Mark Pestronk
Q: In your column from last June called "Expect suit if client injured at resort in developing country", you discussed the case of Yuschak v. Los Altos Beach Resort et al, where a family of four was allegedly badly hurt when the vehicle taking them from a Costa Rica resort's lobby to its private beach crashed. Was the case resolved? If so, is there a lesson for travel agencies in the outcome?
A: Last fall, the judge finally dismissed the case against the tour operator, which was based on the preposterous legal theory that the operator was negligent "because of its 'failure to warn of a material fact about which the agent knew, or which a reasonable investigation would have disclosed, that the resort...had a practice of hiring unskilled drivers who were inexperienced with the hazardous roadways local to [the resort].'"
The plaintiffs and the tour operator apparently settled last fall, as the court record shows that the judge simply dismissed the case against the operator in October. The terms of the settlement are confidential.
However, I surmise that the plaintiffs' lawyer realized that it would be exceedingly difficult to prove that the operator should have known that the resort had a practice of hiring drivers unfamiliar with the local roadways. Therefore, I would guess that the parties settled for a small payment from the operator, if anything.
One of the reasons that the plaintiffs would have found it difficult to prove their case against the operator was that the resort itself never participated in the case or defended its position, since there was no one available to testify about the facts on the ground.
Because the resort did not show up, in mid-April, the judge granted a default judgment against the resort. The judge awarded damages to each of the four members of the family. The total for the four was an amazingly high $4.5 million, which is certainly the highest vacation-related damages award I have ever heard of.
Since the resort has no U.S. office or other assets here, it will be difficult for the plaintiffs to get paid. They may even need to sue again in Costa Rica.
It is too late for the plaintiffs to go after the tour operator again, but the operator went through over a year of worry, time and legal expenses just to get out of the case. This is probably what every agency and operator can expect whenever clients suffer major bodily injuries on vacation.
For agencies, the lesson is twofold. First, always get clients to agree to a disclaimer such as the ones at www.pestronk.com/free.html. Those samples all state that the agency has "no special knowledge regarding...unsafe conditions, health hazards, weather hazards or climate extremes at locations to which you may travel."
In cases of major injuries, your agency will probably get sued anyway, just because aggressive personal injury lawyers sue every business involved in the transaction. However, using a disclaimer will help you get out of the case.
Second, consider buying errors and omissions insurance. Although the insurance will not cover most things that go wrong at agencies, it will pay your legal fees, which are going to be in the tens of thousands of dollars in cases of major personal injuries.