Mark Pestronk
Q: In your Nov. 23, 2015, Legal Briefs column, "Explain your liability in trip disclaimers to ease client concerns," you wrote, "Courts have uniformly held that tour operators and travel agencies are not necessarily liable for what happens on a trip. Rather, they are liable for their own acts or omissions, such as negligence or breach of contract." We contracted with an Italian destination management company (DMC) to provide a Vespa motor scooter tour for a young couple. The husband crashed and was badly injured. Now, he appears ready to sue our agency for negligence in selecting the DMC. As ridiculous as it seems, could he be successful?
A: There are no precedents on the subject of negligent selection of DMCs or other contractors by agencies. However, there is a very useful precedent involving the same issues where the DMC was selected by a cruise line.
In Smolnikar v. Royal Caribbean Cruises Ltd., federal judge Jordan Adalberto of the U.S. District Court in Miami, in a 2011 opinion, listed exactly what would have to be proved before the plaintiff could win a negligent selection case. There, the plaintiff was injured in a zipline accident in Montego Bay.
The judge first stated the general principle that "Under Florida law, a principal may be subject to liability for physical harm ...caused by his failure to exercise reasonable care to employ a competent and careful contractor." I have no doubt that the same general principle applies in every state.
The judge then noted that a plaintiff bringing a claim for negligent hiring or retention of an independent contractor must prove that the defendant "knew or reasonably should have known of the [DMC's] particular incompetence or unfitness" that caused the injury.
On the facts of the case, the judge found that the cruise line was actually quite diligent in making a determination that the DMC was competent. The cruise line "provided ... a multitude of reasons why it found [the DMC] to be a competent and suitable zipline tour operator before and while it was offering the Montego Bay zipline tour."
Most of those reasons are so relevant to agencies and tour operators that they are worth paraphrasing in full:
1) Royal Caribbean had an incidentfree relationship with the DMC dating back four to five years before offering the Montego Bay tour. 2) It had never been made aware of any accidents occurring on the DMC's other tours. 3) It had received positive feedback from passengers who participated in the DMC's other tours. 4) The DMC had a reputation as a first-class tour operator. 5) At least two other major cruise lines had been offering tours for approximately one year. 6) It never received any accident reports pertaining to the tour.
In a nutshell, the plaintiff could not prove negligent selection because "Royal Caribbean had positive information about [the DMC] and there is no evidence that Royal Caribbean received any form of notice regarding the existence of an alleged danger." So in recommending or selecting a DMC, you can win suits for negligence if you can show that you had used the DMC previously without any incidents, had positive feedback, the DMC was used by your industry colleagues or competitors and the DMC had a good reputation.