In this week’s article, we examine the case of Clarke v. Marriott International, Inc., Civil Action No. 2008-0086 (D.V.I. 2017) wherein the Court noted that “Plaintiff, a resident of St. Croix, traveled to Defendants’ hotel in St. Kitts in June 2008. On the morning of June 27. 2008, Plaintiff slipped and fell in the shower of her hotel room. Plaintiff claims that she slipped because the bathtub was ‘extremely slippery and did not have a rubber mat’. There is no allegation that the shower contained any foreign substance or that it was otherwise in disrepair”… “This matter comes before the Court on the ‘Motion for Reconsideration of this Court’s of February 6, 2014′ whereon defendants’ motion for summary judgment was granted. Plaintiff asserts that there has been a change in the law based upon a decision of the Virgin Islands Supreme Court in Machado v. Yacht Haven U.S.V.I. LLC, 2014 WL 5282116 (V.I. 10/16/2014). Reconsideration granted and order vacated.

Terror Targets Update

Colorado

In Mele & Healy, Colorado Gunman Shoots 5 Officers Near Denver, One Fatally, nytimes (12/31/2017) it was noted that “It began as a predawn call for the police to a disturbance at an apartment complex in a Denver suburb on Sunday. It ended, officials said, in a fusillade of more than 100 rounds fired by a barricaded gunman who shot five law enforcement officers, killing one of them. The gunman was killed by officers”.

Egypt

In Youseff, Egypt Hangs 15 for Terrorism Stoking Fears Among Islamists, nytimes (12/26/2017) it was noted that “The Egyptian authorities hanged 15 men on Tuesday for an attack in the Sinai Peninsula in 2013, the start of an Islamic insurgency that the military-dominated government has been battling ever since. The hangings…were the biggest mass execution in Egypt since six convicted jihadists were hanged in 2015″.

Pakistan

In Defer all non-essential travel to Pakistan: US tells citizens, travelwirenews (12/11/2017) it was noted that “The United States on Saturday advised its citizens to defer all non-essential travel to Pakistan, saying that foreign and indigenous terrorist groups continued to pose a threat to them throughout the country. The warning comes in the wake of increasing terrorist violence, including sectarian attacks, in Pakistan…The fresh travel warning replaces the earlier warning issued on May 22″.

Afghanistan

In Abed, Faizi & Mashal, Islamic State Claims Deadly Blast at Afghan Shiite Center, nytimes (12/28/2017) it was noted that “At least 41 people were killed and dozens more wounded on Thursday in a bombing at a Shiite cultural center in Kabul…It was the latest in a series of mass-casualty attacks against Shiite targets”.

In Terrorist migration may turn Afghanistan into next ISIS stronghold after defeat in Syria & Iraq, travelwirenews (12/11/2017) it was noted that “Decades of instability and weakened security forced make Afghanistan one of the most probable new IS destinations after the terrorist groups’ defeat in Syria and Iraq, Niklia Mendkovich, political analyst from the Russian International Affairs Council told RT”.

Philippines

In Philippines extends martial law to eradicate ISIL, travelwirenews (12/13/2017) it was noted that “The Philippines’ Congress has approved President Rodrigo Duterte’s request to extend martial law until the end of 2018 in the country’s southern region of Mindanao to ‘totally eradicate’ ISIL supporters and communist fighters”.

Myanmar

In ‘Massive Mental Health Crisis’ Feared for Rohingya Children, newyorktimes (12/31/2017) it was noted that “When Myanmar’s military and Buddhist vigilantes descended on Rohingya Muslin villages in late August, burning homes and spraying gunfire, 14 members of Jehora’s family-including her mother, her father and four of her siblings-couldn’t run quickly enough. They all died…’I have nightmares that the military is chasing me’”.

New York City: Bomber With A Heart?

In Gettleman, On Trip to Bangladesh, Subway Bomb Suspect Reached Out to Refugees, nytimes (12/18/2017)it was noted that “Before Akayed Ullah returned home to New York from his native Bangladesh, and tried to blow himself up with a pipe bomb in a crowded Manhattan subway station, he had one thing to do-an all-night bus ride by himself to help Rohingya refugees. After visiting relatives in the capital city, Dhaka, he traveled across the country, slept in a mosque and under a tree and passed out a few hundred dollars of medicine in the crowded refugee camps”.

Shore Excursion Bus Crash Kills 12

In Jacobo, Maile & Sakamoto, At least 12 killed, including 5 Americans, in Mexico tour bus crash, abcnews.go (12/20/2017) it was noted that “At least 12 people were killed, including five Americans, after the bus they were riding in Tuesday was involved in a crash in Mexico…The passengers involved in the crash had been traveling on two Royal Caribbean cruise ships [Celebrity Equinox and Serenade of the Seas]…Four of the other fatalities were Canadian, two were Suedes and one was Mexican…The tour bus crashed in the southeastern part of the Yucantan Peninsula…in the Mexican state of Quintana Roo”.

Train Crash: Stop Speeding, Please

In Johnson, Perez-Pena & Chokshi, Speed Cited in Amtrak Derailment That Killed at Least 3 in Washington, nytimes (12/18/2017) it was noted that “The derailment of Amtrak Train No. 501, making the inaugural run of a new service from Seattle to Portland, dropped a 132-ton locomotive in the southbound lane of the Northwest’s busiest traffic corridor, Interstate 5. Two passenger coaches also fell partly in the traffic lanes and two other coaches were left dangling off the bridge…All 12 of the train’s coaches and one of its two engines derailed…The National Transportation Safety Board said…that the train had been traveling more than twice the speed limit before it derailed, or at 80 miles per hour instead of the allowable 30 m.p.h.”.

Uber Takes Big Loss In EU

In Alderman, Uber Is a Taxi Service, the E.C.J. Says, in Major Setback to Firm, nytimes (12/20/2017) it was noted that “Uber lost a major legal battle on Wednesday when the European Union’s highest court declared that the ride-hailing app is not just a digital company and that it must comply with the bloc’s transportation rules, a significant setback for a company already grappling with a string of scandals. The decision…found that Uber operates more like a transportation service than an online platform that matches passengers with drivers. It is likely to restrict the company from expanding services that allowed nonprofessional drivers to offer rides to clients”. See also Court of Justice of the European Union Press Release No 136/17, Luxembourg, 20 December 2017. Full opinion available at curia.europa.eu

Egyptian Roller Derby, Anyone?

In Walsh, Bump, Tumble, Go Faster! In Egypt, Roller Derby Is Real Life, nytimes (12/28/2017) it was noted that “In Egypt, they give it an archaeological twist. Novices are called ‘mummies’; players of intermediate skill are known as ‘Cleopatras’; and those with six months training under their belt-who have paid their dues in bruises-graduate to ‘Cairoller’, a full member of Egypt’s only roller derby club”.

Burkinis Banned In Geneva

In No burkinis or topless bathing in Geneva swimming pools, travelwirenews (12/8/2017) it was noted that Now ladies will have to unclad should they want to go to a swimming pool in Geneva, but not too much: the city lashed out at Muslim swimmer burkinis-and topless bathing, banning both. Under the new rules voted in this week by the city authorities, women should wear ‘a none-piece or two-piece swimsuit’”.

Sneaky Airline Fine Print Ok

In Tuttle, Airlines allowed to keep burying sneaky fine print, msn (12/8/2017) it was noted that “The Trump administration just spiked a plan that would have made it easier for travelers to find out about airline fees and compare flight prices. A statement from the Department of Transportation said that it was dropping Obama-era proposal-which was heralded by Democrats and consumer groups but fought by the airlines-because there was ‘limited public benefit’”.

Grab Bike In Mandalay

In Grab Bike to launch in Mandalay next year, travelwirenews (12/12/2017) it was noted that “Singapore’s ride-hailing mobile app, Grab, will launch its Grab Bike motorcycle taxi service across Mandalay at the start of 2018…Around 70 Grab Bike motorcyclists have given the service a trial run in Mandalay this year…Like Grab’s taxi service, customers will book a motorcycle and be notified of the exact fare for each trip via the Grab Bike app on their mobile phones”.

Grab Launched In Cambodia

In Ride-hailing firm Grab launches in Cambodia, travelwirenews (12/19/2017)it was noted that “Ride-hailing firm Grab on Tuesday said it launched services in Cambodia expanding its presence to an eighth country in Southeast Asia where it is the biggest rival of Uber Technologies, Inc….The official launch in the Cambodian capital of Phnom Penh marks the latest development in a quick-moving industry, coming just three months after Uber likewise began services in what the World Bank ranks as the sixth-fastest expanding economy”.

Cranky Traveler In Norway

See Morris, In Certifiably Happy Norway, a Cranky Traveler Finds Some Bliss (Within Reason): Charming villages. Inventive meals. A gorgeous glacier to hike. What’s not to like? (That rain was pretty loud.)

Stop Polluting, Please

In Bakalar, Air Pollution Contributes to More Than 20,000 Deaths a Year, nytimes (12/27/2017) it was noted that “Day-to-day increases in air pollution, even at levels generally considered acceptable, are associated with increased deaths among the elderly. Previous studies have suggested an association but most have been based on small populations in metropolitan areas. This new study, in JAMA, used Medicare files and nationwide air pollution data to estimate 24-hour exposure in people who died between 2000 and 2012″.

Save The Sharks, Please

In Murphy & Healy, Even Sharks Are Freezing to Death: Winter Rages and the Nation Reels, nytimes (12/28/2017) it was noted that “Shivering, snowbound cities are scrapping their outdoor New Year’s Eve countdowns. Polar-bard plunges are being cancelled because of fears of frostbite and hypothermia. Winter-hardened towns are gaping at new lows: 32 degrees below zero in Watertown, N.Y. Minus 36 in International Falls, Minn.”

New York City’s Very Expensive Subways

In Rosenthal, The Most Expensive Mile of Subway Track on Earth, nytimes (12/28/2017) it was noted “An accountant discovered a discrepancy while reviewing the budget for new train platforms under Grand Central Terminal in Manhattan. The budget showed that 900 workers were paid to dig caverns for the platforms as part of a 3.5-mile tunnel connecting the historic station to the Long Island Rail Road. But the accountant could only identify about 700 jobs that needed to be done…Officials could not find any reason for the other 200 people to be there. ‘Nobody knew what those people were doing, if they were doing anything’…The estimated cost of the Long Island Rail Road project, known as “East Side Access’ has ballooned to $12 billion or nearly $3.5 billion for each mile of track-seven times the average elsewhere in the world. The recently completed Second Avenue subway on Manhattan’s Upper East Side and the 2015 extension of the No. 7 line to Hudson Yards also cost far above average, at $2.5 billion and $1.5 billion per mile, respectively”. See also: Nir, Left Behind by the Nation’s Largest Subway System, nytimes (12/27/2017).

Medical Tourism In India

In Medical tourism value in India to touch USD 9bn by 2020: Govt, travelwirenews (12/18/2017) it was noted that “The government has said that the value of medical tourism in India is likely to reach a whopping USD 9 billion by 2020 as compared to the USD 3 billion in 2015…India is among the top six medical value travel destinations of the world which also include Thailand, Singapore, Malaysia, Taiwan and Mexico”.

LimeBike Reports On Smart Bike Sharing

In LimeBike Releases Report on Economic, Health and Social Benefits of Smart Bike Sharing, travelwirenews (12/19/2017) it was noted that “LimeBike, the largest dockless smart bike sharing company in the US, today released an end of year report on the benefits of bike sharing. The report analyzed data from more than 1 million rides taken and over 35 regional deployments in cities and college campuses across the U.S….For example, LimeBike found that nationwide, 40 percent of rides start or stop at public transit stations. This shows that LimeBike’s fleet augments existing public transportation infrastructure and helps cities provide a first and last mile transportation solution. The report also found that LimeBike rides, on average, cost $5-$7 less per mile than ridesharing and $.59 less per mile than driving…These findings demonstrate LimeBike’s key principals, accessibility, affordability and sustainability”. Bravo.

Rome’s New Subway Unearths The Past

In Povoledo, Unearthed in Rome’s New Subway: Extinct Elephants and Persian Peach Pits, nytimes (12/18/2017) it was noted that “The ancient Romans were celebrated for their engineering feats: roads that helped expand an empire; aqueducts that quenched throngs and supplied lavish fountains; monumental bridges, some of which are still in use today. So, it seems apt that a modern engineering achievement-the construction of a new subway line in the city-has given archeologists a unique opportunity to study this ancient world in extraordinary detail…As tens of thousands of cubic meters of earth have been moved…each unearthed artifact-marble capitals and mosaics and even remains of long-ago leftover meals and the ruins of 19th century villas-have been painstakingly documented, cataloged and extracted”.

Stop Eating Sea Turtles, Please

In Sea turtles in Seychelles slaughtered and sold for 20cts a pound, travelwirenews (12/11/2017) it was noted that “It was only in 1994, finally, that the Wild Animals (Turtles) Protection Regulations declared that no person may disturb, catch, injure, kill, sell, purchase or keep any turtle or turtle egg. It specified possession of turtle meat can carry a fine not exceeding SCR500,000 or render a wrong-doer liable to a term of imprisonment not exceeding two years, or both…A new trend in turtle poaching is becoming apparent. With the current Heroin epidemic plaguing Seychelles, addicts are risking prison sentences and hefty fines by ruthlessly murdering these animals and selling the meat for next to nothing in order to get their daily drug fix”.

Poutine Is Not A Canadian Dish

In Bilefsky, Calling Poutine ‘Canadian’ Gives Some in Quebec Indigestion, nytimes (12/19/2017) it was noted that “The friends from Quebec went to London’s Brick Lane food market, searching for a taste of home. But as they devoured their poutine-that gloppy, trouser-bursting dish of French fries, cheddar cheese curds and gravy-something felt horribly wrong. The dish tasted just right-so authentic that the cheese curds emitted a faint ‘squeak, squeak’ when bitten into-the telltale sign of a proper poutine. But the jovial chef serving them had an Ontario accent. Even more disconcerting: He was wearing the hat of the Toronto Maple Leafs hockey team, the archrivals of the Montreal Canadians. ‘Poutine is Quebecois-it is not Canadian’”.

Chinese Drone Show

In Fei & Zhong, At an Air Show in China, Drones, Not Jets, Are The Stars, nytimes (12/28/2017) it was noted that “Need more evidence that China is a global force in technology? Just listen for the low whine of tiny propellers. And look up. At the World Fly-In Expo, an air show held in the central Chinese city of Wuhan last month, jets, hot air balloons, autogiros and ultralight planes were upstaged by Chinese-made drones…Special drones even helped clear the skies of birds before performances by manned aircraft, using loud blasts of noise. China is the world leader in drones thanks largely to a single company, D.J.I.”.

Delta Fees Going Global

In Josephs, Delta Air Lines’ passenger fee bonanza is going global in 2018, msn (12/15/2017) it was noted that “Fliers paid airlines a record $1.2 billion to carry their checked luggage and $720 million to change or cancel their tickets in the third quarter, according to the Department of Transportation. Those numbers are set to rise as airlines expand no-frills basic-economy fares next year. Delta Air Lines on Thursday said its basic-economy class product would go worldwide by the end of 2018…it will charge basic-economy passengers to and from Europe $60 to check their first bag starting in April”.

Uber Charged Rider $18,000

In Hedgpeth, Uber charged rider $18,000 to go 11 miles, msn (12/13/2017) it was noted that “The popular ride-hailing program Uber charged a man $18,000 for an 11-mile ride. The incident happened in Toronto, according to several media outlets…A spokesman for Uber told Slate in a statement ‘There was an error here and it’s been resolved. We have provided a full refund to this rider and apologized to him for this experience”. Bravo.

Australia’s New Laws On Child Sex Tourism

In Australia introduces tough new laws on child sex tourism, travelwirenews (12/13/2017) it was noted “Some 800 registered child sex offenders travelled overseas from Australia last year, often to developing countries in Asia. In one high-profile case last year, Australian (Mr. X) was convicted of sexually abusing 11 Indonesian girls in Bali. New laws designed to stop pedophiles convicted in Australia from travelling overseas to offend again came into effect Wednesday…It is now an offence for registered child sex offenders-those convicted of the most serious forms of abuse-to leave Australia without the approval from law enforcement agencies…’Australia has up to 20,000 registered sex offenders who have served their sentences but are subject to reporting obligations that help protect the community’”.

Dengue Fever In Philippines

In Philippines defied experts advice about dengue fever, travelwirenews (12/11/2017) it was noted that “As she announced in January 2016 that the Philippines would immunize one million children with a new dengue vaccine, the nation’s then health secretary Janette Garin boasted it was a world-first and a tribute to her country’s ‘expertise’ in research…Almost two years later, the program lies in tatters and has been suspended after Sanofi Pasteur, a division of French drug firm Sanofi, said at the end of last month the vaccine itself may in some cases increase the risk of severe dengue in recipients not previously infected by the virus. Documents reviewed by Reuters…as well as interviews with local experts, show that key recommendations made by a Philippines Department of Health (DOH) advisory body of doctors and pharmacists were not heeded before the program was rolled out to 830,000 children”.

Uber Heads To Court In London

In Pitas, Uber heads to court in fight for London survival, msn (12/11/2017) it was noted that “Uber will defend its right to operate in London in a court hearing on Monday after the app was deemed unfit to run a taxi service and stripped of its license in its most important European market. Regulator Transport for London (TfL) shocked the Silicon Valley firm by rejecting its license renewal bid in September, citing its approach to reporting serious criminal offences and background checks on drivers. Uber’s 40,000 drivers, representing around one in three of all private hire vehicles on the British capital’s roads can continue to take passengers until the appeals process is exhausted, which could take years”.

Travel Law Case Of The Week

In the Clarke case the Court explained its first decision awarding summary judgment to defendants as follows: “The Court reasoned that ‘[t]he duty owed by defendants to plaintiff is that owed by a landowner to an entrant’ and that ‘Defendants, as landowners and managers, are liable for injuries caused by hidden dangerous conditions, but not liable for physical harm caused by a condition whose danger is known or obvious’. Accordingly, the Court found that Plaintiff could not, as a matter of law, establish a duty owed to her by Defendants because, inter alia, ‘a shower’s slipperiness while in use is common knowledge, and is open and obvious’. Because establishing a duty is a required element of negligence under Virgin Islands law, the Court found summary judgment in Defendants’ favor was appropriate”.

Reconsideration

The plaintiff sought reconsideration based upon a change in the law of the Virgin Islands. “Plaintiff argues that the Supreme Court in Machado v. Yacht Haven U.S.V.I. LLC, 2014 WL 5282116 V.I. 2014) held that any argument that the danger was open and obvious such that Plaintiff should have been aware of the danger, cannot form the basis for a grant of summary judgment in favor of a defendant’. Thus, Plaintiff asserts, after Machado and in view of the Virgin Islands’ comparative negligence statute at 5 V.I.C. 1451(a), any argument that a shower without a bathmat constitutes an open and obvious risk is a question for the jury. Similarly, plaintiff argues that defendants owed plaintiff a duty under the foreseeability of harm test because ‘it was foreseeable to defendants that a guest such as plaintiff, would slip and fall in the slipper bathtubs without a mat’”.

The Machado Decision

“The Virgin Islands Supreme Court’s decision in Machado marks an intervening change in the controlling law…In Machado, the plaintiff was walking across a parking lot to reach her car (which) was parked behind a median bounded on each side with an eight-inch curb and within which were vegetation and sprinklers servicing the vegetation. Although the median contained no designated path for pedestrians to cross, to reach her car the plaintiff took her ‘usual route’ and walked through the median instead of around it. While doing so she tripped and fell over a sprinkler that had failed to retract into the ground and the plaintiff sustained injuries as a result. Plaintiff fell in the evening when the lighting was dim…The Supreme Court held that ‘the soundest common law rule for the Virgin Islands…is that foreseeability of harm ‘is the touchstone of the existence of a land possessor’s duty of reasonable ordinary care…Applying this standard, the Supreme Court held that the plaintiff satisfied her burden at summary judgment regarding the defendant’s duty to care because testimony indicated that ‘countless people’ regularly walked across the median instead of around it but the defendant had not posted warning signs about doing so”.

Applied To The Clarke Case

“Thus, as established in Machado, the applicable inquiry here is not which party had superior knowledge. Rather…the proper inquiry is whether a reasonable jury could conclude that defendants should have foreseen that plaintiff’s normal use of the shower-including the slipperiness thereof when wet-could have caused her injury, thus requiring defendants to take reasonable steps to prevent such injuries…Applying the standard articulated in Machado to the instant facts, the Court finds that defendants have failed to establish that there are no genuine issues of material fact on the issue of duty of care, therefore precluding judgment as a matter of law…a reasonable jury could conclude that defendants should have foreseen that Plaintiff’s normal use of the shower (citing Matouk v. Marriott Servs., Inc., 2013 WL 6152333 (D. Mass. 2013)(“the salient question is whether or not [the defendant] Marriott could anticipate, or should have anticipates, that the danger presented by the slippery turn would cause harm to [the plaintiff] notwithstanding its known and obvious danger’”.

Prior Slips In The Hotel’s Showers

“As noted by the Court in its Memorandum Opinion, ‘the record reveals five bathroom slip and fall complaints, three of which occurred inside the shower’. While a bath mat was in place in two of the three incidents in which a slip and fall occurred in a shower, ‘Plaintiff alleges, and defendants do not dispute, that bath mats may make showers safer’. Further, ‘[t]he record shows that plaintiff was not specifically informed that mats were available and was not provided with a mat until after the fall’”.

Conclusion

“For the foregoing reasons, the Court will grant plaintiff’s motion for reconsideration and vacate its Memorandum Opinion and accompanying order”.

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 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. 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.

Read many of Justice Dickerson’s articles here.