Under the common law, a person commits a tort when he or she fails to provide a public utility or a public facility to a member of the public.
Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Public Accommodations & Facilities
In order to be liable for this tort, the person must have a non-contractual duty to provide the public utility or the public facility to the public. A denial of the public utility or the public facility constitutes a breach of that duty.
If a person has a contractual duty to provide a public utility or a public facility to a member of the public, the person would not be liable in tort. The person would only be liable for a breach of his or her contractual duties. For example, if a person has made a reservation at a hotel, which reservation a hotelkeeper refuses to honor, the hotelkeeper would only be liable for a breach of contract action. If the person did not have a reservation at the hotel and the hotelkeeper refused to provide a hotel room to the person, the hotelkeeper would be liable for a tort action. However, the hotelkeeper’s refusal to provide the hotel room must have been unreasonable.
A person who violates a statute or an ordinance, which statute or ordinance requires the person to provide public facilities, may be liable for a tort action. A violation of a criminal statute may also be grounds for the tort action.
A person who has a duty to provide public facilities is liable for the tort of failure to provide the public facilities. The person’s employees may also be liable for the tort. The person’s employees may be liable for the tort, even if the person is not liable.
Examples of a failure to provide a public utility include a carrier’s refusal to carry goods, to deliver goods, or to carry passengers. Examples also include a utility’s failure to provide telephone, electric, or gas services. Examples of a failure to provide a public facility include a hotel’s wrongful ejection of a guest or the hotel’s refusal to rent a room to the guest or a restaurant’s wrongful ejection of a customer or the restaurant’s refusal to serve the customer.
Although there are federal and state statutes that prohibit discrimination with regard to a public utility or a public facility, such as the Civil Rights Act of 1871, the common law tort of failure to provide a public utility or a public facility may also apply.
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