Will Erin Andrews really get $55 million?

Fox sportscaster Erin Andrews won a jury award of $55 million for invasion of privacy because Michael David Barrett, who stayed in a room next to hers in a Nashville hotel, hacksawed away a peephole to videotape her nude and then posted the footage on the Internet. Barrett went to jail for what he did.

Erin Andrews enters the courtroom for closing remarks on March 4, 2016 in Nashville, Tennessee.
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Erin Andrews enters the courtroom for closing remarks on March 4, 2016 in Nashville, Tennessee.

In the civil trial, the jury found Barrett responsible for 51 percent of Andrews's severe emotional distress and other damages and found the hotel responsible for 49 percent of her damages. That makes Barrett responsible for a little over $28 million and the hotel responsible for a little under $27 million.

Tennessee, where the trial took place, is one of 18 states where a defendant is only responsible for paying his/her/its share of the damages they caused, subject to certain exceptions, according to a recent survey by the law firm Wilson Elser. It can be any percentage the jury decides and that determination is guided by the arguments of the lawyers and the instructions from the judge. (There are seven states where a defendant is responsible only for its share of fault without exception. Click here to see the full Wilson Elser survey on what the law is in all 50 states.)


The next step will be post-trial motions before this judge about what the judgment will say and who will be responsible for what. Inevitably, the next step will be an appeal.

How this will play out is both simple and complicated.

Here's the simple part. Andrews will collect little money from Barrett. An ESPN report labeled Barrett "a Chicago-area insurance executive who frequently traveled around the country." But the criminal and civil proceedings presumably have drained at least most of his assets. That makes him what's called judgment-proof. That seems unfair, especially since many would agree with Barrett's own assertion that he alone bears responsibility for what happened to Andrews.

But what counts is that the jury disagreed and found that the hotel was almost as blameworthy as Barrett was for Andrews's past and ongoing severe emotional suffering. The jury accepted Andrews's contention that the whole incident wouldn't have happened had the hotel staff not been careless in: (1) telling Barrett that Andrews was a guest at that hotel; (2) disclosing her room number; and (3) granting Barrett's request to be placed in a room next to hers.


The jury rejected the hotel's contention that the incident was entirely the responsibility of a determined criminal, not an inattentive hotel staff. As Andrews reportedly testified, "This could've been stopped." The hotel "could've just called me and said, 'We're putting this man that requested to be next to you [in the adjoining room], is this OK?' And I would've called the cops and we would've gotten him."

Maybe — or maybe not. Reasonable minds can disagree about who has the better side of that argument. That's why we have trials. That's not the complicated part of the story. This is.

Remember that Tennessee is one of the states that splits responsibility for damages but it is subject to certain exceptions.

If the general rule under Tennessee law applies, then the hotel will be on the hook for "only" the $27 million in harm the jury found the hotel caused Andrews (based on the jury's 49-51 percent split verdict).


If the judge decides an exception applies, it could make the hotel responsible for the whole $55 million. A court may conclude that the hotel should have foreseen that, by negligently sharing Ms. Andrews' hotel information with Barrett and agreeing to put him in the room next door, Barrett would intentionally videotape Andrews nude resulting in all of the harm to her that followed. The Tennessee Supreme Court has said that, if the victim of wrongdoing can show all of that, a negligent party like the hotel may be responsible for paying even for the damages caused by an intentional wrongdoer like Barrett.

It's worth noting that the deep-pocketed corporate defendant (Marriott) was dismissed months ago because the hotel where this happened is independently owned and run. The hotel may be only barely more able to pay its share of the judgment than Barrett is able to pay his, depending on the availability of insurance coverage. If the case doesn't settle, the next significant stop may be bankruptcy court.

There is some doubt that Andrews will be able to show that the hotel could have predicted that, according to Barrett's testimony, he would call the hotel closest to the Vanderbilt football game that Ms. Andrews was in town to cover and get hotel reservation staff to confirm she would be staying there by pretending he was in a group with her. And then that hotel staff could have predicted that Barrett would use an in-house employee phone to learn Andrews's room number from staff. And then that hotel staff could have predicted that, by agreeing to Barrett's request for an adjoining room, the hotel was providing him the opportunity to make his invasive video.

Courts don't require hotels or other businesses to be clairvoyant. This may be a reach.

But Andrews doesn't have to show all of that to hold the hotel responsible for the $27 million in damages the jury said the hotel caused her.

Of course, it is also possible that the hotel will end up paying Andrews nothing, that some judges or justices down the line will find that the hotel wasn't responsible at all for Andrews's shattering experience. That's why we have appeals.

Commentary by Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is a professor at the San Diego State University College of Business Administration where he teaches classes in business ethics and employment law. Follow him on Twitter @DanEatonlaw.