Mark Pestronk
Mark Pestronk

Q: In your March 9 Legal Briefs column, "Questions and answers on Covid-19," you stated that if the supplier was operating as usual, a client could not cancel without penalty just because the travel mode or destination was the subject of government warnings. What about liability for negligent operation of the trip? Would it be negligent for a supplier to fail to warn participants about coronavirus at the destination and fail to give them the option to cancel? Could operating the trip be deemed negligent, in and of itself? I am thinking of the suit recently filed by a couple who were stuck on the Grand Princess; don't they allege that it was negligent of the cruise line to fail to warn them of the virus onboard?

A: In the Grand Princess case filed on March 9, the plaintiffs allege that the cruise line had a duty to disclose facts that the plaintiffs did not know and could not have known.

According to the plaintiffs, Princess "breached its duty in that it had knowledge that at least one of its passengers from the prior voyage who disembarked Feb. 21 had symptoms of coronavirus, and yet it made the conscious decision to continue sailing the voyage that began on [the same day] with another 3,000 passengers on an infected ship."

The plaintiffs plausibly state that, "If plaintiffs had knowledge of this actual risk of exposure prior to boarding, they would have never boarded the ship." When the suit was filed, the plaintiffs were still stuck out at sea "anxiously awaiting their fate."

What differentiates the facts in the lawsuit is that Princess failed to disclose facts that the plaintiffs did not know and could not reasonably be expected to have found out. According to the Restatement (Third) of Torts, which summarizes the criteria for negligence in all states:

"A defendant can be negligent for failing to warn only if the defendant knows or can foresee that potential victims will be unaware of the hazard. Accordingly, there generally is no obligation to warn of a hazard that should be appreciated by persons whose intelligence and experience are within the normal range."

The Princess case appears to fit within the "unaware of the hazard" rule. On the other hand, the risk of long-distance travel in the time of coronavirus and the risks of merely traveling to countries with coronavirus outbreaks are so well known that they fall within the "hazard that should be appreciated" exception.

In other words, trip participants who go on airplanes, ships and tours these days probably cannot successfully sue the operator for negligence, unless they can prove that the operator knew facts that participants were unaware of and had no way to find out.

I realize that this presents clients with the very difficult choice of risking illness or losing what is often a great deal of money. However, the law may not provide them with a way to successfully sue for a refund or credit that is not authorized by the supplier's terms and conditions.

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