that the owner, lessee, or occupant realized or should have realized involved an unreasonable risk of death or serious bodily harm to such children;
(3) the injured child, because of the child’s youth, did not discover the condition or realize the risk involved in intermeddling with the condition or coming within the area made dangerous by the condition;
(4) the utility to the owner, lessee, or occupant of maintaining the artificial condition and the burden of eliminating the danger were slight as compared with the risk to the child involved; and
(5) the owner, lessee, or occupant failed to exercise reasonable care to eliminate the danger or otherwise protect the child”Tx Civ Prac & Rem § 75.007 (c)
One of the most common examples of attractive nuisance cases is in the case of swimming pools. In Florida, drowning is the leading cause of death for children between the ages of 1-4 years. Nationally, according to the CDC, about 1 in 5 who die from drowning are minors: 14 and under. See https://www.cdc.gov/homeandrecreationalsafety/water-safety/waterinjuries-factsheet.html. After an incident involving a minor and accidental drowning, parents may have claims for negligence, wrongful death, and attractive nuisance. In general, innkeepers have a duty to take reasonable steps to minimize dangers within their control. It follows; many states require operators of public pools to maintain signage around pool areas.
Defenses
After a claim involving minor children, a landowner must respond to the plaintiff’s proof of the elements of the prima facie case that are applicable to a general negligence action. When it can, he/she should challenge applicability of statute or ordinance that was allegedly violated.
On the issue of comparative negligence, depending on the child’s age, some states will consider the child’s own negligence. Additionally, it is essential that the issue of proximate causation is properly assessed. This includes an analysis on the cause of injuries including the action or inaction on the part of the minor’s parents.
Other important topics in the handling of claims involving minors include knowing jurisdictional requirements involving minors such as: age of reason, negligence standards applicable and resolution requirements and thresholds.
Waiver and Releases
Although waivers and releases are very common, there are some factors that will affect the legal effectiveness of waivers & releases involving minors including:
CASE MANAGEMENT
Once a complaint is received by your claims department, the first cause of action is to review the facts alleged in the complaint and assess the information contained. Is there an existing case in the company’s files? Or is it the first time your company is hearing about this incident? The company should try to identify all the named defendants and which of the defendants are insured. What are the legal causes of action alleged in the complaint and what facts support the allegations?
INVESTIGATION.
After the preliminary assessment of the case, the company should gather all the relevant information including all the possible witnesses, crime grid statistics, police reports, incident reports, any documents/reports as to other incidents, security information, retrieve any surveillance footage (save enough –recommended an hour before and an hour after), assess lighting on the property, interview security personnel, if any, etc. It is important to understand that at this point it is possible that the only source of information is the complaint. That is why it is essential to gather all the relevant facts in connection to the incident as quickly as possible.
In this stage, it is essential to identify any potential security liability issues at the premises. Retaining a security company early on to assess the premises may not be a bad idea. A security company will evaluate the reasonableness of the security measures all ready in place based on the crime grid statistics and what they show. The important thing in this phase is getting on the offense and creating your own narrative.
EVALUATION
This process includes an assessment of the possible liability and damages issues related to the plaintiff’s claim. Before deciding on a successful litigation plan, the company must understand the possible ramifications of each cause of action, and the likely results. What are the available defenses and the chances of a successful outcome based on what information is available. To succeed in a negligence claim a plaintiff must prove (1) the existence of a legal duty; (2) a breach of that duty; (3) proximate cause of the plaintiff’s damages by defendant’s breach;and (4) damages. Proximate cause had two components: (1) foreseeability and (2) cause-in-fact. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004).
In cases of liability arising after a crime is committed on the premises, it is necessary to understand the issue of foreseeability. Generally, a foreseeability analysis includes matters such as the imminent harm, the existence of prior similar crimes and the totality of the circumstances.
For example in Florida, in a premises liability case a property owner is generally under no duty to exercise any care to warn or guard against the harmful acts of a third party unless that third party’s harmful behavior is reasonably foreseeable. And although not dispositive, a showing that of no prior incidents can shed a light on the difference between whether an accident “is merely possible and whether it is reasonably foreseeable.” Las Olas Holding Co. v. Demella, 228 So. 3d 97, 104 (Fla. 4th DCA 2017)
In Texas, the courts compare the narrowed criminal history of the premises with the crime in question based on the five factors: proximity, publicity, recency, frequency, and similarity.See Flanagan v. RBD San Antonio L.P., 04-16-00761-CV, 2017 WL 5615567(Tex. App. Nov. 22, 2017).
LITIGATION PLANNING
A litigation plan is a mutually agreed upon plan between claims professional and defense counsel to implement the resolution plan. Although it must identify all the agreed upon steps to achieve the resolution plan, it is not a start to finish all-encompassing plan, but a living document built in phases.
After a litigation plan is agreed upon, ask counsel to estimate time expenditure necessary for that portion of the litigation plan. The budget should track the litigation plan and include costs for any experts that are used during that portion of the litigation plan.
]]>Belinda Bacon, a partner and Florida Bar Board Certified Construction lawyer, represents owners, engineers, architects, contractors as well as construction contracts, project administration and litigation matters.
Elisha Sullivan, associate, is a trial lawyer handling personal injury, medical malpractice, assault, and wrongful death claims in state and federal court.
Kyle Stewart, associate, focuses his practices on the defense of personal injury and wrongful death claims, premise liability, negligent security, and commercial litigation matters.
Reeba Hartley-Belle, associate, is a trial lawyer who focuses her practice on the defense of personal injury and wrongful death claims, premises liability, product liability, negligent security, and complex business disputes.
Benjamin Pahl, associate, focuses his practice on the defense of catastrophic injury claims, death and dependency claims, complex liability claims, and workers compensation claims.
Elijah C. Waring Jr., associate, focuses his practice on the defense of personal injury and wrongful death claims, premises liability, negligent security, and complex business disputes.
Hamilton, Miller & Birthisel, L.L.P. is a specialized boutique law firm practicing in the areas of admiralty and maritime, transportation, commercial litigation, hospitality law, property and casualty, insurance defense and coverage, and personal injury litigation. In addition to its practice in the United States, the firm represents clients throughout the Caribbean through its Jamaica, U.S. Virgin Islands, Puerto Rico and Bahamas offices.
The firm is located at 150 S.E. Second Avenue, Suite 1200, Miami, Florida 33131, Phone: 305-379-3686, FAX: 305-379-3690, with nine other offices located in Tampa, Fort Lauderdale, Jacksonville, Orlando, New York, Kingston, Jamaica, St. Thomas/St. Croix U..S. Virgin Islands, Nassau, Bahamas, and San Juan, Puerto Rico. www.hamiltonmillerlaw.com #HMBLaw.
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