Tourist injured during ATV tour in Colorado

In this week’s article, we examine the recent case of Soucy v. Nova Guides, Inc., 2015 WL 4456090 (D. Colo. 2015) (Soucy I) [see also: Soucy v. Nova Guides, Inc., 2015 WL 5535347 (D. Colo. 2015) (Soucy II)] in which a tourist was injured while participating in an All Terrain Vehicle (ATV) guided tour in Colorado operated by Nova Guides, Inc. Of particular interest in this case is whether and to what extent Nova’s Waiver of Liability for the injuries sustained by the plaintiff should be enforced. The lesson is to be learned in the Soucy case by the purveyors of travel services is to make certain that the tour participant actually signs the liability waiver.

Terror Targets Update

Turkey

In Ten killed, hundreds wounded in string of Turkey terror attacks, www.eturbonews.com (8/18/2016) it was noted that “A third explosion in the past 24 hours has rocked eastern Turkey, killing four security personnel and injuring seven in Bitlis province. It comes after two car bombings targeted police stations, leaving at least six people dead and as many as 290 injured”.

Brussels, Belgium

In Brussels bus attack: Woman stabs passengers with knife, shot by police, www.eturbonews.com (8/22/2016) it was noted that “A woman has been shot by police after she launched a knife attack on bus passengers in the Uccle suburb of Brussels. At least three people were wounded with a machete, two seriously, while the attacked was taken to hospital with gunshot wounds”.

Sweden?

In Turkish travelers “warned” of high “rape rate” in Sweden, www.eturbonews.com (8/20/2016) it was noted that “Turkey has posted its own ‘travel warning’ amid an ongoing international scandal linked to Turkey’s underage sex law, placing ads at Istanbul Airport alleging that ‘Sweden has the highest rape rate worldwide’ The ‘warning’ apparently appeared at the international Ataturk airport, in the form of a banner, by the Turkish Gunes newspaper, The Local reported on Friday”.

Canada

In Report on terrorist threat to Canada released, www.eturbonews.com (8/25/2016) it was noted that “The Honorable Ralph Goodale, Canada’s Minister of Public Safety and Emergency Preparedness, today released the 2016 Public Report on the Terrorist Threat to Canada. In 2015 and early 2016, the main threat in Canada remained that violent extremists could be inspired by groups such as Daesh and al-Qaida to carry out an attack”.

New York

In Wilson & Goldstein, False Reports of Gunfire at J.F.K. Airport Offer a Real Case Study in Security, nytimes.com (8/18/2016) it was noted that “As a human stampede tore its way through a terminal at Kennedy International Airport, a Transportation Safety Administration agent running along was heard screaming, ‘There’s a bomb’. Another agent yelled, ‘Someone’s been shot’. Some passengers found their way to the tarmac, scurrying underneath a parked jet toward a different, safe terminal-only to be refused entry by a police officer… The chaos on Sunday night followed what appeared to be two false alarms of a gunman in the airport’s terminals”.

Twitter Suspends Accounts

In Benner, Twitter Suspends 235,000 More Accounts Over Extremism, nytimes.com (8/18/2016) it was noted that “Twitter suspended 235,000 accounts that promoted terrorism over the last six months, as part of a continuing effort to keep people from using the social network for extremist causes, the Company said Thursday. ‘The world has witnessed a further wave of deadly, abhorrent terror attacks across the globe’, Twitter said in a statement. ‘We strongly condemn these acts and remain committed to eliminating the promotion of violence or terrorism on our platform’”.

Zika, Zika, Zika

In Alvarez & Belluck, Pregnant Women Advised to Avoid Travel to Active Zika Zone in Miami Beach, nytimes.com (8/19/2016) it was noted that “With the Zika virus spreading to Miami Beach. Federal health officials on Friday advised pregnant women not to visit a 20-block stretch of one of the country’s most alluring tourist destinations. They also told them to consider postponing travel anywhere in Miami-Dade County. The escalation of the Zika crisis here sent tremors through South Florida’s vibrant tourist industry and stoked fears of pregnant women, worried about the virus’s ability to cause severe brain damage in newborn babies”.

Earthquake In Italy

In Povoledo, Hopes Dim for Survivors of Italy Quake; Death Toll Stands at 267, nytimes.com (8/25/2016) it was noted that “As relatives of the missing and the dead tearfully made their way to the makeshift morgue here in Amatrice, dust-covered rescuers worked Thursday in sweaty shifts, hoping to find people still alive under the remains of buildings destroyed by the earthquake in central Italy”

Lyft Giving Up?

In Gelles & Isaac, Lyft Said to Seek a Buyer, Without Success, nytimes.com (8/19/2016) it was noted that “It is not an easy thing to be an independent ride-hailing company these days. For one, it takes billions of dollars and hundreds of employees to spread to new cities, to market the service and recruit drivers. Legislators and local laws are often not in your favor. And competitors with deep pockets from all over the world are waiting to cheer if you happen to fail. Lyft, the second-largest ride-hailing company in the United States behind Uber, is grappling with those forces-but has found that its options are limited. The company…has in recent months held talks or made approaches to sell itself (but) in the end, Lyft did not find a buyer. Lyft is not in danger of closing down and has a cash cushion of $1.4 billion…so the company will continue as an independent entity”.

No Burqas Or Burkinis, Please

In German Interior Minister: Burqa ‘does not belong in our country’, www.eturbonews.com (8/19/2016) it was noted that “German Interior Minister Thomas de Maiziere came out Friday in favor of a partial burqa ban amid a fierce national debate on integration. ‘We agree that we reject the burqa, we agree that we want to introduce a legal requirement to show one’s face in places where it is necessary for our society’s coexistence”.

In The Editorial Board, France’s Burkini Bigotry,nytimes.com (8/18. 2016) it was noted that “After bans on full-face veils, head scarves in schools and rules about students’ skirt lengths, France’s perennial problem with Muslim women’s attire has taken its most farcical turn yet with a new controversy over the ‘burkini’, body-covering swimwear whose name is an amalgam of burqa and bikini. As of Thursday, five French mayors had banned the burkini, calling it, variously, a threat to public order, hygiene, water safety and morality, tantamount to a new weapon of war against the French republic. Thierry Migoule, an official with the city of Cannes, the first to ban the burkini, declared the swimwear ‘clothing that conveys an allegiance to the terrorist movements that are waging war against us’”.

In Minister: No ‘burkini’ ban in Italy, www.eturbonews.com (8/18/2016) it was noted that “The Italian Interior minister has ruled out the possibility of Italy following in France’s footsteps and banning Muslim female swimwear. The Minister called any ban on ‘burkinis’ counterproductive, saying it could provoke violence instead of deterring it”.

Behave Yourself

In Steinmetz, Tourist Warning: Don’t take photos of airline employees in the UAE, www.eturbonews.com (8/17/2016) it was noted that “Tourists visiting places in the United Arab Emirates (UAE) such as Dubai or Abu Dhabi should be aware of not taking pictures of people, including those working at air airlines. Six month(s) in a UAE jail and fines can be the charge for taking photos of someone without permission”.

Airbnb Of China

In Steinmetz, Airbnb of China-a new favorite, www.eturbonews.com (8/14/2016) it was noted that “Recently, Tujia, also known as the ‘Airbnb of China’, announced that its orders set a new record, with single-day orders exceeding 56,000 room nights. It was the first time for Tujia to disclose its single-day order data, and such data constitutes the highest single-day transactions recorded among those publicly disclosed in the house sharing field in China so far…In August 2015, Tujia raised USD 300 million of financing at an estimated valuation surpassing USD 1 billion. Tujia host(s) an inventory of 430,000 online properties, covering 312 destinations in mainland China and 1000+ of those overseas”.

Norovirus Victims Entitled To Compensation

In Spencer, Fred. Olsen Cruise Line Passengers Struck Down with Norovirus are Entitled to Compensation Following Court of Appeal Ruling, cruisecritic.com (8/1/2016) it was noted that “The Court of Appeal has ruled that 16 British cruise passengers who fell ill onboard Fred. Olsen Cruise Lines’ Boudicca in 2011 are entitled to compensation, after appeal judges (upheld) the original trial judge’s decision. The 856-passenger ship was struck down with norovirus, which includes symptoms of vomiting and diarrhea, during a cruise to the Canary Islands, Cape Verde and the Iberian Peninsula in March and April 2011″.

Yelp Fighting Back

In Forshee, How Yelp is Fighting Back Against Abusive Litigants, Corporate Counsel (8/15/2016) it was noted that “You see more than reviews if you visit the Yelp.com page for the Dallas pet-sitting service (X). A bright red alert box pops up warning that ‘this business may be trying to abuse the legal system to stifle free speech’. Yelp introduced the alerts this year as part of a continuing protection initiative that Yelp rolled out in 2012. In addition to Prestigious Pets, alerts were issued for (Y) and (Z). All three companies have threatened legal action against reviewers”.

In Chan, Yelp Is Now Marking Businesses That Sue Reviewers, time.com (7/25/2016) it was noted that “After several businesses have sued consumers. Yelp has begun to mark businesses that make legal threats against customers that post reviews on the site. ‘Consumers have the right to share their opinions about their experiences with businesses, but there will always be a small handful of businesses who mistakenly think it’s a good idea to threaten consumers who exercise their free speech rights’, Yelp said on its blog”.

Kenya Environmentalists Prevail

In Steinmetz, Kenya: Environmentalists prevail, www.eturbonews.com (8/16/2016) it was noted that “Kenya’s conservation fraternity, at least for now, can be proud to have stopped the Chinese construction company selected to build the second stretch of the new Standard Gauge Railway…which will run from Nairobi to the Rift Valley town of Naivasha. It is there that the Kenyan government intends to set up a special economic zone and the railway link will be a key element of infrastructure development to accomplish that task”.

Travel Law Article: The Soucy Case

In the Soucy case the Court noted the following:

The Parties’ Positions

“Plaintiff Megan Soucy (Soucy) initiated this action… alleging essentially that Defendant Nova Guides, Inc. (Nova) was negligent in causing her injuries when the all-terrain vehicle (ATV) she was driving overturned during a trail ride…Nova filed (a) motion for summary judgment (on the basis that) Soucy contractually waived her claims (because Nova’s) Waiver of Liability is valid pursuant to Colorado law and the waiver is enforceable despite lacking Plaintiff’s signature. Soucy counters that she was never presented with nor signed a Waiver of Liability before the July 11, 2012 tour during which she was injured. She argues that the July 9, 2012 waiver she signed before a Jeep tour did not apply to the July 11 ATV tour, since only the Jeep tour was referenced in the July 9 waiver. She further asserts that any release that may be construed as signed on her behalf by her mother is unenforceable”.

Background Facts

“The Court makes the following findings of fact viewed in the light most favorable to Soucy:

“1. While vacationing in Vail, Colorado in July 2012, Soucy, her mother and her sisters participated in a jeep tour on July 9, 2012 and an ATV tour on July 11, 2012, both guided by Ben Hilley of Nova Guides, Inc.”.

“2. Soucy was 20 years old in July 2012″.

“3. Based on her past experience, Soucy understood she must typically execute a waiver of liability before engaging in activities such as ‘ATVing’ and the ‘safari trip’ (also referred to as the ‘Jeep tour’)”.

“4. Prior to participating in the Jeep tour on July 9, 2012, Soucy signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to ‘Jeep tour’ as the type of tour selected (the other options are ‘ATV’, ‘Mtn. Bike’ and ‘Hiking’)”.

Nova’s Waiver Of Liability

“5. Nova’s Waiver of Liability includes the following language: ‘Participant’s Agreement To Assume The Risks Of Personal Injury And Property Damage Associated With…All Terrain Vehicle Riding…And Jeep Tours And To Release Nova Guides, Inc… From Any And All Liability In Connection With (The Aforesaid Sports Activities). This Is A Release Of Liability, Please Read Before Signing…I Understand That The Activities Of…All Terrain Vehicle Riding…Jeep Touring, like all outdoor activities involve the risk of contact with wild animals, falls, equipment failure, collision and/or contact with manmade or natural objects and other riders and drivers which can result in personal injury, property damage and death. I expressly assume all risk of personal injury…which may result from my participation and my minor children’s participation in…all terrain vehicle riding…jeep touring and waiver any claims based on negligence or breach of warranty”.

Soucy Did Not Sign The Waiver

“6. Soucy recognized that operating an ATV involves a risk of injury”.

“7. Prior to Soucy’s and her family’s participation in the ATV tour on July 11, 2012, Soucy’s motion, Susan Pesot, completed and signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to ‘ATV’ as the type pf tour selected”.

“8. Soucy did not sign the July 11, 2012 Waiver of Liability”.

“9. Pesot signed the waiver only on behalf of herself and her two minor children (Soucy’s sisters). She listed Soucy and Soucy’s other sister as participants on the ATV tour ‘because Ben told [her] to write down all the people who will be driving the vehicles’”.

“10. Pesot did not sign the waiver on behalf of Soucy, who was not a minor, nor asked Soucy to sign the waiver because ‘that was not [her] responsibility to have [Soucy] sign it’”.

“11. Also, Hilley did not ask Soucy to sign the waiver; however, Soucy would signed the Waiver of Liability completed by Pesot on July 11, 2012, had it been presented to her by Hilley or Pesot and she were asked specifically to sign it”.

“12. Soucy thought the Waiver of Liability she signed on July 9, 2012 ‘carried over’ for the ATV tour in which she participated on July 11, 2012″.

“13. Soucy participated in the ATV tour on July 11, 2012″.

The Court’s Analysis

“Here, it is undisputed that Soucy did not sign a form waiver of liability for the ATV tour guided by Nova on July 11, 2012. According to Soucy, that is the end of the story. However, Nova argues the lack of a signature on a written agreement ‘is not always necessary to create a binding agreement’. Nova contends that Colorado law allows consideration of the parties’ intent in the formation of a contract”.

Was An Agreement Formed Before The Accident?

“The Court finds that, because Soucy does not challenge the validity and enforceability of Nova’s waiver of liability, the question is not whether terms of a formal contract are ambiguous (since no formal contract exists between Soucy and Nova from July 11, 2012), but whether an agreement between Soucy and Nova was formed on July 11, 2012 before Soucy was injured on the tour”.

No Evidence Of Nova’s Intention

“‘A contract implied in fact arises from the parties’ conduct that evidences a mutual intention to enter into a contract, and such a contract has the same legal effect as an express contract…[thus, to be enforceable, a contract requires mutual assent to an exchange for legal consideration’…Nova has proffered no evidence of its intention that Soucy be bound by an agreement to waive liability for the ATV tour on July 11, 2012; that is, nothing in the record demonstrates that either Hilley or any Nova personnel asked Soucy to execute or otherwise agree to a waiver for that tour, either by verbally asking her or by presenting her with a written agreement. Nor has Nova provided any affidavit evidencing, or even an argument by Nova concerning, its intent for this verbal agreement…the Court will not infer such intention”

Conclusion

Since Soucy never signed Waiver of Liability Nova relied upon the indicia of an oral agreement. “However, for an oral agreement to be enforceable, there must be mutual assent from both parties. The evidence proffered by the parties does not show that Nova intended to be bound by an agreement with Soucy to waive liability for the ATV tour on July 11, 2012. Because an issue as to this material fact exists, (Nova’s) Motion for Summary Judgment is denied”. Nova’s second motion for summary judgment [Soucy II] was denied as well [Soucy v. Nova Guides, Inc., 2015 WL 5535347 (D. Colo. 2015)].

Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.

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