Mark Pestronk
Q: When our agency organizes its own tours, do we have a duty to try to investigate potential hazards on the tour, such as reports of crime at each destination? If we do have a duty to investigate, do we also have a duty to warn about what we discover? Can we substitute a comprehensive disclaimer for these duties, so that, if the participant agrees to our terms and conditions, we are insulated against all claims for failure to investigate? If not, what is the point of having a disclaimer?
A: A New York case decided last month answers these questions fairly clearly and decides them in a way that is very favorable to the tour operator industry. In Giuffra vs. Vantage Deluxe Tours, a federal judge in New York held the operator was not liable for injuries suffered by a participant when he was robbed and assaulted walking after dinner near the entrance to a bridge in the Old Town section of Riga, Latvia.
The court noted that, "Plaintiff's negligence claim rests on the contention that the area where Mr. Giuffra was mugged was unsafe, that Vantage had a duty to investigate and warn plaintiffs that it was unsafe...."
The court dismissed the claim because the operator had "no legal duty to protect plaintiffs against the particular type of harm that befell them at the particular time and location in Latvia." This is because under New York law, "A tour operator has no duty to warn group members of a possible hazardous condition on property it neither owns nor occupies."
The court noted that there are recognized exceptions to the "no duty to protect or warn" rule in cases where the operator "may have actual knowledge of particular safety hazards, or if such information is readily available." However, the court pointed out that, "This exception is very narrow."
In this case, the narrow exception did not apply, as there was no evidence in the record that the operator had any actual knowledge of crime problems, nor was there any evidence that such information was readily available.
The legal dilemma faced by operators and selling agents is that it is never certain whether a given piece of information will be seen as evidence of a safety hazard or will be found to have been "readily available." Judges and juries usually provide little guidance about what constitutes negligence because no two cases are ever exactly alike and because each state's law is different.
The solution is to use comprehensive disclaimers like those at www.pestronk.com/free.html because they not only tend to deter suits in the first place but also help you win (or settle favorably) when you do get sued.
Although the presence of a disclaimer was not decisive in the Vantage case, the court noted with favor that Vantage had sent the plaintiffs a disclaimer stating, "Vantage's suppliers are independent contractors, that Vantage does not own or operate these suppliers, and that Vantage is not responsible for injuries 'of any kind occasioned by reason of any act or omission beyond its control, including...any negligent or willful act or failure to act of, or breach of contract by, any supplier or any other party'...or for 'criminal activities or any other act or event beyond the direct control of Vantage.'"