In this week’s article we examine the liability of a US based tour operator for the wrongful death of a tourist during a horseback riding tour of a vineyard and ranch in Montevideo, Uruguay. The case is Shridhar v. Vantage Travel Service, Inc., 2016 WL 146076 (C.D. Calif. 2016). In addition, we will examine another horse case, Boland v. Riding High Dude Ranch, Inc., 2016 NY Slip Op 50455(U) (Warren County Supreme 2016), reaching a different result.
Travel Law Update
Terror Targets Update
In A Brussels Mentor Who Taught ‘Gangster Islam’ to the Young and Angry, nytimes.com (4/11/2016) it was noted that “He lived under the rafters in a small attic apartment in the Molenbeek district of Brussels, and became known to some followers as the Santa Claus of jihad. He had the bushy beard and potbelly, and generously offered money and advice to young Muslims eager to fight in Syria and Somalia, or to wreak havoc in Europe”.
In Rubin & Schmitt, Revelation on Brussels Attackers Fuels Fears of New Assaults, nytimes.com (4/10/2016) it was noted that “The announcement on Sunday that the plotters of last month’s Brussels terror attacks had originally intended to hit Paris again only heightened the concern among police and intelligence agencies that shadowy Islamic State networks could unleash new attacks at any time, not only in France and Belgium but in other European capitals”.
In Steinmetz, Intelligence: ISIS Terrorists want to extend its war on tourism to Germany, eturbonews.com (4/10/2016) it was noted that “Germany’s national daily paper ‘Die Welt’ made headlines today reporting the security situation is very serious. The German Federal Office for the Protection of the Constitution, Has-Georg Maassen, made chilling statement in an interview with the paper. According to Mr. Maassen, the terror organization Islamic State (IS) may be actively planning to carry out attacks on Germany and German interests. In IS propaganda German cities are placed next to Paris, London and Brussels-all previous targets of large terror attacks”.
In Percussion bomb explosion lightly wounds three in Istanbul, eturbonews.com (4/9/2016) it was noted that “According to Turkish news reports, a small percussion bomb, left on the side of a road near a bus stop in Istanbul, exploded, lightly wounding three people”.
Nigeria & Cameroon
In Searcey, Boko Haram Turns Female Captives Into Terrorists, nytimes.com (4/7/2016) it was noted that “Hold the bomb under your armpit to keep it steady, the women and girls were taught. Sever your enemy’s head from behind, to minimize struggling. ‘If you cut from the back of the neck, they die faster’ said Rahila Amos, a Nigerian grandmother describing the meticulous instruction she received from Boko Haram to become a suicide bomber”.
In Steinhaufer, Senate Takes Steps to Tighten Airport Security, nytimes.com (4/7/2016) it was noted that “The Senate passed several provisions to bolster security throughout the nation’s transportation system Thursday, the first legislative response to the attacks on the airport and train station in Belgium last week…The measures strengthen airport employee vetting, increase the use of teams that conduct covert operations to test security systems and could double the number of visible special security teams that are used to deter threats”.
Restricting Costumed Characters
In Fitzsimmons, New York Moves on Restricting Costumed Characters in Times Square, nytimes.com (4/7/2016) it was noted that “After a furor last summer over topless women and menacing superheroes, New York City is moving to rein in the performers who hustle for tips in Times Square. The City Council votes on Thursday to allow the city’s Transportation Department to create new rules for pedestrian plazas that could restrict Times Square’s costumed characters and painted women to designated zones. The changes could significantly change the atmosphere of the popular public space”.
Travel Rewards Programs
In Rosenbloom, Travel Rewards Programs You May Not Know About-but Should, nytimes.com (3/29/2016) it was noted that “Practically every major airline and hotel loyalty program has recently changed or is on the road to being upended, be it the new American Airlines award chart, which went into effect on March 22, or a potential merger of the Starwood Preferred Guest and Marriott Rewards programs. Yet the travel industry is rife with other rewards and membership programs-offerings that don’t get as much attention but can make a trip cheaper and easier. That independent boutique hotel you love? It may be part of a program you’ve never heard of that could earn you free stays. From receiving early check-in at your hotel, to spending a layover in a lounge with a glass of wine instead of with a crowd at an airport gate, here are some lesser known programs that deserve a closer look”.
Travel Law Article: The Shridhar Case
In granting the motion of defendant Vantage Travel Service, Inc. Vantage] seeking summary judgment dismissing the complaint alleging wrongful death, survival action, negligent infliction of emotional distress and loss of consortium, the Court noted as follows.
“The facts giving rise to this action stem from fatal injuries sustained by seventy-one-year-old Archina Kulkami (the Decedent) while horseback riding on a tour of South America. (Vantage) is a tour operator headquartered in Boston, Massachusetts, which packages tours for customers by selecting independent third-party service providers, such as ground operators, excursion providers, restaurants and hotels…Decedent and her husband) each purchased a vacation package from (Vantage) for a seventeen-day tour of South America. One of the events on the tour involved a visit to a vineyard and ranch in Montevideo, Uruguay called Estanicia Finca Piedra (the Ranch)”.
Vantage’s Tour Guide
“Accompanying the tour group was Ignacio Eiras, a Program Manager for (Vantage) responsible for guiding the tour group to all tour destinations…According to (Vantage)…Mr. Eiras ‘assist[ed] and support[ed] (Vantage’s) third party vendors ‘to ensure that all of the included features [of the pre-packaged tours] [we]re delivered as advertised’. Mr. Eiras also ‘assist[ed] and support[ed] (Vantage’s) customers as needed; in other words, if there [was] something that [they were] looking for that they [could not] find or if there [was] a special something that they would [have] prefer]red] to eat…he [would take] care of them’. When asked whether (Vantage) expected Mr. Eiras to make sure the customers had a ‘safe, healthy and happy journey’ (Vantage’s) Mr. Ferullo replied ‘That’s correct’…Mr. Eiras was required to accompany the customers during transportation, which (Vantage) arranged…follow a ‘day-to-day’ itinerary that (Vantage) provide[d], which Mr. Eiras was not permitted to alter without (Vantage’s) approval…and wear a uniform displaying (Vantage’s) name and logo”.
Horseback Riding Tour
“While at the Ranch, tour members were offered an opportunity to participate in a horseback tour of the property. Decedent volunteered to take part in the activity and indicated that she had ridden horses a few times in her life. After signing a liability release form…Decedent was paired with a horse to ride through the property”.
A ‘Skittish’,‘Unstable’ & ‘Antsy’ Horse
According to other tour participants present at the Ranch that day, the horse with which Decedent was paired would not approach the area designated for mounting. The witnesses also stated that Decedent’s horse was particularly ‘skittish’, ‘spooked’, unstable’ and ‘antsy’…According to Mr. Mitchell, after two failed attempts at helping Decedent mount the horse, the Ranch employee grabbed Decedent’s belt and lifted her onto the horse. A short time later, the horse ‘began jumping around and turning in a circle’…The horse then fell over on its side with Decedent still mounted on t, causing Decedent’s head to hit the ground. The horse quickly jumped back up to its feet, but Decedent remained lying on the ground…Decedent died as a result of the head injuries she sustained in the fall”.
No Negligent Selection
“Plaintiffs; own evidence establishes that (Vantage) inquired into the safety of the Ranch…’Ms. Stickforth stated that she was Vantage buyer in South America responsible for inspecting, selecting and managing tour activities…she was the Vantage employee who inspected ad selected [the Ranch] as a Vantage tour destination’…(Although) Ms. Ferullo could not say for certain whether Ms. Stick forth actually visited the Ranch…that was the expectation. However, Ms. Stickforth’s statements to (one of the Plaintiffs) indicate that Ms. Stick forth fulfilled (Vantage’s) expectation…no genuine dispute exists as to whether Ms. Stick forth inspected the Ranch and thus generally inquired into the Ranch’s competence as an independent contractor. Further, Mr. Eiras testifies that the Ranch enjoys a good reputation in the area and that in his twelve to fifteen visits to the Ranch, he has observed that the facilities are well-maintained, he has never observed another traveler fall from a horse and he has never received a complaint regarding the horseback riding activity…(Vantage) ensures the continuing quality of its vendors, such as the Ranch, by analyzing customer service reviews…because there is no genuine dispute that (1) (Vantage) inquired generally into the safety of the Ranch, (2) the Ranch enjoys a good reputation and (3) (Vantage) continuously monitored the quality of the services provided by the Ranch, (Vantage) was not negligent in selecting the Ranch as an independent contractor”.
Negligence In Mounting Unsafe Horse
“Plaintiffs also seek to recover damages arising out of (Vantage’s) general negligence in allowing Decedent to mount an unsafe horse…Plaintiffs clarify that their ‘claims and supporting evidence show that [Decedent’s] injuries were caused by the gross negligence and recklessness of [Defendant’s] employee and program manager, Ignacio ‘Nacho’ Eiras…Defendant also contends that it cannot be liable because Decedent assumed the risk of the horseback riding activity by signing a waiver absolving…the Ranch and their ‘affiliates’ of liability arising out of their ordinary negligence in connection with the horseback riding activity. Plaintiffs point out that Decedent signed the liability release without sufficient time to read it, the release only applies to…the Ranch and (Vantage) is not an ‘affiliate’ and the release does not absolve Defendant of its own employee’s negligence…(Vantage also asserts that it) cannot be liable because Decedent impliedly assumed the risk of the dangers inherent in horseback riding by voluntarily choosing to take part in the horseback riding activity…Plaintiffs (assert that) Mr. Eiras increased the risk of injury to Decedent by placing her in a category of ‘experienced’ riders, despite the fact that she was seventy-one years old and had only ridden a few times”.
Was The Tour Guide Negligent?
“Plaintiffs also argue that Defendant owed Decedent a general duty of care…the Court concludes that plaintiffs fail to rebut (Vantage’s) evidence that as a tour operator (Vantage) owed Decedent no such duty…Assuming Plaintiffs’ version of the facts as true…Mr. Eiras did not assume a duty of care by segregating the riders into experienced and inexperienced groups. By splitting the groups, Mr. Eiras was not guaranteeing that the Ranch’s employees would non-negligently choose Decedent’s horse. Mr. Eiras was less likely to have assumed a duty because he merely divided riders into groups based on the individual’s own representations of their riding experiences…Mr. Eiras did not inspect the horses, nor did he affirmatively state that the horse chosen by Decedent was safe (citing Carley v. Theatre Development Fund, 22 F. Supp. 2d 224 (S.D.N.Y. 1998))”.
Primary Assumption Of Risk
“‘The risk of injury is inherent in certain sporting activities’…The primary assumption of the risk doctrine provides that others having a role in the sporting activity’‘generally have no legal duty to eliminate (or protect a [participant] against) risks inherent in the sport itself’…’However, they ‘generally do have a duty to use due care not increase the risks to a participant over and above those inherent in the sport’…The doctrine exists ‘because, ‘as a matter of policy, it would not be appropriate to recognize a duty of care when to do so would require that an integral part of the sport is abandoned or would discourage vigorous participation in sporting events’…In the context of horseback riding, ‘[t]he rider generally assumes the risk of injury inherent in the sport’…One inherent risk is being thrown from the horse, which ‘is one of the most obvious risks of [horseback riding] and readily apparent to anyone about to climb on a horse’”
“A reasonable jury could not find that by asking riding participants whether they had ever ridden a horse, Mr. Eiras engaged in conduct that was so reckless as to be totally outside the range of the ordinary activity involved in horseback riding…That the Ranch’s employees later placed Decedent on a horse that was apparently unfit for riding does not impute to Mr. Eiras and therefore (Vantage)…he was entitled to rely on the knowledge and experience of the Ranch’s employees to decide which horse was best suited for Decedent. This because…Mr. Eiras was not a horse expert at the time of the incident. And in his multiple visits to the Ranch, nothing occurred that gave him reason to doubt the judgment of the Ranch’s employees in selecting the appropriate horse for Decedent…Accordingly, the Court finds that, even assuming Mr. Eiras owed Decedent a limited duty of care, the primary assumption of the risk doctrine absolves (Vantage) of liability for the injuries Decedent suffered when she fell from the horse at the Ranch”.
Another Recent Horse Case
In Boland v. Riding High Dude Ranch, Inc., 2016 NY Slip Op 50455(U) (Warren County Supreme) the Court noted that “plaintiff alleges she fell from a horse during one of these organized rides when the saddle became loose and caused her fall…the plaintiff, a middle aged horseback rider with approximately ten hours of related experience over her lifetime, was assisted in mounting a horse with the intention of participating in a slow paced ‘beginner[s]’ ride with a group of other participants. She described testing the saddle and raising no complaints”. In discussing the doctrine of assumption of the risk the Court found the release signed by plaintiff to be unenforceable. “Assumption of a risk is predicated not upon plaintiff’s intervening act, but upon their agreement, express or implied, not to hold defendant responsible for the injury-causing act, negligent though it may have been, which resulted from plaintiff’s entering into the activity with knowledge of its danger, or under circumstances from which it could be found that they should have had such knowledge…The Court is not persuaded that the release language sufficiently addresses the question of whether the plaintiff was aware that the saddle could loosen regardless of the cause for it…It is not, however, to be inferred by this ruling that defense counsel is prohibited from attempting to adduce proof at trial of either assumption of risk or the plaintiff’s own contributory negligence-merely that there shall be no evidence related to the horse rental agreement and liability release”.
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 US 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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