Mark Pestronk
Q: Our agency booked a couple into an all-inclusive resort in Mexico. The wife's jewelry was stolen from her room safe while she was at the beach. She wants to sue the hotel for the loss, but her lawyer has told her that she should also sue our agency, on the theory that we were negligent in not warning her about the risk of having jewelry stolen from the safe in the hotel. Could she possibly be successful against us?
A: The facts that you describe are very similar to those of an actual court case that was decided earlier this year by the Nebraska Supreme Court, McReynolds v. Riu Resorts and Hotels, et al.
That court upheld the lower court's dismissal of the claims against the travel agency, Ultimate Cruise and Vacations, a Kansas retailer, and the wholesaler, the Mark Travel Corp., doing business as Funjet Vacations.
The plaintiff's theory was that the hotel had an antiquated lock system, in which the safe was opened with a key and in which the room key had the room number written on it.
The plaintiff left the safe key in a drawer in the room. She later lost her room key, and when a thief found it, he entered the room, opened the drawer, found the safe key and opened the safe.
The plaintiff claimed that the hotel's key system was defective and that both the retailer and wholesaler had a duty to warn her about the defective system. She claimed that the agent had told her that the agent had stayed at the hotel and was familiar with it.
This claim against both the wholesaler and the retailer sound ridiculous, and, fortunately, the state's supreme court agreed. Even assuming that the hotel's key system was defective and that the hotel was itself negligent in using the old-fashioned system, these facts did not give rise to any duty to warn because "any dangers that it may have posed were obvious."
The court went on to explain exactly why obvious dangers or risks don't need to be disclosed or mentioned.
"Thus, we make the no-duty determination in the instant case as a matter of policy, based upon a traveler's ability to perceive obvious dangers," the decision said. "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."
In other words, if a travel agent must disclose every possible danger, any real dangers would be lost in the lengthy recitation of all conceivable dangers.
This rule of obviousness is a good one. Although it is not a precedent applicable in other states, their courts ought to follow Nebraska's example anyway.
Even though they won the case, the retailer and wholesaler probably incurred tens of thousands of dollars in legal fees, which the plaintiff does not have to reimburse.
I hope the same thing does not happen to you, and for the future, you should try to deter such claims by having leisure clients sign a disclaimer similar to the ones you will find at www.pestronk.com/free.html.