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Brain-dead student tourist: Is the tour operator liable?

Brain-dead student tourist: Is the tour operator liable?
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In this weeks’ article, we discuss the case of Chung v. StudentCity.com, Inc., 2017 U.S. App. LEXIS 6460 (1st Cir. 2017) in which a high school student was solicited by a student tour operator to sign up for a graduation vacation package to Cancun with an additional snorkeling excursion. “The snorkeling trip had a tragic ending: the Sea Star hit a coral reef and began to take on water, yet the crew provided no assistance to the passengers (indeed, some crew members deserted ship). Acting on their own, Lisa and Loren donned life preservers and tried to reach safety by grabbing a rope that extended between the Sea and a small private vessel. Their efforts failed and they were pulled under the water. Loren suffered serious injuries, but survived; Lisa was pronounced brain dead at a hospital and died (shortly thereafter)”. See our discussion of the dangers of student tour programs in Travel Law at Section 5.04[4][I] and Dickerson & Roman, Providing Student Travel Programs: Risky Business, New York Law Journal, February 19, 2016, p. 4.

Terror Targets Update

Manchester, England

In Callimachi & Schmitt, Manchester Bomber Met With ISIS Unit in Libya, Officials Say, nytomes.com (6/3/2017) it was noted that “The bomber who killed 22 people at a pop concert in Manchester, England, last month met in Libya with members of an Islamic State unit linked to the November 2015 Paris Terrorist attack, according to current and retired intelligence officials…the possibility that he was directed or enabled by Islamic State operatives in Libya, as opposed to Syria, suggests that even as the group’s Middle East base is shrinking, at least one of its remote franchises is developing ways to continue attacks within Europe”.

London, England

In Callimachi * Bennhold, London Attackers Slipped By Despite an Avalanche of Warnings, nytimes.com (6/6/2017) it was noted that “Islamic State propaganda had been found in the bag of one attacker while he was trying to board a flight in Italy. An FBI informant said he had raised alarms about the second attacker two years ago. The third attacked, denied asylum in Britain, appeared to have sneaked in from Ireland. The warning signs about the three assailants in a white van who smashed and stabbed their way through a trendy London neighborhood tumbled into the open on Tuesday compounding the pressure on the police…to explain them”.

Paris, France

In Breeden & Moreen, Police Shoot Attacker Outside Notre-Dame Cathedral in Paris, nytimes.com (6/6/2017) it was noted that “A police officer shot and wounded an assailant armed with a hammer and kitchen knives on the square outside Notre-Dame Cathedral in Paris on Tuesday afternoon”.

Manila, Philippines

In Manila casino attacker identified and he’s no terrorist, travelwirenews.com (6/4/2017) it was noted that “The lone suspect behind a deadly attack on a casino and shopping complex in Manila was a heavily armed indebted Filipino gambling addict…The gunman in a deadly casino rampage in the Philippines was seen on security camera footage firing his M4 rifle in the air, setting fires and shooting at security forces in a stairwell during an attack that killed at least 38 people”.

Tehran, Iran

In Erdbrink, Iran Says Tehran Assailants Were Recruited Inside the Country, nytimes.com (6/8/2017) it was noted that “At least five assailants in the deadly Tehran attacks were recruited by the Islamic State from inside Iran…a strong indication they were Iranian citizens…Iranian news media reported that the civilian casualty toll had risen to 17 dead and 52 wounded”.

Kabul, Afghanistan

In Kabul blast death toll rises to 159 as deadly attacks continue, travelwirenews.com (6/6/2017) it was noted that “‘Over 150 innocent Afghan sons and daughters were killed and more than 300 wounded were brought to hospital with burns and amputations’”.

Musayab, Iraq

In Daesh claims attack killing at least 30 in Iraq, travelwirenews.com (6/9/2017) it was noted that “A woman detonated her explosive belt in a market east of the Shiite holy city of Kerbala on Friday, kill at least 30 and wounding 35, Iraqi security sources said”.

Mogadishu, Somalia

In Nearly 70 dead in al-Shabab attacked on Somalia military base, travelwirenews.com (6/8/2017) it was noted that “Heavily armed al-Shabab extremists have stormed a military base in Somalia’s semiautonomous state of Puntland, killing close to 70 people…Officials called it the region’s deadliest attack in years”.

Kenya Issues Travel Warning

In Kenya issues travel warning on South Africa, travelwirenews.com (5/8/2017) it was noted that “Kenya has issued a travel warning against South Africa, citing a rising wave of crime in a move that may spark a fresh round of diplomatic showdown months after the two States resolved a protracted visa standoff. In a security alert sent to top government officials from Pretoria, Kenya’s Foreign Affairs Principal…has warned of increased cases of armed robberies, carjacking, theft, burglary, kidnap, rape and mugging”.

Hacking Attacks

In Scott & Wingfield, Hacking Attack Has Security Experts Scrambling to Contain Fallout, nytimes.com (5/13/2017) it was noted that “The global efforts came less than a day after malicious software, transmitted via email and stolen from the National Security Agency, targeted vulnerabilities in computer systems in almost 100 countries in one of the largest ‘ransomeware’ attacks on record. The cyber attackers took over the computers, encrypted the information on them and then demanded payment of $300 or more from users to unlock the devices”.

Hotels And Data Breaches

In Soloway & Mohler, Assessing Rick to Hotels in the Age of Data Breaches, New York Law Journal (5/9/2017) it was noted that “The hospitality industry has not been spared from exposure to such breaches and in fact several of the most widely publicized incidents involve some of the largest hotel brands in the world. Just weeks ago, Intercontinental Hotels Group (IHG) announced it had suffered a data breach at multiple IHG-branded franchise hotel locations in the United States and Puerto Rico in late 2016. This comes on the heels of IHG’s disclosure in February of a separate malware attack exposing customer data at 12 U.S. IHG-managed hotels. IHG is not alone, as Wyndham Worldwide, Hard Rock Hotels, Omni Hotels & Resorts and Hilton Hotels, among others, have all been publicly cited as victims of cyber-attacks and resulting data breaches”.

Bus Crash In Vietnam

In Truck-bus collision in central Vietnam kills 12, travelwirenews.com (5/7/2017) it was noted that “A truck collided with a passenger bus in central Vietnam killing 12 people and injuring 33…The newspaper quoted police as saying that the initial investigation showed the truck was speeding at 105km per hour and crossed into the lane of the bus. Traffic accidents killed 8,685 people in Vietnam last year”.

Bus Crash In Tanzania

In Grisly bus accident kills 32 school children in northern Tanzania, eturbonews.com (5/7/2017) it was noted that “Bus safety has been an issue in Tanzania. Specifically in a country relying on tourism for foreign trade exports, safety should be on top of the agenda. Tanzania is among African countries prone to accidents and rampant corruption where more than 3,000 die from frequent road carnages…Thirty-two children were killed Saturday morning after their bus crashed into a gorge in northern Tanzania’s tourist region of Arusha”.

Mud Slides In Sri Lanka

In Mudslides, floods kill over 200 in Sri Lanka, travelwirenews.com (5/31/2017) it was noted that “The Disaster Management Center said 300 people were confirmed dead. More than 77,000 have been displaced and over 1,500 homes destroyed since rains began inundating the southern and western areas of the Indian Ocean island nation last Friday”.

Lithium-Ion Battery Fire On JetBlue

In Zhang, A fire onboard a JetBlue flight exposes why Trump’s laptop ban could be so dangerous, businessinsider.com (6/1/2017) it was noted that “On Tuesday, JetBlue Flight 915 from New York’s (JFK) Airport to San Francisco was diverted to Michigan after a lithium-ion battery in a device in a passenger’s bag caused a fire…According to the airline, the decision to divert was made after ‘reports of smoke emitting from a carry-on bag holding an electronic device’. However, airport authorities say the fire onboard the aircraft had been extinguished by the time the plane landed”.

United Airlines: There You Go Again

In Woman Flies over 4,000km in wrong direction in UA flight, travelwirenews.com (5/7/2017) it was noted that “The airline called the incident, which it just settled in a confidential; lawsuit, ‘a horrible failure’…A French-speaking woman flew more than 4,800k, in the wrong direction in the U.S. after the United Airlines failed to notify her of her flight’s last-minute gate change. Lucie Bahetoukilae, who does not speak English, was supposed to go to Paris from Newark…but was horrified when she landed in San Francisco…where she waited an additional 11 hours before boarding a flight back to Paris. In total, she claims to have been traveling for 28 hours”.

Airbnb Hosts Reject Disabled

In Chokshi & Benner, Airbnb Hosts More Likely to Reject the Disabled, a Study Finds, nytimes.com (6/2/2017) it was noted that “Other users have reported similar bias, and a new Rutgers University study-based on more than 3,800 Airbnb lodging requests sent by the researchers-suggests it may be common: Travelers with disabilities are more likely to be rejected and less likely to receive preapproval, or temporary clearance, for a potential stay, the authors found. Hosts granted preapproval to 75 percent of travelers who made no mention of a disability, according to the study. That rate fell to 61 percent for those who said they had dwarfism, 50 percent for those with blindness, 43 percent for those with cerebral palsy and 25 percent for those with spinal cord injuries”.

Hotels And Celebrity Chefs

In Bernstein & Garcia, Co-branding a Boutique Hotel and Restaurant With a Celebrity Chef, New York Law Journal (5/8/2017) it was noted that “With the ever-increasing popularity of the Food Network and the more discerning restaurant customers it has generated, the hospitality industry has seen a dramatic shift in the importance of its signature restaurants, especially in urban and resort boutique hotels. As a result, the role of celebrity chefs and signature restaurants has become an essential component of any successful high-end hotel…For boutique hotel and restaurant owners and developers, there are many benefits to co-branding their businesses with a chef that can help develop a customer base for their business…Though such an investments can result in significant payoffs, to protect their investments savvy business owners will make sure to include reasonable and enforceable non-compete clauses”.

Drones Unleashed

In Personal drones no longer need to be registered with FAA, US federal court rules, travelwirenews.com (5/20/2017) it was noted that “A federal appeals court has shot down a rule that would require non-commercial drones be registered, a decision that critics say will make the skies less safe. On Friday, the US Court of Appeals for the District of Columbia ruled in favor of John Taylor, a small unmanned aircraft (UAS) enthusiast, who first brought a case against the (FAA) in 2016″.

Summer Of Hell

In McGeehan, Amtrak Riders to Share in Penn Station’s ‘Summer of Hell’, nytimes.com (5/30/2017) it was noted that “Amtrak and its customers will share some of the hardships with New York City commuters during several weeks of disruptive repair work at Pennsylvania Station this summer, according to a revised schedule Amtrak officials have drawn up. Among the changes Amtrak announced on Tuesday was the cancellation of three daily trains in each direction between Penn Station and Union Station in Washington. In addition, four daily trains between Penn Station and Harrisburg, Ps., will start and end their runs in Philadelphia or Newark…After a series of problems at Penn Station, including two derailments, Amtrak announced a few weeks ago that it had decided to accelerate repairs that would take tracks out of use for long stretches of time”.

Toxic Foam In India

In ‘Chemical snowfall’: Toxic foam causes mayhem on busy Bangalore street, travelwirenews.com (5/29/2017) it was noted that “Commuters in India are being forced to drive through large clumps of foul-smelling froth as local officials try to stem the flow of chemical foam rolling off Bangalore’s Varthur Lake. The event, which has been dubbed a ‘chemical snowfall’, occurred after pre-Monsoon showers whipped the surface of the sewage-ridden lake into a foam. Heavy winds then lifted the toxic froth over a wire mesh fence onto Varthur Kodi Junction, a busy commuter area, over the weekend”.

Travel Law Case Of The Week

The Student Tour Program

In the Chung case the Court noted that “In the fall of 2007, Lisa Tam Chung (Lisa) and Loren Daly (Loren) were high-school seniors in Grand Prairie, Texas. A StudentCity representative contacted Loren to promote the firm’s wares and piqued her curiosity about booking a graduation trip. Once a critical mass of students has expressed interest about such a trip, the StudentCity representative held an informational meeting. The representative assured the assemblage (including several parents) that StudentCity staff attend all events and that participating students would not be permitted to go anywhere unaccompanied”.

Promising Supervision

“She also distributed promotional materials that stated in pertinent part: (1) StudentCity will provide ‘[o]n site staff at all scheduled events-beginning to end’; (2) StudentCity ‘staffs all scheduled events from beginning to end’; (3) StudentCity maintains ‘the largest staff-to-student ratio and our 24-hour staff is there to give you the peace of mind you need’; (4) StudentCity staff will be present ‘to assure that everyone is having a great and responsible time’”.

Family Blessings

“Loren’s parents met with the StudentCity representative and read the written materials. Lisa relayed StudentCity’s representations to her parents, who had limited English proficiency. With the blessing of both families, the girls purchased vacation packages for a June 2008 trip to Cancun, Mexico, adding an optional snorkeling excursion”.

The Snorkeling Excursion

“The snorkeling excursion took place on June 7. When the participants boarded the SS Sea Star, a catamaran owned and operated by Servicios Maritimos 7 Acua del Caribe SA de C.V. (SMA). A StudentCity staff member transported Lisa and Loren to the Sea Star, a vessel approved to carry eighty passengers and three crew members for this kind of outing. On the day in question, however, it carried at least 120 StudentCity travelers and no fewer than 210 persons in total. No on-duty StudentCity representative was on board”.

The Investigation

As noted the snorkeling excursion ended in disaster when the Sea Star hit a coral reef, took on water and was deserted by some of the crew leading, ultimately, to Loren’s severe injuries and Lisa’s death. “Following an investigation, the harbor master concluded that the ‘concentration of passengers in the boat’ caused a ‘considerable imbalance’ which most likely led to the Sea Star’s collision with the coral reed. Similarly, the Mexican government attributed the accident to the catamaran’s ‘imprudent overload’ and the ‘negligent performance’ of the captain”.

The Lawsuit

“A civil action ensued. Although this suit originally had a wider compass, the only claim that is still (viable) is the claim for Lisa’s wrongful death-a claim by her parents…As to this claim, StudentCity moved to dismiss or, in the alternative, for summary judgment…After limited discovery…the district court granted summary judgment in favor of StudentCity…the court concluded that there was ‘no evidence to suggest that the steps StudentCity took in selecting its snorkeling excursion vendor were unreasonable under the circumstances’…We review a district court’s entry of summary judgment de novo…The parties agree that, consistent with the choice-of-law provision in the customer agreement, Massachusetts law controls here (and) [u]nder Massachusetts law, wrongful death is a species of negligence… and as such demands proof of four elements: ‘that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a casual relation between the beach of the duty and the damage’”.

The Issue Of Causation

“Here, the plaintiffs’ principal argument is that the district court erred in premising its summary judgment decision on the perceived absence of causation-an issue that was neither argued by StudentCity nor open to discovery…StudentCity posits that its motion papers made clear that neither it nor its agents were ‘part of the Sea Stares crew, and had no responsibility for boarding passengers, determining where passengers were to be positioned, navigating the vessel, providing safety equipment on the vessel, controlling or limiting the number of passengers, or otherwise instructing the passengers or the StudentCity participants on the Sea Stares rules and regulations’”.

StudentCity Assumed A Duty

“In context, however, it is pellucid that these arguments were advanced not in connection with any issue of causation but to support StudentCity’s lack-of-duty theory…the arguments-to use StudentCity’s own terms-related to its ‘responsibility’ and ‘responsibility’ is synonymous with ‘duty’…It noted in its motion…that ‘[t]our operator such as StudentCity are simply not liable for the alleged negligence of their-party service suppliers…regardless of the theory advanced’. This broad statement is of no help to StudentCity, though, because it ignores the district court’s holding that, in this instance, StudentCity voluntarily assumed a duty to supervise. Once assumed, that duty had to be performed with due care…We conclude that StudentCity never raised causation as a ground for summary judgment (and) [b]ecause causation was not placed in issue, we deem the district court’s decision to case its ruling on that ground to be ‘a species of sua sponte summary judgment’.

Conclusion

“The district court’s summary judgment order overlooks the restricted nature of the parties’ opportunity to develop the facts…To compound the error, the plaintiffs had no notice that causation was an issue ripe for decision at this stage of the case…The plaintiffs’ flagship claim is that StudentCity’s failure to supervise the snorkeling excursion, in combination with the ship owner’s negligence, caused Lisa’s death…On the meager record before us, numerous potential jury questions loom. We vacate the judgment of the district court and remand”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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