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Travel law: Norovirus allegedly contracted at Opryland

Travel law: Norovirus allegedly contracted at Opryland

In this week’s article, we discuss the case of Malott v. Marriott Hotel Services, Inc., 2016 WL 4191727 (M.D. Tenn. 2016) which involves a “Norovirus infection that…Mr. Malott allegedly contracted while staying at the Gaylord Opryland Resort and Convention Center (the “Opryland Hotel”) in January of 2015…And weeks later was hospitalized with a heart condition allegedly caused by that infection”. At issue in this negligence action is whether or not the Tennessee Health Care Liability Act (the “Act”) applies and, if so, whether plaintiffs failed to comply with the procedural requirements of the Act.

Terror Targets Update

Mogadishu, Somalia

In Gettleman, A Bloody Reminder for Somalia: Chaos Is Never Far Away, nytimes.com (1/25/2017) it was noted that “When the first explosions rang out, the men on the hotel patio looked up for a moment, then at one another-and kept on eating breakfast. Mogadishu, the capital of Somalia, long ago grew accustomed to such jarring sounds…It took another, even louder explosion a few minutes later to get everyone’s attention. Something fatal was going on. A half-dozen of the militiamen who guard the hotel piled into a pickup with their Kalashnikovs and ammunition (and) headed for the hospital…The floor was slippery with blood. Dozens of wounded people streamed in…Some were covered in fine white dust from collapsed walls. Some lay on steel gurneys as squadrons of flies crawled over their shrapnel wounds… Terrorists had struck at another hotel across town from ours, the Dayah: first with a bomb, and then with gunmen spraying fire at hotel guests”.

Violence Costs Lots Of Money

In Violent conflicts cost world’s economy $13.6 trillion in 2015, etn.travel (1/27/2017) it was noted that “A newly published report has highlighted the damaging impact of conflicts on the world’s finances, saying violence cost the global economy $13.6 trillion in 2015 (which) was equivalent to 13.3 percent of the world gross domestic product (GDP) or $1,876 purchasing power parity (PPP) per annum, per person…the cost of violence has surged in Latin America, the Middle East and North Africa between 2007 and 2015, but lowered in North America, Europe and Russia and Eurasia during the same time span”.

Safe Destinations Survey

In Holiday destinations Brits fear most, etn.travel (1/27/2017) it was noted that “Turkey has become one of the world’s most popular countries to visit for holidaymakers but terrorism and the war in Syria has frightened Brits recently and now more that one in four of us believe it to be the world’s most unsafe travel destination…Turkey tops the list as the most unsafe holiday destination (27%) followed by Egypt (18%) and Tunisia in third…France was recognized as Europe’s most unsafe country…Brits feel most safe deciding on the ‘staycation’ (26%) but for those travelling abroad, Spain remains a firm favorite with 20% feeling the most secure whilst on holiday there. Neighboring Portugal came in fifth as the safest destination behind Canada in third and surprisingly the United States…in fourth”.

Peru Hotel No More

etn.travel (1/27/2017) it was noted that “The La Hacienda hotel in the town of Licay, Peru, completely slid off a cliff and into the river Sirca. Mid-week heavy rains began and continued for 10 straight hours, causing the cliff edge above the river to erode…This 50-room hotel was built in Colonial times and was 200 years old”.

JFK Airport: The Next Big Plan

In McGeehan, Remaking Kennedy Airport Is Governor’s Next Big Plan, nytimes.com (1/4/2017) it was noted that “Gov. Andrew M. Cuomo of New York said on Wednesday that with a complete overhaul of La Guardia Airport underway, he wants to rebuild New York City’s other airport, John F. Kennedy International. Mr. Cuomo outlined a plan to spend more than $10 billion modernizing Kennedy’s terminals and improving the highway and transit systems connected to the airport…Kennedy is a collection of free-standing terminals, some of which were built, at least in part, by the airlines that occupy them. JetBlue Airways and the (Port Authority of New York and New Jersey) split the cost of building Terminal 5, which opened in 2008. Delta Air Lines has spent more than $1 billion in the recent years to improve its facilities at Terminals 2 and 4″.

Guide To Being an Airbnb Superhost

In Chen, The Guide to Being an Airbnb Superhost, nytimes.com (1/11/2017) it was noted that “‘Since buying my cabin in Northern California in late 2015, I have hosted about 30 groups and become part of the booming ecosystem for Airbnb…With more than 140 million guest arrivals to date, Airbnb has proved a boon for hosts and an attractive option for travelers looking to avoid hefty fees from hotels. In the process, I have been named a Superhost, which means I have hosted many guests and consistently received five-star reviews. It’s a small group-researchers say only about 7 percent of hosts are Superhosts…The designation as a Superhost has paid off. My House is a few bookings away from netting a profit…Here are some tips on running a successful (and lucrative) Airbnb rental based on interviews with Superhosts and my experience”.For example “be extremely responsive to guests, much like a hotel front desk. Nobody trusts a host who is slow to respond. Jasper Ribbers, a co-author pf ‘Get Paid for Your Pad’, a book about his experience as an Airbnb Superhost who has completed more than 300 stays, used the app ArviaIQ to respond automatically to massages from potential guests, which comes in handy when he his asleep. When he is awake, he can continue the conversation”.

Navigating New Airline Carry-On Rules

In Rosenbloom, How to Navigate New Airline Carry-On Rules, nytimes.com (1/9/2017) it was noted that “It’s the first year that United Airlines will be offering ‘basic economy’ fares-the lowest prices on a particular flight, but with the notable restrictions such as: You don’t receive a seat assignment until check-in (and sitting next to your traveling companions is not guaranteed); you’re the last to board; and you’re not allowed to bring on a full-size carry-on bag (which means no use of the overhead bins). On the list of things travelers care about, overhead storage is second only to legroom, according to interviews conducted in December by Morning Consult, a media and technology company. Even so, 45 percent of fliers said they would buy a ‘basic economy’ fare. And those travelers aren’t necessarily strapped for cash”: Some 39 percent of fliers earning $100,000 or more told Morning Consult that they were likely to purchase a basic economy ticket. Are there loopholes to get around those restrictive carry-on baggage and boarding rules. Will more major airlines begin restricting access to their overhead bin space? And while we’re talking about space, which carry-on size will actually make it past the gate agent and onto the plane?…How To Skirt The Rules”.

Uber Extends Olive Branch

In Isaac, Uber Extends an Olive Branch to Local Governments: Its Data, nytimes.com (1/8/2017) it was noted that “The ride-hailing company Uber and local governments often do not play well together. Uber pays little heed to regulation while city officials scramble to keep up with the company’s rapid deployment and surging popularity. But now, with a new data-focused product, Uber is offering a tiny olive branch to its municipal critics. The company on Sunday unveiled Movement, a stand-alone website it hopes will persuade city planners to consider Uber as part of urban development and transit systems in the future. The site, which Uber will invite planning agencies and researchers to visit in the coming weeks, will allow outsiders to study traffic patterns and speeds across cities using data collected by tens of thousands of Uber vehicles. Users can use Movement to compare average trip times across certain points in cities and see what effect something like a baseball game might have on traffic patterns. Eventually, the company plans to make Movement available to the general public”.

Swiss Uber Drivers

In Johnson, Uber Dealt Another Blow in Workers’ Rights Battle, law.com (1/5/2017) it was noted that “Uber has been dealt another blow in its long-running battle over the employment status of its drivers, with a Swiss insurance agency ruling that the drivers are workers for which the company must pay social security. The mobile cab-hailing app company had argued that its drivers are freelance contractors, but Swiss public sector insurer Suva found that they should be classified as staff…because they have to comply with Uber rules and have no control over prices or payment terms, broadcaster SRF reports. Uber has said that it may now contest the decision in the courts”.

Slaves To The Surge

In Goncharva, Ride-Hailing Drivers Are Slaves to the Surge, nytimes.com (1/12/2017) it was noted that “Ride-hailing apps established surge prices to lure drivers to areas with more requests than available cars. Capitalizing on New York’s hypersensitive surge market, drivers use two or three phones per app, or even supplementary apps like Driver Bar and Uber Partner that are designed to help them find the best rates offered among the various apps to log off apps when accepting rides on others…by January last year, there were more than 60,000 cars registered with ride-hailing apps, far outnumbering the city’s 13,000 yellow cabs. Uber leads the market with over 226,000 unique trips per day, over 150,000 more than any of its competitors”.

Chile: Raging Wildfires

In Raging wildfire forces Chilean port city evacuation, destroys 100 houses, etn.travel (1/3/2017) it was noted that “A raging wildfire burned 100 homes in the Chilean port city of Valpariso, forcing the evacuation of some 400 people. At least 19 residents were harmed, mostly by smoke inhalation, after the blaze broke out on the city’s outskirts, fanned by high winds”.

Carnival Cruise: A Wearable Medallion

In Barnes, Coming to Carnival Cruises: A Wearable Medallion That Records Your Every Whim, nytimes.com (1/4/2017) it was noted that “Inside a clandestine Carnival Corporation complex here, two former Disney executive have been plotting a drastic cruise industry overhaul. Their mission: Take lessons learned at Walt Disney World, where they helped bring about a $1 billion vacation management system involving Fitbit-style bracelets that link to personal information, and apply them to cruises. The result: Millions of passengers on Carnival ships will soon be using a similar but more advanced system that allows travelers to do everything from plan vacations to open stateroom doors to order poolside cocktails…Analysts expect the technology to increase profits in multiple ways, including allowing Carnival to charge more for tickets, particularly on older ships. Ease of purchase is another big component-cruisers will be able to pay for food, drinks and merchandise simply by having their credit card-connected Ocean Medallion in their pocket. Carnival’s disks, each leaser-etched with the gusst’s name, will also power a new, ship wide gambling platform”.

China Bans “Organic Gemstones”

In Wong & Gettleman, China Bans Its Ivory Trade, Moving Against Elephant Poaching, nytimes.com (12/30/2016) it was noted that “China announced on Friday that it was banning all commerce in ivory by the end of 2017, a move that would shut down the world’s largest ivory market and could deal a critical blow to the practice of elephant poaching in Africa…’China’s announcement is a game changer for elephant conservation’, Carter Roberts, the president and chief executive of the World Wildlife Fund, said…’With the United States also ending its domestic ivory trade earlier this year, two of the largest ivory markets have taken action that will reverberate around the world’. According to some estimates, more than 100,000 elephants have been wiped out in Africa over the past 10 years in a ruthless scramble for ivory driven by Chinese demand. Some Chinese investors call ivory ‘white gold’ while carvers and collectors call it the ‘organic gemstone’”.

Airlines Proactive On Weather

In Weed, Airlines, Now More proactive on Weather, Allow Fliers to Shift Own Travel Plans, nytimes.com (1/2/2017) it was noted that “Alaska Airlines (now issues) ‘weather waiver(s)’ in advance of (a) possible storm. It allow(s) passengers flying in or out of the (weather) affected area to make no-cost changes to their itineraries on their own, without speaking to a representative. Many other airlines are now doing likewise, recognizing that they can make life easier for themselves and their passengers by anticipating weather delays and putting travel changes in the hands of their customers (and their smartphones) before the situation escalates into an act-of-God crisis. Airline passengers used to go to airports as storms brewed, hoping that their flights would be able to depart, then enduring long rebooking lines if they were canceled. Now, airlines are notifying customers, sometimes days in advance, of a potential disruption and giving them online ways to change their own flights”.

Travel Law Article: The Malott Case

In the Malott case the Court noted that ” On January 16, 2015, Mr. Malott traveled from his home in Arizona to Nashville, Tennessee to perform contract on one of the ballrooms at the Opryland Hotel. Over the next three days, Mr. Malott ‘stayed continuously on the hotel premises and never left’ the hotel. Mr. Malott consumed food and beverages prepared by the defendant’s employees; interacted with defendant’s employees and agents and other guests and walked throughout the facility on his way to and from meetings and restaurants…on January 19, 2015, Mr. Malott developed ‘chills and nausea’ and (later) he was beginning to experience ‘serious diarrhea and fatigue.’”

Alleged Coverup Of Norovirus Outbreak

“According to the plaintiffs, Mr. Malott had-like many other guests at the Opryland Hotel-been infected with Norovirus…the plaintiffs allege that, for at least a week before Mr. Malott checked into his room, the Opryland Hotel was aware of a Norovirus outbreak on its premises, but failed to warn incoming guests-including Mr. Malott-‘due to concerns about financial loss for the facility.’”

Surgery For Mr. Malott

Mr. Malott returned to Arizona with “abdominal distention with indigestion and gastrointestinal issues”. “On February 7, 2015, Mr. Malott experienced difficult breathing and was taken to the emergency room (whereat) Tests confirmed that Mr. Malott had developed an aortic aneurism and he was diagnosed with congestive heart failure and pleural effusion (and) ultimately underwent surgery for a left and right heart catheterization, a valve replacement and installation of a pacemaker. Prior to contracting Norovirus during his stay at the Opryland Hotel, Mr. Malott had no history of congestive heart failure or any significant cardiac condition and the plaintiffs allege that the Norovirus infection caused his heart condition”.

The Lawsuit

The subsequent lawsuit alleged “various causes of action based on Marriott’s alleged failure to ‘prevent the [Norovirus] outbreak…provide incoming guests with notice of the outbreak, and…appropriately address the outbreak in a timely manner’. Based on these failures, the plaintiffs alleged claims of negligence, breach of implied and express warranties; intentional, reckless and negligent misrepresentation and misrepresentation by concealment; and loss of consortium”.

The Negligence Claim

“With regard to the negligence claim, the plaintiff allege that Marriott breached its duties to: (1) maintain Opryland Hotel in a reasonably safe condition; (2) properly sanitize and disinfect common areas, guest rooms, and items used in food and beverage service; (3) provide untainted food and beverages; (4) quarantine infected guests and employees; and (5) warn Mr. Malott of the health risks associated with Norovirus prior to, or during, his stay. In their initial Complaint, the plaintiffs additionally alleged that Marriott breached its duty to ‘provide, and/or adequately direct [Mr. Malott] in obtaining proper medical and other necessary treatment for the Norovirus and/or prior to [Mr. Malott] contracting such disease.’”

Tennessee Health Care Liability Act

“In response to the plaintiffs’ allegation that Marriott breached its duty to provide Mr. Malott with proper medical care, Marriott argued that the plaintiffs’ entire action is a ‘health care liability action’ subject to the provisions of the THCLA (Tennessee Health Care Liability Act) and since the plaintiffs ‘failed to comply with the Act’s pre-suit notice and expert certification requirements’ should be dismissed with prejudice. Shortly thereafter, the plaintiffs filed a motion to amend…the Complaint seeking to strike from the Complaint the two paragraphs referring to Marriott’s duty to provide Mr. Malott with appropriate medical care (noting) that they had ‘no intent to pursue a health care liability action against [Marriott]”. Marriott opposed the motion to amend but the Court granted the motion to amend”.

The Motion To Dismiss

Marriott filed a motion to dismiss arguing that (1) the plaintiffs’ action-as originally alleged-is a health care Liability action subject to pre-suit notice and good faith certificate requirements of the THCLA and (2) the THCLA does not ‘authorize a claimant to cure deficiencies [in a complaint] by filing an amended complaint…Additionally, Marriott argues that it is a ’health care provider’ within the meaning of the THCLA because it employs paramedics who provided health care services to Mr. Malott during his stay at the Opryland Hotel”. Plaintiffs opposed the motion to dismiss arguing that they allege that “Marriott’s breach of duties…are ‘not based in medicine or in the practice of medicine whatsoever, but in the hotel failing to warn its guests about an extremely contagious Norovirus outbreak despite having knowledge of the same’”.

The Court’s Analysis

“It is undisputed that the plaintiffs did not comply with the THCLA’s pre-suit notice and expert certification requirements…The sole question before the court…is whether the plaintiffs’ claims constitute a ‘health care liability action’ that is subject to the THCLA”…Even assuming, however, that Marriott is (health care provider), the court concludes that the plaintiffs’ claims are not subject to the THCLA because they do not-as alleged in the Amended Complaint-‘relate[] to the provision of, or failure to provide, health care services’ to Mr. Malott…The plaintiffs’ claims, rather, relate to Marriott’s alleged failure to prevent the Norovirus outbreak at the Opryland Hotel, to timely and effectively contain the outbreak once it occurred and to warn incoming guests of the risks associated with that outbreak either before or during their stays”.

Conclusion

“The court concludes that the Amended Complaint does not allege a ‘health care liability action’ subject to the procedural requirements of the THCLA and will…deny Marriott’s Motion to Dismiss”.

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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