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Above-the-knee amputation after eating “Jersey Shore Sampler”: Is the Windrift Hotel Resort liable?

Above-the-knee amputation after eating “Jersey Shore Sampler”: Is the Windrift Hotel Resort liable?

In this week’s travel law article, we examine the case of Horan v. Dilbet, Inc., d/b/a/ Windrift Hotel Resort, No. 17-2243 (3d Cir. February 21, 2018) wherein the Court noted that “While vacationing together at the Jersey Shore in July 2010, Horan and her husband dined at Appellee’s Avalon-based restaurant, the Windrift.‘Around 2:32 p.m., [Horan] ordered the “Jersey Shore Sampler” and consumed three raw clams that were on the plate’. She began to feel ill two days later, and after initially presenting herself at the Emergency Room…Horan was…diagnosed with Vibrio vulnificus (Vibrio) sepsis infection and necrotizing fasciitis. As a result of this devastating infection, Horan was required to undergo an above-the-knee amputation of her left leg, as well as several surgeries upon her left arm. Vibrio is a naturally-occurring bacteria found in most shellfish (e.g. oysters and clams) and ‘is only dangerous in raw shellfish; if cooked, then there is no risk’. While most people are resistant to Vibrio infection, certain individuals ‘are at special risk’ of contracting an infection, including those who have a genetic condition called hemochromatosis. As it turned out, Horan was a member of this special class-…and was predisposed to Vibrio infection”. Motion for summary judgment dismissing the complaint granted.

Terror Targets Update

Trenton, New Jersey

In Zaveri, One Dead, 16 Shot at New Jersey Arts Festival, nytimes (6/17/2018) it was noted that “One person was killed and at least 10 people were shot early Sunday morning at an all-night arts festival in Trenton…The person who was killed, a 33-year-old man, was believed to be one of multiple gunmen…Officials said a second gunman had been arrested, and that it was possible there were other gunmen…The shooting happened around 2:50 a.m. at the Art All Night festival at Roebling Wire Works in Trenton”.

Toronto, Canada

In Mervosh, Stevens & Bailey, Toronto Shooting Leaves Two Dead and 12 Injured, Police Say, nytimes (7/23/2018) it was noted that “A woman and another person were killed and 12 other people were injured after a man with a handgun opened fire on a bustling avenue in Toronto on Sunday night…Officers confronted the gunman…on a nearby street and exchanged gunfire with him…The gunman ran from police and was later found dead on a street”. See also: Porter & Bilefsky, Toronto Shooting Shakes City Amid a Rash of Violence, nytimes (7/23/2018).

Kabul, Afghanistan

In Suicide attack near Kabul airport leaves several dead, travelwirenews (7/22/2018) it was noted that “A suicide bomber killed or wounded at least 10 people at the entrance to Kabul international airport on Sunday”.

Greece On Fire

In Horowitz, As Greek Wildfire Closed In, a Desperate Dash Ended in Death, nytimes (7/24/2018) it was noted that “Mati, Greece-They nearly reached the water. As wind-fueled wildfires that killed at least 79 people in vacation areas outside Athens bore down on their seaside resort, 26 men, women and children gathered in the hope that they would find the narrow path leading to a small staircase down to the water…but with smoke blotting their vision and choking their lungs, they appear to have lost their way. Officials found their bodies the next day…several were still clinging to one another”. Travelwirenews See also: Kitsantonis & Goldman, In Greece, Wildfires Kill Dozens in Deadliest Blazes in Years, nytimes (7/24/2018).

Stay Away From BART, Please

In Stevens & Garcia, Fatal BART Stabbing Is Third Killing in Bay Area Transit System in a Week, nytimes (7/23/2018) it was noted that “The authorities in California said Monday night that they had captured a man who fatally stabbed a young woman and wounded her sister at an Oakland transit station over the weekend, the latest of three unrelated homicides at Bay Area transit stations in less than a week”.

Stay Away From Ritz Bits, Please

In Victor, Potential Salmonella Risk Identified, nytimes (7/23/2018) it was noted that “Days after the snack food company Mondelez International recalled some of its Ritz cracker products after a whey powder supplier identified a potential salmonella risk, the company announced that two people had fallen ill after eating the crackers in question”.

Beware: Jersey Shore Boardwalk Games

In Business: Some Jersey shore boardwalk games not fair to players, 6abc (7/18/2018) it was noted that “A statewide inspection found some boardwalk games along the Jersey Shore are not giving players a fair chance to win. Inspectors have visited boardwalks in Seaside Heights and Atlantic City as part of the Safe Summer initiative. They found 12 establishments in violation of state consumer protection laws and regulations. Some examples are: crane machines with prizes too heavy or packed too tightly to be picked up and a boardwalk game where it was impossible to win the top prize in the number of allotted chances”.

Bedbugs Bite Brazilian Model

In Martin, Brazilian model sues Hilton, claiming she was bitten by bedbugs at Palm Desert hotel, latimes (6/16/2018) it was noted that “Bedbugs area relatively rare problem in the hotel industry, but they can be an embarrassment when a guest wakes up with bites and rashes from the creatures. Now, imagine the embarrassment when that guest is a Brazilian fashion model who claims the per previously unblemished face and body turned into a mess of welts and bites after staying at a high-end hotel…’This was especially traumatic for Sabrina because her body is her work so this severely affected her work and her career’ said her attorney Brian Virag, who specializes in bedbug lawsuits”.

Uber Driver Live-Streamed Passengers

In Zaveri, St. Louis Uber and Lyft Driver Secretly Live-Streamed Passengers, Report Says, nytimes (7/22/2018) it was noted that “Sitting in the back of a cab can have a confessional allure: Sealed off to the world, you can take a private moment for yourself…Now imagine finding out days later that those moments were being streamed live on the internet to thousands of people. What’s more, some of the people paid to watch you, commenting on your appearance, sometimes explicitly, or musing about your livelihood. This was the reality for potentially hundreds of passengers of a ride-hailing service driver in St. Louis…a driver for Uber and Lyft…described an elaborate $3,000 rig of cameras that he used to record and live-stream passengers’ rides to the video platform Twitch. Sometimes passengers’ homes and names were revealed”.

Wildest Roller Coasters of 2018

In Murphy, The Wildest Roller Coasters of 2018, nytimes (7/25/2018) it was noted that “If you thought roller coaster design couldn’t get more innovative, 2018 has a little something to show you. From coasters that plunge you on a single rail to trains that spin while launching you uphill, this season’s coaster class offers surprisingly fresh and record-breaking ways to ride. Here’s a look at four of the most thrilling”. They include (1) Wonder Woman Golden Lasso, Six Flags Fiesta, Texas, San Antonio, Texas; (2) Time Traveler, Silver Dollar City, Branson, Missouri; (3) Steel Vengeance, Cedar Point, Sandusky, Ohio; (4) Hang Time, Knott’s Barry Farm, Buena Park, California.

Endangered Species, Time To Lawyer Up

In Davenport & Friedman, Lawmakers, Lobbyists and the Administration Join Forces to Overhaul the Endangered Species Act, nytimes (7/22/2018) it was noted that “The Endangered Species Act, which for 45 years has safeguarded fragile wildlife while blocking ranching, logging and oil drilling on protected habitats, is coming under attack from lawmakers, the White House and industry on a scale not seen in decades, driven partly by fears that the Republicans will lose ground in November’s midterm elections”.

Crocodile In Paradise

In Traveller24: Crocodile in paradise: Thailand hunts reptile in resort town, travelwirenews (7/24/2018) it was noted that “Thailand is in hot pursuit of a cagey crocodile that has made unwelcome appearances off the beaches of resort island Phuket only to slip through the clutches of local authorities. The evasive reptile was first seen near Rawal beach about a week ago but has resurfaced in multiple locations near the beaches of the Andaman Sea”.

Rental Car Deceptive Practices

In Rental Car Companies Behaving Badly, consumerworld (7/23/2018) it was noted that “Retired judge Thomas A. Dickerson, the country’s leading travel law expert…says that the worst violators of consumer rights in the travel business are some U.S. rental car companies. In this legal article with key points highlighted…Judge ‘TAD’ points out some of the worst rental car practices alleged in various cases”. See consumerworld/pubs/nyljrentalcars-highlighted.pdf

Tourist Breaks Neck In Magaluf

In Tourist, 26, breaks neck after jumping into Magaluf pool as partner seeks L20,000 to fly him home, travelwirenews (7/23/2018) it was noted that “A Liverpool woman is making a desperate bid to raise Ll20,000 and fly her partner back to the UK after he jumped into a swimming pool ans broke his neck in Magaluf…Richard, who was in Spain celebrating his 26th birthday, does not have travel insurance or a European Health Insurance card and doctors have said it will coast thousands to fly him to a UK hospital”.

Subways Still Terrible, One Year Later

In Fitzsimmons, They Vowed to Fix the Subway a Year Ago. On-Time Rates Are Still Terrible, nytimes (7/23/2018) it was noted that “A series of meltdowns and accidents on New York City’s subway last summer led to a startling admission: The system was in crisis and in desperate need of immediate repairs. Gov. Andrew M. Cuomo…promised that a rescue plan by the Metropolitan Transportation Authority would deliver results…But one year later, subway service remains in many ways the same-dismal. Long delays continue…Trains still breaking down at an aggravating pace. Signal equipment dating to the Great Depression repeatedly wreaks havoc across the system”.

Are Paris Bistros UNESCO Worthy?

In Mufson, Paris Bistros Became Symbols of Resilience. But Are They Unesco Worthy?, nytimes (6/16/2018) it was noted that “In the days after terrorists massacred scores of people lounging in Paris cafes on an unseasonably warm November night in 2015, Parisians defiantly returned to their neighborhood bistros in droves to show that they would not be broken…Now, a coalition of bistro owners, unions and trade organizations is lobbying to get Unesco to grant Paris’s sidewalk bistros and cafes official status as France’s ‘intangible cultural heritage’…For Alain Fontaine, a bistro owner and president of the association pushing the Unesco idea…’For centuries, they have been melting pots, places where people of different ethnicities, professions and social classes mix;, said Mr. Fontaine, who owns Le Mesturet, an old-fashioned bistro with a zinc bar and chandeliers made of wine bottles”.

India Running Out Of Water

In Abi-Habib & Kumar, Deadly Tensions Rise as India’s Water Supply Runs Dangerously Low, nytimes (6/17/2018) it was noted that “The people of Shimla haven’t agreed on much lately. A drought in the Himalayan resort has had residents blaming farmers, the tourism industry and one another for depleting the strained water supplies…Shimla’s decrepit network of water pipes, built under British colonial rule more than 70 years ago, depends on the civil servants known as key men to open and close the valves that supply each neighborhood. The current shortage, which in May left some homes without water for 20 days, has led to such fury toward the key men-accused, in just about every neighborhood, of depriving it of its fair share-that a court ordered police protection for them”.

Laos Dam Collapses

In Ives, Laos Dam Collapses and Hundreds Are Missing, nytimes.cim (7/24/2018) it was noted that “Hundreds of people are missing on Tuesday after a billion-dollar hydropower dam that was under construction in Laos collapsed, killing several people and displacing more than 6,000 others”.

Nostalgic Paris Restaurant

In Tramuta, At a Nostalgic Paris Restaurant, Food Takes a Back Seat to Fun, nytimes (6/16/2018) it was noted that “The scene is a familiar one in Paris: an expansive, brightly-lit dining room and servers decked head-to-toe in black and white, darting between tables with a balancing act of dishes in one hand and carafes of wine in another. Diners sit elbow to elbow in rows of ruby red leather banquettes or wooden bistro chairs, chatting over generous portions of beef bourguignon and escargots dressed in parsley butter. This genre of old-timey Parisian restaurant is a lot less visible today than it once was…But if the local media frenzy and blocklong lines at Bouillon Pegalle are any indication, there has been a glaring unmet hunger for such nostalgic comforts”.

Hidden & Unexpected Travel Fees

In Weisbaum, Hidden or unexpected travel fees can break your vacation budget, nbcnews (6/12/2018) it was noted that “Airlines, hotels and rental car companies have switched to this nickel-and-diming business model to compete in a world where people shop online for travel products and make decisions based on price. By tacking on fees-sometimes mandatory, sometimes optional for upgraded service-these companies can advertise lower prices…Mandatory Hotel Fees. Some hotels a daily ‘resort fee’ or ‘destination fee’ to their room rate. Hotels claim this mandatory fee which averages about $27 right now, covers a bundle of amenities whether you want them or use them…The highest resort fees are in Las Vegas and Hawaii. At some hotels in Hawaii, the daily resort fee is now $45-$48…The American Hotel & Lodging Association (AHLA) says only 7 percent of U.S. hotels charge a resort fee and those that do will disclose it well before the end of the booking process…Basic Economy Air Fare Fees [see also Carey, Basic Economy: How Every Major U.S. Airline Compares, Conde Nast Traveler (6/5/2018)…Rental Car Fees. Rental car companies are notorious for added fees, Expect to pay $20-$30 a day, if someone 21-24 years old will be driving the car…and don’t lose the key: That could cost you as much as $300 Tolls are something else you might consider…With the e-Toll program at Budget and Avis, once you use the transponder, you’ll be charged $3.95 per day for every day of the rental (up yo a maximum of $19.75 per rental month), even on days when e-Toll is not used…To avoid tolls and the added fees, use a mapping app that shows you how to avoid them…Credit Card Foreign Transaction Fees. The typical fees can be as high as 3 percent of the purchase price…for a $3,500 hotel bill, that’s around $100. Some top-rated credit cards don’t charge a foreign transaction fee, including the Chase Sapphire Reserve, Bank of America Travel Rewards Credit Card, Discover it Cash Back and all Capitol One cards”.

Jet Packs, Anyone?

In Brustein, Boeing asked for quiet jetpacks but got a bunch of air motorcycles, msn (6/16/2018) it was noted that “The flying car has never been more real. Kitty Hawk, the company backed by Google co-founder Larry Page, showed off it battery-powered recreational vehicle last week. Uber Technologies held a recent conference on flying cars. Boeing is making working prototypes of flying taxis. There are more than a dozen serious efforts to realize the dream of the flying car. Another vision of flying futurism-the jetpack-is falling behind. Boeing just revealed the results of GoFly, its contest for inventors of personal aircraft that seemed to reinvigorate the decades-old hope of a contraption that could propel its wearer through the air. But none of the 10 winning designs announced Thursday strap onto someone’s back. These are simply not the jetpacks we’ve been waiting for…One takeaway from the contest submissions is that air motorcycles may be more sensible than jetpacks”.

Hotel With Attached Brewery

In Glusac, Your Next Hotel May Have an Attached Brewery or Distillery, nytimes (6/18/2018) it was noted that “Capitalizing on a growing love of craft beer, more hotels are adding on-site breweries and distilleries to lure travelers into destination trips and longer stays. Today’s trendiest hotel amenity in an operational brewery or distillery on site, and it means guest won’t have to worry about a designated driver after flights of craft beers or carefully distilled whiskey…Following the path blazed by winnery inns and microbrewery hotels like McMenamins, a chain of hotels in Oregan, a new crop of American hotels offers not just a comfortable bed and a leisurely stay, but also adult beverages you can’t get anywhere else”.

War Over Restaurant Tips

In Capps, D.C.’s war over restaurant tips will soon go national, msn ( ) it was noted that “The district’s voters will decide initiative 77, which would raise the minimum wage on tipped employees. Why don’t workers support it? In less than a week, voters in Washington, D.C., will settle a national debate over tipping. The district’s upcoming primary election includes a ballot measure called initiative 77, a policy to gradually raise the minimum wage that tipped workers receive. Two national restaurant groups are turning D.C. into a proxy war over a wide-reaching and politically fraught norm: the tip…If 77 passes, employers will pay a single minimum wage throughout the city. No more tips. Currently, tipped-wage workers can make a lot more (or a lot less) than the regular minimum wage. In the anti-77 corner: Save Our Tips, the campaign to preserve the status quo. A no vote means that tipped workers will continue to earn sub-minimum base wage. Most local restaurant industry workers-owners and employees alike-have aligned themselves with the opponents of Initiative 77″

Glamping, Anyone?

In Glusac, Glamping Slips Into the Mainstream, nytimes (6/15/2018) it was noted “Camping in the wild with all the comforts of a deluxe hotel, real beds, plush furnishings and attending stewards, has been around since 19th-century African wildlife safaris. Now known as glamping-short for glamorous camping-the hybrid of camp and resort has exploded, bringing a wave of new glamping destinations this year in a variety of price ranges…Indicative of glamping’s growth, the biggest American camp collectives are on an expansionist spree…The 37,000-acre Resort At Paws Up in Montana, one of the earliest, in 2005, to erect fancy tents with framed art on the canvas walls, rugs on the wood floors and downy duvets on the log-framed beds, introduced glamping’s first three-bedroom, two-bathroom tents last summer”. Bravo.

Beware Fake Rental Ads

In Svaldi, Fake rental ads are everywhere, and Colorado consumers need to watch out, denverpost (6/15/2018) it was noted that “Bogus ads on Craigslist, Facebook and other forums offering rentals that really aren’t for rent tend to rise with the temperature outside. The ads, which can stay up for hours before getting flagged as fraudulent, usually show appealing pictures pulled from other online postings and offer an alluring lease rate…And while common sense says never wire money to rent a place you haven’t seen in person, the posters insist they are completely trustworthy. Just wire the money and the key will be on its way”.

Local Sustainable Seafood?

In McDowell, Mason & Mendoza, AP Investigation: Sustainable Seafood Dealer Sold Fishy Tale, msn (6/14/2018) it was noted that “Even after winter storms left East Coast harbors thick with ice, some of the country’s top chefs and trendy restaurants were offering sushi-grade tuns supposedly pulled fresh off the coast of New York. But it was an illusion. No tuna was landing there. The fish had long since migrated to warmer waters. In a global industry plagued by fraud and deceit, conscientious consumers are increasingly paying top dollar for what they believe is local, sustainably caught seafood. But even in this fast-growing niche market, companies can hide behind murky supply chains that make it difficult to determine where any given fish comes from. That’s where national distributor Sea To Table stepped in, guaranteeing its products were wild and directly traceable to a U.S. dock…However, an (AP) investigation found the company was linked to some of the same practices it vowed to fight. Preliminary DNA tests suggested some of its yellowfin tuna likely came from the other side of the world and reporters traced the company’s supply chain to migrant fishermen in foreign waters, who described labor abuses, poaching and the slaughter of sharks, whales and dolphins”.

Book The Best Hotel For You

In Vora, 6 Tips to Book the Best Hotel for You, nytimes (5/24/2018) it was noted that “Travelers today are spoiled for choice when it comes to booking a hotel…’Hotels are increasingly opening all over the world at such a fast clip that the choices can be overwhelming’. But how do you wade through the options and find the best one for you?…Define the Purpose of Your Trip…Consider Your Location…Choose a Hotel that Matches your Priorities (and Budget)…Do your homework and track prices over time using sites like Trivago, Hipmuck and TripAdvisor. You can always call and ask the hotel when the ideal time to book is if your trip is flexible…Get Those Loyalty Points…Ask Yourself: What’s Your Style?…Consider Sustainability”.

Disappearing Hotel Bargains

In Brasler, The Disappearing Hotel Bargain, checkbook (5/2018) it was noted that “Dozens of travel websites are eager to arrange your next hotel stay. But this world of options is an illusion. Almost all travel booking sites were either started by or gobbled up by Expedia, Inc. Or Booking Holdings (formerly Priceline Group), two Fortune 500 companies that together now control 95 percent of third-party online hotel bookings…In the past you could call the hotel desk and get one rate, call the company’s 1-800 line and get another, find an entirely different price on the hotel’s website, and then look at dozens of competing rates on various travel websites. Now most booking options offer the same price for the same room. That’s because Expedia and Booking leverage their overwhelming market share to dictate how hotel rooms are priced…Our researchers looked up more than 3,500 hotel rates on 18 different booking sites plus travel company websites. We requested rates for one-, three- and seven night stays at 46 U.S. cities and 12 foreign ones and found very little price variation among the options”.

World’s Oldest Trees Are Back

In Fuller, A Renewed View of Some of the World’s Oldest Trees, nytimes (6/18/2018) it was noted that “After a three-year restoration project, the Mariposa Grove of giant sequoias in Yosemite National Park has reopened, with less asphalt and more concern for the health of the trees…For three years some of the most striking examples of these towering marvels were off limits to visitors…After a $40 million renovation-the largest restoration project in the park’s history-the Mariposa Grove, a collection of around 500 mature giant sequoias-reopened last week…In the Mariposa Grove, which is a 45-minute drive from the Yosemite Valley floor, the traffic brought exhaust fumes and engine noise to the foot of some of the world’s oldest living things. Park rangers feared that the asphalt covering the root systems of the trees would damage them”.

Scooters Are Hot Investment

In Levy, Investors race to get into scooter companies like Lime and Bird, driving valuations to the billions, msn (6/14/2018) it was noted that “Investors bidding up scooter prices are motivated not by fundamentals but by FOMO (fear of missing out), say the bears. But we all want fewer air-polluting cars on the roads, say the bulls…In addition to Lime and Bird, there’s Spin and Skip (from the creators of Boosted electric skateboards). Just last week, Ofo said it will be deploying tens of thousands of e-vehicles in U.S. cities over the next few months, with scooters hitting markets including Atlanta, Austin, San Francisco and Santa Monica. Rides, typically start at $1 and can go up to a few dollars depending on the distance… ’Transportation in cities is a big problem not solved completely by ride share and even autonomous cars’, said Alexis Ohanian, the Reddit co-founder who is now a venture investor at Initialized Capital. Scooters are ‘fun and frictionless to ride’”.

Travel Law Case Of The Week

In the Horan case the Court noted “On August 5, 2010-just six days after Horan and her husband patronized the Windrift-a Senior Registered Environmental Health Specialist of the Cape May County Board of Health, David A. Tommey, arrived at the Windrift to conduct a routine, unannounced inspection. Unaware of Horan’s infection at the time, Tommey completed his inspection without incident and issued the Windrift a conditional satisfactory rating.

Many Health Violations Found

“A week after issuing this satisfactory rating, however, Tommey came to learn of Horan’s infection and…returned to the Windrift to inspect the raw bar. This time around, Tommey concluded that te Windrift was committed a number of violations, namely: (1) The wooden cutting board upon which shellfish was shucked was being cleaned and sanitized only once per week; (2) The shucking knife, at best, was being cleaned and sanitized only once daily; (3) Two-day oysters and day-old clams were left in the raw bar refrigerator unit and all of the shellfish in that unit measured more than 50 degrees Fahrenheit; (4) The employee in charge of the raw bar lacked good hand hygiene, in that gloves were worn for multiple tasks without bing changed and without hands being washed; and (5) The ice in the display case was contaminated with old shellfish particles and debris”.

New Jersey Products Liability Act

“Relying in large part on these alleged violations, Horan filed a seven-count Amended Complaint against the Windrift and several other defendants…eventually the case was reduced to one claim against the Windrift for the sale of a defective product under the NJPLA (New Jersey Products Liability Act). To establish liability under the NJPLA, ‘a plaintiff must prove that the product was defective, that the defect existed when the product left the manufacturer’s control, and that the defect proximately caused injuries to the plaintiff, a reasonably foreseeable or intended user’. The gravamen of Horan’s defective product claim was ‘that the Windrift, through its unsanitary food handling procedures, increased the risk of the presence of an infectious dose of [Vibrio] bacteria in the shellfish consumed by [Horan], either by cross-contamination and/or by increasing the amount of bacteria present’. The Windrift responded by filing a motion for summary judgment arguing…’that claims containing Vibrio, a naturally-occurring bacteria, are not a defective product under he NJPLA as a matter of law’”.

Not Per Se Defective

“As an initial matter, the District Court agreed with the Windrift that raw clams containing Vibrio are not per se defective because Vibrio, unlike other-naturally occurring bacteria like salmonella and E. Coli, are ‘harmless to most consumers’…the District Court cited…several cases in which courts refrained from imposing liability on a particular defendant for ‘selling shellfish containing Vibrio [see Bergeron v. Pac. Food, 2011 WL 1017872 (Conn. Super. Ct. 2011)(‘The evidence establishes that raw oysters contaminated with [Vibrio] pose little threat to harm to healthy individuals and are only harmful to individuals with specific underlying disorders’); Simeon v. Foes, 618 So. 2d 848, 851 (La. 1993)(same); Woeste v. Washington Platform Saloon & Rest., 838 N.E. 2d 52, 57 Ohio Ct. App. 2005)(same)]…The District Court…found itself ‘constrained to enter summary judgment in favor of [the Windrift]”.

On Appeal

“As the Windrift points out, though, Horan’s argument rests entirely on the premises that clams containing Vibrio, like food containing salmonella or E. Coli, is adulterated and therefore per se defective under the NJPLA, an assumption that ignores the District Court’s decisive finding to the contrary. Horan’s challenge to the District Court’s conclusion that clams containing Vibrio are not ‘defective’ as a matter of law, raised as t is for the first time on her reply brief, comes too late.


“Because clams containing Vibrio are not per se defective, it therefore follows that Horan-in order to even reach the issue of causation-was required to fist establish that the Windrift created a defect in the first place…Had Horan been able to prove that the clams arrived at the Windrift with non-infective dosage of Vibrio, then, as the District Court observed, perhaps a jury could have found that the Windrift’s food-handling practices created a defect, and that this defect, in turn, proximately caused Horan’s injury…The District Court properly granted summary judgment in favor of the Windrift”.

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 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles. For additional travel law news and developments, especially, in the member states of the EU see

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