A Cook County judge was right to dismiss a complaint
sportscaster Erin Andrews filed against the Chicago-based company that managed the online reservation system for the Columbus, Ohio, hotel in
which she was illegally recorded, an Illinois appeals court has ruled.
The Illinois First District Appellate Court issued its
opinion in an unpublished order upholding the lower court's decision to dismiss the lawsuit against Preferred Hotel Group.
Erin Andrews | Helga Esteb / Shutterstock.com
Justice Daniel J. Pierce wrote the order; Justices P. Scott Neville
and Michael B. Hyman concurred. The order was issued under Supreme Court Rule
23, which restricts its use as precedent, except under very limited
circumstances permitted by the Supreme Court rule.
Andrews sued Preferred over a February 2008 stay
at The Blackwell Inn in Columbus, Ohio, during which another guest, Michael David
Barrett, was able to video record the ESPN television personality inside her room. The Preferred
Group managed the online reservation system for the hotel, which is owned and
operated by Ohio State University. Andrews alleged negligence and invasion of
privacy relative to Barrett learning details of Andrews’ stay. According to the
appellate decision, Barrett called the hotel and asked to be assigned a room
next to Andrews. With that request granted, he “retrofitted the peephole on
Andrew's hotel room door (and) was able to record video of her activities in
the room, including changing and dressing,” which he later posted online.
Andrews argued Preferred should be considered a joint
operator of the hotel or that the management group voluntarily assumed a duty
of protecting privacy. Preferred’s motion to dismiss disputed both claims. After
two years of discovery, Cook County Circuit Court Judge Kathy Flanagan granted
the motion to dismiss.
In the appeal, Andrews argued Preferred’s motion should have
been denied outright because it essentially was a motion for summary judgment
“disguised” as a motion to dismiss. She also argued the two-pronged liability
claims were questions of fact that should have precluded dismissal.
The appellate justices, however, reviewed the contracts
between Preferred and OSU, as well as the discovery record, and found “Preferred
and OSU were nothing more than two separate entities contracting with one
another for a particular service from which each would derive their own
individual profit.” Further, “Preferred does not have any employees at
Blackwell and Preferred does not and never had access to Blackwell's guest list
or the assignment of hotel room numbers.”
In considering whether Preferred voluntarily assumed a duty
to protect Andrews’ privacy, Andrews cited Preferred’s “Standards of Excellence”
document, which, while addressing privacy concerns, does not contain a clause regarding
disclosure of guest identity, ultimately asserting “that even though Preferred
does not have a standard specifically prohibiting these acts, the failure to
employ such standards was a breach of the privacy standards it did embrace.”
Pierce’s opinion reiterated Preferred has no employees on
site at The Blackwell “and exercises no control over the policies, procedures
and general operation.”
The case record shows Andrews did not use Preferred’s system
to book her Blackwell room, and that Preferred has no access to hotel records
for guests who make reservations through another channel. Andrews “was afforded
ample opportunity to discover evidence that would refute” Preferred’s
materials, but ultimately failed to do so. Voluntary undertakings, Pierce
wrote, “are to be strictly construed,” and Barrett’s actions did not conflict
with the privacy standards Preferred requires of its hotel partners.
According to Cook County court records, Andrews was
represented by attorneys with the firm of Power Rogers & Smith, of Chicago;
Preferred Hotel Group was defended by the firm of Pretzel & Stouffer, of