Tour guides: Liability and Licensing

In this article we will take a look at tour guides. This week we will examine the liability of tour guides for the accidents and injuries sustained by tour participants. Next week we will focus on tour guides in historic locales such as Savannah, Georgia, New Orleans and the District of Columbia who have gone to court challenging the constitutionality of local licensing statutes. Should local tour guides be licensed and, if so, why? But, first, what should tour guides be held liable for while conducting a tour?

Escorted Tours

There are several tour operators that specialize in tours featuring tour guides, also known as tour directors [see Leuthold v. Destination America, Inc. [distinctions between tour directors and tour managers)], tour managers [see Ombudsman, Conde Nast Traveler (9/2010)(“On an escorted tour, a manager or director accompanies the group day and night, usually sitting at the front of the tour bus and acting as a cultural attache, interpreter, leader and confidante. On a guided tour the group is shuttled place to place and meets different guides along the way…The experience is markedly different”], tour escorts or tour chaperones [see Gearhart-Soto v. Delsman (student accident at museum; alleged failure to train chaperone’s properly)] [see generally, Travel Law at 5.04[6]].

Types Of Escorted Tours

Typically, guided tours are sold to an older clientele [see Jacob v. Greve (tour organized for seniors at least 50 years of age)], students [see Travel Law at 5.04[4][I]] or disabled travelers [see Delamater v. Search Beyond Adventures, Inc. (disabled tourist breaks leg trying to lift herself onto pedestal bed)] and feature such activities as a Kenya safari [see Connolly v. Samuelson (slip and fall during walking safari)], boat rides down the Amazon River [see Stevenson v. Four Winds Travel (slip and fall on slippery pier)], tours of national parks [see Constitutional Guided Walking Tours v. Independent Visitor Walking Tours], visits to Amish country [see Adato v. Gala Tour, Inc. (tourist injured when tour bus goes over a bump in the road)], playing soccer during a tour of the Galapagos Islands [see Caplan v. Boyce (tour participant falls off cliff playing soccer)], a student tour to St. Louis, Missouri [see Lewis v. Eisin (student tour participant drowns in pool)], a student tour of a ship [see McLester v. Gran Colombiana Line (chaperone trips and falls down stairway on ship)], segway tours in Boston [see Gliders v. City of Boston (licensing)], Chicago [see Hamer v. City Segway Tours of Chicago (tourist injured during segway tour; release enforced)] and the District of Columbia [see Mero v. City Segway Tours (two segways collide throwing one rider “violently to the hot asphalt pavement”)], walking tours of the Canadian Rockies [see Cohen v. Heritage Motor Tours, Inc. (tourist falls on slippery rock while crossing a stream)], bird watching expeditions to remote rain forests and deserted islands in Costa Rica [see Mayer v. Cornell University, Inc. (bird watcher drowns during snorkeling expedition in Costa Rica)], inland cruise of Dutch waterways [see Stafford v. Intrav, Inc.], canoe trip down a river [see Glenview Park District v. Melhus (canoeist drowns due to unanticipated flooding conditions)] and tours of high altitude locales such as La Paz, Bolivia [see Philippe v. Lloyd’s Aero Boliviano (tourist suffers injuries from high altitude flying)].

Liability Of Tour Guides

If there is an accident during the tour the injured traveler may sue the tour guide, director or escort, both as an employee of the tour operator and as an individual. The liability of the tour guide may, under appropriate circumstances, be premised upon theories of negligence, breach of warranty or misrepresentations. A tour guide is supposed to lead tour participants on visits of various sites or locales. Because of the perceived experience of leading past tours, it can reasonably be presumed that tourists would rely upon the tour guide to help them avoid known hazards. A failure to provide such leadership may constitute negligence.

A Slippery Pier On The Amazon

In Stevenson v. Four Winds Travel, Inc., a guided tour of the Amazon River, a tour participant slipped and fell on a slippery pier. The Court framed the liability issue as “Hence, the liability of Four Winds depends upon whether there was a duty on the part of [tour guide] as the employee of Four Winds to warn [tourist] that the accumulation of water, aqueous plants and mud on the walkway of the pier made it slippery, and whether [tour guide] was guilty of negligence in not performing such duty”.

Guarantees Of Expertise

The Court described the promises in the Four Winds brochure which stated “Four Winds also guarantees that every tour will be escorted by a qualified professional tour director. Our tour directors have been carefully selected and trained…Your escorts (tour directors) are also informative, they know precisely what you will be seeing and doing every day…they’ve been there before’…The brochure also stated that Four Winds guaranteed tat each tour would be ‘fully escorted from start to finish’”.

Failure To Warn Of Danger

The Court’s liability finding focused upon the duties assumed by Four Winds and, presumably, relied upon by its customers. “We think, in view of all of the emphasis that Four Winds put in its brochure on the its tour escorts or directors – their careful selection, training and experience, and the many services they would render to members of their tours, that Stevenson had the right to expect that [tour guide] would warn her of any danger like the slippery condition of the pier walkway and caution her to use extraordinary care to guard against the peril of such a condition”.

Disclaimers

Some courts, however, have refused to impose negligence liability based upon a lack of control [see Adato v. Gala Tour, Inc. (tour bus accident on bumpy back road; “in the selection of the route, the tour guide exercised limited control over the driver…The tour guide did not tell the driver how to operate the bus, how fast to drive or what precautions to take while driving”; tour operator not liable; bus company may be liable)] or a disclaimer in the tour contract [see McDermott v. Travelers Air Services (slip and fall in hotel in Ireland; tour guide not negligent; disclaimer enforced); Connolly v. Samuelson (fall during safari; tour guide not negligent; disclaimer enforced); Johnson v. New River Scenic Whitewater Tours (during religious your group tour child drowns during whitewater adventure; releaseof liability of pastor unenforceable)].

Breach Of Warranty

An alternative to a negligence theory is liability based upon a breach of warranty of safety or professional or experience which may be relied upon by tourists in purchasing tours. Such representations may provide a basis for claims of negligent or fraudulent misrepresentation or beach of warranty. In Philippe v. Lloyd’s Aero Boliviano, 589 So. 2d 536 (La. App. 1992) an intermediate appellate court found the defendant liable for passenger’s injuries resulting from a lack of oxygen during a flight. The Court held “The petition alleges…’The [tour operator’s] literature makes representations about the expertise and reputation of [tour operator] and states that [tour operator] has researched the locations to which it arranges tour…[tour operator] had actual knowledge of the health hazards of high altitude areas…[tour operator’s] tour escort accompanied [the travelers] on the tour. [Tour operator’s] literature represented that its tour escort was a professional and qualified to serve travelers in all matters…[Tour operator’s] literature also represented that [tour operator] would care for participants in the tour…from ‘portal to portal’…If properly warned of the health risks associated with this travel, the [traveler] would not have participated in the tour”. However, this decision was subsequently reversed in 710 So. 2s 807 (1998).

Conclusion

Tour guides are, of course, relied upon by the tour participants for their perceived expertise and knowledge of what to see and what to avoid. As such, tour guides must be very careful, indeed, in how they conduct themselves during a guided tour. Next we examine several challenges to the constitutionality of local tour guide licensing statutes in Savannah, Georgia, New Orleans and the District of Columbia.

The author, Justice Dickerson, been writing about Travel Law for 38 years including his annually-updated law books, Travel Law, Law Journal Press (2014), and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2014), and over 300 legal articles many of which are available at www.nycourts.gov/courts/9jd/taxcertatd.shtml .

This article may not be reproduced without the permission of Thomas A. Dickerson.