Attempted rape and assault of 12-year-old child guest at Covecastles: Is resort liable?

Attempted rape and assault of 12-year-old child guest at Covecastles: Is resort liable?

eTN Feature Story:

In this week’s article, we examine the case of JG v. Goldfinger, Index No. 151453/2016, J. Freed, Decision filed 2/7/2017 (N.Y. Sup.) in which a 12-year-old child of guests at the Covecastles Resort located at Shoal Bay Village on Anguilla was the subject of an “attempted rape and then stabbed… repeatedly with a broken bottle”. Taken to a local hospital she was “initially treated for multiple lacerations, a fractured skull and a punctured lung…She was thereafter airlifted back to the United States and the remainder of her treatment was rendered at New York (Columbia) Presbyterian Hospital”. The issue in the JG case is whether or not the defendants including the Covecastles Resort were liable for this “heinous assault”.

Terror Targets Update

Cairo, Egypt

In Walsh, Attacks Shows ISIS’ New Plan: Divide Egypt by Killing Christians, nytimes.com (4/10/2017) it was noted that “Grief and rage flowed through Egypt’s Christian community on Monday as tear-streaked mourners buried the victims of the coordinated Palm Sunday church bombings that killed 45 people in two cities…It was just the reaction the Islamic State wanted. Routed from its stronghold on the coast of Libya, besieged in Iraq and wilting under intense pressure in Syria, the militant extremist group needs to find a new battleground where it can start to proclaim victory again. The devastating suicide attacks on Sunday in the heart of the Middle East’s largest Christian community suggested it has found a solution: the cities of mainland Egypt”.

Tanta, Egypt

In Bomb Blast near police training center leaves 16 casualties in Egypt’s Nile Delta, travelwirenews.com (4/2/2017) it was noted that “A newly-emerged militant group in Egypt has detonated a motorcycle bomb in the country’s Nile Delta region, killing a policeman and wounding 15 other people. The bomb exploded near a police training center in the city of Tanta on Saturday”.

Stockholm, Sweden

In Anderson, Stockholm Suspect Was Denied Asylum and Told to Leave in ‘16, nytimes.com (4/9/2017) it was noted that “The Uzbek man arrested in the terrorism rampage in central Stockholm last week was an asylum seeker whose application was rejected and who in December was given fur weeks to leave the country…On Friday, the man was arrested on suspicion of driving a stolen beer truck that was used to mow down a crowd of people, killing four and injuring 15 others”.

Turmoil In Turkey

In Kingsley, Turkey in Turmoil and Chaos Since Purge Aimed at Dissenters, nytimes.com (4/12/2017) it was noted that “Mr. Erdogan’s government has sought to root out any remaining dissent by targeting nearly every segment of society. It has also used the purge as cover for a crackdown on dissidents of all stripes. The numbers are extraordinary. The government has fired or suspended about 130,000 people suspected of being dissidents from the public and private sectors. Most are accused of affiliations with the Gulen movement, the Islamic followers of Fethullah Gulen, the cleric accused of orchestrating the putsch. More than 8,000 army officers, 8,000 police officers, 5,000 academics and 4,000 judges and prosecutors have been forced out…The social cost has been significant. Watchdogs say that around 1,200 schools, 50 hospitals and 15 universities have been closed”.

EU Systematic Border Checks

In Sprecher, European Union: systematic border checks, tourmag.com (4/9/2017) it was noted that “As from 7 April 2017, as part of the reinforcement of external checks at the borders of the European Union, systematic identity checks will be carried out at the border between Slovenia and Croatia…pursuant to the reform of Article 8-2 of the Schengen Border Code. This reform requires all Member States to control all travelers (entry into force of Regulation 2017/458 of the European Parliament and the Council of the European Union adopted on 15 March 2017) at the entrance and exit of the external borders”.

Seine-Saint-Denis, France

In Officials: Paris suburb carnival explosion that injured 30 not a ‘terror attack’, etn.travel (4/1/2017) it was noted that “Some 30 people have been injured, four of them very seriously, after an explosion in a French carnival in the Paris suburb of Seine-Saint-Denis”.

Travel Ban Update

In Jordan, Visa Applications Pout In By The Truckload Before Door Slams Shut, nytimes.com (4/3/2017) it was noted that “The delivery trucks began arriving with their precious parcels before daybreak lining up outside a massive government edifice that rises above Orange County’s suburban sprawl. On Monday, the starting gun went off on application season for skilled-worker visas, as H-1B visas, which allow employers, primarily technology companies, to bring in foreign workers for three years at a time. For the last few years, the federal government has been so overwhelmed by applications that it has stopped accepting them within a week of opening day, hence the line of trucks trying to deliver applications before the doors close on the program for another year. Add to this, the rush has escalated to an all-out scramble because the future of the H-1B program is unclear”.

Train Crash In Moscow

More than 20 people wounded in Moscow two-train head-on collision, etn.travel (4/8/2017) it was noted that “More than 20 people have reportedly been injured and 16 hospitalized after a train going from Moscow to Brest collided with a commuter train…Four carriages were derailed, with one turning upside down and visibly wrecked”.

Massive Delays At Penn Station

In McGeehan, Snarled Commutes, Squabbling Agencies and Amtrak’s Penn Station Responsibilities, nytimes.com (4/9/2017) it was noted that “Commuters from the East End of Long Island to the western edge of New Jersey suffered a transportation meltdown and four days of upheaval last week-all because of the faulty maintenance of a federal railroad they may never ride. Amtrak accepted blame for the minor train derailment that forced cancellations and disrupted tens of thousands of commuters last week”.

Digital Nomads

In Mohn, The Digital Nomad Life: Combining Work and Travel, nytimes.com (4/3/2017) it was noted that “On a recent afternoon in Medellin, Columbia, a group of 22 out-of-towners gathered to brainstorm and then met up with locals. They weren’t on vacation. Nor had they met by coincidence. They were participants is a program run by Unsettled, a new start-up that organizes 30-day co-working experiences around the world for creative people, entrepreneurs and other professionals seeking to combine work, travel and redefining themselves. The company is one of dozens of new work-tourism programs that aim to help workers known as digital nomads navigate living and working in far-off places”.

Hide A Rhinoceros, Please

In Goldman, South African Court Ends Ban on Sale of Rhinoceros Horns, nytimes.com (4/5/2017) it was noted that “A court in South Africa effectively overturned a national ban on the trade of rhinoceros horns, a move that was celebrated by the country’s commercial rhino breeders but condemned by animal preservation groups. ‘This court has concluded that the application should be dismissed’, the Constitutional Court said in a one-paragraph order that ended the government’s attempts to uphold the moratorium…South Africa is home to about 20,000 rhinos, more than 80 percent of the world’s total population. About a third of those animals are believed to be owned by private breeders. Wild Rhinos are regularly killed for their horns, which are often used in traditional Asian medicines. The number of rhinos poached in South Africa increased 9,000 percent from 2007 to 2014, rising to a record of 1,215 animals from 13, according to the World Wildlife Fund. Activist groups warned that any legalized trade would open the door to increased poaching”.

The Sharing Economy

In Impact of sharing economy system on tourism unveiled, etn.travel (4/4/2017) it was noted that “One single digit suffices to understand the extent of the revolution led by the ‘sharing economy’ on the world of services: in 2015, the turnover between private housing, transport and private demand for professional services with ‘Burter’ mode totaled about 28 billion euro. However, according to a research by PhoCusWright, the real impact will be in 2025 when under the so-called sharing economy, transactions directly or indirectly related to tourism, transport and the world of travel, will have a value of 570 billion euro. From Airbnb to Blablacar, from Uber to Eatwith, the tidal wave of the sharing economy has actually befallen the hotel business world, transport and catering-basically, the core business of the world of travel…The sharing economy is a platform dedicated to ‘do it by yourself’ tourism services that today is spreading in more than 90 countries.”

Gig Economy’s False Promise

In Editorial Board, The Gig Economy’s False Promise, nytimes.com (4/10/2017) it was noted that “In reality, there is no utopia at companies like Uber, Lyft, Instacart and Handy, whose workers are often manipulated into working long hours for low wages while continually chasing the next ride or task. These companies have discovered they can harness advances in software and behavioral sciences to old-fashioned worker exploitation, according to a growing body of evidence, because employees lack the basic protections of American law. A recent story in The Times by Noam Scheiber vividly described how Uber and other companies use tactics developed by the video game industry to keep drivers on the road when they would prefer to call it a day, raising company revenue while lowering drivers’ per-hour earnings”.

New York State Ride-Hailing Budget

In Stashenko, Details Emerge on Ride-Hailing Expansion in New State Budget, newyorklawjournal.com (3/31/2017) it was noted that “According to sources who asked not to be identified, details of the ride-hailing legislation to be folded into the budget include: (1) Requiring insurance coverage for ride-hailing drivers on their way to pick up passengers until they complete their rides of up to $1.25 million, (2) Allowing the 57 counties outside New York City to opt out of ride-hailing if they do not want to participate, (3) Requiring ride-hailing service drivers to be covered by workers’ compensation for their work-related injuries…Thirty-seven other states currently allow ride-hailing. It has been permitted in the state’s most populous city, New York City, under a local law since 2014″.

In Stashenko, Albany Reaches Budget Agreement, newyorklawjournal.com (4/8/2017) it was noted that “Uber and Lyft spent heavily on lobbying and on advertising campaigns to rally support for statewide authorization…They argued that New York was the only place in the country except for Alaska where ride-sharing was not legal on a statewide basis”.

Airlines Selling Miles

In Airlines Make More Money Seeking Miles Than Seats, msn.com (4/3/2017) it was noted that “Does your wallet contain an airline-branded credit card? If so, your daily Starbucks visits, iTunes selections and dining habits serve a critical role in keeping the U.S. airline industry fat and happy. For carriers such as American Airlines rising Citigroup Inc. Plastic, or Delta on American Express Co., these programs are a cash cow, a golden goose, or any other fiscal livestock you care to conjure. Each mile fetches an airline anywhere from 1.5 cents to 2.5 cents, and the big banks amass those miles by the billions, dolling them out to cardholders each month…The airline-miles business, formally known as loyalty programs, has become a high-margin enterprise that’s grown in size and value amid airline consolidation, with carriers keen to expand credit-card rolls and see loyalty members spend more”.

Australia Bound Face Screening

In Australia bound passengers to face screening for explosives, travelwirenews.com (4/2/2017) it was noted that “Passengers heading to Australia from Dubai, Abu Dhabi and Doha will undergo extra security screenings for explosives, close on the heels of new security measures imposed in the UK and the US authorities last month…Last month, the US and British administrators imposed temporary bans on passengers bringing laptops, iPads, cameras and some other electronics on board”.

Travel Law Article: The JG Case

“This action arises from a heinous assault against the child, then 12 years old, during a family vacation at the Covecastles Resort (Covecastles), located at Shoal Bay Village, A12640, on Anguilla-a small, English-speaking island in the British West Indies and a British Overseas Territory. Covecastles is a luxury resort/enclose consisting of various one-five bedroom villas abutting the beach. There are also common spaces including a gym, tennis court, ‘pump house’, restaurant, front office, storage facility, read-ways, walkways and a parking area… Plaintiffs paid $15,000, in advance, via wire transfer to a New York bank account, for a stay from March 13, 2015 to March 28, 2015″.

The Assault

“On the morning of March 14, 2015, the child was walking alone on a beach near the resort when she encountered a person, referred to by the parties as ‘LW’ who was working for Covecastles as a gardener. LW attempted to forcible rape the child, then stabbed her repeatedly with a broken bottle. The child attempted to appear dead, and LW left her in that condition. After the child was finally found, she was rushed to Princess Alexandra Hospital, where she was initially treated for multiple lacerations, a fractured skull and a punctured lung, among other things. She was airlifted back to the United States”.

The Lawsuit

“Plaintiffs (JG and her parents) commenced this action in February 2016, naming the corporate entities that owned and, at least nominally, managed the resort, as well as the individual defendants, who are claimed to have managed the resort remotely from New York City (all of whom move to dismiss the complaint). The corporate defendants maintain that plaintiffs have no cause of action against them (because) the attack conclusively took place off-premises and they neither knew nor had reason to know that LW had violent or sexually deviant propensities. They also claim that New York is an inconvenient forum for this action…Plaintiffs asset, in response, that there should be an opportunity for discovery to establish, among other things, that LW had a criminal record that should have been uncovered had a reasonably prudent search been performed. They also claim that there was insufficient security at Covecastles. In addition, plaintiffs assert that the location of the attack is not clear and, in any event, the exact location of the attack is not conclusive as a legal matter on the issue of duty to maintain adequate security”.

Liability For Acts Of Employee

“Where, as is unquestionably the case here, the acts of an employee constitute an intentional tort committed solely for personal reasons and not in furtherance of the employer’s business interests, those acts are not attributable to the employer based on vicarious liability principals”.

Negligent Hiring

“To that end, an employer may be liable for the intentional torts of its employees based on the theories of negligent hiring or supervision…a plaintiff must allege that the employer ‘knew or should have known that the employee had violent propensities, or a propensity for the conduct which resulted in the plaintiffs’ alleged injury’…Here, plaintiff allege that LW ‘had a criminal record and had not been vetted or screened in any manner by [defendants] or their agents’”.

LW “A Very Good Worker”

Covecastles’s Acting Manager, Ms. Broomes, asserted that her responsibilities included ‘[i]nterviewing, vetting, hiring, dismissing and overseeing all [r]sort staff’…she hired LW initially as a temporary worker to clean up after hurricane damage. In October 2015, because had been a very good worker… Broomes ‘asked [him] to apply’ for an opening as a part-time groundskeeper…She states that nothing in his answers to the questions on the application raised any red flags but, this Court notes that the application did not ask whether LW had ever been convicted of a crime…Broomes states that she contacted LW’s (former) employer (which) provided an excellent reference…she neither personally observed nor obtained information…that there was anything inappropriate about LW’s behavior”.

No Background Checks In Anquilla

“Broomes concedes that she did not perform a background check for LW, but contends that ‘[c]ompanies in Anquilla are not required to do background checks on employment applicants’. She states that (after the incident) she was provided with a copy of his police report, however, and that it came back ‘negative for [c]riminal [r]ecords in Anquilla’”.

Assault Not On Hotel Property

“Joseph Reid who has worked at Covecastles since 2012 as a member of the maintenance crew (stated) that he found (the child) more than 500 feet away from the resort, next to a ‘Y’ shaped dirt path in the middle of an area called Sherricks Bay West End …maps support Reid’s contention that the child was found more than 500 feet away from the Covecastles property…Eustella Fontaine, a solicitor and barrister=at=law licensed to practice law in Anquilla (asserts) that no part of the resort is located on what is known as Sherricks Bay West End (and further explained) that the corporate defendant are not legally able to have any rights or control over the beaches. ‘Because the Anquilla Beach Control Act…’all rights in and over’ Anquilla’s beaches are ‘vested in the Crown’ and access must always be open to the public’.

Conclusion

“The corporate defendants’ papers conclusively establish beyond a substantial question both that the events complained of did not take place on the resort premises and that they were not in possession of any information that would have caused a reasonably prudent person to further investigate LW as prospective employee.”

No Innkeeper’s Duty

“The only other theory available to plaintiffs…is beach of duty of an innkeeper. ‘[A]n innkeeper has a duty to provide reasonable security to protect its guests against criminal acts where such acts are reasonably foreseeable’ (citing Rednour v. Hilton Hotels Corp., 283 AD2d 221 (1st Dept. 2001). However, this duty does not extend to a situation where a hotel ‘ha[s] no reason to anticipate…an attack [on its premises], [and] the only security measure that arguably could have prevented the attack would have been the fortuitous presence of a security guard stationed at the exact location of the attack’. An innkeeper also has ‘no duty to warn guests as to the [naturally-occurring] danger[s] of using the off-premises [public] beach’, where the government has taken it upon itself to monitor the condition of the beach and issue its own warning (citing Darby v. Compagnie Natl. Air France, 96 NY2d 343 (2001); see Oxman v. Mountain Laske Camp Resort, Inc., 105 AD3d 653 (1st Dept. 2015)”. Complaint dismissed.

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 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. 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.

Read many of Justice Dickerson’s articles here.

%d bloggers like this: