An article published earlier this month by the Milwaukee
Journal Sentinel alleges that travel agents did not warn their clients of
potential dangers at resorts in Mexico ranging from sexual assault to death,
but industry lawyers said agents do not have a legal duty to disclose the
incidents described in the article.
The Journal Sentinel report, headlined "Travel agents
and popular sites didn't share the risks with those booking travel to Mexico
resorts," was authored by Raquel Rutledge and published April 11. It
follows a Journal Sentinel investigation, according to the article, during
which the newspaper heard from more than 170 tourists who'd had issues in
Mexico in recent years. The same news outlet also published reports last summer
about incidents in which visitors from the U.S. said they had been drugged or
Industry lawyer Mark Pestronk, Travel Weekly's Legal Briefs
columnist, said that both agents and tour operators are subject to the same
standard when it comes to the duty to warn clients of potential dangers.
"The legal standard is that they must disclose dangers
that they know about (or should know about by reading the trade press) and that
the average client would not know about," he wrote in an email. "On
the other hand, they are not required to warn about obvious dangers or
extremely highly publicized dangers. This standard is so vague that there is no
way to apply it in practice, because you can never know which category a given
danger will fall into until a jury decides after the fact."
Pestronk recommended that agents avoid lawsuits by taking
three steps. First, give clients the State Department's website and instruct
them to navigate to the page on Mexico; second, follow up with an email with
the link to that exact page; and third, have clients sign a disclaimer that
also includes the same links.
He said he does not believe agents need to disclose any of
the allegations made in the Journal Sentinel articles.
"They would just say, when it comes to Mexico, 'Take a
look at this link at the State Department that tells you everything that there
is to know,'" he said. "The travel agent has disclosed everything
that the travel agent knows and everything that a reasonable consumer should
know. Therefore, the travel agent is not going to be liable for failure to
The State Department's page on Mexico does include
information, added after the Journal Sentinel's initial reports last year,
about possibly tainted alcohol and a caution about drinking in moderation.
If a client asks an agent about the reported incidents,
Pestronk advised them to direct the client to the State Department.
Travel lawyer Rodney Gould, a partner with the Boston-based
firm Smith Duggan Buell & Rufo, agreed with Pestronk's evaluation of what
an agent is lawfully required to disclose to clients.
"If you could easily, as a professional, have found out
[about a danger], you have that obligation" to inform, he said.
Gould said he also advises agents to have their clients sign
a disclaimer and direct them to resources like the State Department and the
Centers for Disease Control and Prevention.
And as for the incidents reported by the Journal Sentinel,
Gould is of the same opinion as Pestronk: Agents do not have a duty to disclose
them to their clients.
"You don't have to report on every bit of gossip and
innuendo and hearsay that comes down the pike," he said.
ASTA said in a statement that the Society is aware of the
reported incidents in Mexico, calling them "the exception to the rule for
the more than 30 million Americans visiting Mexico each year."
Agents are required to "disclose information that is 'material'
to their clients' travel plans," ASTA said.
"In our view, 'material' means information that, if
known to the client, would be reasonably likely to influence the traveler's
decision with respect to where, when or how to travel," ASTA said. "Agents
who elect to make a specific disclosure concerning these reports should refer
their clients to objective third-party sources of information, such as that
maintained by the State Department."