In this week’s article we examine once again the liability of a student tour organizer for the injuries suffered by a 19-year-old student during a study-abroad program in Israel. The case to be reviewed is Katz v. United Synagogue of Conservative Judaism, __A.D. 3d__ (1st Dept. 2016).
Travel Law Update
Trampoline Park Accident
In Rozen, $11M Verdict Follows Trampoline Park Accident, law.com (2/29/2016) it was noted that “With 500 trampoline parks operating nationwide and more than a dozen in Texas, Charles Gustibe hopes a Houston jury’s award of $11.485 million to a teen who suffered a head injury will light up as a warning message for those park operators…The teen and his parents sued the company operating the park where the accident occurred, which is doing business as Cosmic Jump. During the trial, the plaintiffs alleged that the teen was injured after the fall through torn trampoline onto the concrete floor”.
Bedbugs And Social Media
In Krupnick, For Hotels, Bedbugs Are Bad Enough, and Social Media Adds to Irritation, nytimes.com (2/29/2016) it was noted that “The tiny, biting bugs are causing headaches for hotel owners who not only have to figure out how to get rid of them, but also now have to respond to online accusations of bedbug infestations. In an age of online reviews and social media, what was a quietly simmering issue has become a potentially toxic problem for hotels…In addition to complaining about bedbugs on Twitter and sites like TripAdvisor and Expedia, travelers use more specific sites like the Bedbug Registry…Correct or not, those complaints have high stakes for hotels. A University of Kentucky survey of nearly, 2,100 travelers in the United States found that a single recent review that mentions bedbugs lowers hotel room values by $38 for business travelers and $23 for leisure travelers…’You’ve get people coming from all over the world and they bring in these bugs’”. money.usnews.com
Allergic To Dogs On A Flight?
In Glusac, Allergic to Dogs on a Flight? What Travelers Need to Know, nytimes.com (2/26/2016) it was noted that “A 7-year-old boy and his parents were asked to leave their Allegiant Air flight…last week after the boy developed an allergic reaction to a dog, a service animal, on the plane, according to several news reports. The flight was delayed about 90 minutes and some passengers were said to have applauded when the child was leaving. Putting aside the pitiless behavior of travelers (the boy’s father has throat cancer), what recourse do fliers have when their allergies flare up”. Several informative questions and answers in the article.
Chinese Tourists In Bangkok
In Chinese tourists were Bangkok bombers’ primary target, eturbonews.com (2/27/2016) it was noted that “The perpetrators of last year’s deadly explosion at a Bangkok shrine originally chose a pier packed with Chinese tourists as their primary target and had amassed enough chemicals to make another 10 equally powerful bombs, according to the head of Thailand’s bomb squad. A bomb planted at the Erawan Shrine on August 17 killed 20 people and turned a popular tourist site into a scene of carnage”.
Lyft Blasts Uber
In Lyft Blasts Uber for ‘Witch Hunt’ Over Data Breach, therecorder.com (2/19/2016) it was noted that “(Uber’s) push to hold someone accountable for a 2014 data breach has focused heavily on an unnamed Lift Inc. Employee. Now Lyft is saying its market-leading rival has gone too far, launching a discovery effort that amounts to a ‘witch hunt’…’Uber is abusing this court’s discovery power to harass a third party, X, and to uncover internal, confidential trade-secret information about Lyft-X’s employer and Uber’s chief competitor’, wrote Lyft’s lawyers at Keker & Van Nest, entering their first appearance in the driver’s lawsuit, in which the company is neither plaintiff or defendant”.
NLRB Looks At Uber’s Labor Policies
In Todd, Uber Labor Policies Scrutinized by NLRB, therecorder.com (3/1/2016) it was noted that “The battle over whether Uber…drivers are employees or independent contractors has a new front. Lawyers for the National Labor Relations Board on Monday asked a federal judge in San Francisco to force Uber to hand over documents to help the agency determine whether drivers should be considered employees under federal labor law. The request from the agency charged with investigating unfair labor practices comes as a result of charges brought by a handful of individual Uber drivers who allege that the company violated their rights to organize and be free from retaliation”.
Electronic Cigarettes Banned
In Electronic cigarettes banned on all commercial flights in, to and from USA, eturbonews.com (3/2/2016) it was noted that “US Transportation Secretary Anthony Foxx today announced a final rule that explicitly bans the use of electronic cigarettes on commercials flights. The final rule applies to all scheduled flights of US and foreign carriers involving transportation in, to and from the US. ‘This final rule is important because it protects airline passengers from unwanted exposure to aerosol fumes that occur when electronic cigarettes are used onboard airplanes’ said Secretary Foxx. ‘The Department took a practical approach to eliminate any confusion between tobacco cigarettes and e-cigarettes by applying the same restrictions to both’”.
Anthem Of The Seas Cursed?
In Rosen, Anthem Sails into a PR Problem, travelmarketreport.com (3/2/2016) it was noted that “New York’s Channel 4 News this morning used the dreaded C word, calling the Anthem of the Seas ‘cursed’ as it returned early to Cape Liberty in Bayonne, NJ. This week, the Anthem was turned back mid-cruise for a second time in a month by bad weather and this time also by reports of norovirus…Other news outlets used the word as well; New York Magazine called it the ‘bad luck cruise ship’ and cruiseLawNews.com ran a story under the headline ‘’Curse of the Seas’ Returns to New Jersey for Noro Cleaning’”.
Airbnb Delisting Hosts
In Serious alternative to Airbnb hosts, eturbonews.com (2/25/2016) it was noted that “In February, Airbnb hosts across Europe’s most popular cities like Berlin, Paris and London, received notice their properties would be taken offline for breaching company Hospitality Standards and Terns & Conditions…Observers have suggested that these ‘delistings may be Airbnb trying to get ahead of the game before regulatory restrictions come into force’. Hosts renting out properties that are not their permanent homes or with multiple listings stand to lose substantial income, and have been left confused and angered by the move. Nestpick CEO Fabian Dudek welcomes former Airbnb hosts, and notes that the company has already experienced a significant increase in the number of users looking for an alternative service”.
Oman Bus Accident
In Royal Oman Police: 18 killed, 16 injured in Dubai-bound bus crash, eturbonews.com (3/1/2016) it was noted that “A Dubai-bound bus was hit by a truck traveling through western Oman’s dessert and a passing car later slammed into the wreckage early on Tuesday morning, killing at least 18 people and injuring 16 others, police said”.
Travel Law Article: The Katz case
The Court in the Katz case noted that “Plaintiff suffered a knee injury while participating in a study-abroad program in Israel that was operated by defendant. At the time of her injury, she was a 19-year old student who had limited knowledge of Hebrew and was living in a small town in southern Israel, in an apartment provided to her by the program, which also provided the participants with counselors in order to help them with, inter alia, medical issues. According to p]laintiff when physical therapy was prescribed for her knee injury, defendant refused to arrange for such treatment and, as a result, her recovery was delayed and compromised”.
Establishing A Duty of Care
“In determining the threshold question of whether a defendant owes a plaintiff a duty of care, courts must balance relevant factors, ‘including the reasonable expectations of parties and society, generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability’…The parties’ relationship may create a duty where it ‘places the defendant in the best position against the risk of harm and the specter of limitless liability is not present’… Thus, where a defendant exercises a sufficient degree of control over an event, a duty of care to plaintiff may arise (citing) Hores v. Sargent, 230 A.D. 2d 712 (2d Dept. 1996) (college, which organized and supervised a bicycle trip, selected the route, operated vans to help riders, and instructed participants on safety, had ‘a sufficient degree of control over the subject event, and thus was under a duty to take reasonable precautions for the safety of the participants’”.
Necessary Medical Care
“Here, the parties’ relationship created a duty to provide plaintiff with the necessary medical care because not only did defendant agree to do so, it was in the ‘best position to protect against the risk of harm’ and ‘the specter of limitless liability [was] not present…The program was not an ordinary college or study-abroad program. Indeed, the second ‘semester’ did not take place in a university environment. Rather, it took place in Yerucham, a small town in the Negev desert, involving volunteering, and was supervised by counselors who did ‘[p]retty much everything’, including responding to medical issues. Under the circumstances, defendant exercised a sufficient degree of control over the program to create a duty of care to plaintiff”.
No In Loco Parentis
“Our holding that a duty of care exists in this case is not premised on the doctrine of in loco parentis (distinguishing Wells v. Bard College, 184 A.D. 2d 304 (1st Dept. 1992) and McNeil v. Wagner College, 246 A.D.2d 516 (2d Dept. 1998))…In contrast, plaintiff testified that defendant represented that it would assist her with medical care, which practice the program director confirmed, and plaintiff’s testimony that the program refused to help her obtain prescribed physical therapy is unrefuted, which circumstances are compounded by a language barrier and the remoteness of Yerucham, requiring that plaintiff travel for treatment. Under these circumstances, defendant failed to establish, as a matter of law, that it did not owe plaintiff a duty to arrange for physical therapy…While plaintiff, an adult, with access to her parents in another country and family in Jerusalem, may not have been as helpless as she makes herself out to be, that fact is but one factor to consider”.
General Internal Policy
“Defendant accurately maintains that its general internal policy of accompanying injured participants to medical appointments and arranging for transportation to treatment in remote areas does not create a legal duty. However, the failure to provide access to physical therapy here was more than a policy violation. Plaintiff’s testimony that she was told that the program would set up medical appointments for her and attend them with her is uncontroverted and consistent with the program’s accompaniment of plaintiff to the hospital and doctor’s appointments”.
“Furthermore, it was foreseeable that the failure to arrange for prescribed care could compromise recovery. Defendant also maintains that, even if it owed plaintiff a duty, that duty was not breached because the program took plaintiff for medical treatment and follow[ed] the general recommendations of the doctors who examined Plaintiff’. This argument ignores the fact that plaintiff was prescribed physical therapy, which was not provided”.
The majority in the Katz case affirmed the denial of defendant’s motion to dismiss the complaint on the grounds of no duty and no proximate cause finding, at least, at the pleading stage, a sufficient basis for both. The Katz case should be compared to the three other student tour injury cases that we have discussed [see Travel Law: Are ‘remote wilderness expeditions’ safe for students?, eturbonews.com (1/15/2016); Travel Law: Duke University Student Drowns During “Celebratory Trip” In Costa Rica, eturbonews.com (11/5/2015); Travel Law: Dangerous Student Tours: The Chinese tick case, eturbonews.com (8/28/2014)].
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.
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