This week we return to the risks of vacation fun which, on occasion, can lead to accidents and lawsuits in response to which travel service providers may raise common defenses such as assumption of the risk and the enforceability of waivers and disclaimers of liability [see our previous articles Adventure travel: Soft, hard and extreme-disclaimers and releases (www.eturbonews.com (7/17/2014); Tough mudder-adventure tourism taken to its extreme, www.eturbonews.com (6/12/2014)]. We will discuss, Garnett v. Strike Holdings LLC, 131 A.D. 3d 817 (1st Dept. 2015), a case involving a go-kart passenger who was injured when the go-kart in which she riding was bumped twice by other go-karts.
Travel Law Update
Terrorist Bombing In Ankara
In Many dead at Central train station terror attack in Ankara, Turkey, www.eturbonews.com (10/10/2015) it was noted that “tourists and local travelers arriving and leaving from Ankara’s Central Railway station Saturday morning had a horrifying experience when an alleged suicide bomber attacked outside the train station with two explosions at a road junction next to the train station”. In Arango, Deadly Ankara Attack Not Enough to Unify a Polarized Turkey, nytimes.com (10/12/2015) it was noted that “two suicide bombers killed nearly 100 people.”
Germanwings Anger Simmers
In Eddy, For Families of Germanwings Victims, Anger Simmers Through Grief, nytimes.com (10/10/2015) it was noted that “While some of the families of the 150 onboard the flight have broken Germany’s culture of privacy and discreet suffering… those in Haltern had stayed silent…But in June, after Lufthansa…offered $28,000 each to the families of the 72 German victims onboard-in addition to the $56,000 in immediate financial assistance that was provided to each family after the crash-the Haltern group wrote an open letter to Lufthansa calling the offer ‘insulting’…Along with the $28,000 per passenger for pain and suffering, Lufthansa is also offering $11,000 more for emotional damages to each immediate family member, such as parents and children, but not siblings…families in Haltern explained why the offer seems emblematic of what they see as Lufthansa’s effort to make the matter go away quickly, without fully explaining how a suicidal pilot came to be alone at the controls over the French Alps.”
Airbnb In Jersey City
In Chaban, Jersey City Proposes Legislation to Legalize Airbnb, nytimes.com (10/11/2015) it was noted that “With Wall Street offices, brownstone-lined streets, star chefs and even Citi Bike, New Jersey’s second largest city often resembles a more affordable, if less glamorous, mini-Manhattan-a sentiment a growing number of tourists now share, as they look here for cheaper accommodations. Yet Jersey City could soon have something New York does not. On Monday, Mayor Steven M. Fulop will introduce legislation to legalize the use of all short-term sleepover web services, like Airbnb and HomeAway. The law is expected to be approved by November.”
In Wells, Danny Meyer Restaurants to Eliminate Tipping, nytimes.com (10/14/2015) it was noted that “In a sweeping change to how most of its 1,8000 employees are paid, the Union Square Hospitality Group will eliminate tipping (at 13 restaurants) by the end of next year…The move will affect New York City businesses that serve 40,000 to 50,000 meals a week and range from simple museum cafes to some of the most popular and acclaimed restaurants in the country…By increasing prices and ending tips, Mr. Meyer said he hoped to be able to raise pay for junior dining room managers and for cooks, dishwashers and other kitchen workers. Compensation would remain roughly the same for servers, who currently get most of their income from tips. Under federal labor laws, pooled tips can be distributed only to customer service workers why typically receive gratuities and cannot be shared with kitchen staff or managers.”
Gentrified Buses Go Bust
In Manjoo, Behind the Failure of Leap Transit’s Gentrified Buses in San Francisco, nytimes.com (10/14/2015) it was noted that “Leap, which raised $2.5 million…charged riders $6 to get across San Francisco, nearly three times the cost of riding a city bus. Its primary draw was luxury. Each bus had a wood-trimmed interior outfitted with black leather seats, individual USB posts and Wi-Fi. The buses also offered a steady stream of high-end snacks, sold via app…Leap filed for bankruptcy in July…Leap, in retrospect, was a bold idea that might have had some legs. Muni, San Francisco’s public bus system, is overloaded and underfunded, and the success of ride-hailing apps like Uber suggests a public willingness to try new tech-enabled options. But in its design and marketing-in its full-frontal embrace of the easily pilloried paleo-snack-bar techie lifestyle-Leap exuded a kind of bourgeoisie exceptionalism that fed into the city’s fears of gentrification and won it few fans.”
Death By Russian-Made Missile
In Clark & Kramer, Malaysia Airlines Flight 17 Most Likely Hit by Russian-Made Missile, Inquiry Says, nytimes.com (10/13/2015) it was noted that “A 15-month inquiry into the disintegration of Malaysia Airlines Flight 17 in the skies over eastern Ukraine has concluded that the aircraft was struck by a Russian-made missile, Dutch air accident investigators said Tuesday…’Flight MH17 crashed as a result of the detonation of a warhead outside the airplane above the left-hand side of the cockpit’…The explosion tore off the forward part of the plane, which broke up in the air. The crash killed all 298 people aboard; the investigation found that many died instantly, while others quickly lost consciousness. ‘It is likely the occupants were barely able to comprehend their situation.’”
Travel Law Article: The Go-Kart Case
In the Garnett case supra, the Court noted that “Defendants Strike Holdings LLC and Strike Long Island LLC (Strike) operated an indoor recreation facility that contained a go-kart racing track. On December 27, 2003, plaintiff rode as a passenger in a two-seat go-kart driven by her then boyfriend… Lawrence Nadler. While driving on the track, they were allegedly bumped twice by other go-karts, allegedly causing injuries to plaintiff, including ‘Reflex Sympathetic Dystrophy’. Plaintiff commenced this action against Strike alleging causes of action for negligence, neglect and defective design, strict products liability, failure to warn and beach of warranty.”
Waiver Of Liability Void
In a prior decision, Garnett v. Strike Holdings LLC, 64 A.D. 3d 419 (1st Dept. 2009), the Court found that Strike “leased and rented the go-karts (which is) consistent with the inference that they placed those vehicles into the distributive chain, sufficiently stating products liability claims” and addressed the viability of Strike’s signed release. “It is undisputed that plaintiff paid the Strike defendants a fee to use the go-kart at the recreational facility owned or operated by them, we also find the express assumption of risk, waiver, indemnity and agreement not to sue, which they required of drivers, to be ‘void as against public policy and wholly unenforceable’ against plaintiff by reason of General Obligations Law Section 5-326…Therefore, the purported waiver provides neither a defense…nor grounds for dismissal as a form of release.”
The plaintiff testified that the day of the accident she “was 5’5″ tall and weighed approximately 130 pounds. She was strapped into the passenger seat of the two-seater go-kart by a shoulder strap and lap belt….During the first lap of the race, plaintiff noticed that Nadler was driving very fast and that the other racers were speeding as well…A few minutes into the race…her go-kart was bumped by another racer…A few minutes later, her go-kart was bumped again…(following which) she experienced pain in her entire body”.
“Strike’s general manager, explained that the go-karts were powered by electricity and controlled by a remote control with four different speed settings…[I]t was Strike’s policy to stop the go-karts if bumping occurred, and to have the attendant walk over to the go-kart that was doing the bumping and tell the driver to stop. If the bumping occurred again, the race was to be stopped. It was Strike’s policy to have four people working the go-kart track, one to seat people in the go-karts, one to run the control panel and two to monitor the race on opposite sides of the track where the turns are located…the pit area was closed off during races so that the go-karts could not exit the track while the race was in progress”.
Assumption Of The Risk
“Although Strike may not avoid liability based on the written waiver it asks its customers to sign, the common-law assumption of risk doctrine is nonetheless applicable. This doctrine applies to ‘certain types of athletic or recreational activities’ where ‘a plaintiff who freely accepts a known risk ‘Commensurately negates any duty on the part of the defendant to safeguard him or her from the risk’. While ‘participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced’, the concept of a ‘known’ risk includes ‘apparent or reasonably foreseeable’ risks inherent in the activity.”
The Risks Of Go-Karting
“The activity in which plaintiff engaged is a type to which the assumption of the risk doctrine is appropriately applied. ‘In riding the go-kart, the plaintiff…assumed the risks inherent in the activity’…Those risks included the risk ‘that the go-kart would bump into objects’..Of course, the ‘apparent or reasonably foreseeable’ risks inherent in go-karting also include the risk that vehicles racing around the track may intentionally or unintentionally collide with or bump into other go-karts. It is that inherent risk which ‘negates any duty on the part of the defendant to safeguard [plaintiff] from the risk’…’by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport’…It cannot be reasonably suggested that contact between go-karts during a race is anything other than just such a ‘commonly appreciated risk’ of go-karting, consequently, the operator cannot be held to a duty to protect plaintiff from that risk, even if plaintiff herself failed to recognize the risk”.
No Assumed Duty
“Since the operator of the track does not have a duty to protect the go-kart rider from the inherent and foreseeable risk of being bumped by another go-kart, no such duty to plaintiff will be deemed to have been created by the operator’s rule prohibiting go-karts from intentionally bumping into other go-karts, or by its policy of stopping the race when bumping is observed”.
The author, Justice Dickerson, has been writing about Travel Law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2015) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2015), and over 350 legal articles. 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.