In this week’s article, we discuss the recent decision in Lovett v. Omni Hotels Management Corporation, 2016 WL 777781 (N.D. Cal. 2016) in which a guest of Omni’s San Francisco Hotel “Suffered a terrible injury to her left eye…when she took advantage of the ‘Get Fit Kit’-a duffel bag with small exercise equipment suitable for in-room exercises. Included in the kit was a Xering…which comprises a ring-shaped elastic band, intended for lower body exercises. The kit did not include any instructions explaining how to use the elastic band…As Lovett pulled the ban towards her hips, her feet came off the ground. Suddenly, the ring slipped off the bottom of her feet, forcing her hand back towards her face and into her eye. The impact caused her irreparable eye damage”.
Terror Targets Update
In Arango, Yeginsu & Hubbard, Vast Purge in Turkey as Thousands Are Detained in Post-Coup Backlash, nytimes.com (7/18/2016) it was noted that “The Turkish government’s crackdown after a military coup attempt widened into a sweeping purge on Monday, cutting a swath through the security services reaching deeply into the government bureaucracy and the political and business classes…nearly 18,000 in all, including 6,000 members of the military, almost 9,000 police officers, as many as 3,000 judges, 30 governors and one-third of all generals and admirals”.
In McCarthy, FAA Bans Turkey Flights; Cruise Lines Avoid Nice, travelmarketreport.com (6/18/2016) it was noted that, one day after an attempted coup by the nation’s military, the Federal Aviation Administration (FAA) banned all flights into and out of Turkey for U.S. aircraft due to security concerns”
In Three people killed, dozens wounded in Turkey car bomb attack, eturbonews.com (7/9/2016) it was noted that “At least three people have lost their lives and more than three dozen sustained injuries in a bomb attack of a military outpost followed by shooting in Turkey’s southeastern province of Mardin …The attack came a day after Turkish troops killed 19 Kurdistan Workers’ Party (PKK) militants during clashes elsewhere in the mainly Kurdish area”.
See also: Hubbard & Yeginsu, Turkey Declares 3-Month State of Emergency, nytimes.com (7/20/2016) and Arango, Erdogan Sends a Text Across Turkey, Urging Loyalty, nytimes.com (7/21/2016).
In Breeden, Attacker in Nice Plotted for Months and Had Accomplices, French Prosecutor Says, nytimes.com (7/21/2016) it was noted that “Mohamed Lahouaiej Boyhlel, who killed 84 people in a terrorist attack in Nice, France, last week, planned his assault over several months and got help from at least five people, the Paris prosecutor said on Thursday. However, although the Islamic State called the attacker one of its ‘soldiers’ there is as yet no evidence that he or the suspected accomplices had any direct contact with the terrorist network, the prosecutor, Francois Molins, who handles terrorism investigations in France, said at a news conference in Paris”.
In Rubin & Breeden, Moment of Silence Turns Into Outcry Against Government After Nice Attack, nytimes.com (7/18/2016) it was noted that “The moment of silence on Monday for the victims of Thursday’s attack in Nice ended abruptly as boos ad jeers from the crowd of thousands filling the Promenade des Anglais, where 84 people had been killed. The object of the derision was Prime Minister Manuel Valls, who had arrived flanked by national and local political leaders to pay his respects. Cries of ‘Resign, resign’ swept the crowd when Mr. Valls arrived and as he left”.
In McCarthy, FAA Bans Turkey Flights; Cruise Lines Avoid Nice, travelmarketreport.com (6/18/2016) it was noted that “Cruise lines also have been affected by recent events. A number of lines have decided to stay away from Nice, France after last Thursday’s Bastille Day attack”.
Rio De Janeiro, Brazil
In Romero, Brazil Arrests 10 in Terror Plot as Olympics Near, Officials Say, nytimes.om (7/21/2016) it was noted that “Brazilian authorities arrested 10 members of an Islamist militant group that was organizing terrorist attacks, officials announced Thursday, raining tension around the country just two weeks before the start of the Olympic Games. The Federal Police said in a statement that the suspects belonged to a group called the Defenders of Sharia”.
In Mashal & Nader, ISIS Claims Deadly Bombing at Demonstration in Kabul, Afghanistan, nytimes.com (7/23/2016) it was noted that “The Islamic State claimed a bombing that left at least 80 people dead Saturday at a peaceful demonstration in the Afghan capital of Kabul…The Afghan Interior Ministry, in a statement, said the attack on thousands of Hazaras, an ethnic minority group staging the protest, had been a suicide mission”.
In Barry & Sattar, Bangladesh, Blaming Local Groups for Attacks, Seeks Suspects Tied to ISIS, nytimes.com (7/19/2016) it was noted that “Bangladesh, reeling from a sudden intensification of terrorism this summer, has begun an urgent search for men suspected of building an Islamic State presence in the country and recruiting your Bangladeshis to fight in Syria and Iraq…a list of 10 high-value suspects…was released this month (including) three Bangladeshi expatriates-longtime residents of Canada, Australia and Japan-who have been long sought by the police and suspected of setting up training and recruitment pipelines for the Islamic State”.
In Afghan migrant attacks German train passengers with axe and knife, killed by police, eturbonews.com (7/18/2016) it was noted that “An axe-wielding teenage Afghan refugee, who attacked several people on a train in southern Germany, has been shot by police…Three people were seriously hurt and one suffered minor injuries in the attack in Wuerzburg”.
In Hume, Munich gunman planned attack for a year, officials say, cnn.com (7/24/2016) it was noted that “The gunman who killed nine people in a rampage in Munich on Friday was obsessed with mass shootings and appeared to have planned the attack for a year, officials said”.
In Chokski, Syrian Refugee Blows Himself Up at German Music Festival, Wounding 12, nytimes.com (7/24/2016) it was noted that “A Syrian refugee blew himself up and wounded 12 people near a music festival in Ansbach, Germany, on Sunday night. Three of the victims suffered grave injuries. The authorities identified the man behind the blast as a 27-year0old Syrian refugee who was denied asylum last year. He had attempted suicide twice before, and officials had not yet identified a motive for the detonation as of early Monday”.
Travel Insurance, Anyone?
In Rosenbloom, Suddenly Considering Travel Insurance? You’re Not Alone, nyti.ms/2a5EwO5 (7/19/2016) it was noted that “If the attacks in Nice, Brussels and Paris have you thinking about travel insurance, you’re not alone…After the attacks in Paris and Brussels, Squaremouth.com saw more travelers purchasing trip cancellation policies and searching specifically for terrorism coverage, especially for popular European destinations. The company said that the number of customers searching for terrorism coverage increased by an average of 167 percent in the month after each of the attacks. Also in the month after each attack, Squaremouth.com’s trip cancellation sales were 19 percent higher than in the same period the previous year”.
Yellow Fever Fears In Brazil
In Brazil requires yellow fever vaccination from Angola and Congo travelers, eturbonew.com (7/12/2016) it was noted that “On Monday Brazil’s government started to require yellow fever vaccination certificates from people traveling to and from Angola and the Democratic Republic of Congo in Africa. The requirement was recommended by the Emergency Committee of the World Health Organization (WHO) due to a disease outbreak in those countries”.
Train Crash In Italy
In Pianigiani, Train Crash in Italy Leaves at Least 25 Dead and Dozens Injured, nytimes.com (7/12/2016) it was noted that “Two passenger trains collided head-on in the Puglia region of southern Italy on Tuesday morning, killing at least 25 people and injuring dozens more, some of them critically…Automatic (control or brake systems) are used on most of Italy’s railway lines, but have not yet been installed in some areas, especially in southern Italy, which is less developed and less prosperous than the north”.
In Bilefsky, Pilots on Air Transat Flight Are Arrested on Suspicion of Drunkenness, ntyimes.com (7/19/2016) it was noted that “Passengers on a flight to Toronto from Glasgow could be forgiven for being upset Monday morning after police officers hauled two pilots from the cockpit of their plane, an Airbus A330, on suspicion of being under the influence of alcohol. The flight was operated by Air Transat, a carrier based in Montreal”.
Don’t Feed Alligators
In Pedicini, Disney firefighters were warned to stop feeding alligators, Orlando Sentinel (7/14/2016) it was noted that “Two months before an alligator killed a toddler at Walt Disney World, firefighters were warned to stop feeding the reptiles at one of the resort’s fire stations. The admonitions were in emails from employees at Reedy Creek Emergency Services. Reedy Creek is the Disney-controlled taxing district that provides government services to the theme parks and surrounding areas. The emails were obtained through a public-records request made after an alligator snatched 2-year-old Lane Graves from the shore of the Seven Seas Lagoon on June 14 and drowned him while he was on vacation with his family from Nebraska. The attack took place at Grand Floridian Resort & Spa…According to the emails, firefighters were feeding at least one of two alligators hanging around Fire Station 3, located off Floridian Way on Maple Road less than a half-mile from Seven Seas Lagoon and less than a mile from Grand Floridian…Feeding alligators is illegal because it causes the animals to lose their natural fear of humans”.
UAE May Ban Twelve Dog Breeds
In UAE mulls banning 12 bog breeds, eturbonews.com (7/18/2016) it was noted that “Here we list the 12 dog breeds that could be banned from import or dealing in the UAE as per draft law debated in May. Please note that all hybrids or cross-bred dogs with one or more of these breeds may also be banned…Pit Bulls, Mastiff, Tosa, Rottweiler, German Shepherd, Huskies, Alaskan Malamutes, Doberman Pinscher, Chow, Presa Canario, Boxer, Dalmatian”.
Deadly Traffic Jam In Indonesia
In Twelve people die in horrific three-day traffic jam in Indonesia, eturbonews.com (7/9/2016) it was noted that “Twelve people have died during a massive three-day traffic jam in Indonesia that stretched more than 20 kilometers and brought thousands of holidaymakers to a complete standstill…The horror traffic at a major highway junction at Brebes, a city on the main island of Java, was so bad that Indonesians dubbed the disastrous toll gate ‘Brexit’ from the words ‘Brebes exit”.
Kenya’s Stalled Ferries
In Steinmetz, Stalled Likoni ferries-the bane of South Coast tourism, eturbonews.com (7/10/2016) it was noted that “Just a few days ago I complained to you about the latest US travel advisories which had named Likoni and the ferries as a hot spot. Today…two ferries again stalled and left thousands of traders, wananchi and even tourists stranded in long queues. Both sides of the Likoni channel had kilometer long traffic jams…The company is failing Kenyans, is failing our tourism industry…The ferries are subject to frequent breakdowns, often midstream, where drifting into the busy shipping lane into and out of the port of Mombasa poses added risks for passengers”.
Civil Drone Liability
In Kirrane & Grewal, Civil Liability Arising Out of the Commercial Ownership and Operation of Drones, For The Defense (January-June 2016) it was noted that “Despite the disharmonious regulatory environment for drones, organizations can take some precautionary measures to manage liability risk. Generally, drones are robotic aircraft. They are not much different from the model airplanes that enthusiasts have been flying for decades. A couple of innovations have allowed the old-model airplane technology to advance so rapidly that these toys are poised to become ubiquitous tools comparable to cars, computers, cameras and mobile phones. People and organizations that own or operate drones are exposed to civil liability risk from both the ownership and the operations of drones”.
Mandatory Resort Fees
In Perkins, The Truth about ‘hidden’ fees, touch.sun-sentinel.com (7/5/2016) it was noted that ‘let’s define ‘hidden’ fees accurately as those fees that are (1) not included in posted prices from the beginning of the search process or in the highlighted price postings, but are nevertheless (2) a mandatory requirement to travel. With that rigorous definition, true hidden fees are rare. Right now the worst, by far, are the mandatory ‘resort’ and other fees hotels carve out of the true price and instead post separately. Here’s how it works: Instead of advertising a room rate of, say $100, a hotel posts the rate as $75 but adds a mandatory fee of $25. Typically, the hotel posts a laundry list of services the fee supposedly covers, but because the fee is mandatory, those lists are excuses, not reasons. To be sure, hotels disclose the fees before you actually make a commitment–often well in advance of the actual purchase process –but they’re still hidden because they aren’t included in the initial price postings and promotions. If you subscribe to any travel deal bulletins, you’ll see plenty of ‘four-star Las Vegas Room, only $35′ and similar blurbs that say nothing about mandatory fees. You encounter the same problems with airline air-hotel package prices, which do not include mandatory fees when posted on an airline’s website. Those fees started in popular resort areas such as Honolulu and Las Vegas, but they’re spreading. Now, some big-city business hotels even add what they call a ‘facility’ fee. Consumer advocates are hopeful of some future action, by the FTC or individual states, to ban this obviously deceptive practice”.
Airbnb Hires Holder
In Barber, Airbnb Hires Holder to Improve Anti-Discrimination Policy, New York Law Journal, July 22. 2016, p. 5 it was noted that “Amid mounting allegations of bias in its home-sharing platform, Airbnb, Inc., has hired former U.S. Attorney General Eric Holder, Jr., to help craft a ‘stronger’ anti-discrimination policy aimed at eliminating ‘explicit racism and implicit biases’ the company said Wednesday…’We are honored that former U.S. Attorney General Eric Holder has agreed to join our team to help craft a world-class anti-discrimination policy’, Airbnb chief executive Brian Chesky wrote in the statement on the company’s website Wednesday”.
Travel Law Article: The Lovett Case
The Court noted that “Lovett contends that her injuries were foreseeable and preventable had Omni (1) performed a risk assessment of the items in the kit and (2) provided instructions for how to use the Xering. She insists that Omni is liable for negligence…and negligently distributing a product without warnings (and that because) Omni manufactured and promoted the kits, thereby exposing them to strict liability for the defective product”. In response to Omni’s summary judgment motion the Court noted “a jury could reasonably decide that Omni failed to take reasonable measures to prevent foreseeable harms. Although this case presents a close question of whether Omni owed Lovett a duty, there are material disputes of fact, which preclude summary judgment on Claims 1 and 3 (negligence)”.
Omni’s Get Fit Kit
“Omni operates approximately fifty-five hotels in the United States. In an effort to differentiate its hotels from competitors’ accommodations, Omni commissioned Case-Dunlap Enterprises d/b/a Tic Toc to develop an in-room exercise kit, which Omni named the ‘Get Fit Kit’…Since developing these kits, Omni has made them available to guests who wish to workout in their rooms, but does not offer kits for sale…Since initially developing the kit, Omni and Tic Toc worked together to select the component of the kit. Omni reviewed the items in the kit and identified which equipment it liked and disliked, ultimately settling on the following items: (1) an Omni duffel bag; (2) the SPRI Xertube; (3) the SPRI Xering; (4) an exercise mat and (5) two dumbbells…The kit did not include any instructions for how to use the various items in the bag”.
No Safety Assessment
“In the course of reviewing the items in the kit, Omni never consulted with a fitness expert or conducted a safety assessment for the exercise equipment…Nor did Omni ask that Tic Toc perform such an assessment…Omni employees concluded the items in the kit were easy to use and without consulting a fitness expert, never inquired about instructions or warnings…Since introducing the kits, guests have requested them 90,652 times…According to Omni’s records, only Lovett has reported injury or misuse”.
Omni’s Duty To Lovett
“To prevail on her negligence claims, Lovett must prove that (1) Omni owed her a legal duty, which (2) it breached, and (3) the breach was the proximate cause of her injuries…Here, Lovett avers that Omni owed her (and other guests) a duty to ensure the kit was safe before distributing it. She contends Omni breached that duty one or two ways. First, she argues Omni should have performed a risk assessment before procuring the Xering and distributing it to guests. Second, Lovett insists that Omni failed to ensure the kits included instructions about how to use the Xering properly”.
Protection From Unreasonable Risk
“With respect to their guests, hotel owners are obliged ‘to protect them against unreasonable risk of harm’. The question is rarely whether the hotelier owed his or her guests a duty, but rather what the scope of that duty is…’[A] hotel owner or ‘innkeeper’ owes a duty to its guests to maintain the premises in a reasonably safe condition’ and to ‘be reasonably diligent in inspecting its rooms for defects, and correcting them upon discovery’…If the owner had actual or constructive knowledge of a dangerous condition, then he or she is liable for harms caused by the condition…Omni denied that it owed Lovett any duty to make the Xering safer or include instructions because (1) it did not have any knowledge of the alleged risks; (2) the risk was obvious and (3) Lovett assumed the risk that the band would whip back towards her face”.
“Thousands of guests at Omni’s numerous properties have used the Xering without instructions and without incident… Nevertheless, the absence of prior similar accidents does not definitively establish that no injuries have occurred or that a risk assessment would not reveal the potential for injury… Moe to the point, Omni overlooks Lovett’s theory of the case… ‘Where the harm can be prevented by simple means, a lesser degree of foreseeability may be required’…Lovett need not show that the exact injury she suffered was foreseeable, she must show only that Omni’s conduct-the failure to conduct a risk assessment and failed to include instructions about how to use the Xering-created a risk of a ‘particular kind of harm’…Lovett contends that Omni owed her a duty, at the very least, to assess whether and how guests might misuse the items in the kit. Had Omni done so, she insists, its managers would have realized many people do not understand how to use the Xering and routinely misuse the product”.
Cost Of A Risk Assessment
“On this record, the cost of performing a risk assessment and distributing instructions with the kits appears minimal. According to (Lovett’s expert Laesecke) the hotel industry routinely conducts risk assessments of products and services offered to guests…That there is a custom and practice to review items distributed to guests suggests that the additional cost of performing a risk assessment of the kits is minimal…Accordingly on balance the risk associated with foreseeable misuse by the Xering outweighs the relatively minor cost of conducting a risk assessment and including instructions with the kit and Omni had a duty to identify and mitigate those risks by including instructions for proper use”.
“Omni makes much of the fact that any reasonable person would know there is an inherent, obvious risk to pulling an elastic band…Again, Omni overlooks Lovett’s theory of liability…that the Xering should have come with instructions for proper use…Moreover, the obviousness of potential danger cuts against Omni to some extent…Because every reasonable person understands that pulling an elastic band poses some risks, Omni was also constructively aware that guests would pull on the bands, which would pose risks to their physical safety. Lovett’s whole theory is that Omni should have mitigate the obvious risk by of harm by (1) performing a risk assessment and (2) providing instructions for how to use the Xering safely”.
Assumption Of The Risk
“Omni’s final argument is that Lovett assumed the risk inherent in using the Xering and therefore it owed her no duty to investigate or to warn of the dangers of use or misuse…Finally, ‘assumption of the risk does not insulate equipment suppliers from liability for injury from providing defective equipment… Under California law, when the consumer is aware of certain risks posed by the defect in the product, ‘the user’s actions are subsumed by comparative negligence’ but ‘the manufacturer is not relieved of its duty to make a product without a defect’… Principles of comparative negligence-rather than assumption of risk-will inform the analysis”.
“To prevail with her negligence claims, Lovett must prove that Omni’s failure to conduct a risk assessment for the Xering or to include instructions was a ‘substantial factor’ leading to the injury…Admittedly, Lovett has offered little evidence to prove proximate causation. The minimal evidence she has provided, however, is sufficient to withstand summary judgment. She testified to looking for instructions after opening the kit, which gives rise to a reasonable inference that she would have read them and understood that the Xering is designed to exercise the lower body, not the upper body”.
“As a general rule, hotels are not ‘strictly liable on the basis of products liability for injuries to a guest caused by a defect in the premises’ (citing Peterson v. Superior Court, 10 Cal. 4th 1185 (1995))…The record establishes that Omni was the purchaser, not a retailed of the kits, and thus Lovett cannot show that the hotel engaged in any transaction the purpose of which was to market the kit…Omni is entitled to summary judgment with respect to her claim of strict liability”.
“Because a reasonable jury could conclude that Omni twice failed (no risk assessment and no instructions) to take reasonable steps to prevent harms associated with using the Xering, Omni’s motion for summary judgment for Lovett’s negligence claims…must be denied”.
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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