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Brian

Feb 25, 2011, 5:36 AM

Post #1 of 7 (4967 views)

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Duty to warn?

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It is a given that the purpose of the recent warden message advising US citizens to be on alert when traveling to the Bajio including San Miguel was "CYA". There is an interesting case currently being litigated in which a tourist related company is being sued for failure to warn a client about the risk of assault in an area not previously known for such crimes but within a state, Sinaloa, which is. I'm not an attorney but am curious whether any forum members who are might offer opinions as to whether or not this case has merit.

http://www.onpointnews.com/...g-Tour-Operator.html

Brian

Sent from my iPad

(This post was edited by Rolly on Feb 25, 2011, 8:15 AM)

chinagringo

Feb 25, 2011, 7:50 AM

Post #2 of 7 (4920 views)

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Re: [Brian] Duty to warn?

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It wasn't like this guy was Billy Bob, your typical bass fisherman who may not watch the news or read a newspaper. He is one of Portland, Oregon's most prominent real estate developers. I would even venture a guess that he probably has a law firm on retainer to handle all of his legal affairs. Had the tour company provided a warning, he would have probably sloughed it off. To my way of thinking, this is simply a case of some lawyer wishing to make some extra dough and another American unwilling to accept responsibility for his decisions!
Regards,
Neil
Albuquerque, NM

Altahabana

Feb 25, 2011, 9:16 AM

Post #3 of 7 (4896 views)

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Re: [Brian] Duty to warn?

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The title to your thread frames the threshold and possibly determinative legal issue. Does a tour operator/travel agent have the duty [ie. a formal legal obligation] to warn a client about or to disclose information to them about risks of injury from criminal activities at the location the client is booked?

In most jurisdictions (ie. state courts and federal courts in the state), the judge would make the initial decision in a preliminary proceeding as to whether the tour operator/travel agent even has a duty to warn or disclose. If the judge decides that there was a duty, then a trial would follow and a jury would decide whether the tour operator/travel agent failed to properly perform its duty and should be responsible for any injuries or damages the client suffered.

Most of the reported decisions that address the analgous question of a defendant's responsiblity for damages caused by the criminal acts of unknown third parties usually involve lawsuits where an injured person is suing a business owner or the owner of the property where they are injured. Courts in most jurisdictions have found that a business or property owner has a duty to warn about or disclose information about conditions that present unreasonable and foreseeable risks of harm and about which the owner knew or should have known.

The scope of the duty has been interpreted narrowly as it applies to travel agents. Courts have stressed that travel agents “are not insurers, nor can they be reasonably expected to divine and forewarn of an innumerable litany of tragedies and dangers inherent in foreign travel.” The general rule is that a travel agent owes no duty to warn of or protect against every potential incident that may occur on the trips it books and is not generally liable for the negligence of third party hotel operators. These are some soundbites from cases illustrating the narrow scope of the duty to warn or disclose.

1. Travel agents are not generally liable for the negligence or dangerous conditions of third-party hotel or travel operators

2. A travel agent is not obligated to investigate the safety of accommodations because “a travel agent is not an insurer or guarantor of a customer's safety.

3. Travel agents and tour operators are not liable for the negligence of third parties.

4. Operators of international tours do not have a duty to tour participants to insure the non-negligent performance of hotel services by independent contractors.

5. Courts have generally declined to impose liability on travel agents for injuries sustained by customers at booked hotels because of the lack of a relationship “which would give rise to a duty on the part of the travel agent to investigate the safety of locations over which it had no control or knowledge.

There is no uniform principle of law that all courts apply. In cases where a duty to warn or disclose has been found there is usually evidence of "special circumstances" showing that a travel agent knew or should have known of the foreseeability of a criminal attack.

I doubt general knowledge that Mexico as a whole and Sinaloa in particular is experiencing cartel violence would be sufficient to supply the evidence of special circumstances needed to create a duty to warn or disclose. Access to that general information would be as available to the client as the travel agent. That general knowledge might create a duty to investigate whether there had been frequent and similar occurances in the past. But unless there had been a significant number of similar incidents at that particular facility then a case would never get to a jury and would most likely be summarily dismissed by the court.

Bottom line is that unless there had been multiple incidents on this lake in the recent past that were similar this case will probably be dismissed.

(This post was edited by Altahabana on Feb 26, 2011, 3:42 AM)

Reefhound

Feb 25, 2011, 9:31 AM

Post #4 of 7 (4883 views)

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Re: [Altahabana] Duty to warn?

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The preliminary proceedings is also where the defendant can be dismissed based on appropriate waivers signed by the plaintiff. Sometimes waivers are golden, sometimes not worth the paper they are written on. Most of the online travel booking agents have a bunch of terms and conditions that you agree to (even though most people click Yes and never read them) when booking.

Brian

Feb 25, 2011, 10:36 AM

Post #5 of 7 (4862 views)

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Re: [Reefhound] Duty to warn?

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I thought that this is an interesting lawsuit because of the precedent it would set if the victim prevails. In this case, the issue is whether a travel agency has a duty to warn but failed to do so. Currently, though, there is another phenomenon in which the Mexican tourism department is having to face declining revenues specifically due to the narco-violence in different parts of the country. The recent warden message, for example, has been roundly criticized by both state and local governments as well as hotel and restaurant chambers for exaggerating the risk posed to tourists. Acapulco, for example, has been devasted by the double whammy of frequent shootouts and resultant hotel cancellations. The local officials have implored the residents to take up the campaign "Habla bien de Aca" which endeavors to attract tourists by claiming that it is safe for them to return as in earlier times. So, hypothetically, what if a tourist chose one location over another specifically because of a representation such as that described and, unfortunately, fell victim to a violent crime? Would the authors of the advertising campaign be liable for damages or, as has been suggested, the victim should have understood the inherent danger and, in essence, hasn't got a case?

http://www.eluniversal.com.mx/notas/746616.html

(This post was edited by Brian on Feb 25, 2011, 10:51 AM)

Reefhound

Feb 25, 2011, 12:31 PM

Post #6 of 7 (4827 views)

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Re: [Brian] Duty to warn?

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I think there's a difference between not saying anything versus saying that all is fine and dandy when a case could be made that it is not. One may not have a duty to warn but one has a responsibility to not misrepresent.

It's going off topic but I thought Mexican tourism dept was saying the number of tourists has been increasing? It seems tourism is booming or bleeding, one minute to the next, depending on which message suits best at the moment. And since Aca has been primarily a Mexican tourist destination for awhile and not a big American tourist center, if it's visitors have dried up it's mostly because Mexicans stopped going there.

mexliving

Feb 25, 2011, 6:32 PM

Post #7 of 7 (4760 views)

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Re: [Reefhound] Duty to warn?

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one would think that going fishing on a lake would be safe..... they are lucky to be alive and this situation warns everyone that things might not be as safe as you think.