Mark Pestronk
Mark Pestronk

Q: In a 2018 Travel Weekly report about newspapers' accounts of what happened to American vacationers at resorts in Mexico, "Article on Mexico incidents raises issue of agent disclosures" (April 22), you were quoted as stating that travel advisors have no duty to warn clients about events or dangers that were widely publicized in the general media or that were obvious to anyone traveling to the destination. Would the same advice apply to the recent deaths in the Dominican Republic? Can you explain what your opinion is based on?

A: My view of the Dominican Republic problem is the same: When the danger has been so widely publicized in the general media that the average client would know about it, travel advisors do not have a legal duty to warn clients about the danger.

My opinion is based on my analysis of three court precedents, all of which I have previously written about in my Legal Briefs columns. The general rule, as reflected in the New York cases of Marcus v. Zenith and Levin v. Kasmir World Travel, is that travel advisors have a duty to warn clients about dangers that are known or should be known to them but that the client would not necessarily know about.

For example, the court held that the agency could be liable for the client's losses because the agent should have known about the operator's problems that were widely reported in the trade press but not in the general media, yet the agent did not warn the client.

In the Levin case, the agent sold a ticket to Paris during a period in the late 1980s when Americans needed visas to travel to France as tourists. The agent forgot to tell the client to get a visa and thus was held liable for failing to do so.

In those two cases, the key was that the client would not be expected to know about the problem unless warned by the agent.

In contrast, in McReynolds v. Riu Resorts, the Nebraska Supreme Court held that the agency was not liable for failing to warn that if you lose a hotel room key with your room number on it, a thief might find it and burglarize your room. The court noted that "imposing a duty to warn of obvious dangers would be a waste of time and could actually inhibit safety because it would produce such a profusion of warnings as to devalue those warnings serving a more important function."

Although you now know when an advisor is and isn't liable in theory, in practice it is very hard to tell what an advisor should know or what a client wouldn't obviously know.

Therefore, to protect yourself against lawsuits for failure to warn of dangers, you should have clients agree to disclaimers such as the free ones here at www.pestronk.com/free.html.

Finally, although advisors might not have a legal duty to warn about the Dominican Republic, they can and probably should do so as a matter of client relations and client goodwill.

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