Tourist falls down embankment during party in Mexico: Is Reebok liable?
Tourist falls down embankment during party in Mexico: Is Reebok liable?
In this week’s article, we examine the case of Sands v. Grupo Posada S.A. de C.V., 2016 U.S. Dist. LEXIS 65769 (D.N.J. 2016) in which the Plaintiff ‘Sands fell down ‘an approximate two-foot embankment’ after leaving a dinner party on a beach in Mexico. The dinner party was part of a ‘promotional event’ known as ‘Raise the Bar’. ‘As a result of being selected a winner of ‘Raise the Bar’ offered by certain defendants-including the Reebok Defendants-in this action, Sand’s daughter brought Sands to this ‘vacation/event’ in Mexico”. The Reebok Defendants moved to dismiss the action as against them which the Court granted.
Terror Targets Update
Los Vegas, Nevada
In Turkewitz, ‘You’re a Quadriplegic’: A Las Vegas Victim Faces A Hard Reality, nytimes (10/29/2017) it was noted that “‘This is your life’ the doctor said. ‘You’re a quadriplegia’…Then came (Ms. X’s) trip home to Southern California, And here she was, three weeks after the shooting, strapped into wheelchair at a rehabilitation center, toughing it out with a physical therapist and straining to drink from a sippy cup as her toddler grandchildren looked on. This is the road after Las Vegas…The journey – as the survivors of so many other American mass shootings will say – is one full of chronic pain, fights with insurance, ruined marriages, lost jobs…and the injustice of being forced into a new identity: victim. And this time, with 59 people dead, at least 161 pierced by bullets and more than 20,000 concertgoers from around the country left to soak in the memories of that night”.
New York City
In Callimachi, Mueller, Schwartz & Goldman, Islamic State Claims Responsibility for Lower Manhattan Terrorist Attack, nytimes (11/2/2017) it was noted that “The Islamic State claimed responsibility late Thursday for the terrorist attack in Lower Manhattan two days earlier that killed eight people and wounded a dozen more…It describes the suspect, Sayfullo Saipov, 29, as a ‘soldier of the Caliphate’ and goes onto say that the attack was carried out in response to the group’s call to target ‘citizens of the Crusader countries involved in the alliance against the Islamic State’”.
In Otterman, Manhattan Terror Attack Exposes Bike Path’s Vulnerable Crossings, nytimes (11/1/2017) it was noted that “More than 10 years ago, Eric Ng was struck and killed by a drunken motorist who drove more than a mile on the bike path of the Hudson River Greenway. He was killed at about the same location where the driver in a terror attack entered the bike path on Tuesday”.
In Mueller, Rashbaum & Baker, Terror Attack Kills 8 and Injures 11 in Manhattan, nytimes (10/31/2017) it was noted that “A driver plowed a pickup truck down a crowded bike path along the Hudson River in Manhattan on Tuesday, killing eight people and injuring 11 before being shot by a police officer in what officials are calling he deadliest terrorist attack in New York City since Sept. 11, 2001″.
In Politi & Londono, Argentines on High School Reunion Bore Brunt of New York Attack, nytimes (11/2/2-17) it was noted that “Their big trip to New York had been decades in the making. Thirty years ago, when they were still high school students…10 young men promised to celebrate their reunion somewhere in style”.
In Indonesian police kill two ‘terrorists’ on eastern island, travelwirenews (10/31/2017) it was noted that Indonesian counter-terrorism police killed two militants suspected of having links with a pro-Islamic State network in a shootout on the eastern island of Sumbawa”.
In Niger-Travel Warning, travelwirenews (10/31/2017) it was noted that “The U.S. Department of State warns U.S. citizens of the risks of travel to Niger due to terrorist activity, kidnaping and high crime (particularly in) the Malian border area, the Libyan border area, the Diffa region and Lake Chad basin”.
In Mohamed, In Mogadishu, Truck Bomb and Gunmen Kill at Least 23 on hotel attack, nytimes (10/29/2017) it was noted that “A truck bomb detonated outside a hotel in Mogadishu, Somalia’s capital, minutes before gunmen on foot stormed the building on Saturday afternoon, killing at least 23 people and wounding at least 30 others, the police reported…. The Nasa-Hablod hotel is frequented by government ministers, lawmakers and Somali business leaders”.
In ISIS claims credit for suicide bombing at Kabul Shia mosque killing at least 39, travelwirenews (10/21/2017) it was noted that “The blast killed at least 39 people. (ISIS) did not provide evidence to support its claim, but said the attacker detonated his explosive vest inside the mosque as worshipers were gathering for prayer”.
Jail Time In Catalonia
In Minder, Spanish Judge Jails 8 Catalan Separatists Before Trial, nytimes (11/3/2017) it was noted that “Less than a week after Catalonia declared independence, a Spanish judge on Thursday ordered prison without bail for eight former members of the regional government pending trial on charges of rebellion
(including Carles Puigdemont, the former leader of Catalonia)”.
Peaceful Defiance In Catalonia?
In Minder, Kingsley & de Freytas-Tamura, Catalonia’s Ousted Leader Calls for Peaceful Defiance, nytimes (10/28/2017) it was noted that “In a defiant message, Catalonia’s ousted leader, Carles Puigdemont, called on Saturday for Catalans to unite in peaceful ‘democratic opposition’ after the Spanish central government took control of the restive region-an act Mr. Puigdemont called ‘premeditated aggression’…Madrid’s hard-line stance was announced shortly after regional lawmakers illegally declared an independent republic”.
Italian Autonomy Referendums
In Italian vote in autonomy referendums in shadow of Catalonia crisis, travelwirenews (10/22/2017) it was noted that “Two wealthy regions of northern Italy (Lombardy and Veneto) began voting on Sunday in referendums for autonomy, ballots that could fan regional tensions in Europe at a time when neighboring Spain is striving to prevent Catalonia from breaking away”.
Rapes At Mexican Resorts: Trip Advisor So Sorry
In Haag, TripAdvisor Apologizes for Deleting Review Detailing Rape at Mexican Resort, nytimes (11/2/2017) it was noted that “The travel website TripAdvisor has apologized to a Texas woman for repeatedly deleting her review of a Mexican resort that detailed how she had been raped there by a security guard. TripAdvisor issued an apology to the woman (Ms. X) after the Journal Sentinel of Milwaukee published an investigation on Wednesday about her 2010 episode and accounts by other travelers who said the website also removed their warnings about assaults and rapes at hotels. The Journal Sentinel found that two other women reported that they had been sexually assaulted at the same Mexican resort in recent years”. See Rutledge & Molica, TripAdvisor removed warnings about rapes at Mexico resorts, tourists say, Milwaukee Journal Sentinel (11/1/2017)”.
Get Ready To Boogie
In Correal, After 91 years, New York Will Let Its People Boogie, nytimes (11/1/2017) it was noted that “A nearly century-old law that turned New York bars into no-dancing zones, prevented singers like Billie Holiday and Ray Charles from performing and drew protest from Frank Sinatra, is finally set to be struck down. The Cabaret Law was created during Prohibition to patrol speakeasies and while its restrictions on musicians came and went, the ban on social dancing has remained-leaving generations of club owners flicking the lights or playing ‘Eleanor Rigby’ to still the crowd, lest they be fined and padlocked by the police in midnight raids…That is expected to end on Tuesday when a bill…comes before the City Council”
Kenya Helicopter Crash
In No survivors: Helicopter with five people on board crashes into Kenya’s Lake Nakuru, travelwirenews (10/21/2017) it was noted that “The crash in Lake Nakuru occurred shortly after takeoff from a nearby hotel. Early indicators showed there were no survivors”.
U.S.-Turkey Visa Standoff
In Gall, U.S.-Turkey Visa Standoff Disrupts Business and Tourism, nytimes (10/23/2017) it was noted that “Americans planning an impromptu visit to Istanbul have been turned back…The cases, though apparently relatively few, signal the potential for deeper disruptions since the United States and Turkey suspended visa services two weeks ago in a tit-for-tat dispute over Turkey’s detention of United States consular employees…Alarmed at the arrest of two of its locally employed consular staff and the detention of the wife and daughter of a third employee, American officials are demanding assurances that its staff members will not be arrested for carrying out United States business”.
American Tourists Wanted
In This Chinese City wants American Tourists, travelwirenews (10/31/2017) it was noted that “This southwest China city is Guiyang, capital of China’s Guizhou province, will carry out a series of events and promotions to attract more tourists from the United States”.
Volcano Tourism, Anyone?
In Ministry exploring volcano tourism in Tawau, travelwirenews (10/31/2017) it was noted that “The Malaysian Ministry of Tourism and Culture (MOTAC) Sabah Office is exploring Tawau Hills Park as a possible start-up of volcano tourism in Sabah”.
Mali’s Desert Elephants
In Rivett-Carnac, Mali’s Desert Elephants, on Edge of Annihilation, Get a Fighting Chance, nytimes (10/29/2017) it was noted that “The animals live in an unforgiving landscape southeast of Timbuktu, enduring sandstorms and blistering temperatures. To survive, they trek in search of food and water across what is thought to be the biggest migratory range of their species, more than 12,400 square miles. But it wasn’t only climate change endangering the elephants. It was also poachers. They were being slaughtered in staggering numbers as ivory traffickers took advantage of a security vacuum in the region, with 163 killed since 2012…To defend the 300 or so elephants that remain, Mali has formed an anti-poaching brigade to patrol a Switzerland sized area called the Gourma, with the force deterring poachers and assisting isolated communities along the elephants’ migratory route”.
Polygamous Dating Site
In 100,000 Brits sign up for polygamous dating site helping Muslim men find multiple wives, travelwirenews (10/24/2017) it was noted that “A website that helps Muslim men find ‘second wives’ in Britain has more than 100,000 users registered. The practice has been accused of opening women, often younger than their husbands, to physical abuse and even trafficking. In the UK, polygamous marriages…are only recognized if they took place in countries where they are legal. British law, however, does not stop unregistered religious ceremonies from taking place”.
Tainted Yogurt Drink Kills 17
In Pakistani bride kills 17 in botched plot to kill husband, travelwirenews (11/1/2017) it was noted that “Pakastani police say they have arrested a newly married woman on murder charges after she poisoned her husband’s milk and it inadvertently killed 17 other people. District police chief…says the woman…was married against her will in September. He says she obtained a poisonous substance from her boyfriend last week and mixed it in milk for her husband who refused to drink it. Tajak said the woman’s mother-in-law later used the tainted milk to make a traditional yogurt based drink and served it to 27 of her extended family”.
Little Hotel For Artistic Types
In Moon, In Oregon, a Little Hotel to Bring Out Your Inner Artist, nytimes (10/29/2017) it was noted that “Beyond promoting its status as ‘World’s First Kickstarter-Funded Hotel’, the Jennings is an unusual hotel. The formerly dilapidated two-story brick building has a colorful history as a boardinghouse, a tattoo parlor and, if legend is to be believed, a brothel. And it is now an ambitious passion project of Greg Hennes, an artist who first came across the property in Joseph (population 1,000) in 2010. It took’ almost four years of looking, dreaming and planning (and raising) $107,000 through crowdfunding, Mr. Hennes turned to his friends-a stable of well-known artists, architects and designers-for the hotel’s creative vision”.
Airbnb In Africa
In Airbnb users up 110% in Africa, travelwirenews (10/25/2017) it was noted that “South Africa remains the cornerstone of Airbnb’s business in Africa, accounting for 43.400 listings and income worth $86 million. Guest numbers increased by 143% in the past year. Tourist hub Cape Town is the most popular city with 17,600 listings generating $55 million for local hosts. Morocco is the second largest market, with 21,000 active listings earning $22 million. Kenya ranked third with 5,900 listings earning $3.9 million. Nigeria is the fifth largest market but showed the fastest growth of 325% over the past year”.
Airbnb & Instant Booking
In What does the combination of Airbnb and instant booking mean for the travel industry?, travelwirenews (10/23/2017) it was noted that “The company has shifted to a focus on instantly bookable inventory and this shift could position Airbnb at the top of the market. Though the pace at which units are being added has slowed, the growth in instantly bookable units has increased this year by more than 76.1%, from 923,990 units in January of 2017 to over 1.6 million units active instantly bookable listings today. Instant Book is user friendly process because travelers can skip the chit-chat with the property owner and have a room or a property, instantly ready for their trip”.
Goodbye Yellow Taxis, We’ll Miss You
In Watt, ‘There’s no future for taxis’: New York yellow cab drivers drowning in debt, The Guardian (10/27/2017) it was noted that “Ride-hail services like Uber and Lyft have saturated the market and an exodus of drivers from cabs has made medallion values drop-leaving many owing money. The medallion system regulates taxis serving New York City…individual medallion sale prices went from $50,000 in the late 1970s to more than $1 million by 2014…by 2015 Uber cars outnumbered taxis-and took away millions of rides…Now (taxi) fleets struggle to find enough drivers, and empty yellow taxis sit dormant in garages throughout the city”.
Travel Disrupters Wanted
In Hotels & Expedia Affiliate Network launch accelerator for travel tech start-ups, travelwirenews (10/20/2017) it was noted that “Hotel Jumpstart will see selected start-ups take part in a six-month program where they’ll be provided with workspace and expert monitoring. A new accelerator for travel tech start-ups has been launched by Hotels and Expedia Affiliate Network (EAN). Designed to nurture and grow ‘next-gen travel disrupters”.
Travel Law Case Of The Week
The Sands case focuses upon the responsibility and liability of Informal Travel Promoters and Sponsors of travel programs [see Dickerson, Travel Law, Law Journal Press (2017) at Section 5.07 (“Annually, numerous organizations sponsor or promote alumni reunions, conventions and group travel to their memberships …Typically, these organization known as Informal Travel Promoters or sponsors, will interface with a professional travel agent or tour operator who will make the actual arrangements for the travel vacation package offered”). See e.g., Meyer v. Cornell University, 107 F. 3d 3 (2d Cir. 1007) (bird watcher alumnus drowns in snorkeling expedition during Cornell University’s Laboratory of Ornithology sponsored bird watching tour in Costa Rica organized by tour operator, Voyagers. “Both Voyagers and Cornell had promoted the tour in various brochures and magazines…Aside from the initial promotion of the trip to Cornell’s members, Voyagers was responsible for nearly every aspect of the trip’) and Gottesfeld v. Center for Modern Psychoanalytic Studies, 113 Misc. 2d 937 (N.Y. Sup. (1980) (a not for profit organization of psychiatrists ‘sponsored’ a thirty-day African safari featuring educational programs. The safari failed to live up to a host of advertised services and facilities and one of the psychiatrists sued the ‘sponsoring’ organization. In an extraordinary decision on the issue of liability, the court found that the sponsor may be liable as a surety”.
The Sands Case
In the Sands case, the Court noted that the Complaint alleged that “Sands fell ‘as a result of dangerous and hazardous conditions then and there existing on the premises’ She alleges that the Reebok Defendants, as well as other defendants in the action, ‘organized, supervised, maintained, controlled, cared for, possessed and managed the dinner party including the area of the premises where Plaintiff fell’”.
“Sands claims the Reebok Defendants, as well as other defendants, had a duty ‘to use reasonable care to inspect and make the premises safe for Plaintiff. The Reebok Defendants (among others) ‘highly recommended’ the premises to Sands ‘by offering an all-expense paid trip’. So, Sands claims that the Reebok Defendants and other named defendants ‘had a duty to be familiar’ with the premises ‘they were recommending’. And ‘had a duty to inspect the premises at issue to ensure that it was reasonably safe and free of risk’ and ‘had a duty to warn…of any hazardous and/or dangerous conditions associated with the premises recommended by them’. Sands appears to assert two causes of action against the Reebok Defendants: (1) premises liability and (2) negligent selection of the premises.
The Premises Liability Claim
“The Reebok Defendants argue that Sands alleges no facts showing that they owed her a duty that would support a ‘negligence claim under a premises liability theory’. They argue that ‘mere sponsorship of an event, absent possession or active control over the event or over the property, does not render a defendant legally responsible’… (Applying New Jersey law the Court noted that) ‘A person who induces others to come upon his premises is under a duty to exercise reasonable care for their protection’ (citing Bango v. Carteret Lions Club, 12 N.J. Super. 52 (N.J.A.D. 1951)). ‘But in order that the defendants be held liable, it must be shown that they had such degree of control that they could have averted the danger, or such superior knowledge that they should have foreseen and given warning of a danger not apparent to the plaintiff’…So, no liability exists where defendants ‘did no more than sponsor and advertise’ an event-but have not ‘exercised any authority or control over the conduct’ of the event”).
No Evidence Of Control
“Here, Sands alleges that all defendants to this action-including the Reebok Defendants- ‘organized, supervised, maintained, controlled, cared for, possessed and managed the dinner party including the area of the premises where plaintiff fell’. Sands does not dispute the Reebok Defendants’ contention that this is the only allegation on the subject of their control over the premises…The Court finds this allegation, by itself, is insufficient to support a premises-liability claim against then Reebok Defendants because-at best-it amounts to a formulaic recitation that the Reebok Defendants had such degree of control they could have averted the alleged danger…Accordingly, this cause of action will be dismissed without prejudice”.
The Negligent Selection Claim
“The Reebok Defendants argue that, at most under New Jersey law, ‘travel agents and vacation tour planners have a limited duty of care to their traveler-clients, which arises from the pecuniary benefit bestowed on defendant by plaintiff’. They argue that ‘[n]o where does [P]laintiff contend that she paid for or conferred any benefit upon the Reebok Defendants’. So, the Reebok Defendants assert ‘there is no basis for finding that the Reebok Defendants owed [P]laintiff a duty of care akin to a travel agent’…”.
Travel Agent Duties
“To be sure, the only case law Sands cites concerns the duty imposed on travel agents…’New Jersey courts have imposed a limited duty of care of travel agents to warn of known dangers and dangers of which it should be aware’ citing Miloseska v. Liberty Travel, Inc., 2013 U.S. Dist. LEXIS 6487 (D.N.J. 2013))”. For an extensive discussion of the duties of travel agents, tour operators and online travel sellers see Dickerson, Travel Law, Law Journal Press (2017) at Sections 5.04, 5.05.
“At least two problems infect Sands’ position regarding the alleged duty owed by the Reebok Defendants. First, Sands argues that the Reebok Defendants ‘had a duty to be familiar with the premises recommended and selected by them and inspect the premises for hazardous conditions’-…however, Sands cites no allegations that would support drawing any inference that the Reebok Defendants acted as her travel agent…(Second) there are no factual allegations-which Sands cites to or are apparent to the Court-from which the Court can far a reasonable inference concerning any pecuniary benefit to the Reebok Defendants”.
“For the above reasons, Sands’ claims against the Reebok Defendants are dismissed without prejudice”.
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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