The Trouble with Secret Site Inspections

I’ve written before about why secret site inspections are a bad idea,[1] but someone locally did one anyway.  The result was more hassle than it was worth.

The facts alleged in the petition.[2]

Britz v. Aria is a pending case where the plaintiff alleges he slipped, fell, and was injured in a hotel shower.[3]  This is nothing exciting.  The case came to my attention only because of a writ petition filed November 25, 2019.[4]  The petition explained that 18 months after falling, plaintiff hired lawyer.  “Prior to filing a complaint, and for the purpose of preventing the filing of an unfounded or frivolous lawsuit, [Lawyer] retained [Engineer] as a consulting expert to evaluate the Aria’s bathrooms to determine whether the circumstances of Britz’s fall would justify the initiation of litigation.”[5]

On February 18, 2018, Britz booked a different room (the other room) at the Aria than the one he had previously fallen in, and allowed [Engineer] to perform some non-destructive testing on the other room’s bathroom and shower to determine whether the shower met industry standards for slip coefficient. [Engineer] made notes regarding his testing, but did not prepare a report.

The complaint was timely filed and at some point later Aria notified Plaintiff of anticipated renovations to the room.  Plaintiff requested a site inspection.  Aria requested all communications between Plaintiff and his proposed engineer and Plaintiff complied.[6]  Plaintiff even produced all the emails and communications concerning the secret pre-litigation inspection.  Aria responded by refusing a site inspection and moving for sanctions.  The district court granted the motion, excluded Engineer from the case, and disqualified Lawyer.[7]

The arguments in the writ petition.

The first argument is that the rules of civil procedure do not apply before litigation commences.  This argument seems weak since at least one federal court already rejected it.[8]  If you know you can’t do something once suit is filed, why would it be ok to do it before suit is filed?

The second is that Lawyer’s Rule 11 pre-suit investigation required the inspection.  If so then why not ask for a site inspection before filing suit?  Requests like that are not uncommon, especially in complex cases. Why was a super-secret inspection, in a different room, necessary to determine if a slip and fall claim had potential merit? 

Lawyer then argues he did not violate any rules of professional conduct.  The facts described in the petition seem to point the other direction.  Lawyer’s own emails indicate he played a role in arranging the secret site inspection.  Lawyer presumably knew or should have known better.

These are the primary arguments.  I comment only on one other side argument.  The engineer is listed as a party to the writ petition and argues the district court erroneously excluded him.  I note only that expert witnesses generally lack standing to participate in a case in this manner.[9]  The plaintiff himself has sufficient standing to challenge the order.

The takeaway

The secret site inspection is surely tempting, but it just is not worth the risk.  The far safer route is to request the inspection and go through the metaphorical front door.  Sneaking through the side door unannounced will only lead to trouble.

[1] November 2, 2015; March 6, 2017; May 8, 2017.

[2] I am relying solely upon the information in the petition.  I haven’t reviewed anything else, nor do I plan to.

[3] A-18-770380-C

[4] No. 80082

[5] Petition at 5.

[6] This sequence of events is confusing to me, but oh well.

[7] The sanctions are quite similar to what I abstractly guessed would happen in this scenario in the March 6, 2017 post written almost a year before this debacle occurred.

[8] November 2, 2015 post.

[9] January 29, 2018.