March 31, 2016 Practice Points

Lessons from the Erin Andrews Verdict: It's Not about the Money

By Lindsay A. Eriksson

On March 7, 2016, the jury in Andrews v. Marriott International, et al. awarded sportscaster Erin Andrews $55 million over a 2008 stalking incident and subsequent release of a “peeping tom” video by her stalker, Michael Barrett. Andrews claimed that the owners and management of Windsor Hotel Capital and West End Hotel Partners (the two corporate entities who owned and operated the Nashville Marriott hotel where the incident occurred) were negligent because they told Barrett that Andrews was staying at the hotel and allowed him to book a room next door without notifying her of the request; and that she suffered (and continues to suffer) from emotional distress as a result of the invasion of privacy (the video has received over 17 million views online). The hotel defendants argued that Barrett was solely responsible for the act and there was no way the hotel could have anticipated it; and that Andrews’s financial and professional success showed she had not been seriously harmed by the incident.

The jury found the hotel defendants 49 percent liable and responsible for $27 million in damages (Barrett, also a defendant in the lawsuit, was found 51 percent liable and responsible for $28 million). While $55 million was less than the plaintiff’s $75 million demand, the liability and damages assigned to the hotel defendants were far higher than anticipated by many legal insiders and commentators.

What Was the Jury Thinking?
Preliminarily, it is important to understand that juror decision making is moral decision making, rather than legal or factual. This does not mean jurors do not consider facts or law, but rather that they process all the information presented in such a way that their ultimate decision feels “good” or “right.” Much of this occurs quickly, automatically, and subconsciously. Logic and reason play a secondary role in moral judgment, primarily showing up in post-hoc rationalizations for what was initially a “gut feeling.”

In Andrews, the moral and emotional implications of the plaintiff’s case were paramount. For jurors, this case was not about a celebrity or money, but privacy and security. There is an expectation that hotel rooms are private spaces, and most people can relate to Andrews’s experience as incredibly invasive. Barrett admitted in a 2012 deposition that he filmed up to 10 other women at hotels using the same method of tampering with peepholes (which he learned from watching a hotel employee at different hotel). The combination of the familiarity of staying at a hotel, the revelation that Barrett’s act was not an isolated incident, and the perception that a simple phone call to Andrews could have prevented everything, would have seriously violated jurors’ expectations, eroded their feelings of safety, and ignited personal fears and protective instincts. One 45-year-old male juror explained after the trial, “I've got two sons and a wife, and I think about what if it was my wife inside that room, or my kids.” A 63-year-old female juror explained, “It’s important that when we walk into hotels or any public building that says they’re going to take care of us that they take care of us, and we feel safe and secure in their environment.” The message was clear: The verdict was not meant to compensate Andrews so much as to make sure something like this would never happen to the jurors or their loved ones.

The defense strategy failed to address the moral aspects of the plaintiff’s claims. What jurors really needed from the defense was to feel safe and reassured; but instead, the hotel defendants confirmed the oft-held narrative that corporations are more concerned with profits than people. The biggest misstep by the hotel defendants was positing that Andrews had not suffered severe and permanent damage from the incident because she remained professionally and financially successful. Jurors are generally more measured in their anti-corporate sentiment than defense attorneys fear, however, by focusing on the tangible financial damages, the hotel defendants implicitly confirmed the notion that the only language large corporations are fluent in is the bottom line.

The Andrews verdict has implications not just for the hospitality industry, but for future cases involving sexual harassment, premises liability, and cybersecurity. The takeaway is that a corporate defendant must not discount the emotional, deeply moral nature of an invasion of privacy. If a defendant sends the message that the only injuries that count are financial in nature, jurors may respond accordingly.

Lindsay A. Eriksson, Sr. Research Associate, DecisionQuest


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