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Why Erin Andrews Won $55 Million in Peeping Tom Lawsuit and What it Means for Indiana Small Businesses

News surfaced Monday that Erin Andrews won $55 million in a lawsuit against her stalker, Michael Barrett, for videotaping her naked without her consent or knowledge in a Nashville Marriott in 2009. But perhaps more surprising is that the jury awarded 49% of those damages, or roughly $26 million, to be paid by the owner of the Marriott hotel where she was staying.

There is no doubt that what happened to Ms. Andrews was nothing short of a nightmare that nobody deserves. But how could the hotel be responsible? And what does that mean for your business?

After all, it was Barrett who slipped into the hotel, altered the peephole to Ms. Andrews’ room, and videotaped her for more than four minutes while she was in the nude. Barrett was then one who then spread those images across the internet.

Ms. Andrews and her attorneys argued that the hotel bore much of the responsibility for the fact that Bennett was permitted to take the video, which has been viewed over 16 million times on the internet and, as Ms. Andrews alleged, caused her severe emotional distress and damages.

The attorneys for defendant West End Hotel Partners, who own the Marriott in question, have said that Barrett’s criminal actions were his responsibility, not theirs. Their strategy also has been to minimize — some would say callously belittle — the emotional trauma endured by Andrews.

Ms. Andrews’ lead attorney told jurors in closing arguments last Friday that the owners and operators of the hotel failed to keep the famous sportscaster safe when she was their guest. “This has to be our home away from home,” the attorney argued. “We turn ourselves over to them and their protection.”
Privacy and personal safety are at the forefront of many people’s minds, especially in today’s wired-in culture. So let’s take a look at the basis for liability in this case, and how you can avoid the same fate.

In most states, it’s vital for hotels to ensure guests are safe. Just as a hotel must anticipate that a thief or assailant could break into guest rooms, it also must anticipate invasions of privacy and voyeurism in guest rooms, and throughout the hotel. Hotels should take security seriously, and use guards and cameras to actively monitor hallways and common areas. Staff should be properly trained to look for anything suspicious.

The hotel, as with any business, is required to take common-sense precautions to protect its customers and guests. The question of what constitutes “common sense” or what is “reasonable” lie at the heart of any business’ exposure. For instance, would it have been reasonable in this case for Marriott to use house phones that displayed the room numbers of guests? Were hallways actively monitored or patrolled? How is it that no one saw Andrews’ stalker standing outside her door and using a hacksaw to change the peephole to set up his videotaping?

Despite the fact that Andrews’ stalker was able to modify her door without being seen or challenged, this case appears to have come down to something more simply: Why did hotel staff give this “average joe” the room number of a hotel guest without any indication that he had any affiliation or relationship with her? The jury appeared to see no “common sense” or “reasonable” reason to provide such information to a complete stranger. Much of what is “reasonable” can be ascertained by looking at common custom and accepted standards of the industry. Indeed, an expert witness testified that providing hotel guest information, such as a room number, without approval from the guest is a “cardinal sin” in the hotel industry.

Ms. Andrews’ attorneys successfully argued that the hotel lacked basic security lapses, not some elaborate system, that allowed the perpetrator to make his video – and that the subsequent exploitation and publication of the video was simply a foreseeable consequence for which the hotel must bear responsibility.

Marriott worked hard to paint itself as a victim of Barrett’s actions, and that it should not be held responsible for his “manipulation” of their reservation system. But that obviously did not fly. The jury seemingly sent the message to Marriott: get a better system.

Every business, regardless of whether they want it or not, is burdened with a duty to take reasonable and necessary steps to protect the safety and health of its customers. For that reason, it is important for every business to have deliberate, effective, and modern systems and procedures in place to protect clients, tenants, and customers from foreseeable peril. That could include having a “wet floor” sign out after mopping, using patrolling security guards outside an apartment complex, or installing sensible personal information protections. Discuss these issues with your attorney and regularly update your systems, processes, and safeguards.

It did not help Marriott that this case involved the publication of nude photos. Such cases have notoriously met swift and harsh judgment by juries. For instance, a Georgia jury initially awarded $20 million, though later reduced to $250,000, to the estate of model Nancy Benoit after Hustler published nude photos of her after her death. And a New York jury recently ordered rapper 50 Cent to pay $7 million for the unauthorized publication of an online sex video.

If anything, this $55 million verdict for Ms. Andrews will underscore the lesson that hotels these days cannot be too vigilant in ensuring their guests are safe, including their privacy.

Chris Jeter is a founding partner of the law firm of Massillamany & Jeter LLP and serves as Team Leader for the firm’s Estate Planning Practice Area. For more information on this topic, please contact Mr. Jeter at (317) 225-6507 or by e-mail at: [email protected]

This article is not intended to serve as legal advice. Should you have questions about this topic, you should consult with a licensed lawyer.

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