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Michael Hoenig

It’s July. And the lazy, hazy days of summer are upon us. Lots of folks embrace the opportunity to get away from the home and office, to travel to other states or foreign countries and generally enjoy sightseeing, recreational activities, indigenous cuisines, and cruise ships, among other adventures.

While the notion of “getting away” is understandably attractive and exciting, dangers lurk in many of these exploits. Vacationers, in unfamiliar surroundings, doing things they may not physically be prepared for, and taking risks they are not fully aware of can suffer injury, illness, even death while vacationing. There may be legal considerations the optimistic, buoyant and adventure-seeking vacationer has not contemplated. When tragedy strikes, however, the legal consequences can be significant. Departure from the normal protective cocoon of home and business—where the legal system is generally familiar and a local lawyer is readily available—can leave the vacationing victim stranded at the mercy of foreign laws, confounding procedures and unfamiliar counsel.

In this article, we survey some recent litigation experiences, just a few, to sensitize readers to abundant legal considerations and potential consequences. All counsel should perhaps give more thought to this growing area of vacation hazard aftermaths, not only for themselves and their families but, also, in the event their clients need competent advice. At the outset, I salute the prodigious writings of former New York Appellate Division Justice, Thomas A. Dickerson, a noted hotel and travel law legal expert. His work product on such topics, for years, has been virtually nonpareil.  See, e.g., T.A. Dickerson, “Avoiding Dangerous Vacations,” an “annual treatise” the author made available via the N.Y. State Bar Association’s torts, insurance compensation law section on June 11. Also see, “The Cruise Passenger’s Rights and Remedies 2014: The COSTA CONCORDIA Disaster: One Year Later, Many More Incidents Both On Board Megaships and During Risky Shore Excursions,” 38 Tulane Maritime L.J. 1 (2014); “Shattered Vacations: When Tourists Are Injured By Shattering Glass Doors and Windows” (eTurboNews, Nov. 13, 2014)).

Generally, irrespective of whether vacation activities are pursued elsewhere, in the summer months, we see an uptick in injuries. According to hospital tracking data from the U.S. Consumer Product Safety Commission (CPSC), nearly two million Americans are injured each year from popular summertime activities. Some 29,000 are injured yearly from water sports injuries; 37,000 are injured in amusement park, state fair and carnival ride injuries; 59,000 suffer volleyball injuries; 83,000 sustain trampoline injuries; 181,000 suffer swimming injuries; 214,000 are associated with soccer injuries; 221,000 get injured in ATV, moped and bike activities; bicycle injuries afflict some 550,000 persons; baseball, softball and playground injuries affect some 500,000 persons. (E.A. Jefferson, “10 Common Summer Vacation Injuries,” ThinkAdvisor.com, May 29, 2016).

Cruise Ships

Such American accident statistics perhaps reflect normal incidents of risky or careless behavior generally and do not necessarily implicate vacation hazards confronted away from home. It is the latter aspect of “foreign” vacation dangers to which we now turn. One popular vacation outlet is cruises. Often cruise ships include on-board activities with water slides and pools but also feature excursions onto land-based foreign venues where more exotic adventures may involve parasailing, zip-lines and mountain climbing. Cruise line liability for injuries in the latter category may be fuzzy because cruise operators contract with onshore vendors and may argue that the latter are independent contractors. And cruise passenger tickets include express waivers of liability for any onshore injuries. (S.M. Sellers, “Carnival, Other Cruise Lines See Rise in Injury Suits,” BNA, 46 Product Safety & Liability Rptr., No.15, April 16, 2018). Clearly, there may be significant jurisdictional and choice of law issues for injuries occurring in countries where the foreign law is more liability-restrictive than U.S. law.

Carnival and other cruise lines are seeing a rise in negligence cases. At least 83 federal personal injury cases were filed against cruise lines in the first three months of 2018 alone. Hundreds were filed in each of the two prior years. The cases often involve slip-and-fall claims, serious illnesses and injuries worsened by shipboard medical decisions. One suit claimed a passenger died when the ship’s doctor and medical staff allegedly underdiagnosed his heart attack and delayed his evacuation to a hospital in Alaska.

In one wrongful death lawsuit filed in April against Celebrity Cruises, an excursion bus crashed in Mexico killing three members of a Virginia man’s family. The injured plaintiff was a foreign affairs officer with the U.S. State Department. He claimed the driver was speeding, driving erratically and dozing off. Also, the seat belts were not accessible. The crash killed 12 cruise line passengers, including eight U.S. citizens. The tour operator allegedly caused a fatal crash on the same highway weeks before. (Sellers, “Celebrity Cruises Hit With Wrongful Death Suit,” BNA, 46 Product Safety & Liability Rptr., No. 16, April 23, 2018).

In Clem v. Royal Caribbean Cruises, a lawsuit was filed in Florida federal court alleging that a child passenger was served gluten-based pasta despite repeated warnings she was severely allergic to such products. Allegedly, the cruise line represented it could accommodate food allergies and, further, the chef personally assured Clem the meal was gluten-free. The plaintiff also alleged that the ship’s medical staff mishandled treatment of her severe shock.

Skiing and Horse-Riding

In a case ending up in the U.S. Court of Appeals for the Tenth Circuit (Brigance v. Vail Summit Resorts, 2018 U.S. App. LEXIS 397 10th Cir., Jan. 8, 2018), Dr. Teresa Brigance and her family visited a ski resort in Colorado in March 2015. She participated in a ski lesson but, beforehand, all participants had to sign a liability waiver. The “Ski School Waiver” contained provisions stating that the student “understands the dangers and risks of the activity” and “ASSUMES ALL INHERENT DANGERS AND RISKS.” Further provisions repeated the assumption of all risks and set forth a “hold harmless” indemnification agreement.

Additionally, Dr. Brigance’s husband purchased a lift ticket enabling her to ride the ski lifts at the resort. The “Lift Ticket Waiver,” on the back side, declared in bold letters that all risks were assumed, as well as other liability-limiting language. After receiving some instruction, the plaintiff boarded the ski lift. As she attempted to unload from the lift, her ski boot became wedged between the ground and the lift. The lift pushed her forward and she fractured her femur.

Brigance filed suit in a Colorado federal court but ran headlong into the exculpatory agreements providing the “waivers.” The district court examined Colorado law and concluded that nothing precluded enforcement of the waivers. Indeed, state law deemed such ski activities as “recreational” in nature and, thus, they did not implicate a public duty (one factor which might justify not enforcing the waivers). The Tenth Circuit affirmed, observing that Colorado’s “relatively permissive public policy toward recreational releases” is one “that, no doubt, means some losses go uncompensated.”

A similar result was reached in a lawsuit against a company that provided guided horseback rides in a wilderness area of a national park. (Dullmaier v. Xanterra Parks & Resorts, 2018 U.S. App. LEXIS 4792, 10th Cir., Feb. 27, 2018). Dullmaier, a German citizen, was killed during a guided horseback ride in a wilderness area of Yellowstone National Park. Prior to a one-hour horseback ride, they were given an “acknowledgement of risk form” which stated that “horses can act unpredictably” and that certain risks are normally involved in riding. The form said the rider who signed would “assume full responsibility … for bodily injury [or] death.”

Dullmaier was in a line of some 20 riders—plus “wranglers”—assigned to guide the guests. Some ducks flew out from underneath a bridge causing a horse to rear back, pivot and run toward the other horses. The line of horses broke and Dullmaier lost his grip and fell to the ground. Bleeding from ears, nose and mouth, the vacationer was airlifted to a hospital in Billings, Montana, where he died.

His wife sued in Wyoming federal court but the suit was eclipsed when the district court granted defendant summary judgment. The Tenth Circuit affirmed the dismissal, noting that a Wyoming statute provides that “any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity.” Further, “providers” of such recreational activities have no duty to eliminate, alter or control the “inherent risks within” the sport or opportunity. Dullmaier’s fatal injuries stemmed from risks inherent in the activity. See also, Harrison v. DNC Parks & Resorts At Yosemite, (2018 U.S. Dist. LEXIS 29742, N.D. Cal., Feb. 23, 2018), where the plaintiff stayed in a “signature tent cabin” located in National Park and contracted Hantavirus causing neurological impairment, migraines, photophobia and short-term memory loss.

Conclusion

What starts out as hopeful, optimistic, excited expectations of joyful fun away from home, can turn into a nightmare of anguish, injury or even death. Vacationers pursuing activities that go bad in foreign lands or in “recreation-protective” states can run into legal or procedural hurdles barring or impairing a lawsuit. Legal considerations likely should be on one’s checklist when assessing where to go. Ask yourself, “what if …?”

Michael Hoenig is a member of Herzfeld & Rubin.

 

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