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Travel law: Are “remote wilderness expeditions” safe for students?

Hon. Thomas A. Dickerson  Jan 15, 2016

In this week’s article we examine a recent case, Brenner as Trustee for the heirs and next-of-kin of Thomas Levi Poltkin v. National Outdoor Leadership School (NOLS), Case No: 14-CV-130-J, Decision dated October 9, 2015 (D. Wyo.), which raises once again the question of what are the duties and obligations of schools and ground operators to students traveling abroad. In this case we focus on the tragic death of a student during a semester in India and his participation in a “remote wilderness expedition” in the Himalayas. We have previously discussed dangerous student tours in Duke University Student Drowns During “Celebratory Trip” In Costa Rica, eturbonews.com (11/5/2015); Dangerous student tours: The Chinese tick case, eturbonews.com (8/28/2014)].

Travel Law Update

Attacks On Women In Germany

In Eddy, Reports of Attacks on Women in Germany Heighten Tension Over Migrants, nytimes.com (1/5/2016) it was noted that “The tensions simmering beneath Germany’s willingness to take in one million migrants blew into the open on Tuesday after reports that scores of young women in Cologne had been groped and robbed on New Year’s Eve by gangs of men described by the authorities as having ‘a North African or Arabic’ appearance. Taking advantage of the New Year’s street party, hundreds of young men broke into groups and formed rings around young women, refusing to let them escape, the authorities said. Some groped victims while others stole wallets or cell phones”.

US Visa Overstays

In U.S. Doesn’t Know How Many Foreign Visitors Overstay Visas, nytimes.com (1/1/2016) it was noted that “The question from the congressman to the Obama administration official was straightforward enough: How many foreign visitors overstay their visas every year? The reply was simple too, but not in a satisfying way. ‘We don’t know’, the official said...The issue has taken on added urgency as part of a broader examination of immigration policy following the mass shooting in San Bernardino, Calif., that left 14 people dead and 22 wounded...the federal government has spent millions of dollars on the effort (to track people who overstay their visas) yet officials can only roughly estimate the number of people in the United States illegally after overstaying visas”.

Turkish Hotel In Moscow Closes

In Turkish-owned Moscow hotel ceases operation due to Russian sanctions, eturbonews.com (1/8/2016) it was noted that “Turkish-owned hotel in Russian has reportedly ceased operation as a result of sanctions imposed by Moscow against Ankara after it shot down a Russian fighter jet that violated the Turkish airspace last November”.

Gun Play In Chicago

In Starwood W-Hotel Guests in Chicago lucky to be alive this morning, eturbonews.com (1/3/2016) it was noted “Hotel guests at the Starwood affiliated W-Hotel in Chicago are lucky (to) be alive this morning after shooting occurred near the W Hotel...The shooter got out of a SUV and began shooting, then fled the scene. Three men are in critical condition”.

Big Investments In Lyft

In Trousdale, GM invests $500 million in Lyft, sets out self-driving partnership, reuters.com (1/5/2016) it was noted that “General Motors Inc. said on Monday it will invest $500 million in Lyft Inc. and laid out plans to develop an on-demand network of self-driving cars with the ride-sharing service. The biggest single Detroit-Silicon Valley crossover deal to date comes as automakers work out how to respond to the rush of technology companies such as Apple, Alphabet and Uber-Lyft’s biggest rival-to control cars of the future and likely reshape the global auto industry”.

In Bensigner, Saudi Prince Al-Waleed’s Firm Leads $247.7 Million Investment in Lyft, blogs.wsj.com (12/24/2015) it was noted that “The prince announced Thursday that his Kingdom Holding Co. is paying $104.9 million for 2.3 percent of Lyft, part of a larger investment by an unnamed group of $247.7 million for 5.3% ...The investment boosts Lyft’s estimated valuation to $4.92 billion. Mr. al-Waleed isn’t likely to catch a Lyft ride anytime soon from his Saudi Arabian home. The service operates only in the U.S. after it scaled back plans to expand overseas”.

Watch Out For Zika Virus

In Puerto Rico travel warning by US Centers for Disease Control and Prevention (CDC), eturbonews.com (1/6/2016) it was noted that “Tourists planning to visit the US territory of Puerto Rico were made aware of the outbreak of Zika (virus) on this Caribbean island”.

Wi-Fi Hot Spots In New York City

In Peltz, Can you download me now? NY payphones become Wi-Fi hot Sports, kutv.con/news (Associated Press) (1/1/2016) it was noted that “A 9-foot-tall, narrow structure installed this past week on a Manhattan sidewalk is signaling a plan to turn payphones into what’s billed as the world’s biggest and fastest municipal Wi-Fi network. The first of at least 7,500 planned hot spots are due to go online early next year, promising superfast and free Wi-Fi service, new street phones with free calling, ports to charge personal phones and a no-cost windfall for the city”.

Check Baggage Size Claims

In Baggage Claim Check, Many travel bags advertised as carry-ons really aren’t, Consumer Reports, February 2016, p. 12, it was noted that “The most sought-after real estate in the U.S. these days may not be facing a beach-it’s most likely in the overhead bin on your next flight. That’s why luggage that’s billed as something you can carry on is such a hot ticket. Because space in overhead compartments is at a premium, airlines have strict limits on the size of bags allowed. If you’re in the market for a new carry-on, here’s a heads-up: Measure before you buy. Why? Because you can’t always rely on manufacturers’ published dimensions”.

Challenge Full-Body Scan Policy

In Jansen, Law student sues to overturn TSA full-body scan policy, USA Today (12/25/2015) it was noted that “A law student in Miami has asked a federal appeals court to overturn a new Transportation Security Administration (TSA) policy they could require travelers to use full-body scanners at airport checkpoints even if they opt for a pat-down search. The TSA announced the change Friday, eliminating the option of pat-downs for some travelers. While the agency expects few travelers to be required to use the scanners, the change was made ‘for some passengers as warranted by security considerations”. The Petition For Review and related documents in Corbett v. Transportation Security Administration, No.15— filed with the U.S. Court of Appeals for the 11th Circuit on December 24, 2015 are available at professional-troublemaker.com

Avoiding Airline Change Fees

In Schonbrun, Helping Fliers Avoid Change Fees (for a Modest Fee), nytimes.com (12/28/2015) it was noted that “Such is the state of the air travel these days that even the fees have fees. It is a ritual that will most likely sound familiar to many holiday travelers: Your plans suddenly change, and a flight must be switched. Soon you are paying a flight-change fee of $200 or so. But so extreme have these airline change fees become that a cottage industry has emerged offering a way for travelers to avoid the charge-for a fee, of course. And even the airlines are getting in on the act. It is part of what had become a booming business for carriers. Altogether change fees generated $2.98 billion for the domestic airlines in 2014, triple the amount in 2007, when most fees were introduced, according to the Department of Transportation...Now two companies - Options Away...and Flyr...see the rise in change fees as an opportunity. They offer ways to hold or lock in rates for up to three weeks. It costs anywhere from a few dollars to upward of $50...The services work like this: A traveler pays a nonrefundable fee to Flyr or Options Away, which holds an airfare for the specified time but does not actually purchase a ticket until the traveler’s plans are completed. If a flight appears at risk of selling out during the option period, Flyr says it will work with the client to find similar itineraries, while Options Away says it monitors flights actively enough to avoid those risks (and will not offer holds on flights that appear most in danger of selling out). If the client decides to travel on the specified date, he or she simply completes the ticket purchase. If, however, the itinerary must change or be cancelled altogether, Flyr or Options Away keeps only the fee”.

Conflicting Drone Laws

In Kang, F.A.A. Drone Laws Start to Clash With Stricter Local Rules, nytimes.com (12/27/2015) it was noted that “Frank Carollo, a longtime member of the City Council her(in Miami), had worked for several weeks fine-tuning a proposal to limit the use of recreational drones...Minuted before the start of the vote on the rules...lawyers from the Federal Aviation Administration called him (and) said the Miami ordinance need to make clear that the federal agency had ultimate control over airspace. Not wanting to delay the vote, Mr. Carollo complied, deleting requirements about permitting that would have duplicated those by the F.A.A., before getting the new law approved unanimously by the City Council...The F.A.A.’s new stance sets up potential clashes across the country...More than 20 states approved drone laws last year, as have major cities like Chicago, Los Angeles and Miami, with many regulations placing tough restrictions on areas to fly and clamping down on the use of drones to snoop on neighbors. The intervention of the F.A.A. is now frustrating local lawmakers, who complain that the agency wants them to back off their own rules-even as it is seen as too lenient on drone users. Lawmakers said the agency’s drone rules did not go as far as many stated and municipalities that explicitly banning flights within cities and over homes, strengthening privacy protections and imposing steep criminal and financial penalties on violators”.

Tour Bus Crash

In Tourist Bus Crash: Big Bus Tours of San Francisco, eturbonews.com (12/27/2015) it was noted that “Eight tourists riding the Big Bus Tours of San Francisco went away with minor injuries after the double decker tour bus crashed just north of the Ferry Building on the Embarcadero in San Francisco on Saturday evening”.

Bullet Scam At Manila International Airport

In Ditaranto, How to Protect Yourself from the Airport Bullet Scam, smartertraveler.com (11/4/2015) it was noted that “Reports of a new airport scam at the Manila International Airport in the Philippines are shocking and enraging travelers after an American man was detained for 6 days after refusing to pay a 30,000-peso penalty ($640 USD) because airport security staff ‘found’ bullets that had been planted in his carry-on. The man was being cheated, but it wasn’t a malicious prankster that put the bullets in his bag. The airport security staff at Manila’s airport has been accused of planting the bullets in this man’s bag and also in the bags of many other victims. In the Philippines, possession of live ammunition is punishable by six to 12 years in jail, which airport security will inform you of as they ask you for a large bribe to let you be on your way. Those who refuse are detained for investigation, miss their flights and get charged huge fees. The scam is commonly referred to as ‘Tanim-Bala’ and reports go back as early as 2012 where it was first discussed on a TripAdvisor forum”.

Travel Law Article: The Brenner Case

As noted by the Court in the Brenner case, supra, “Brenner brings this... action (on behalf of her deceased son Thomas Plotkin which) arises out of Plotkin’s September 2011 death while participating in a National Outdoor Leadership School (NOLS) Semester in India. NOLS, a Wyoming corporation, organizes remote wilderness expeditions for students for the purpose of teaching students technical outdoor skills, leadership and environmental ethics...Plotkin enrolled in the NOLS course in April 2011".

NOLS Mission Statement

“Plotkin enrolled in the NOLS course in April 2011. He was sent an enrollment packet with forms to be returned to NOLS. The package of forms included documents about the NOLS mission and values statement: Safety. E accept rick as an integral part of the learning process and of the environments through which we travel. The recognition and management of risk is critical to both the development of leadership and to the safety and health of our students and staff. We believe successful risk management stems from good judgment based on experience, training and knowledge”.

Instructors And Courses

“The packet also included a list outlining what students might expect in the course, including ‘well-trained and qualified instructors’. The course included five sections: Wilderness Advanced First Aid, Whitewater Rafting, a Cultural Home Stay and Environment Studies, Backpacking in the Himalayas, and an Independent Student Expedition. Plotkin flew to India August 24, 2011 and soon after arrival completed a five-day Wilderness Advanced First Aid course at the base camp”.

Backpacking In The Himalayas

“September 1, 2011 Plotkin and the rest of the students prepared for the 30 day backpacking portion of the course travelling by foot through various valleys in the Himalayas... September3, students began hiking for the trail head along a trail that follows the Gori Ganga River...The course description Plotkin received from NOLS stated that students would gain and lose 2,000 feet of elevation on some days and ‘work hard traveling over steep, rocky terrain at high altitudes and all [their] gear on [their] back’. NOLS recognized in the course description that dangers of traveling in the Himalayas included falls on steep terrain and carrying very heavy (65-75 pounds) packs over that rugged terrain”.

Serious Hiking Indeed

“Students hiked 41 miles up the valley following the river the first nineteen days of the hiking section. September 21, 2011 they were resupplied with a nine-day supply of food, which plaintiff alleges would have increase the backpack weight by at least 15.75 pounds. Plotkin’s pack was estimated to weigh over 60 pounds on September 22...Plaintiff alleges that Plotkin was not receiving adequate nourishment on the trip and that he and other students were losing weight and muscle”.

Trail To Lilam

“The trial to Lilam required students to cross waterfalls, travel on a steep ridge overlooking the Gori Ganga River, and navigate around washed-out paths and landslides...As they hiked the rain was continuous and the trail had become slippery. Several students had slipped or fallen...The path they were hiking was six feet wide, clung to the mountainsides and was strewn with flat, wet rocks”.

Plotkin Falls And Disappears

“There was a sharp drop-off to the left of the students that stretched down nearly 300 feet to the rushing Gori Ganga River. At about 5:15 p.m., Plotkin was descending the path when his left foot slipped inward on a wet rock; he landed in a seated position near the edge pf the trail. He was pulled over backwards by the weight of his backpack...he fell backwards and head first off the rail and down the steep incline”.

Searching For Plotkin

NOLS “assembled a crisis team” but did not immediately “contact or ask for assistance of local officials in either Lilam Village (less than one mile away) or Munsiyari (no more than seven miles away), local residents in the area, or Indo-Tibetan Border Police (ITBP) (who had a supply post less than a mile away from where Plotkin fell) ...It was presumed that Plotkin had fallen into the Gori Ganga River and drowned. The ground search for his body continued until October 6, when the search was ended. Plotkin’s body was never found. NOLS’ internal investigation concluded Plotkin’s death was a tragic accident”.

Indian Government Investigation

“The complaint alleges that (the) Indian government conducted an independent investigation in which a magistrate concluded: ‘...when Thomas Plotkin reported(ly) fell into the Gori river at around 5:20pm. NOLS group leaders...should have immediately taken assistance from villagers and Indo-Tibetan Border Police (ITBP) situated at a distance of only one and a half kilometers from the site of the fall. However, this was not done. One never knows whether it could have been possible to find Thomas Plotkin with the assistance of villagers and ITBP on that very day...The path to Milam Glacier comprises a rough terrain and is very bad in some instances. Keeping these adverse geographical conditions in mind, the possibility of an accident can never be denied, and hence it does not seem proper to have trekked that path during the evening and under a light drizzle”.

The Brenner Complaint

“The complaint asserts three claims for relief...Count one, negligence, alleges that NOLS owed Plotkin a duty to exercise reasonable care in the planning...management...instruction and supervision of its program, including...providing adequate instruction prior to allowing participants to backpack to remote locations without being accompanied by a course instructor; to provide adequate nutrition and caloric intake through the program; supervise participants in a safe and reasonable manner; establish policies and procedures to avoid unnecessary risk and protect the safety of participants; ensure the immediate availability of emergency rescue equipment in remote locations; and promptly request assistance from local residents and officials in an emergency situation. The duty owed by NOLS was breached in several respects...Asa result of the negligent acts and omissions, NOLS...caused the death of Plotkin by a fall and his presumed drowning...Count 2, gross negligence, alleges that NOLS failed to exercise even slight care...Count three, willful and wanton negligence”.

The Student Agreement

Before participating in the NOLS “remote wilderness expedition”, Plotkin was required to sign the Student Agreement. “There are three distinct, independent components of the Student Agreement relevant to the Court’s decision here...The first identifies activities and risks of NOLS activities. The second component provides an Acknowledgment and Assumption of Inherent and Other Risks of NOLS activities. The third component includes the Agreements of Release and Indemnity, which is the expression of the contracting parties’ unambiguous agreements to release NOLS from liability for negligent acts which include inherent risks and risks which are not inherent. This language is clear and unambiguous. The agreement provides anon-exclusive list of inherent risks of NOLS activities, including...delays in communication and transportation to medical facilities, equipment failures, travel on rugged trails and terrain, including rivers, rapids, river crossing, steep slopes, slipper rocks and various environmental risks and hazards. The agreement notes that decisions made by instructors, staff, volunteers and students are based on a variety of perceptions and evaluations, and may be imprecise and subject to errors of judgment...Plotkin, the signator on the Student Agreement, acknowledged and assumed inherent risks of NOLS’ activities and acknowledged that other, unknown or unanticipated risks, inherent or otherwise, may result in property loss, injury, illness or death”.

The Decision

“There is no question that the facts of this case are tragic and heart-rending, especially for a mother who has lost a son. However, the Court give effect to the exculpatory agreement and the parties’ clear intent to release NOLS from liability for negligence...he Student Agreement is unambiguous and it will be enforced. The Court also finds that the facts alleged in the complaint do not support cognizable claims for gross negligence or willful and wanton misconduct”.

Remind You Of Tough Mudder?

Student travel programs can be dangerous, indeed, as the Brenner case aptly demonstrates. In fact, trekking in NOLS’ “remote wilderness expeditions” is very much like the strenuous and dangerous activities featured in a Tough Mudder adventure as we discussed in Tough mudder-adventure tourism taken to its extreme, eturbonews.com (6/12/2014).

As we noted “And Tough Mudder’s waiver doesn’t mince words. Here’s an excerpt” ‘The Tough Mudder event...is meant to be an extreme test of toughness, strength, stamina, camaraderie and mental grit that takes place in one day...Venues are part of the challenge and usually involve hostile environments that might include extreme heat or cold, snow, fire, mud, extreme changes in elevation and water. Some of the activities include runs, military-style obstacles, going through pipes, traversing cargo nets, climbing walls, encountering electric voltage, swimming in cold water, throwing or carrying heavy objects and traversing muddy areas...Catastrophic injuries are rare; however, we feel that our participants should be aware of the possibility. These injures can include permanent disabilities, spinal injuries and paralysis, stroke, heart attack and even death”. Perhaps, if this rather explicit release had been used by NOLS Plotkin and others would have been discouraged from participating in a Semester in India.

Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.

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

Travel law: Are “remote wilderness expeditions” safe for students?
Hon. Thomas A. Dickerson



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