Mark Pestronk
Q: In my work as a travel advisor, I am often cautious about what I say to clients, as I am afraid that they may sue me if my advice is wrong. Are there a lot of lawsuits against advisors for bad advice? Can you please put my mind at ease by reviewing exactly what travel advisors can be held liable for, and what they can't?
A: The first thing to know is that you have much more potential liability because of what you don't say to clients than what you do say. Most lawsuits against travel agencies and advisors deal with what the advisor failed to advise about.
So as long as you know what you're talking about, do not hesitate to give as much advice as you think the client needs. Nor should you hesitate to give opinions, as you can't be sued for opinions as long as they are not defamatory.
Based on my review of the court precedents over the past several decades, there are just four things that travel advisors can be liable for, and three of them arise from not disclosing what clients should know about:
• Failing to warn of a supplier or destination danger known to the advisor but not to the average client, such as a recent bankruptcy filing or anti-tourist riot. Since you never really know what is in the client's mind, you should always provide a disclaimer containing a link to the State Department travel advisory website -- assuming that it still exists after this federal fiscal year.
The disclaimer does not absolve you of a duty to warn, but it makes any lawsuit much less likely if a client suffers a loss. A sample disclaimer is here: www.pestronk.com/resources.
• Failing to warn of a supplier or destination danger that should have been known to the advisor, and the client did not know about it. This means that you need to keep up with developments in the trade press, such as reports of crime waves at particular resort areas.
Since every advisor cannot know about every danger all the time, your disclaimer should state that you have no special knowledge of any such danger. My sample disclaimer linked above covers this point, too.
• Failing to disclose the identity of the suppliers, which means that you stand in the shoes of the supplier and are liable for everything that the undisclosed supplier would have been liable for. This is called the "law of undisclosed principal." So make sure that you disclose in writing the identity of the tour operator, wholesaler or other middleman that you rely on.
• Finally, you are also liable for failure to make reservations with care. If clients want to fly to Charleston, make sure it's the one in South Carolina that they want, not the one in West Virginia. If there is a deadline for final payment on a cruise or tour, make sure not to miss it.