Q: I understand that it is a good idea to insist that clients sign disclaimers stating that our agency has no liability for the acts or omissions of suppliers. If a family of four travels together and all are over 18, do all family members have to sign? If three couples travel together, can the spouse of one bind the other five travelers?
A: Until recently, I would have said that it was necessary for all travelers 18 and older to sign. Otherwise, a nonsigner could argue that he or she did not have an opportunity to read the disclaimer or that the signer did not have authority to bind the nonsigner.
However, a recent federal court decision in Massachusetts held that the person clicking "I Agree" on an agency's Web site bound all the members of that person's party. Since the case relied on contract principles that are the same in all states, the decision should be useful in all courts in the U.S.
Rodney Gould, a travel attorney in Worcester, Mass., argued the case for Expedia, and he brought the court's decision to my attention in his latest client newsletter. The citation is Hofer v. the Gap, et al, 516 F.Supp.2d 161 (D. Mass. 2007); you can also find it at www.pestronk.com/hofer.html.
The plaintiff's traveling companion had purchased airline tickets and reserved a hotel in Jamaica through Expedia. The traveling companion used her own credit card and clicked "I Agree" to the Web site terms and conditions, which stated that Expedia was not liable for suppliers' negligence.
The plaintiff had later reimbursed her friend for the plaintiff's portion.
At the hotel, the plaintiff slipped and fell on a stairway when her flip-flop broke. She had bought the flip-flops at the Gap's Old Navy store, hence the case name. She sued both the Gap and Expedia, claiming that the latter had a duty to warn her of a potentially dangerous condition at the hotel.
I realize that if you are in the travel agency industry, a plaintiff's lawyer's claim that an agency has "a duty to warn of unsafe conditions at a hotel" would set your teeth on edge. Fortunately, the court found that the agency had no such legal duty.
On the issue of whether the companion's clicking "I Agree" could bind the plaintiff, the court stated, "Family members, friends and work colleagues routinely book travel plans for others, and it would be extraordinarily cumbersome to require that each traveler book his or her own ticket.
"Each such arrangement is necessarily an agency relationship: The person booking the tickets is acting as an agent on behalf of the other members of the traveling party ... [with] power to bind the principal as to matters within the scope of the relationship, including the acceptance of the terms of a disclaimer."
Incidentally, although the traveling companion testified that she did not remember seeing or reading the terms and conditions, the court held that this does not matter as long as she had an opportunity to do so. So disclaimers are binding on the entire party even if no one reads them or even knows that they exist.
Finally, the court noted that even without a disclaimer, a travel agency generally is not liable for the faults of suppliers and generally has no duty to warn about an unsafe condition at a hotel.
Chalk up a big win for travel agencies.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, e-mail Pestronk at [email protected].