I don't think this answers your question but it may point you to a
couple of cases that will, or at least give you a better
understanding. Sorry I couldn't locate the actual statute.
The following is located at
http://216.239.53.100/search?q=cache:mvg15eLy694C:www.lawrite.net/Sample_Briefs/defensivebrief_hotelsecurity.pdf+Kveragas+v.+Scottish+Inns.+Inc&hl=en&ie=UTF-8
The defendants correctly cite Zang v. Leonard, 643 S.W.2d 657 (Tenn.
App. 1982), as setting forth the standard of care required of
innkeepers: the duty placed on innkeepers to protect registered guests
from the misconduct of third persons is a duty of care under all the
circumstances. 643 S.W.2d at 663. As the court in Kveragas v. Scottish
Inns. Inc., 733 F.2d 409, 413 (6th Cir. 1984)(interpreting Tennessee
law) noted, the standard of care required under Zang is a "reasonable
person" standard. However, the court in Kveragas also noted that the
Zang court did not leave the application of the general due care
standard to the unfettered discretion of the jury. Rather, the jury in
assessing due care should consider the following factors: [i] the
nature and use of the land, [ii] the nature of the invitation, [iii]
the nature of the relationship with the invitee, [iv] the opportunity
of the possessor and the invitee to know and avoid existing or
probable dangers, and [v] any and all factors which would challenge
the attention of the possessor and/or invitee to the probability of
danger to the invitee and produce the precautions which a reasonably
prudent person would instigate under the same or similar
circumstances. 733 F.2d at 413, citing Zang, 643 S.W.2d at 663. And,
as the court in Kveragas noted, under the Zang rule, the first
responsibility of the factfinder is to determine "what, if any,
protective measures would have been employed by a reasonably prudent
motel operator under the same circumstances" which the factfinder
finds existed at the time of tile injury. Id..The finding of fact as
to the protective measures that a reasonably prudent motel operator
would have employed is to be based on a comprehensive study of all
relevant conditions. The Kveragas court listed some of the appropriate
considerations that the court in Zang considered relevant to the
question of an innkeeper's duty to protect its guests against criminal
assault by third persons:
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SAMPLE Brief Opposing Summary Judgment Innkeeper's Liability
(Tennessee law) page 18 * Whether the motel is advertised as an
unusual establishment which offers better than ordinary facilities; *
Whether the location of the motel is such as to be convenient to
criminals; * Whether prior assaults or other criminal acts have
occurred on the premises; * The cost of various protective measures
weighed against the expected benefit of those measures; * The ability
of the guest to protect himself by employing available and relatively
inexpensive protective measures such as deadbolt locks and other
devices; * Compliance or noncompliance with the industry standard, if
such a standard exists and is found to be reasonable; * Compliance or
noncompliance with internal safety procedures if such procedures
exist; * The inconvenience to guests occasioned by particular
protective measures; * Any other factor or circumstance that the trial
court determines, in light of the particular facts of each case, is
relevant to the ultimate fact question regarding reasonable protective
measures. 733 F.2d at 414. Nearly all of those considerations have
been ignored by the defendants in their Memorandum in support of their
motion for summary judgment, and not surprisingly so because each of
those listed factors is relevant to this action and works against
defendants' motion. In asserting that there is no genuine issue of
fact regarding the duty of care and the breach of that duty, the
defendants concentrate on a single factor: the ability of the guest to
protect himself by employing the available safety devices. The
defendants have ignored completely the questions of: (i) noncompliance
with industry standards regarding the rekeying of locks and the
surveillance of the motel; (ii) the inadequacy of the safety sheet
informing residents to use all three locks at all times; (iii) the
undisputed fact that even had a deadbolt been engaged, the assailant
had and was willing to use the master deadbolt key; (iv) the
inconvenience to the guests occasioned by having to throw a chain each
and every time they entered the room, even when they planned to leave
within minutes; (v) the lack of internal procedures to safeguard the
room keys (including deadbolt keys) or the noncompliance with the
motel's procedures in this regard;
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SAMPLE Brief Opposing Summary Judgment Innkeeper's Liability
(Tennessee law) page 19 (vi) the failure to provide a manned
gatehouse, a fence securing the motel property, and other reasonable
security measures given the frequent occurrence of prior assaults or
criminal activity in and near the motel; (vii) the relative proximity
of the motel to a high crime area such as to make it convenient to
criminals; and (viii) the noncompliance with (or lack of) both
internal procedures and industry standards regarding the surveillance
of hallways and common areas so as to preclude the entry of
unregistered guests. In Kveragas, the court reversed the district
court's directed verdict for the defendants, finding, inter alia, that
motel guests who were attacked and robbed by intruders presented
sufficient evidence for the jury on issues of (i) whether a reasonably
prudent motel operator would have employed more substantial doors and
locks; and (ii) whether intruders would have been able to gain entry
into the guests room if such protective measures had been adopted.
Similarly, in this action, the factfinder is entitled to hear all the
evidence and resolve the issue regarding the issues of (i) whether a
reasonably prudent motel operator would have employed better safety
procedures regarding its keys, its surveillance of the premises and
its warnings to guests, and (ii) whether the intruder in this case
would have been able to gain entry into Guest's room if such
protective measures had been adopted. Plaintiffs suggest that the
evidence to date supports a finding that the innkeepers should have
had better safety procedures, and, had they had better safety
procedures, the assailant would have never made it into Guest's room
at the motel. The affidavits of experts Experts 1 and 2 raise a jury
issue as to whether Not-Very could and should have done more than they
did. The affidavits of Experts 3 and 1 regarding the Dangerous
Not-Very's failure to rekey or change out locks when keys were
unaccounted for, together with the affidavit of Employee 1 and the
testimony of Manager A and Cup confirming
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SAMPLE Brief Opposing Summary Judgment Innkeeper's Liability
(Tennessee law) page 20 that, clearly establishes a fact question
about whether Not-Very did all it could to (i) prevent the criminal's
presence on the motel premises, (ii) warn Guest and Alsoguest about
the need for extra precaution even in the daytime, and (iii) control
the access of keys to guests' rooms. The question of Guest's presumed
comparative fault also remains an issue for the factfinder. The
plaintiffs are entitled to make all reasonable inferences that can
drawn from the facts, and the factfinder is entitled to consider all
those reasonable inferences once the evidence is fully presented at
trial. Considering allthe circumstances, even at this early stage of
discovery, the simple fact that a chain lock was available does not
resolve the issue. The questions are whether the motel did all it
could to preclude the intruder's entry into Guest's room. Material
issues of fact remain on that issue. D. Disputed Issues of Material
Fact Remain for the Factfinder's Determination on the Question of
Causation. The defendants also argue that, as a matter of law, the
proximate cause of Guest's injuries was his own failure to properly
secure his room. That is, the defendants argue that had Guest thrown
the deadbolt and secured the chain lock, he would not have been
assaulted. The facts suggest a different, reasonable inference: the
assailant had a room key, a deadbolt key, a switch blade and a
handgun. The assailant was violent, and willing to use violence to
gain entry to the room. Indeed, when Alsoguest locked the bathroom
door between himself and the assailant, he was just as unsafe as being
behind an unlocked door. The assailant announced his willingness to
use his handgun to blast the door open. It is a reasonable inference
from all of the facts that the assailant having a room key, a deadbolt
pass key and weapons, would not have been hindered by the chain lock.
Indeed, plaintiffs' experts have testified by affidavit that the chain
lock would not have imposed any reasonable restraint to an assailant
intent on entering the room. Moreover, it is impossible to throw a
chain lock from the hallway, and it is equally reasonable to believe
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SAMPLE Brief Opposing Summary Judgment Innkeeper's Liability
(Tennessee law) page 21 that the assailant, having a room key and a
deadbolt key, if met with a chain lock at one instance might not have
entered the room while Guest was gone and waited for his return to rob
and assault him. As the court in Kveragas emphasized in response to
similar arguments by the motel operator in that case, for purposes of
determining causation: The crucial inquiry [for purposes of
determining causation] is "what could and should have been anticipated
by defendants" and what the result likely would have been if the
defendants had adopted reasonable protective measures designed to
prevent these anticipated dangers. Some criminals are bent on violence
regardless of the obstacles placed in front of them ... The ultimate
causation question is whether the injured party would have suffered
the same injury if the motel operator had employed the protective
measures which the factfinder determines should have been employed in
the exercise of reasonable diligence. If the factfinder determines
that the guest's injuries would not have occurred. or would have been
less severe if reasonable protective measures had been employed, then
the failure to employ these measures is the cause of these injuries.
733 F.2d at 415 (emphasis supplied). Here, there will be expert
testimony that Guest's injuries (and his wife's resultant injuries)
would not have occurred if the Not-Very defendants had employed
certain protective measures, including the proper supervision of room
keys; the routine change, rotation or re-keying of locks and/or
cylinders; the compliance with industry standards regarding the
quality and design of door locks; and the warning of Guest that there
was a risk of other unknown persons having access to room keys and/or
that there were previous assaults, robberies or attempted assaults and
robberies on or near the premises in previous months. Not-Very's own
corporate representative, Manager A, testified that if she were
checking into a motel back in August 19__, and the management told her
about all of the prior incidents of robberies and car thefts and other
criminal activities that had occurred at the Dangerous Not-Very and
also told her that they suspected that they were missing a master key,
she would not have checked into the motel. She does not know of any
reason that Guest could not have been told about the prior criminal
activity, but she believes that people may have decided not to stay at
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SAMPLE Brief Opposing Summary Judgment Innkeeper's Liability
(Tennessee law) page 22 the Dangerous Not-Very if they had been
given that information. The affidavit testimony of plaintiffs' experts
and the testimony of Manager A supports a finding that had they
known about the incidence of crime, the suspicion of a missing master
key and the lack of accounting for room keys, Guest and Alsoguest may
not have chosen to stay at the Dangerous Not-Very at all. The
defendants' emphasis on what more Guest could have done to protect
himself is not the crucial inquiry. Tennessee is a comparative fault
state. McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992), and there
can be more than one cause of an injury. If the defendants' negligence
was a substantial factor in producing the end result, it is a
proximate cause of that result, even if it was not the sole cause, the
last act or the negligent act closest to the injury. McClenahan v.
Cooley, 806 S.W.2d 767 (Tenn. 1991). So long as a factual basis
exists, it is the prerogative of the factfinder to determine the
relative degree of fault. Therefore, should the factfinder determine
that Guest failed to act as a reasonably prudent person by using a
single lock in the daytime and without any notice as to the propensity
for violent crimes in the neighborhood and the suspicion of a missing
master key, then Guest's negligence would simply be compared to that
of the defendants. It would not determine the issue of causation.
There is simply no authority for defendants' suggestion that a motel
guest's failure to throw a chain or deadbolt lock every time the guest
enters the room constitutes, as a matter of law, such overriding
negligence such as to constitute the sole proximate cause of a
third-party assault. Under a system of comparative fault, the question
of causation is for the factfinder after presentation of the evidence
by plaintiffs at trial.
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