Travel agents have a very limited duty to disclose, unless they know about a hazard. If you book for others, you are a travel agent.Posted: December 21, 2015 Filed under: Adventure Travel, Arizona, Release (pre-injury contract not to sue) | Tags: duty, Party Train, Release, Spring Break, Travel Agency, Travel Agent, Waiver Leave a comment
College students on break to Mexico on a “party train” fell between the cars. Decedent was the 4th student to fall which gives rise to the liability of the travel agent. This is an early Arizona case voiding releases also.
Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51
Plaintiff: Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer
Defendant: Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Dennis Anderson and Jane Doe Anderson, husband and wife; Anton Cerkvenik and Jane Doe Cerkvenik, husband and wife; and John Does I-X
Plaintiff Claims: Negligence, violation of the Arizona Consumer Fraud Act,
Defendant Defenses: No duty and release
Holding: For the Plaintiff
The defendant is a travel agency that specialized in college tours. These college tours are more famously known for taking students south of the boarder during breaks to party where the age to drink is lower and so is about everything else.
One of these tours included an eighteen hour train ride known as the “Party Train.” The plaintiff and a friend decided to move forward and investigate the engine. Between the cars were extensions between the cars were covered with some sort of plate. However the last passenger car had not extension and no plate extending back from the freight car or engine. The plaintiff stepped off and fell from the train to her death.
The plaintiff was the fourth student to die this way on a tour organized by the defendant, although the particular incidents leading to the student deaths were slightly different.
The decedent’s parents sued the travel agency for themselves and representing the estate of the deceased. The trial court dismissed the case because there was no duty of care owed to the plaintiff by the defendant travel agent.
Analysis: making sense of the law based on these facts.
The court started its analysis by looking at the duty owed by the defendant as a travel agent.
(1) to exercise reasonable care for the safety of students in operating its student tours; (2) to disclose material facts affecting safety in promoting and selling its tours; and, (3) not to make misrepresentations in promoting and selling its tours.
The defendant argued that because it could not control the train and had no knowledge of the specific condition leading to the decedent’s death the travel agent had no duty to the plaintiff.
Duty is an issue of law and as such the courts decide whether or not there was any duty. Juries apply the facts to the law.
Whether a duty exists is a question of whether one of the parties to a relationship is under an obligation to use care to avoid or prevent injury to the other. “‘Duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.”
If the court decides no duty exists then no trial is held. No duty, no negligence. However the appellate court saw the existence of a duty differently from the trial court which stated there was no duty.
The court concluded the relationship between the decedent and the defendant was like an agency, since the defendant was a travel agent.
Different occupations owe different duties to their guests, customers, clients, patrons or consumers. The court set out the duties of a travel agent under Arizona law, which included a duty to disclose. “These duties include the duty to disclose material dangers known to the agent.” This duty “…does not represent an extension of tort liability upon an agent it results from an exposition of the pre-existing duty of care owed a principal by his agent.”
That duty requires the travel agent to disclose information the traveler would like to know.
Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person.
That duty appears to be wide open as well as trap. What the traveler wants to know is usually unknown until communicated by the traveler to the agent. However, “The scope of this duty of disclosure will be limited, naturally, to what is reasonable in any given instance.”
However the fact the travel agent does not know what the traveler wants to know is a bar to their duty to disclose. “While there is no duty of investigation, the travel agent must disclose all information the agent learns which is material to the object of the agency.”
The court concluded that a jury must decide whether or not three other students had died on that train was something the deceased wanted to know.
The plaintiff’s also sued claiming violation of the Arizona consumer fraud act. The omission of the other deaths violated the act.
Under the Act, it is unlawful for any person to use or employ any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived, or damaged thereby.
The act defined merchandise to include services. The trial court found that death was not related to the information contemplated by the act to be disclosed. Again the appellate court found differently.
The final issue was whether or not a release was in existence and valid.
The itinerary contained a paragraph stating the defendant waived liability. There was also an invoice for the trip with the same release language as on the itinerary. The decedent acknowledge in her payment for the trip that she had “read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions.”
The trial court denied the validity of the release and the appellate court agreed. “Here, the danger is too defuse [sic] and unspecific for a valid waiver to apply.”
The appellate court agreed and stated: “Attempts to release oneself from liability by contract for harm caused by one’s own negligence are not looked upon with favor. “This would tend to encourage carelessness.””
The court also quoted Restatement (Second) of Agency § 419 (1957), and found the lack of the disclosure of the other deaths also violated the requirements for the release to be valid.
…such agent is under the “duty of disclosure and fair dealing stated in Section 390.” That section provides that an agent has a duty to deal fairly with the principal and to disclose to him all facts which the agent knows or should know would reasonably affect the principal’s judgment, unless the principal has manifested that he knows such facts or that he does not care to know them.
The appellate court then sent the case back for trial.
Thus, although we conclude that CA is a seller to consumers and an agent bound by statutory and common law duties, we are unable to determine from the limited record before us whether the release is valid. Whether CA fulfilled its duty to Molly under Section 390 must await further discovery or trial.
So Now What?
Duties owed to your customer, consumer or guests vary based on the occupation of the defendant. You need to make sure you understand those duties. More importantly, you need to make sure you understand your classification or job description.
Many outfitters and guides as well as college and university programs book for third parties. College’s book trips, outfitters and guides will book for their competitors when their trips are full. This changes their duties because their relationship with the client has changed.
This case also provides another way that releases can be void and reinforces a common way. Any time the court can find a failure to disclose a release will be void. Courts in the way past would use the argument that a release should be void because it encourages defendants to be careless leading to injuries.
Arizona courts have slowly chipped away at the defense of release for several decades. Unless the activity is protected by statute, the courts have found easy and unobtrusive ways to void releases. Not enough to ring alarm bells, but each time, enough to void the release.
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