In this week’s travel law article, we examine the case of Dullmaier v. Xanterra Parks & resorts, Nos. 16-8017, 16-8049 (10th Cir. (2018) wherein the Court noted that “A Wyoming statute provides that ‘[a]ny person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity’…It also states that ‘providers’ of such opportunities have no duty to ‘to eliminate, alter or control the inherent risks within’ certain sport or recreational opportunities”. In 2012, Karl-Heinz Dullmaier was killed during a guided horseback ride in a wilderness area of Yellowstone National Park. His wife, Therese Dullmaier, brought a wrongful-death action against the company that provided the ride. The district court granted summary judgment to the company, and Ms. Dullmaier appeals. The main question before us is whether Mr. Dullmaier’s fatal injuries stemmed from risks that are inherent in the particular sport or recreational activity in which he elected to participate-that is, a guided horseback trail ride in a wilderness area. We conclude that his injuries did stem from such risks…We affirm”.
Terror Targets Update
In Porter & Bilefsky, Bombing at Ontario Indian Restaurant Leaves 15 Injured, nytimes (5/25/2018) it was noted that “Two people bombed an Indian restaurant outside Toronto on Thursday night, injuring 15 people, four of them critically, officials said. The blast happened around 10:30 p.m. at the Bombay Bhel restaurant in Mississauga, Ontario…the bombers entered the restaurant and put down what appeared to be a pail or pant can, which then detonated as the attackers fled down the street”.
In Nechepurenko & Specia, Gunmen Attack Church in Russia’s Chechnya Region, Killing 3, nytimes (5/19/2018) it was noted that “Four gunmen stormed a church in Russia’s predominantly Muslin region of Chechnya on Saturday, killing at least one churchgoer and two police officers…All the attackers were killed in an exchange of gunfire with the police at the Archangel Michael Church in the center of Grozny…The gunmen initially took hostages”.
In ISIS claims responsibility for attack on Orthodox church in Chechnya, travelwirenews (5/20/2018) it was noted that “Islamic State…terrorist group has claimed responsibility for the Saturday attack on an Orthodox church in Russia’s Chechen Republic, which left a worshiper and two police officers dead”.
In Two people killed in café explosion in Baku tourist district, travelwirenews (5/21/2018) it was noted that “Two people were killed and two more were injured in a blast in a café in a suburb of Baku, Azerbaijan’s Health Ministry said. The explosion hit a small café next to a shopping center in a Binagadi district of Azerbaijan’s capital”.
Bessemer, North Carolina
In Stevens & Fortin, Man Intentionally Plowed Vehicle Into a Restaurant, Killing His Daughter, Police Say, nytimes (5/20/2018) it was noted that “A North Carolina man intentionally drove a vehicle into a restaurant [Surf & Turf Lodge] on Sunday, killing two people-including his daughter-and injuring several others…vehicle was ‘completely in’ the restaurant”.
In Four men stabbed in London’s five-day knife frenzy, latest killed in broad daylight, travelwirenews (5/22/2018) it was noted that “London’s knife crime numbers continue to soar, as four men were stabbed in a five-day frenzy of violence. The latest victim of London’s violent crime epidemic died last night, stabbed in broad daylight in North London”.
Bethpage, New York
In Robbins & Shear, Trump, Visiting Epicenter of MS-13 Killings, Demands Tougher Immigration Laws, nytimes (5/23/2018) it was noted that “A week after President Trump used the word ‘animals’ to describe dangerous criminals who enter the country illegally, he traveled to the epicenter of MS-13 gang killings on Wednesday to press for demands for tougher immigration laws”.
New Ebola Outbreak: Be Very Afraid
In Cumming-Bruce & Gladstone, W.H.O. Says Ebola Outbreak Is Not Yet a Top Health Emergency, nytimes (5/18/2018) it was noted that “The World Health Organization said Friday that a six-week old outbreak of the deadly Ebola virus in Democratic Republic of Congo was worrisome and must be aggressively controlled but does not warrant its top designation as an international public health emergency”.
In Nigeria: Ebola Scare-Airports On High Alert, Screen Passengers to Prevent Spread, travelwirenews (5/20/2018) it was noted that “[This day] Abuja-Airport facilities and medical structures that served Nigeria in the aftermath of the 2014 Ebola virus disease outbreak are being reactivated as the country tries to be on the alert for possible reoccurrence following the confirmation of several EVD cases in the Democratic Republic of the Congo”.
Don’t Mess With Cougars, Please
In Stevens, Cougar Attacks Two Bicyclists in Washington State, Killing One, nytimes (5/20/2018) it was noted that “Two friends riding their bikes in a mountainous wooded area of Washington State on Saturday morning were attacked by a cougar, which killed one of them in the state’s first such fatality in more than 90 years…The authorities said the two cyclists saw the cougar, a 100-pound male, in pursuit and one them screamed. They stopped, got off their bikes and made noise to ward it off as people in such situations are advised to do…It jumped on Isaac M. Sederbaum, putting its mouth around his head and shaking him. It released him and chased the other cyclistnytimes…Sonja J. Brooks…the cougar dragg(ed) Brooks into the woods (who was found later) underneath a log and debris in what appeared to be the cougar’s den”.
Apple & VW Driverless Cars
In Nicas, Apple, Spurned by Others, Signs deal With Volkswagen for Driverless Cars, nytimes (5/23/2018) it was noted that “Apple once had grand aspirations to build its own electric-powered car and lead the next generation of transportation. Over time, the tech giant’s ambitions ran into reality. So, Apple curtailed its original vision, first by focusing on software for self-driving cars and then by working solely on an autonomous shuttle for its own use with employees. Now, the tech giant has settled for an auto partner that was not its first choice”.
India’s Killer Dogs Are Hungry
In Gettleman & Kumar, Killer Dogs Take 14 Lives. Did Closing Slaughterhouses Play a Role?, nytimes 5/22/1028) it was noted “At least 14 children have been mauled to death by dog packs around Khairabad in recent months…And nothing-not increased police patrols, high-level visits, a surveillance drone or a dog vigilante squad that employs macabre tactics-has been able to stop the attacks”.
Cheap Flights May Cost You Plenty
In Schuetze, Skipping School for Cheap Flights? You Could Be Fined in Germany, nytimes (5/23/2018) it was noted that “While airport security officials around the world check for weapons and identification before letting passengers board a plane, the police in Germany are checking for school-age children-and reporting families who take their youngsters on vacation without a teacher’s authorization…Offending parents were reported…In Bavaria, the could mean a fine as high as 1,000 euros, or about $1,200″.
Don’t Mess With Sacred Cows, Please
In Muslim man lynched to death in central India for ‘slaughtering cow’, travelwirenews (5/20/2018) it was noted “A Muslim man has been beaten to death by an angry mob of villagers in India for allegedly killing a bovine-an act considered a crime and punishable by imprisonment under local laws. ‘The villagers saw them…slaughtering bulls. They got angry and attacked them’…Both men were brutally lynched by the villagers”.
Grizzly Bears Need Flak Jackets
In Robbins, Grizzly Bears Can Now Be Hunted Near Yellowstone After Wyoming Vote, nytimes (5/24/2018) it was noted that “The first large-scale hunt for grizzly bears in 43 years in the Lower 48 states is set to take place this September. The Wyoming Fish and Game Commission voted unanimously Wednesday to allow hunters to shoot as many as 22 grizzlies east of Yellowstone National Park…Idaho…will allow just one grizzly bear to be killed. Montana has decided to forgo a grizzly bear season this year”.
Smart Traveler? Take A Quiz, Please
In Sablich, This Month’s Quiz: How Smart a Traveler Are You?, nytimes (5/25/2018) it was noted “Here are a few questions, taken from recent articles in our Travel Tips collection, to test your travel savvy”.
Pass On Iranian Wild Mushrooms, Please
In 9 dead, dozens critical & need live transplant as 700+ get poisoned by wild mushrooms in Iran, travelwirenews (5/20/2018) it was noted that “More than 700 people have been poisoned in Iran, the country’s emergency services said. At least 9 people have so far died while dozens remain in critical condition”.
Uber Value $62 Billion
In Krisher, Uber valued at about $62B in new offer to buy company stock, msn (5/24/2018) it was noted that “Three investors are looking to buy stakes in Uber that values the company at $62 billion. The ride-hailing giant said Wednesday the investors want to buy up to $600 million worth of the private company’s stock. They’re offering $40 per share, giving Uber a valuation that’s nearly 30 percent above the $48 billion set in a January stock sale. The announcement comes as Uber posted a $2.46 billion first-quarter net profit largely due to one-time gains from the sale of businesses in Southeast Asia and Russia”.
Smelly Airline Passengers
In Smelly airline passengers from hell, travelwirenews (5/24/2018) it was noted that “Smelly airline passengers and out of control children have emerged as the leading complaints of passengers in the annual ‘Passengers from Hell’ survey. A global airline safety and product rating airline passengers website surveyed its readers on 10 passenger types who they felt caused the most grief on planes…According to the survey publication, the level of frustration for the smelly airline passenger reflects a decline in hygiene standards”.
Home Grown Terror In Rio
In Barbara, The Men Who Terrorize Rio, nytimes (5/22/20180) it was noted that “Militias in Brazil are different from paramilitary groups in other countries…militias were established in Rio de Janeiro in the late ‘90s and early 2000s, under the pretext that they were protecting residents from drug traffickers…the militias have been dominated by active-duty and retired police officers, who essentially assume control of suburban slums, or favelas, under the guise of defending them…(They) extort money from residents and shopkeepers (in other words, they demand payments that are partly for protection against themselves). They also control local unlicensed public transportation…They offer illegal internet and television connections, charge commissions on real estate deals and control the supply of gas and water…militia members collect money from street vendors and even popcorn carts. It’s a kind of mafia, with Brazilian peculiarities”.
Plane Breaks In Half In Honduras
In Jet plane breaks in half in crash in Honduras, travelwirenews (5/23/2018) it was noted that “A private chartered Gulfstream jet from Austin, Texas, crash landed at Toncontin International Airport in Tegucigalpa, Honduras, breaking in half. At least 6 people were injured and transported to Hospital Excuela. It is believed the injured were Americans”.
Pay Up, Young Firestarter
In Jenkins, Judge Orders Teen to Pay Damages for Starting Oregon Wildfire. It Cost $37 Million, msn (5/22/2018) it was noted that “A judge ordered a Vancouver teenager to pay nearly $37 million in restitution for at least 10 years after he started a major wildfire last year…The payment covers costs of firefighting, repair and restoration of the affected area, Columbia River Gorge, though it’s unlikely the boy will fully payback the total bill. (The Judge’s) opinion states the 15-year-old can set up a payment plan that can be halted after 10 years if he makes steady payments, finishes probation and doesn’t commit any more crimes”.
Visiting 417 National Parks
In Holson, They’ve Been to All 417 National Park Sites. How About You?, nytimes (5/23/2018) it was noted that “When Dan Elias got married in 2005, he had one request of his bride for their honeymoon, ‘I said, ‘We are going to visit seven national park sites on four islands in Hawaii’…These are among the many national parks and preserves, battlefields, historic sites and monuments that Mr. Elias, 52, has visited in the past two decades: 417, to be exact. He has spent weekends and vacations traveling to every national park site overseen by the National Park Service”. Bravo.
Fossil Hunting In Lyme Regis, Anyone?
In Shaftel, Searching for Dinosaurs in a Seaside English Town, nytimes (5/23/2018) it was noted that “A Novice fossil hunter immerses himself in the local pastime in the town of Lyme Regis in southwest England, an area that sits on a 95-mile stretch of shoreline known as the Jurassic Coast, a UNESCO World Heritage site…Lyme Regis, on the county of Dorset, sits on the western edge of the Jurassic Coast…remarkably rich geological history that stretches back 185 million years. The exposed cliffs reveal earthen layers of mudstone and limestone, known as Blue Lias. As they erode…chunks of earth are sent tumbling onto the beach…and all manner of fossils are revealed-anything from tiny lumps of fossilized dinosaur excrement to the entire skeletons of massive prehistoric beasts”.
Gangsters Rule On Pattaya Beach
In Gang expels tourists sitting on Pattaya Beach, travelwirenews (5/23/2018) it was noted that “Two tourists at Pattaya police station complain they were expelled from Pattaya beach on Tuesday night by gangsters who claimed they had no right to sit there. Gangsters who claimed ‘ownership’ of Pattaya beach have expelled tourists and injured an Indian businessman for sitting on part of the beach without permission”.
Grenfell Tower Fire Inquiry
In Cowell, Grenfell Tower Inquiry Open in London With Focus on Victims, nytimes (5/21/2018) it was noted that “It was harrowing for those who listened, but infinitely worse for those whose narrative of loss had been woven into their days and nights since the Grenfell Tower fire took dozens of lives and built voids the hearts of the survivors…Such endeavors in Britain are often conducted in the language of lawyers trained in the dry arts of dispassion in their quest for truth and explanations. But those in charge of the Grenfell inquiry…have been under pressure to show that this investigation is about more than the technicalities of building regulations or fire precautions. The dead were ‘not just names, they were people’, Natasha Elcock, a survivor of the fire, told the BBC”.
Oregon’s Rogue River
In Yuan, On the Water, and Off, the Rogue River in Oregon Charms, nytimes (5/22/2018) it was noted that “‘They say the river has eyes, and it does’, said my guide, Howard Binney, a 59-year-old retired firefighter who started fishing Southern Oregon’s Rogue River ‘system’, as he calls it, with his grandfather when he was 12. ‘I’ve seen bear cross the river, mountain lions in the trees. I’ve seen eagles and osprey pull fish out of the water. It’s a beautiful, mysterious place’”.
New Airline Payments Test
In Sean O’Neill, Airlines to Test Consumer Payments That Bypass Credit Cards for Direct Sales, skift (5/20/2018) it was noted that “The world’s top airline lobbying group, the International Air Transport Association (IATA) has decided to launch a pilot helping consumers make purchases (of) airline tickets and other content via a payment platform run on the airline’s websites. Details remain vague…The new payment method appears that it will be piloted with customers who are comfortable making their bookings directly with an airline via website purchases, drawing directly from their bank accounts”.
Luxury Traveling With A General
In La Force, A Solo Sojourn Inspired by Edith Wharton’s ‘In Morocco’, nytimes (5/17/2018) it was noted that “In 1920, Edith Wharton published ‘In Morocco’, a detailed account of her time spent traveling through the region with Hubert Lyautey, who served as the resident general of French Morocco from 1912 to 1925. By the end of the First World War, Morocco was still a colonial entity, divided between French and Spanish powers …General Lyautey’s immense power allowed Wharton to travel in luxury and without much fear. It also provided her with access to places few other tourists were allowed to trespass, including the imperial palace of Sultan Youssef in Rabat and the holy city of Moulay Idriss”. nytimes
Travel Law Case Of The Week
In the Dullmaier case the Court noted that “The Dullmaier-along with Karen Donohoo, the family’s au pair-traveled to Wyoming for a family vacation in July 2010. On the morning of July 30. Mt. Dullmaier and Ms. Donohoo arrived at Roosevelt Corrals for a one-hour horseback ride through Yellowstone National Park. They were given an acknowledgment-of-risk form, which state that ‘[h]orses can act unpredictably’ and that ‘[c]ertain risks are normally involved in riding’ such as ‘collisions or falls’…At the bottom of the form, a section stated that any rider who signed would ‘assume full responsibility for [him or her] self…for bodily injury [or] death’ Mr. Dullmaier and Ms. Donohoo both signed the form”.
The Ride Path
“Each one-hour ride followed the same path, beginning and ending at the Roosevelt Corrals and tracing a long loop through a wooded wilderness area. Riders started out on a dirt road and crossed into a meadow. From there, they rode over a small hill and eventually passed through an area known as Pleasant Valley. A creek, spanned by a narrow bridge, runs through Pleasant Valley. Riders must cross the bridge in a single-file line”.
As the line of some 20 riders approached the bridge a few ducks flew out from under the bridge spooking the horses. As for Mr. Dullmaier his horse Duke galloped away out of control chased by one of the wranglers, Ms. Flynn, accompanying the group of riders. “Mr. Dullmaier ‘started bouncing’. He eventually lost his grip on the saddle horn, slid to the side of the saddle, and fell to the ground. Ms. Flynn stopped her horse and immediately radioed for medical help. When she made it over to Mr. Dullmaier he was unresponsive and bleeding from his ears, nose and mouth, Mr. Dullmaier was eventually airlifted to a hospital in Billings, Montana, where he died from his injuries”.
“In that claim (Ms. Dullmaier) alleged that Xanterra ‘solicited and promoted their horseback rides’ and ‘should have known that members of the general public would rely on the information provided’ in choosing to go on one of the rides…She also alleged she and Mr. Dullmaier ‘relied on [Xanterra’s] information that the horses were trail broke’ and that guides ‘were nearby [and] prepared to help’. Mr. Dullmaier’s death, she averred, was ‘a direct result of these misrepresentations’…Wyoming has adopted the negligent-misrepresentation standard (that) requires a plaintiff to show (1) ‘[f]alse information in the course of one’s business for the guidance of others in their business…(Here) Ms. Dullmaier had never ‘allege[d] that Mr. Dullmaier relied upon the representations in his business…The Dullmaier visited Yellowstone as part of a family vacation, nut a business trip”.
“In that claim, she alleged that Xantera ‘failed to exercise reasonable care in insuring [sic] that [Mr. Dullmaier] was aware of the risks, hazards and dangers associated with horseback riding’ But this claim. Which sounds in negligence, is not cognizable under Wyoming law. Wyoming does not recognize a tort for negligent nondisclosure”.
“The relevant law centers around WRSA, WYO. STAT. ANN 1-1-122 which applies to negligence claims involving sport or recreational opportunities, such as horseback riding. ‘In order to prevail on any negligence action, a plaintiff must first establish that the defendant owed him or her a duty of care’…To protect providers of recreational sports and activities from liability for alpine skiing, equine activities and other outdoor pursuits in the state, the Wyoming legislature limited their duty of care by enacting the [WRSA}”.
The Recreation Statute
“The first provision…(‘Assumption of the Risk’) states that a person ‘who takes part in any sport or recreational opportunity assumes the inherent risk of that sport’…and that ‘[a] provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport’…The second [provision…defines ‘inherent risk’ as ‘those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport…(which) encompasses ‘horseback riding and any other equine activity’, including ‘[d]ay use rental riding, [0r] riding associated with a dude ranch’”.
“It is undisputed that Xanterra offered members of the public a guided horseback-riding tour of a wilderness area and Mr. Dullmaier elected to participate in the tour…The entire ride took place in wilderness where riders ordinarily would anticipate encountering nature wildlife…And if a wild animal appears, there is the inherent risk that a horse will spook…The wranglers on this ride knew this, too. Mr. Wilson, testified that ‘horses are prey animals, so they are spooky and worried about what is around them’…When one horse spooks, there is a risk that the others will also spook…This ‘chain reaction’ often leads a group of horses to break into a gallop run to safety…Further, it is an unremarkable consequence of these inherent risks that a rider might fall from a spooked, runaway horse”.
“From this, we conclude that this [particular opportunity (i.e., guided trail ride through a wilderness area)…carried at least four relevant inherent risks. Namely, there were inherent risks that (1) wildlife, including ducks, would be present on the trail ride, (2) a wild animal might appear suddenly, spooking the lead horse into running away; (3) the other horses might react similarly and run with the lead horse and (4) the runaway horses may gravel downhill portions of the trail at a fast pace when seeking to escape perceived danger. We ask then whether Mr. Dullmaier’s in juries stemmed from such risks inherent to the particular opportunity. We answer in the affirmative. Thus, the district court did not err in ruling that Xanterra was insulated from possible negligence liability”.
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.
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