In this week’s article, we examine the case of Lackey v. Disney Vacation Development, Inc., 101 F. Supp. 3d 849 (D. Ariz 2015) involving a guest at the Aulani, a Disney Resort and Spa, in Honolulu, Hawaii, who may have been bitten by a spider in his guestroom. The issue addressed in the Lackey case is whether and to what extent the Aulani resort should be held liable for the guest’s injuries.
Terror Targets Update
In Arango, Tavernise & Yeginsu, Victims in Istanbul Airport Attack Reflect City’s International Character, nytimes.com (6/29/2016) it was noted that “There were taxi drivers and a customs officer. And there was a Turkish couple who worked together, and died together, in the suicide attack Tuesday night at Istanbul Ataturk Airport that killed dozens of people and wounded more than two hundred…the death toll from the attack had risen to 41…At least 23 were from Turkey…The victims reflected the cosmopolitan and international character of Istanbul whose airport is among the world’s busiest, a hub for tens of millions of passengers each year connecting to Europe, the Middle East, Africa and beyond”.
In Callimachi, Turkey, a Conduit for Fighters Joining ISIS, Begins to Feel Its Wrath, nytimes.com (6/29/2016) it was noted that “When the bodies of Islamic State fighters are recovered on the Syrian battlefield, the passports found on them have often been stamped in Turkey, which thousands of recruits pass through on their way to join the terror group. Fighters who call relatives abroad often do so using Turkish cellphone numbers, and when they need cash, the head to the Western Union offices in southern Turkey”.
In Akyol, What Comes After the Istanbul Airport Attack?, nytimes.com (6/29/2016) it was noted that “The assault on the airport is the latest in a series of horrible traumas in Turkey. In the past year, the country has endured almost a dozen major terrorist attacks. Some were the work of the Islamic State, which kills in the name of God; others were the work of the Kurdistan Workers’ Party or P.K.K., which kills in the name of the people”.
Cruise Ships Stay From Istanbul
In Sloan, more cruise lines cancel Istanbul calls in wake of attack, usatoday.com (6/30/2016) it was noted that “Several cruise lines including Celebrity and Windstar on Wednesday canceled ship visits to Istanbul for the rest of the year…Also canceling calls in Istanbul for the rest of the year was Cunard”.
In Steinmetz, Hotel under attack: 15 dead, eturbonews.com (6/25/2016) it was noted that “It’s a scene of terror and death on Saturday. The Naso Hablod Hotel in Mogadisgu, Somalia is a hotel known with a high degree of safety and comfort for business travelers and tourists…At least 15 people are dead and 25 others are injured as a result of Saturday’s car bombing and gun attack at the hotel”.
In Manik, Anand & Barry, Bangladesh Attack Is New Evidence That ISIS Has Shifted Its Focus Beyond the Mideast, nytimes.com (7/2/2016) it was noted that “Friday night’s assault on the Holey Artisan Bakery in the diplomatic district of Dhaka, in which at least 20 hostages and two police officers were killed, marks a scaling up of ambition and capacity for Bangladesh’s Islamist militancy…Among the dead…were nine Italians, seven Japanese, two Bangladeshis, one American and One Indian”.
In Hassan, Arango & Al-Jawoshy, Bombing Kills More Than 140 in Baghdad, nytimes.com (7/3/2016) it was noted that “As celebrations for the Muslim holy month of Ramadan stretched past midnight into Sunday in central Baghdad, where Iraqis had gathered to eat, shop and just be together, a minivan packed with explosives blew up and killed at least 143 people-the third mass slaughter across three countries in less than a week”.
In Hubbard, Suicide Bombings Hit 3 Cities in Saudi Arabia, One Near a Holy Site, nytimes.com (7/4/2016) it was noted that “Bombings rocked three cities across Saudi Arabia on Monday, including near the Prophet’s Mosque in the holy city of Medina…The blasts in Saudi Arabia followed a bloody week in which terrorist attacks caused mass casualties in the largest cities of three predominantly Muslin countries: Turkey, Bangladesh and Iraq”.
Zika, Zika, Zika
In Santora, Travelers to Dominican Republic Lead New York City in Positive Zika Tests, nytimes.com (6/29/2-16) it was noted that “More than half of those who have tested positive from the Zika virus in New York City had traveled in recent months to the Dominican Republic, the city’s health department said on Wednesday, releasing data from its latest round of testing. The results were a stark reminder that, as the summer travel season begins, many of the most popular destinations for New Yorkers in the Caribbean and Latin America pose a serious health risk, especially for pregnant women”.
Roller Coasters In America
In 4 Roller Coasters The Pout the Theme in Theme Park, nytimes.com (6/16/2016) it was noted that “When roller coasters made their way from Russia to France nearly 200 years ago, they quickly outshone the more routine amusements at park promenades. They are no less central to modern American theme parks, which by definition seek to unify the thrills under a setting or idea (or commercial brand)”. Featuring Cheetah Hunt at Busch Gardens Tampa Bay, Florida; Revenge of the Mummy-The Ride at Universal Studios Hollywood, California; Expedition Everest at Disney’s Animal Kingdom, Florida and Verbolten at Busch Gardens Williamsburg, Virginia.
Roller Coaster Accident In Scotland
In Steinmetz, Rollercoaster derailed, eturbonew.com (6/26/2016) it was noted that “It was supposed to be a fun Sunday afternoon for locals and tourists…at the M&D theme park in Motherwell, Scotland, when (a) rollercoaster…reportedly derailed. A number of people (were) reportedly trapped in the wreckage”.
Behave Yourself, Please
In Tanzanian lands in Dubai court accused of kissing Emirates flight attendant, eturbonews.com (6/21/2016) it was noted that “A Tanzanian passenger on an Emirates Airlines flight from the Julius Nyerere International Airport in the capital city of Dar es Salaam was recently arraigned before a Dubai court, accused of kissing the airline’s American female flight attendant onboard…The suspect was cited as admitting to prosecutors that he talked…the flight attendant into taking a photo with him and when he kissed her neck, she got angry and yelled at him”.
In Steinmetz, Expatriates and tourists: Understand Ramadan to avoid trouble with the law, eturbonews.com (6/11/2016) it was noted that “Gulf countries such as the UAE have strict municipal laws governing behavior in public during Ramadan. Ignorance of the basic tents of Ramadan may not only offend observers but can land expatriates and tourists in hot water with the authorities for breaching religious rules”.
Cracking Down On Airbnb
In Kelly, Why everyone is cracking down on Airbnb, money.cnn.com (6/23/2016) it was noted that “Practically every major U.S. city is struggling with how to handle the boom of short-term rentals. Most have enacted or are considering regulations for services like Airbnb. Critics of sites like Airbnb have long claimed that the services remove affordable housing from the market by turning rentable apartments into unofficial year-round hotels. A drop in supply can mean higher rents for remaining apartments. Hotel industry groups are also upset at the loss of revenue. But Airbnb claims its site primarily offers an ‘economic lifeline’ to help residents pay their bills, rent or a mortgage”.
Airbnb Legislation In New York
In Stashenko, Airbnb Seeks Veto of Bill to Restrict Ads for Available Rentals, New York Law Journal (6/23/2016) it was noted that “Airbnb wants New York Gov. Andrew Cuomo to veto a bill that would bar state residents from advertising apartments available for short-term occupancy in violation of state and New York City rental laws. The Internet-based accommodations service said the measure which calls for potential fines of tens of thousands of dollars for repeat violators, would deter New Yorkers from making money on units that are eligible for temporary rental through home-sharing platforms”.
In Bellafante, Airbnb and the battle of Suitcase Alley, nytimes.com (6/24/2016) it was noted that “On June 17, the State Legislature passed what would become one of the most stringent home-sharing laws in the country, if not the world, should Gov. Andrew M. Cuomo approve it. The measure would forbid not only landlords, but also tenants, to list apartments for short-term rental on Airbnb and similar sites, and would impose fines of up to $7,500 on those who flout it. It is already illegal in New York to rent out an unoccupied apartment in a building with three or more units for fewer than 30 days, but Airbnb is full of advertisements from such places regardless; about 55 percent of Airbnb listings violate the law, according to housing activists”.
Airbnb To Fight Racism
In Brenner, Airbnb Vows to Fight Racism, but Its users Can’t Sue to Prompt Fairness, nyti/ms/1sMXK1M (6/19/2016) it was noted that “Brian Chesky, chief executive of Airbnb, made a vow this month to root out bigotry from his business. His online room-sharing company has recently been grappling with claims of discrimination, with several Airbnb users sharing stories on social media about how they were supposedly denied a booking because of their race. The issue came into the open in December, when a working paper by Harvard University researchers found it was harder for guests with African-American-sounding names to rent rooms through the site”.
Online Reviews: Right To Gripe
In Bergel, The Right to Gripe: States Seek to Protect Negative Online Reviews, govtech.com (6/16/2016) it was noted that “Have you ever posted a negative review on a site like Yelp or TripAdvisor? It could be risky: Some businesses have inserted ‘gag clauses’ in the fine print of service agreements barring you from doing just that. Some have even threatened legal action against complaining customers or slapped them with financial penalties. That’s why legislatures in two states – California and Maryland-have enacted laws that prohibit such ‘non-disparagement’ clauses in consumer contracts, and several others considered similar measures this year”.
In Hill, Legal challenges over online reviews seek to separate fact from fiction, ABA Journal (posted 7/1/2016) it was noted that “Lee’s case is just one example of the legal issues that can stem from attempts to control and regulate online reviews. Recent months have brought a flurry of lawsuits, legislation and investigations aiming to keep online reviews-both positive and negative-fair, honest and within the Federal Trade Commission guidelines. As online reviews grow in influence, a high-stakes cat-and-mouse game is evolving. Sellers of everything from dental services to books reach for those all-important five-star rankings-and sometimes cross legal boundaries to gain unfair competitive advantages and keep their online images sparkling”.
In Kang, F.A.A. Issues Commercial Drone Rules, nyti.ms/28LTfQ1 (6/21/29106) it was noted that “The federal government on Tuesday made it much easier for companies to use drones for a variety of tasks, including aerial photography and emergency response…new commercial drone rules allow a broad range of businesses to use drones under 55 pounds, but with several restrictions: The drones must be operated by a pilot who has passed a written test and is at least 16 years old. And drones can be flown only below 400 feet, during the day and at least five miles away from airports. The new F.A.A. rules do not necessarily preclude a hodgepodge of state and local drone regulations that have popped up in recent years. The (FAA) sent a letter to states and cities saying they recommend everyone follow their lead. But it is only a recommendation”. eturbonews.com
Travel Law Article: The Lackey Case
In granting summary judgment to the defendant dismissing the Lackey complaint, the Court noted as follows:
“[O]n October 16, 2011, plaintiffs [Michael and Kalin Lackey] flew to Honolulu, Hawaii. Upon arrival in Honolulu, plaintiffs checked in to the Aulani, a Disney Resort and Spa (where they stayed) until October 21, 2011. While there, plaintiffs changed rooms three different times because, as Mrs. Lackey explained, the Aulani ‘didn’t have openings continually in one room, we had to switch to whatever they had available to fit our schedule’. Each time plaintiff switched rooms, they packed their own bags and handed them to the bellman for transfer to their new room. Plaintiffs never saw a spider or any other bugs in any of the rooms in which they stayed. During their visit, plaintiffs spent time off the Aulani property”.
A Small Red Mark
“On the morning of their departure, Mr. Lackey noticed a small red mark on his right middle finger, which felt like it was tingling. Plaintiffs thought it looked like a bug bite. Plaintiffs did not mention the mark to any employee of the Aulani”.
Almost Lost A Finger
“Over the next two days, Mr. Lackey’s finger began to swell and became redder…Mr. Lackey saw his primary care provider, Dr. Deb Grischo (who) told that he had ‘some kind of a bite, it could be a possible infection’…The lab culture revealed that Mr. Lackey had a Staphylococcus aureus infection. Over the course of the week, Mr. Lackey’s finder worsened and On Friday…he went to the emergency room. He was transferred to a different hospital, where Dr. Reece, a hand surgeon, performed (radical debridement) to remove the infected tissue from Mr. Lackey’s finger. Due to an infection that developed, Dr. Reece performed a second ‘radical debridement of tissue that almost resulted in the loss of [Mr. Lackey’s] right middle finger’”.
The Jaws Of A Brown Recluse Spider
“Dr. Reece opined that Mr. Lackey’s wound was ‘consistent with what I’ve seen from brown recluse spider bites’. Dr. Reece also opined that Mr. Lackey’s ‘Staph aureus infection…was consistent with a spider bite as 90 percent of spider bites will have a Staph aureus type contamination in their jaws’”.
“In their amended complaint, plaintiffs assert a claim of negligence-premises liability…Plaintiffs allege that defendants owed them a duty to ensure that the areas they occupied at the Aulani were free of dangerous spiders. Plaintiffs allege that defendants breached this duty of care by, among other things, failing to inform them of this dangerous condition, by failing to keep the premises free of dangerous spiders and by failing to have an adequate pest control program”.
Spiders, Spiders, Spiders
“The Aulani’s pest control program includes quarterly treatment of guestrooms for pests, including spiders. Tanya Peak Smith, referred to by plaintiffs as defendant’s internal pest control expert, acknowledged that this suggested that defendants ‘had an understanding that there could be venomous and nonvenomous spiders in guest rooms…The grounds of the Aulani are treated on a monthly basis for pests that may invade the indoors, including spiders. Peak Smith testified that she has ‘seen spiders on the Aulani property’. She testified that she saw ‘[g]arden spiders’, which are spiders that ‘mostly live outside. They build big elaborate webs, catch insects”…Peak Smith also testified that she had ‘read some papers’ about reports of the Mediterranean recluse spider being present in Hawaii but had ‘never seen one or heard a complaint of one’”.
No Spider Training For Housekeepers
“Housekeepers at the Aulani are trained to look for and report any pest activity they might observe in a guestroom. (Peak Smith) also testified that the pest control training that was provided to housekeeping ‘was primarily bed bug training’ and that housekeepers were not taught specifically about spiders”.
The Furniture Did It
“Peak Smith testified that spiders, including venomous spiders, can be brought into a room by a guest or might come in with the furniture and that she no idea if there was a ‘comprehensive inspection of the furniture in the guestt rooms before the Aulani was opened to the public. She also testified that it’s possible that spiders could enter from the outside by using trees and shrubs that are next to the building”.
The Court’s Analysis
“In order to prevail on a negligence claim, a plaintiff must prove (1) a duty requiring the defendant to conform to a certain standard of care; (2) the defendant’s breach of that duty; (3) a casual connection between the defendant’s conduct and the resulting injury and (4) actual damages…’Generally, a business owner ‘is not [the] insurer of [guests’] safety and not required at his peril to keep the premises absolutely safe…’ However, a possessor of land is under an affirmative duty to use reasonable care to make the premises safe for use by invitees’…’The standard of reasonable care generally includes an obligation to discover and correct or warn of unreasonably dangerous conditions that the possessor of the premises should reasonably foresee might endanger an invitee’”.
No Actual Notice
“There is no dispute that defendants did not create the dangerous condition at issue here. The dispute here focuses on whether defendant had actual or constructive notice of the dangerous condition at issue. ‘The [actual] notice requirement…is only satisfied if the proprietor has notice of the specific dangerous condition itself and not merely if the proprietor had general notice of the conditions producing the dangerous condition’…Peak Smith’s testimony that she knew that Mediterranean recluse spiders were present in Hawaii and that she saw a couple of nonvenomous spiders on the Aulani property at best suggests general notice…but it does not suggest that defendants had actual notice of the specific dangerous condition, namely the presence of venomous spiders in guestrooms in the Aulani…the court concludes that no reasonable jury could find that defendants had actual notice”.
No Constructive Notice
“As for constructive notice, [o]ne of the most important questions that must be answered…is the length of time that a given [condition’ has been present’…Even assuming that there was a venomous spider in plaintiffs’ room, plaintiffs have offered no evidence as to how long that spider was there. Plaintiffs have also not offered any evidence that suggests that there was an extensive problem with venomous spiders at the Aulani, either in its guestrooms or on its grounds. The only evidence of any spiders being on the Aulani property is Peak Smith’s testimony that she saw a couple of garden spiders on the grounds. That testimony is not sufficient to suggest that defendants has constructive notice of a venomous spider in plaintiffs’ room (citing Rodgers v. La Quinta Motor Inn, 316 Ark. 644 (1994) (hotel guest bitten by brown recluse spider))”.
The Mode-Of-Operation Rule
“Under the mode of operation rule, the question in this case would be whether defendants could have reasonably anticipated that venomous spiders would regularly be found in guestrooms at the Aulani. ’Regularly’ has been defined as ‘[c]ustomary, usual or normal’ for purposes of the mode-of-operation rule…This argument is unavailing. There is no evidence that suggests that defendants could have reasonably anticipated that venomous spiders would regularly be found in guestrooms. In order for the mode-of-operation rule to have any application here, there would have to be some evidence that employees or guests had regularly seen venomous spiders in the guestrooms or that venomous spiders could be found in large numbers in the area around the Aulani. Plaintiffs have offered no such evidence…the mode-of-operation rule does not apply”.
As we have discussed in previous articles contracting diseases abroad is a very real possibility. Travelers are well advised to contact the U.S. Centers for Disease Control [CDC] and obtain appropriate data about the destination environment and the presence of dangerous insects and contagious diseases.
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.