Tennessee toe tort | Marcel Strigberger

By Marcel Strigberger

Law360 Canada (May 12, 2023, 2:33 PM EDT) --
Marcel Strigberger
Toe tort in Tennessee! A night manager of a downtown Hilton Hotel in Nashville, Tenn., one David Patrick Neal, has been charged with aggravated burglary and assault after allegedly sneaking into the room of a guest, one Paul Brennan, and sucking on the sleeping gentleman’s toes.

The guest has filed a “complaint” in the local circuit court against both Brennan and Hilton for damages. I guess that is similar to our statement of claim. Actually, I would say it sounds more descriptive and bang on. Were it to happen to me, I certainly would waste no time complaining. We are talking something more serious than noisy air conditioning.

The complaint actually turned up online and of interest to me is that it runs about 80 paragraphs. Brennan’s lawyer is certainly meticulous. In addition to pleading intentional acts of assault and battery, he even alleges negligence against the assailant, noting Neal breached his duty of care owed to the guest by “negligently and recklessly entering Mr. Brennan’s room without his knowledge and consent and by his unwanted physical contact with Mr. Brennan.”  

I would almost call a plea of negligence against Neal overkill. What negligence? It’s not as if Neal had a willing party waiting for him in room 416 and by error he entered room 417 and given possible darkness in the room he suffered a case of mistaken toe identity.

Actually Neal’s excuse to the police for entering was that he smelled smoke and he wanted to check on his guest for his safety. I for one wouldn’t trust this guy with a fire extinguisher. If I was ever to smell smoke and dial 911, I wouldn’t feel too comfortable were I to see him jump off the fire engine.

The crux of the claim of course is in the possible vicarious liability of Hilton. Under common law, an employer can be vicariously liable for wrongful acts by an employee committed in the course and scope of their employment. The hotel will no doubt argue that what Neal allegedly did was outside the course and scope of his employment, or using the popular vernacular, that he went on a “detour” and perpetrated “a frolic of his own.”  

Certainly nobody can argue that the guy went on a bit of a detour. I’ve spent many nights in hotels, and occasionally I would take a glance at a sign on the front desk which reads something like “Manager on Duty: Henry.” I never bothered asking for his job description. I’m OK if he just tells me where the ice machine is.

And I actually looked up the meaning of frolic and examples of frolic on one site noted “flying a kite, playing frisbee and going on a picnic.” I don’t know if these examples will be addressed by Hilton’s lawyers. I somehow don’t see a jury equating Neal’s alleged bizarre action to flying a kite or playing Frisbee. I’ll leave it at that.

This is a very deplorable incident and I feel sorry for the plaintiff. Nashville is a great city, best known for its country music, the Grand Ole Opry and the Nashville Predators. Unfortunately Paul Brennan fell prey to a different type.
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His just launched book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available on Amazon, (e-book) and paper version. Visit www.marcelshumour.com. Follow him @MarcelsHumour.

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