Calif. case offers insight on obligations of a 'fulfilling agent'

By Mark Pestronk
Mark PestronkQ: In several recent columns, you have developed a theory of travel agency liability that distinguishes the agent's duties to the client based on whether the agent is acting as a "counseling agent" or a "fulfilling agent." In the latter case, you assert that it is unreasonable to expect the agent to investigate every supplier booked or to convey all relevant information. Are there any court precedents to support your view? Also, can an agent be both a counseling agent and a fulfilling agent, or must the agent be just one or the other? Finally, when you say a "counseling agent" has certain duties, do you mean the individual employee of the agency or the agency employer?

A:
I have found one case that supports my view that, if the agent merely carries out the booking arrangements requested by the client, the agent cannot be expected to have investigated the supplier. Interestingly, the trip in question was not a business trip or an online booking (as you would expect), but rather a vacation trip to a resort.

In Schneider v. SunTrips, a 2003 case before the California Court of Appeal for the Sixth District, the plaintiff was badly injured diving into a shallow pool at a hotel in Cabo San Lucas. Schneider sued the agency, claiming that it had a duty to warn him about the condition of the pool or a duty to warn that Mexican resort pools were generally shallow, without warning signs or depth markers.

The key facts were that "the Schneiders decided to stay at the Bahia again. They did not ask anyone at SunTrips for advice regarding their vacation plans. They decided where to go, when to go, and where to stay."

Furthermore, "Mrs. Schneider testified that SunTrips played no role in selecting Cabo or the Bahia as the Schneiders' destination. ... Given the limited nature of the services SunTrips provided to the Schneiders, we conclude that warning of dangers at the Melia's pool was not within the scope of SunTrips' duty to the Schneiders."

Although the court decision rested in part on the fact that the injury occurred at a hotel other than the one that was booked, the outcome would have been the same either way. The case clearly supports the proposition that an agency that simply fulfills the client's orders is not required to warn of dangers.

Certainly, an agent can be a fulfilling agent in one transaction and a counseling agent in the next one, working back and forth, all in a single day. Most leisure agents would probably see themselves that way, depending on what the client wants in the particular transaction.

Too often, the client who wants only fulfillment will blame the agent when something goes wrong on the trip. This is one reason why disclaimer such as those you can find at www.pestronk.com/free.html are so useful, as the disclaimer deters frivolous claims against agents in either role.

When I use the word "agent," I mean both the individual employee and the employer. The agent employee is legally responsible for his or her own negligence, although it generally makes no sense to sue someone who cannot afford to pay damages.

Legally, employers are always responsible for the negligence of their employees committed in the scope of their duties.

Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at mark@pestronk.com. 
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