When travel accidents involve animals

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Written by Linda Hohnholz

Last week [Travel Law eTN (August 6, 2014)] we examined the US DOT’s recent re-definition of an “animal” within the context of the transportation of baggage and cargo on commercial aircraft [“

Last week [Travel Law eTN (August 6, 2014)] we examined the US DOT’s recent re-definition of an “animal” within the context of the transportation of baggage and cargo on commercial aircraft [“We are not expanding the definition of ‘animal’ to cover all species of animals”]. Stated, simply, the new “animal” remains the old cats and dogs. This week we will focus on travel accidents abroad involving animals and some legal issues arising from such encounters.

Animal Kingdom Meet The Tourist

Travel accidents involving animals include horseback riding [see Honeycut v. Tour Carriage, Inc. (tourist visiting Copper Canyon in Mexico thrown from horse and breaks ankle); Gamble v. Peyton (“The unpredictability of a horse’s reaction to another animal is an inherent risk of equine activity”)]; donkey riding [see U.S. Tourist Killed in Rockslide on Santorini Island, Greece (http://gogreece.about.com (5/23/2011)(“A 52-year-old male tourist…was killed by falling rocks while riding a donkey…on a popular donkey trail leading up the cliffs to Oia”)]; camel riding [see MacLachlin v. Marriott Corporation (guest thrown from camel during tour of Egyptian pyramids arranged by hotel bell captain)]; dolphin riding [see Snyder v. Dolphin Encounters Limited (“a large dolphin landed on (tourist’s) head and pushed her underwater…The dolphin trapped the (tourist) underwater for several seconds…she suffered permanent partial hearing loss in one ear and cervical injury”)]; cheetah watching [see Cheetah Attacks Norwegian Tourist in Namibia ETN (2/6/2012)]; elephant trekking [see Hall v. Voyagers International Tours, Inc. (“This action stems from the death of Donald Hall…when we was trampled by a wild elephant during a photographic safari operated by Wilderness Safaris Namibia”); German tourist killed while elephant trekking in Krabi (ETN (12/1/2011)(“one tourist has been killed and two other tourists have been seriously injured…over the past two years in male elephant rampages”)]; hyena attack [see Shea v. Global Travel Marketing, Inc. ( “ The child, age eleven, was killed while on safari with his mother in Botswana. He was sleeping alone in a tent at a campsite when he was dragged from his tent and mauled by hyenas“)]; mongoose attack [see Woods-Leber v. Hyatt Hotels of Puerto Rico (guest at Cerromar Beach Hotel in Dorado Beach attacked by mongoose in pool area)]; piranha attack [see Flesh-eating piranhas invade Brazilian beach popular with tourists (ETN (11/18/2011)(“‘I saw that I had lost the tip of my toe. I took off running out of the water afraid that I would be further attacked because of the blood. I am not going back for a long time’”)]; needlefish attack [see Russian tourist paralyzed after needlefish attack in Vietnam (ETN (4/18/2014)(“Doctors have saved the life of a Russian woman who was left paralyzed after being attacked by a needlefish while swimming in Vietnam’s resort beach torn of Nha Trang”)]; whale watching [see Rawlins v. Clipper Cruise Line (accident during whale-watching excursion in waters off Victoria Harbor, British Columbia)]; hungry crocodiles [see Tourists spend 22 hours trapped up a tree hiding from crocodiles (ETN (1/21/2013)(“Four Dutchmen who spent a terrifying day trapped up a tree hiding from a crocodile finally rescued yesterday-luckily with only bites from mosquitoes and sand flies”); Crocodile caused passenger airline to crash killing 20 (ETN (7/12/2014)(“an escaped crocodile, which managed to gnash its way out of a bag, may have caused a stampede in the cabin (of the aircraft) causing the plane t nose dive”)]; hungry sharks [see British tourist wrestles 6.5 foot shark away from paddling children (ETN (1/20/2013)]; hungry snakes [see EgyptAir passenger bitten by a snake on plane (ETN (12/3/2012)(An EgyptAir pilot made an emergency landing… after a snake bit a Jordanian passenger. The snake was apparently concealed in his luggage”)]; rhino attack [see German tourist badly injured by white rhino in SA park (ETN (11/15/2012)(“A white rhino badly injured one German tourist when it charged a group of visitors on a morning walk in South Africa’s famous Kruger National Park”)].

Travel Accidents Abroad

As with any injury sustained by travelers abroad there may be a lawsuit brought in a U.S. court seeking to recover damages from a U.S. based hotel chain, a cruiseline, a tour operator or a travel agent [Travel Law Chapters 3,4 and 5]. An interesting and important case is MacLachlin v. Marriott Corporation, N.Y.L.J. (1/18/1994) involving a U.S. citizen and a member of the Marriott Honored Guest Program who was seriously injured in Egypt after being thrown from a camel on a tour arranged by a Marriott Bell Captain. The Court’s decision focused on critical aspects of prosecuting travel accidents cases, i.e., how to sue a U.S. travel company in a U.S. court for injuries sustained in a foreign country where most of actors and evidence are located.

In that regard we have previously discussed asserting personal jurisdiction over foreign travel suppliers and responding to motions seeking to dismiss lawsuits filed in the U.S. on the grounds of forum non conveniens [Travel Law ETN (2/27/2014), 3/23/2014, 4/3/2014, 5/1/2014].

The Camel Case

In MacLaughlin v. Marriott Corporation, the defendant hotel chain sought to dismiss the complaint on the grounds of forum non conveniens and on the ground that it should not be held liable for the actions of an Egyptian Bell Captain working at the Cairo Marriott Hotel & Casino. The defendant’s motions were denied by the Court as follows: “ Plaintiff and a friend…Yorke booked the Q8 Marriott Vacation Tour under Marriott’s Honored Guest’s Awards Program (HGA) which, inter alia, included air-fare to Egypt and a stay at the Cairo Marriott Hotel & Casino (the Cairo Marriott). Plaintiff and Yorke claim that upon arriving at the Cairo Marriott, they arranged to take various tours through the Marriott tour desk. Plaintiff alleges that on the morning of August 25, 1991, Abou Aziza (Aziza), the Cairo Marriott bell captain, stated that he could arrange a tour of the Sound and Light Show at the Pyramids that evening, to which the plaintiff and her companion agreed. Plaintiff contends that Aziza subsequently drove her and Yorke to a stable and informed them that a horse or camel were the only means available to reach the Pyramids. Plaintiff maintains that she explained to Aziza that she was afraid to ride a camel but was assured by Aziza that the camel and the camel path were ‘perfectly safe‘ and that a trained handler would guide the camel along the route. Plaintiff alleges that her camel was subsequently tied to Yorke’s camel and they were led down the trial by a young boy (the Camel Guide), a practice plaintiff avers was not in keeping with Egyptian law which requires one adult handler per camel. Plaintiffs claim that the path she was taken on was rocky, unlevel and strewn with debris, and that the Camel Guide continually beat the legs of both camels to prod them along. At some point, plaintiff avers that her camel stumbled and tripped, ‘probably on some rocks or debris’ and with a loud cry the camel threw her into the air. Plaintiff landed on the rocky road where she remained until Aziza assisted her into his car and drove to the Pyramid Hospital. The fall allegedly caused plaintiff to break six ribs and fracture her pelvis…Even assuming that Aziza arranged the Pyramid Tour on his own accord, the allegations of plaintiff concerning how she was offered and subsequently booked the camel trip by the Bell Captain in the lobby of the Caro Marriott and subsequently driven to the camel stable in what appears to a an official Cairo Marriott car, in addition to Marriott’s brochures which promoted the Q8 vacation and lauded the preferential treatment plaintiff and her companion would receive, raise factual issues as to whether defendant should be estopped from disclaiming liability for the negligence of an independent contractor…and as to whether that contractor’s negligence was the proximate cause of plaintiff’s injuries. Contrary to defendant’s contention, the question is not whether plaintiff was a sophisticated traveler and was at fault, but, rather was the employee of Marriott’s subsidiary negligent in the performance of his official duties and whether such duties included the planning, arranging and booking of the ill-fated camel ride to the Pyramids“.

Assumption Of The Risk

As we discussed in Adventure travel: Soft, hard and extreme (eTN (7/17/2014) the Courts often find that the injured tourist may have assumed the risk of some injuries sustained while riding animals such as horses because of the “unpredictability” of animal behavior [see Gamble v. Peyton (“The unpredictability of a horse’s reaction to another animal is an inherent risk of equine activity”)] or because the tourist had an opportunity to avoid obvious dangers and chose not to [see Honeycut v. Tour Carriage, Inc. (tourist visiting Copper Canyon in Mexico thrown from horse and breaks ankle; tour operator not liable “Because plaintiff was in a far better situation to assess the situation she was in [steep terrain and unfit horses during horseback riding excursion] than GOGO tours and Mann Travelers, they had no duty to warn her of a danger she could have observed but about which they knew nothing”)]. On the other hand, the Courts may find that the risks were not so obvious or were so great that the travel supplier should not be able to disclaim responsibility [see Hall v. Voyagers International Tours, Inc. (“This action stems from the death of Donald Hall…when we was trampled by a wild elephant during a photographic safari operated by Wilderness Safaris Namibia…There is evidence in the record that…would support a determination of direct negligence on the part of Voyagers… there is evidence that would support a determination that Voyagers was vicariously liable for the conduct of Wilderness under a theory of apparent agency or agency by estoppel”)].

Conclusion

Enjoy your vacation but be very careful when riding or watching wild animals.

The author, Justice Dickerson, been writing about Travel Law for 38 years including his annually-updated law books, Travel Law, Law Journal Press (2014), and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2014), and over 300 legal articles many of which are available at www.nycourts.gov/courts/9jd/taxcertatd.shtml .

This article may not be reproduced without the permission of Thomas A. Dickerson.

About the author

Avatar of Linda Hohnholz

Linda Hohnholz

Editor in chief for eTurboNews based in the eTN HQ.

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