In a Rube Goldberg-esque lawsuit, a man who uses an electric breathing device to sleep alleges that the failure of a Las Vegas hotel to warn him of a planned power outage ultimately caused him to trip and fall in his room, injuring his hand.

A hotel operator owes guests a duty only to keep the premises in a reasonably safe condition for use and premises liability cases against hotels involving power outages are few and far between. In 1989, a Puerto Rico judge found that a hotel was not liable for the injuries to a guest who fell in a bathroom after the lights went out as she was taking a shower.

The hotel was “was not required to foresee all possible risks stemming from a power outage, only those that were likely to arise,” U.S. District Judge Jose Antonio Fuste said in Ottimo v. Posadas de Puerto Rico Associates, 721 F. Supp. 1499.

Andrew Gold was asleep in his room at the luxurious Palazzo Las Vegas when the hotel shut the power off at 3 a.m. on Dec. 18, 2008. But he sued the hotel's operator, Las Vegas Sands Corp. (NYSE: LVS), earlier this month, alleging that a chain of causation links the blackout to his hand injury.

“Defendant knew or should have known that its guests, including Plaintiff, could be seriously injured if not informed of a scheduled power outage before its occurrence,” the complaint says.

Gold suffers from sleep apnea, a condition that causes people to stop breathing repeatedly during their sleep. Apnea patients commonly use an electric device known as CPAP (continuous positive airway pressure) to deliver a continuous stream of oxygen directly through their nose, allowing unobstructed breathing.

The blackout at the Palazzo, says Gold, stopped his breathing machine, causing him to wake up. In the darkened room, he then tried to turn the bedside lamp on but that didn't work because of the outage. He got out of bed “in an attempt to turn on a light to determine what had happened,” but as he was “'feeling his way around the dark and unfamiliar hotel room,”

Plaintiff tripped and he held out his arms to stop his fall. Plaintiff hit the palm of his right hand extremely hard on the sharp corner of a bedside table.

Gold alleges the impact has caused him to develop complex regional pain syndrome, which “continues to cause Plaintiff extreme pain, disfigurement and loss of arm function.” He is seeking damages of at least $50,000.

If the Palazzo did not warn guests of the blackout, that could certainly have inconvenienced those who, for example, had set electronic alarm clocks or were charging cell phones. “[T]he hotel was way out of line in not informing ALL guests of the planned outage,” a contributor to a sleep apnea forum says.

Gold also says the Palazzo was negligent in failing to provide him with “an alternative light source such as a flashlight.”

But in the Ottimo case, Judge Fuste ruled that just because the plaintiff slipped “as a result of the blackout does not mean that it was a risk that should have been anticipated.” The plaintiff did not show, he continued, that “it is the custom in the hotel industry to provide emergency illumination in the bathrooms” and

prudence should have cautioned [her] from attempting to move around the bathtub in the dark. She was the best guardian of her safety, not the hotel.

Gold would certainly have a stronger case if he told the Palazzo he uses a breathing machine at night. Under the alleged facts, his accident seems to fall into the category of risks that were not likely to arise and the hotel could argue it was imprudent of him to fumble around in the dark for another light.

In another unusual premises case, a woman sued the operator of a Round Lake Beach, Ill., haunted house Dec. 3, alleging her slip-and-fall injury resulted in part from the negligence of an employee who “improperly" chased her out of the house with a chainsaw as a "scare tactic."

By Matthew Heller
12/17/09