Student tourist drowns in Costa Rica

2002

In this week’s travel law article, we examine the case of Thackurdeen v. Duke University, No. 1:16CV1108 (M.D.N.C. 2018) wherein “Plaintiffs Roshni Thackurdeen and Raj B. Thackurdeen filed the present action, individually, and as co-administrators of their late son’s estate. During the spring of 2012, their son, Ravi Thackurdeen, died while a student enrolled in the Global Health and Tropical Medicine Program…a college study abroad program, in Costa Rica. However, while attending the Global Health Program, he was enrolled at Duke (University) and OTS (Organization for Tropical Studies)…In support of their negligence claims, the Thackurdeens allege that Duke and OTS failed to exercise reasonable care and breached their duty to Ravi by, among other things: taking the students to Playa Tortuga, a beach of notorious for rip currents, failing to make inquiries regarding dangerousness and safety measures, failing to warn the students of the dangers of Playa Tortuga and swimming in the ocean, failing to request lifeguards and failing to rescue Ravi…Plaintiffs’ negligence and wrongful death claims are barred pursuant to valid waiver and release agreements. The intentional infliction of emotional distress claim against both Duke and OTS remains”. Compare another disastrous drowning during a college related bird watching tour to Costa Rica [Mayer v. Cornell University, 107 F. 3d 3 (2d Cir. 1997), cert. denied 1997 WL 336602 (Sup. Ct. 1997)] and the Chinese Tick case [Munn v. The Hotchkiss School, 166 A. 3d 1167 (Conn. Sup. 2017) and Munn v. The Hotchkiss School, No. 14-2410-cv (2d Cir. February 6, 2018) to be discussed in next week’s travel law article]

Terror Targets Update

eTN Chatroom: Discuss with readers from around the world:


Tripoli, Libya

In Suicide Attack Targets Electoral Commission in Libya, nytimes (5/2/2018) it was noted that “Gunmen stormed Libya’s electoral commission in the capital, Tripoli, on Wednesday, spraying bullets and then detonating explosives in a suicide attack that claimed several lives. ‘They shot with their machine guns, set the building on fire, before blowing themselves up’, said Khalid Omar, a spokesman for the electoral commission, who witnessed the attack. Mr. Omar said he knew of six co-workers who had been killed, but he added that the head of the commission had told him that there were 10 dead”.

Baghdad, Iraq

In Iraq: 19 Russian women handed life sentences for joining ISIL, travelwirenews (4/29/2018) it was noted that “Since declaring victory over ISIL, Baghdad has arrested more than 560 women and 600 children identified as members or relatives…A court in Baghdad sentenced 19 Russian women to life in prison for joining Islamic State of Iraq and the Levant (ISIL) fighters in the country”.

Mubi, Nigeria

In Blast kills at least 24 in northeast Nigeria: police, travelwirenews (5/1/2018) it was noted that “At least 24 people have been killed in a double suicide attack on a mosque and a market in northeast Nigeria…More than a dozen were hurt in the explosions in the town of Mubi…a suicide bomber detonated explosive at the mosque at about 1pm…and a second bomber exploded a device 200 meters away as worshippers fled”.

North Haven, Connecticut

In Astor, Explosion During Police Standoff in Connecticut Injures Several Officers, nytimes (5/2/2018) it was noted that “Several police officers were injured in a large explosion Wednesday evening during a standoff with a barricaded suspect in North Haven, Conn., officials said. The explosion…was so powerful that residents up to a mile way said their homes shook. The property where it happened burst into flames and was still burning more than four hours later, filling the neighborhood with smoke”.

Running Of The Bulls Rape

In Tens of thousands hit streets of Pomplona to protest rape acquittals, travelwirenews (4/29/2018) it was noted that “Tens of thousands of people hit the streets of the Spanish city of Pomplona to protest the rape acquittals of five men accused of gang-raping an 18-year-old woman at the city’s ‘Running of the Bulls’ festival. The defendants, from the city of Seville, are from 27 to 29 years old, and were accused of raping the victim at the entrance of her apartment building on July 7, 2016. Despite filming the incident with their smartphones and later bragging about it on WhatsApp, they were not charged with rape because Spanish law requires there to be evidence of violence or intimidation for a rape offence to be proved”.

Avoid Southwest Airlines, Please

Just two weeks after a horrendous accident on a Southwest Airlines flight [see In Healy & Hauser, Inside Southwest Flight 1380, 20 Minutes of Chaos and Terror, nytimes (4/18/2018) it was noted that “‘Dear Jesus, send some angels’. Passengers feared they would die as an engine exploded, plunging the plane thousands of feet in a minute. Tens of thousands of feet above the earth, the passengers clasped hands with strangers, prayed together and got ready to die…With no apparent warning, the plane’s left engine exploded after one of its fan blades broke off. A gust of shrapnel blew out a window, partly sucking one passenger in Row 14 headfirst into the sky”] another potentially disastrous accident occurred [see Wichter, Southwest Plane Forced to Land After Cabin Window Breaks in Air, nytimes (5/2/2018)(“A Southwest Airlines flight was forced to divert and land before reaching its intended destination on Wednesday after a pane in one of the cabin windows was damaged in flight”).

Secret Fares, Anyone?

In Sablich, From Hopper, Exclusive Flight Deals Sent Directly to Phones, nytimes (5/2/2018) it was noted that “Hopper, the airline prediction and booking app, has introduced a feature that it says will offer travelers airfare deals they won’t be able to find on any other booking platform, sent to their phones. While push notifications have become a key tool for many travel booking agencies, Hopper says it is the first major platform to use the technology to offer these kinds of special rates, which it is calling Secret Fares”.

Massive Dust Strom In India

In Massive Indian dust storm kills more than 70, injures scores more, travelwirenews (5/3/2018) it was noted that “A powerful dust storm in northern India has killed more than 70 people and injured more than 140 others on Wednesday. Many reportedly died in their sleep while the storm swept through their homes…in the states of Utlar Pradesh and Rajasthan”.

Pakistan Very Hot, Indeed

In Pakistan sets April world temperature record, travelwirenews (5/3/2018) it was noted that “An April global record temperature has been set in the city of Nawabshah, Pakistan. A maximum of 50.2 degrees Celsius (122.2 degrees Fahrenheit) was reported on Monday”.

Pass On The Romaine Lettuce, Please

In Astor, E. Coli Outbreak Turns Deadly With a Fatal Case in California, nytimes (5/2/2018) it was noted that “An E. Coli outbreak linked to romaine lettuce has turned deadly, with one person dying in California, the Centers for Disease Control and Prevention said on Wednesday. It was the first reported death in the outbreak, which began in March and has spread to 25 states…The C.D.C. has recorded 121 cases nationwide including 52 that resulted in hospitalization”.

Nine European Festivals

In Celebrate! 9 European Festivals Worth Traveling For, nytimes (4/30/2018) it was noted that “Jasmine in France, truffles in Italy, medieval pageantry in Germany: Beyond Europe’s well-known music and literature festivals, there’s a panoply of celebrations, ranging from the mainstream to the decidedly quirky. Our writers share some of their favorites”. (1) Midsummer in Stockholm and Beyond, (2) Jasmine Festival in Grasse, France, (3) La Tomatina in Bunol, Spain, (4) Festival-Medieval in Selb, Germany, (5) Boat Festival in Portsoy, Scotland, (6) Wedding Festival in Galicnik, Macedonia, (7) Beer Festival in Pilsen, Czech Republic, (8) Wine, Whimsy and Song in Montmarte, Paris, France and (9) White Truffle Festival, Alba, Italy.

Ticks & Mosquitos Behave, Please

In McNeil, Tick and Mosquito Infections Spreading Rapidly, C.D.C. Finds, nytimes (5/1/2018) it was noted that “Farewell, carefree days of summer. The number of people getting diseases transmitted by mosquito, tick and flea bites has more than tripled in the United States in recent years…Since 2004, at least nine such diseases have been discovered or newly introduced here…New tickborne diseases like Heartland virus are showing up in the continental United States, even as cases of Lyme disease and other established infections are growing. On island territories like Puerto Rico, the threat is mosquitos carrying viruses like dengue and Zika”.

Topless Redskins Cheerleaders, Anyone?

In Macur, Redskins Cheerleaders Describe Topless Photo Shoots and an Uneasy Night Out, nytimes (5/2/2018) it was noted that “When the Washington Redskins took their cheerleading squad to Costa Rica in 2013 for a calendar photo shoot, the first cause of concern among the cheerleaders came when Redskins officials collected their passports upon arrive at the resort…For the photo shoot, at the adults-only Occidental Grand Papagayo resort on Culebra Bay, some of the cheerleaders said they were required to be topless, though the photographs used for the calendar would not show nudity. Others wore nothing but body paint…the Redskins had invited spectators. A contingent of sponsors and FedExField suite holders-all men-were granted up-close access to the photo shoots. One evening…the squad’s director told nine of the 36 cheerleaders that their work was not done. They had a special assignment for the night. Some of the male sponsors had picked them to be personal escorts at a nightclub”.

Humpback Whales, Welcome Back

In Weintraub, Humpback Whale Baby Boom Near Antarctica, nytimes (5/1/2018) it was noted that “In a rare piece of good news for whales, humpbacks who live and breed in the southern oceans near Antarctica appear to be making a comeback, with females in recent years having a high pregnancy rate and giving birth to more calves. Humpback whales were nearly hunted out of existence in the late 19th and most of the 20th centuries until treaties signed to stop them and protections were put in place for the world’s coldest, lease accessible continent”. Bravo.

No More Plastic Straws, Please

In Graham, Bans on Plastic Straws Are Growing. But Is The Travel Industry Doing Enough?, nytimes (5/1/2018) it was noted that “The United States goes through over 500 million plastic straws every day, according to Eco-Cycle…They get used for only a few minutes, but potentially last for hundreds of years in the ocean, and are among the top 10 pollutants collected during beach cleanups…cruise companies like P&O, Cunard and Royal Caribbean have announced limits on plastic straws…while Carnival will stop placing straws in glasses automatically, but won’t outright ban them. Airlines have been sluggish to enact change, but, Fiji Airways and Thai Airways both pledged to significantly reduce single-use plastic onboard their flights in 2018, while Ryanair aims to be ‘plastic free’ by 2013″.

Suicide Tourism In Switzerland

In Suicide tourism a grisly problem for the Swiss, travelwirenews (4/29/2018) it was noted that “Dignitas helped 138 people to kill themselves last year, a third more than in 2004, according to its website. Almost 90 per cent come from outside Switzerland, mostly Germany. The suicides happen almost daily, Tuesday to Friday’…’Friday is a rush day. It’s horror’. Swiss lawmakers are responding by proposing to increase supervision of groups that help people to commit suicide. The rate of assisted suicides in the German-speaking part of Switzerland is the highest of the four places worldwide that allow it, according to a 2003 study”.

In 104-year-old man plans to travel to Switzerland for assisted suicide, travelwirenews (5/1/2018) it was noted that “A 104-year old Australian man said he will travel to Switzerland with the goal of ending his life. David Goodall, a scientist, plans to go to Basel for the purpose of assisted suicide in early May, according to Exit International, a group that advocates for end-of-life choice”.

Hawaii’s Rising Tides

In Hawaii’s rising tides: Statewide climate call to action, travelwirenews (5/2/2018) it was noted that “Hawaii is experiencing more extreme high tides and record high levels of flooding, eroding shorelines, coral bleaching and threatened watersheds and native forests…the recent ‘Hawaii Sea Level Rise Vulnerability and Adaptation Report’ from the state’s Climate Commission should be required reading for everyone living in a coastal area…It includes inundation maps for every island based on a projection of 3.2 feet of sea level rise by the end of the century”.

United Airlines New Pet Safe Program

In United Airlines: Making travel safe for animals, travelwirenews (5/1/2018) it was noted that “United Airlines today announced it will be working with American Humane, the country’s first national humane animal organization, to improve the well-being of all pets that travel on United. American Humane has been working to improve the safety, welfare and well-being of the world’s animals for more than 140 years. United also announced that it will resume operations for PetSafe, the carrier’s program for cats and dogs that travel in the cargo compartment, later this summer”.

New Storm Rules At JFK Airport

In McGheehan, After Chaos, Port Authority Sets Storm Rules for Planes to Kennedy, nytimes (4/30/2018) it was noted that “Airlines will be prohibited from sending planes to Kennedy Airport during winter storms, like the one that caused chaos there in January, unless they have received assurances that gates will be available on landing. The change is one of several the Port Authority of New York and New Jersey plans to announce Monday to prevent a recurrence of the epic runway traffic jam that left hundreds of travelers stranded on planes for hours during the first weekend of 2018. The agency also will require better management of luggage at Kennedy after some travelers did not get their bags back for several days following the storm, nicknamed a ‘bomb cyclone’ by meteorologists, that dropped several inches of snow on Queens”.

Credit Card Travel Perks

In Majeski, 14 Travel Credit Card Perks You Can’t Afford To Overlook, moneytalksnews (4/26/2018) it was noted that “It’s no secret that rewards credit cards offer an opportunity to earn a bundle in cash back and other freebies. However, travel rewards cards offer extra benefits that cost you nothing but can be worth a bundle when you’re on the road…Here are 14 travel benefits that you might not realize are free with certain credit cards”. Topics include Concierge Services, Price Protection, Rental Car Insurance, Lounge club access, In-flight purchase discounts, Checked bags, Reimbursement for lost baggage, Travel accident insurance, Trip cancellation insurance, Airline fee credits, Global Entry or TSA PreChek credit, Travel and Emergency assistance, Roadside assistance and Trip delay reimbursement.

Travel Like A Rock Star

In Glusac, See the Sights in the Southwest and California Like a Rock Star, nytimes (4/30/2018) it was noted that “A new travel company wants to take you to your next outdoor adventure in a tour bus packed with resort-style comforts and rock star amenities. The kind of tricked-out buses associated with rock-star tours will drive a new kind of road trip with the launch of this travel company Roadies. Roadies buses, which come complete with sleeping berths, lounges, flat-screen TVs and showers, will transport up to 11 travelers on seven-day itineraries between San Diego and Las Vegas via Los Angeles, Palm Springs, Joshua Tree National Park and the Grand Canyon”.

Travel Law Case Of The Week

In the Thackurdeen case the Court noted that “The events giving rise to Ravi’s death occurred at the end of the Global Health semester. On April 29, 2012, the students were taken on a ‘celebratory trip’ to a beach in Playa Tortuga, Costa Rica. According to the Complaint, Costa Rican beaches are rampant with ‘deadly rip currents’ and Playa Tortuga is known for ‘dangerously strong rip currents and…swimming [there] was not advisable’. In addition, as with most Costa Rican beaches, there are no lifeguards on the beach. Despite Duke (University) and OTS (Organization of Tropical Studies) taking Global Health students to Playa Tortuga for the three years prior to Ravi’s death, the students on Ravi’s trip did not have notice of the beach trip and it was not anywhere on the program’s schedule. Further, the students ‘were told it was safe to swim’ and were instructed to ‘swim parallel to the shore’ if caught in a rip current. Ravi and a fellow student went swimming but were caught in a rip current and pulled out to sea. The classmate was rescued, but Ravi was pulled over 300 yards away from shore by the rip current, and, after treading water for thirty minutes, he drowned”.

The Complaint

“The Thackurdeens filed the present action asserting three claims against both Duke and OTS: (1) negligence, (2) wrongful death based on negligence and (3) intentional infliction of emotional distress (and asserting) that Duke and OTS failed to exercise reasonable case and breached their duty to Ravi by, among other things: taking the students to Playa Tortuga, a beach notorious for rip currents, failing to make inquiries regarding dangerousness and safety measures, failing to warn the students of the dangers of Playa Tortuga and swimming in the ocean, failing to request lifeguards and failing to rescue Ravi”.

The Waiver & Release

“Duke and OTS next argue that the Thackurdeens’ claims for negligence and wrongful death were contractually waived and released by Ravi and his father prior to his leaving for the Global Health Program. When Ravi was accepted to the Global Health Program, he and his father signed the ‘Statement of Authorization and Consent for Duke (‘Duke waiver’)[‘We agree that in partial consideration of Duke University sponsoring this activity and permitting the student to participate, we will not attempt to hold Duke University…liable in damages for any injury…the student might sustain while so participating and we hereby release Duke University…from any liability whatsoever for any personal injury…’] and he ‘OT

S Participation Agreement-Costa Rica’ (‘OTS waiver’)[‘In return for (OTS) and Duke University allowing me to participate in this activity…A. I hereby release, wave, discharge and covenant not to sue (OTS)…for any liability, claim and/or cause of action…that may be sustained by me…that occurs as a result of my traveling to and from and participation in this activity…It is my express intent that this Release…shall bind the members of my family…I will assume the risk of injury and damage from risks and damages that are inherent in any activity…The Thackurdeens are their claims are not barred by the doctrines of waiver and release because (1) claims for gross negligee cannot be released under North Carolina law, (2) the claims fall outside the scope of the release and (3) the releases violate a substantial public interest and are, therefore, unenforceable”.

No Gross Negligence

“The conduct alleged in the negligence claim and the wrongful death claim does not rise to the level of gross negligence under North Carolina law. Despite alleging that Dukes and OTS’s ‘actions and omission were…grossly negligent, malicious, wanton and/or reckless…the Thackurdeens have failed to allege any specific act committed ‘purposely’ with ‘conscious disregard for the safety of others…The Complaint recites a litany of ‘failures’ on the part of Duke and OTS…However, while these allegations may speak to the degree or magnitude of carelessness, [they] are not allegations that either Duke or OTS acted with the requisite mental state to support a claim of gross negligence”.

Scope Of The Waivers

“The Thacurdeens argue that, [t]his surprise beach trip was a regular class, planned lecture or field trip which was germane to the educational experience. Thus, this beach trip does not fall within the scope of the ‘program’ and [the waiver] does not release legal claims arising therefrom’…However…The Duke waiver does not include beginning or end dates for the Global Health Program, but it does include that it covers the Global Health Program…The ordinary meaning of ‘program’ in the context of the Duke waiver encompasses the entirety of the Global Health Program. It contemplates the Global Health Program as an entire, semester-long program. Assessing the allegations in the Complaint in conjunction with the language of the Duke waiver, the beach trip was within the activity contemplated by the waiver…The same is true of OTS waiver (which) includes the provision releasing OTS for liability that ‘occurs as a result of…traveling to and from, and participation in this activity’”.

No Violation Of Substantial Public Interest

“The Thackurdeens contend that the substantial public interest exception to the general validity of exculpatory contracts applies in this case…An activity falls within the substantial public interest when the activity is extensively regulated to protect the public from danger, and it would violate public policy to allow those engaged in such an activity to ‘absolve themselves from the duty to use reasonable care’. North Carolina courts have found the performance of abortions, hair services performed by a cosmetology school and motorcycle safety courses are highly regulated activities and, thus, trigger the substantial public interest exception…the Court finds that swimming in the ocean is not an extensively regulated activity like driving or medicine that triggers the substantial public interest exception”.

Conclusion

The ‘Plaintiffs’ claims for (1) negligence and (2) wrongful death are barred by Waiver and Release. The intentional infliction of emotional distress claim against both defendants remains”.

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 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles. 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.

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