In this week’s article, we discuss the case of Melendez v. Happy Trails and Riding Center, Inc., 2016 WL 5402745 (M.D. Pa. 2016) in which the “Plaintiff, Wilberto Melendez, filed a one count Complaint with this Court against Defendant, Happy Trails and Riding Center, Inc., the Complaint alleges that Plaintiff suffered injury as a result of Defendant’s negligence in its operation of a business which rented horses and equipment to the public for recreational horseback riding. After the conclusion of discovery, Defendant” sought summary judgment on the grounds that Plaintiff was barred from recovery because of an enforceable exculpatory agreement and, in the alternative, Defendant’s liability, if any, was limited by the Equine Activities Immunity Act. The Court denied Defendant’s motion in its entirety.
Terror Targets Update
In Beating the odds and clearing landmines in Cambodia, travelwirenews (9/12/2017) it was noted that “I first photographed Tith Pao just after his foot was blown off by a landmine in 1992. At the time, Cambodia was one of the most heavily mined countries in the world, along with Afghanistan and Angola. Exactly 25 years later, I returned to visit Pao and found the district transformed, almost entirely free of landmines…By the early 1990’s, various organizations…estimated there were 8-10 million landmines scattered throughout Cambodia-more than one for every man, woman and child”. Bravo!
In 2 men arrested near Paris planned terrorist attack, wanted to join ISIS-French Prosecutor, travelwirenews (9/10/2017) it was noted that “Two men who were arrested following the discovery of explosive materials and components at an apartment in a Paris suburb of Villejuif wanted to make a bomb to commit a terrorist act, Paris prosecutor has said”.
In Man charged with terrorism offence over Buckingham Palace sword incident, travelwirenews (8/31/2017) it was noted that “A man has been charged in connection with a terrorist incident outside Buckingham Palace on Friday evening that left three police officers injured”.
In 18 killed in ISIL ambush on Egypt’s Sinai Peninsula, travelwirenews (9/11/2017) it was noted that “ISIL fighters ambushed a police convoy in Egypt’s Sinai Peninsula on Monday, killing 18 officers and wounding seven others in one of the deadliest attacks this year in the restive region”.
Syrian Passport, Anyone?
In ISIL holds 11,100 blank Syrian passports: report, travelwirenews (9/10/2017) it was noted that “German authorities believe ISIL holds some 11,100 blank Syrian passports that can be completed with any individual’s details… Investigators have assembled a list of serial numbers of the blank passports…The stolen passports are genuine identity papers that have not yet been filled out…making them a valuable tool for forgers”.
Santa Monica, California
In Santa Monica Pier evacuated due to bomb threat, travelwirenews (9/11/2017) it was noted that “A bomb threat at the Santa Monica Pier…is being investigated by police who have evacuated the popular tourist destination. The timing of such a scare on the 16th anniversary of the September 11 terrorist attacks may elevate security concerns”.
American Students Allege Rape In Italy
In Reuters, Two American Students Accuse Italian Police of Rape, nytimes (9/9/2017) it was noted that “Italy’s defense minister has said that there is ‘some basis’ to allegations by two American students that they were raped in Florence by Carabinieri policemen. The two women, aged 19 and 21, have said they were raped in the early hours of Sept. 7 after they were given a lift home from a nightclub in the Italian city by a Carabinieri police patrol. The two policemen have denied the accusations”.
Sunday Night Football In Texas
In 8 killed, 2 injured in Texas shooting, travelwirenews (9/1/2017) it was noted that “Police…have shot dead a man after he opened fire on people at a party, killing seven. The shooting took place in Plano, a suburb north of Dallas on Sunday night, when the victims held a football watching party. Neighbors on the block told local media that they had heard 30 gunshots”.
Turkey’s Travel Advisory
In ‘Bad joke’ Top Merkel aide blasts Turkey’s travel advisory for Germany, travelwirenews (9/11/2017) it was noted that “Turkey’s recent travel advisory warning citizens of xenophobia and racism in Germany is a ‘bad joke’, offending the country’s dignity…On Saturday, the Turkish Foreign Ministry warned citizens to ‘be careful’ and keep their composure in the face of ‘racist and xenophobic slurs’. ‘It is advised for our citizens in Germany or planning to visit this country to be even-tempered, keep themselves out of political discussion and absent themselves from rallies held by terrorist groups ahead of the elections, the Ministry said on its website’.
Fighting For Food
In ‘Fighting for food’: Evacuations and looting on Saint Martin following Irma devastation, travelwirenews (9/12/2017) it was noted that “The U.S., Dutch and French governments are continuing to evacuate people from the Caribbean island of Saint Martin as reports of civil unrest and looting continue to emerge”.
Zombie Dogs In Chicago
In Roaming ‘zombie dogs’ put Chicago residents on edge, travelwirenews (9/2/2017) it was noted that “Residents of a Chicago suburb are being warned to keep their pets indoors for fear that they could be bitten by wandering ‘zombie dogs’. Police in Hanover Park issued the warning in a Facebook post Thursday after receiving several reports that malnourished or neglected stray dogs are roaming around the Illinois village”.
Grain Bin Cabin, Anyone?
In Grain bin cabins boost tourism in Iowa, travelwirenews (9/2/2017) it was noted that “Two grain bins bask in the sun, catching rays bouncing off Dog Creek Lake…Peek inside and you see not bushels of corn or soybeans, but rather couches, Smart TVs, refrigerators, bathrooms and double-beds. Welcome to the Grain Bin Cabins, the newest features at Dog Creek Park, a 160-acre getaway operated by the O’Brien County Conservation Board. The cabins, which can each house up to 14 guests, are rented for $150 per night, at a 2-night minimum”.
London Vacations Rentals
In Vora, Looking for a London Vacation Rental? We tried the Plum Guide, nytimes (9/1/2017) it was noted that “The popularity of vacation homes in London has surged following last summer’s Brexit referendum: Existing companies with an international presence, such as Airbnb, Onefinestay and Oasis have all reported a significant jump in rentals, while a handful of new players offering rentals only in London, such as the Plum, Guide and Cuckooz have seen their businesses grow rapidly…The Plum Guide’s (distinguishing feature) is the stringent testing process that a hospitality expert conducts on each home before that property is accepted to the site…only one in a 100 pass the 150 different criteria set forth by the company”.
Home Rental Fines In Miami
In Kolodny, Homeowners faced an Airbnb nightmare as renters left them facing huge fines, angry neighbors, msn it was noted that “In Miami Beach-like New York, San Diego and many other U.S. cities-short-term rentals of the kind facilitated by Airbnb, VRBO, TripAdvisor and others are strictly limited. Laws, fees and taxes vary regionally, but fines for violations are typically high. In Miami Beach, the fines run at $20,000 for a first violation and rise from there”.
Vacation Rentals Become Shelters
In Dorman, Vacation Rentals Turn Into Shelters in Harvey’s Wake, nytimes (9/3/2017) it was noted that “Nearly 1,100 homes and rooms are being offered for free to evacuees of Hurricane Harvey through vacation rental sites, making the hosts unlikely operators of mini-shelters at a time when tens of thousands are displaced in Texas and Louisiana. The bulk of the free listings-about 1,000-are on Airbnb. And in a sign that the site, which started out as a freewheeling peer-to-peer exchange, has grown up, the city of Houston is relying on it to find emergency medical workers a free place to stay as well”.
Law Student Dies In Ibiza
In ‘Five bags of ecstasy exploded’ in stomach of law student found dead in Ibiza, travelwirenews (9/5/2017) it was noted that “A teenage law student was found dead in an Ibiza hotel room after five bags filed with ecstasy tablets exploded inside her stomach, an inquest heard, with the mother claiming she may have been forced to swallow them. (Ms. X), 18 was discovered with a pool of blood next to her head in a hotel room after travelling to the island for a friend’s birthday”.
Fancy Car Museums, Anyone?
In Miller, Among the Masters at the Ferrari and Lamborghini Museums, nytimes (9/4/2017) it was noted that “We started at the two-story Museo Lamborghini next to the company’s factory in Sant’Agata Bolognese…we quickly came to the slinky Miura, which Caleb called ‘one of the most beautiful cars of all time” notable for its signature ‘eyelashes’ around the headlights”.
In Schembari, Where Your Mercedes-Benz and Porsche Were Born, nytimes (9/4/2017) it was noted that “Stuttgart is home to these two luxury brands…My first stop was Mercedes, which presents a captivating walk through the birth of the automobile with the kind of historical sheet-metal eye candy that will wow an automobile fanatic. But before I even entered the museum, I was stunned by the building. It’s a double-helix design…and sits like a round jewel on Mercedes Street”.
Unruly Airline Passenger Fined
In This Allegedly Drunk Passenger Was Just Fined $100,000 for Doing Some Very Bad Things on a Hawaiian Airlines Flight, msn (9/2/2017) it was noted that “imagine that you are a few hours into a 12-hour nonstop flight from Honolulu to New York City and an obviously inebriated passenger starts yelling (and swearing profusely) at the flight attendants, other passengers, his girlfriend and his girlfriend’s children….According to a New York Post report, the passenger made life-threatening comments, ‘whacked’ a flight attendant on the shoulder and passengers were forced to step in to retrain him…the unruly passenger was just ordered by a federal judge to pay Hawaiian Airlines a grand total of $98,817 for his prolonged adventure in la-la land (plus three months’ probation)”.
Low Cost Airlines
In Maidenberg, How Low-Cost Airlines Alter The Economics of Flying, nytimes (9/1/2017) it was noted that “For more than three years, the average one-way fare between Detroit and Philadelphia never dipped below $308 and sometimes moved higher, topping $385 at one point. But then, early in 2016, fares suddenly started to fall, according to data from the Bureau of Transportation Statistics. By the end of the year, the average one-way ticket between the two cities stood at just $183. What changed? The primary factor was Spirit Airlines…lower cost airlines continue to play a role in moderating ticket costs. While such airlines offer a no-frills passenger experience and charge plenty of fees for such luxuries as additional bags or extra legroom, they are able to stimulate new demand from occasional fliers with relatively cheap prices and even take passengers from the major carriers”. Bravo.
The Great Airfare War
In Bachman & Schlangenstein, Who will win the great airfare war of 2017?, msn (9/8/2017) it was noted that “For travelers, it’s been an airfare party this summer with many domestic flights cheaper than a nice bottle of wine. Chicago to Los Angeles can be had for $49, Dallas to San Francisco is just $40 and Denver to Dallas goes for only $25-barely enough for a quality pinot. Airlines and their investors despise these fares…The fare fight reprises a similar battle that erupted two years ago, one the dented industry revenues for more than 18 months”.
Uber’s New CEO
In Newcomer, Uber’s New CEO Faces Daunting Fix-It List as Crises Span Globe, msn (8/29/2017) it was noted that “Uber(‘s) incoming (CEO) Dara Khosrowshahi inherits an embattled global business with crises sprawling across continents…the startup’s aggressive approach left a trail of self-inflicted wounds along the way. Those controversies-including raising doubts about a passenger’s rape, the use of software meant to (evade) law enforcement officials, an intense human resources investigation sparked by sexual harassment charges and a fierce legal battle with Alphabet Inc.-ultimately felled Kalanick after some of Uber’s largest investors asked for his resignation…some of the raging fires that Uber’s new CEO will need to put out. (1) Fill the executive ranks with experienced leaders…(2) Repair employee morale and Uber’s culture…(3) Turn a profit and parry competitors…(4) Improve relations with drivers…(5) Fend off lawsuits, legal risk and regulators…(6) Land the SoftBank deal, then prepare for an exit…(7) Figure out what to do about Kalanick and the troubled board”.
Lyft Seizes Opportunity
In Krisher & Liedtke, Lyft seizes opportunity as Uber tries to outrun troubles, msn (9/1/2017) it was noted that “When management upheaval (at Uber began) Lyft shifted into overdrive. The company seized the opportunity to recruit disillusioned drivers so it could be more responsive to passengers searching for a ride-hailing alternative to Uber. It upgraded its smartphone app, stepped up marketing efforts to attract more riders and expanded its U.S.-only service into 160 more cities for a total of about 350 (and also) announcing that it is adding statewide coverage to 32 states, bringing its total to 40″. Bravo.
Taxify Chasing Uber In London
In Uber beware: Didi-backed Taxify is coming after you in London, travelwirenews (9/4/2017) it was noted that “Estonian company Taxify, backed by China’s Didi-Chuxing, is launching in the UK capital with the outright aim of snatching thousands of drivers and passengers away from Uber…Taxify has 3,000 potential UK drivers who have signed up…Taxify is offering a 50% discount to riders during September”. Bravo.
Uber To End Post-Trip Tracking
In Volz, Uber to end post-trip tracking of riders as part of privacy push, reuters (8/28/2017) it was noted that Uber “is pulling a heavily criticized feature from its app that allowed it to track riders for up to five minutes after a trip, its security chief told Reuters, as the ride-services company tries to fix its poor reputation for customer privacy”.
Travel Law Case Of The Week
In the Melendez case, the Court noted that “Plaintiff…went to Defendant’s stable on May 31, 2014, for the purposes of going horseback riding. After his group arrived, Plaintiff went into the stable’s office to register. Plaintiff was presented with a form (the ‘agreement’) which stated, pertinent part: AGREEMENT FOR PARTICIPATION AND/OR VOLUNTEERS RELEASE AND DISCHARGE, ACCEPTANCE OF RESPONSIBILITY AND ACKNOWLEDGE OF RISK: IN CONSIDERATION FOR BEING PERMITTED TO UTILIZE THE FACILITIES AND EQUIPMENT OF HAPPY TRAILS RIDING STABLES AND TO ENGAGE IN HORSEBACK RIDING AND ALL RELATED ACTIVITIES” [terms are set forth in the Court’s opinion].
“An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. Plaintiff signed the agreement. In addition to the agreement, there were signs posted inside the office, outside the office, and by the stable which read ‘You assume the risk of equine activities pursuant to Pennsylvania Law’. After completing the agreement, Plaintiff waited while a Happy Trails employee saddled up a horse. Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. Plaintiff was told it was too dangerous to do on the trail. At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. Plaintiff then put the horse into a gallop and while rounding a turn, a stirrup broke and Plaintiff fell from the animal. Plaintiff maintains that the stirrup Defendant provided him was faulty or defective and that this was the cause of his fall. Plaintiff further maintains that this fall resulted in fractured ribs and pneumothorax”.
The Exculpatory Agreement
“An exculpatory clause is valid if (1) the clause does ‘not contravene public policy’; (2) the contract is ‘between persons relating entirely to their own private affairs’, and (3) each party is ‘a free bargaining agent to the agreement so that the contract is not one of adhesion [citing Chepkevich v. Hidden Valley Resort, L.P., 2 A. 3d 1174, 1189 (Pa. 2010)]. However, a valid exculpatory clause will nevertheless be unenforceable ‘unless the language of the parties is clear that a person being relieved of liability for his own acts of negligence’. Contracts immunizing a party against liability for negligence are not favored by law”
“Thus, Pennsylvania courts have established several standards governing the enforceability of exculpatory clauses: (1) the contract language must be construed strictly, since exculpatory language is not favored by the law; (2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; (3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and (4) the burden of establishing immunity is upon the party invoking protection under the clause [citing Tayar v. Camelback Ski Corp., 47 A.3d 1190, 1196 (Pa. 2012)]. Further, exculpatory clauses may not immunize a party for intentional or reckless behavior”.
Valid On Its Face
The agreement appears to be valid on its face. “First the agreement does not violate any public policy of Pennsylvania, In light of the Equine Activities Immunity Act-discussed in the next section- and similar statutes addressing other recreational activities, it is the policy of the state encourage participation in these activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them…Further, Pennsylvania courts have held as valid similar exculpatory agreements in the context of a variety of other inherently dangerous recreational activities [e.g., downhill skiing, snow tubing, auto racing, motorcycle riding]. Second the agree was between two private parties…concerning the purely private matter of renting a horse for recreational purposes. Finally, this not a contract of adhesion”.
“Turning to enforceability, Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment…the agreement does not enumerate defective equipment as a risk…Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could not appreciate the risk and could therefore not assume it…while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive”.
“Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Grails provided a saddle for Plaintiff’s ride, that a stirrup on that saddled broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspection or repairs were kept, nor was the Happy Trails owner able to say if any inspection of the specific stirrup occurred on the day of the accident. Happy Trials owner testified that he bought used saddles on the internet and also from individuals who walk into his business”
“Happy Trails’ owner displayed a somewhat cavalier attitude towards safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment of the horses correctly and even staff failing to provide basic equipment like stirrups or a bridal…a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness…the fact that Plaintiff did not specifically plead recklessness in his Complaint is not fatal to his claim”.
Equine Activities Immunity Act
“The EAIA (Equine Activities Immunity Act) limits the liability of certain providers of equine activities if specific requirements are met. Defendant argues that as a provider of a qualifying equine activity…it is entitled to immunity from suit. Plaintiff counters that Defendant’s negligent provision of defective or faulty equipment puts the suit outside the EAIA’s protections. The issue of whether a covered entity is immunized from liability under the EAIA for providing defective or faulty equipment is a question of first impression. As such this Court must engage in statutory interpretation”.
Knowledge Of Defective Equipment
Plaintiff’s sole argument is that the Act does not bar actions for the negligent provision of faulty or defective equipment…Plaintiff argues that because he did not know he might be given defective or faulty equipment, he could not knowingly assume the risk of such…The EAIA states that ‘liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven’. The Act, therefore, appears to preserve the common law assumption of the risk doctrine in the context of equine activities”.
“It is self-evident that a person ‘cannot be found to have implicitly assumed a risk of which he had no knowledge’…In short, to preclude Plaintiff’s negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge. Only then can Plaintiff be said to knowingly assume the risk. Defendant, however, has made no such showing. Defendant has failed to point to anything in the record to show that Plaintiff decided to use the equipment with the knowledge that the stirrup or any other equipment Plaintiff was provided with might break. Nor is this a case where the risk is so obvious that the knowledge could inferred”.
The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org
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