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When snowmobiling is a service provided by a resort, does that make the property liable for accidents? Does it depend on the circumstances involved in the accident?
In this week’s article, we examine the case of Taylor v. The Point At Saranac Lake, Inc., 135 A.D. 3d 1147 (N.Y.A.D. 2016) in which a guest at the defendant, “an all-inclusive, luxury resort owned and operated by defendant The Point at Saranac Lake, Inc. and The Garrett Hotel Group, Inc., was killed during a snowmobile tour arranged by the resort personnel. “Prior to plaintiff and decedent’s arrival, the couple coordinated with the resort management staff to plan and schedule a snowmobile tour during their stay. To that end, the resort staff sought out the services of defendant Gary L. Bishop, who owed Adirondack Snowmobile Rental and employed defendant Robert G. Pinsdorf as a tour guide (hereinafter collectively referred to as ASR). Upon their arrival, plaintiff and decedent made final arrangements for the tour with defendant John H. Graham, the general manager of the resort, who provided the couple with one of the resort’s vehicles to drive to the off-property location where the tour was to begin. Once there, the couple received safety instructions and then set off behind Pinsdorf, with decedent operating a snowmobile and plaintiff riding as a passenger. During the tour, Pinsdorf crossed a public roadway that intersected the trail, but failed to wait for plaintiff and decedent to make a safe crossing. When the couple attempted to cross the road, their snowmobile was struck by an oncoming vehicle, killing decedent and causing plaintiff to sustain serious injuries”.
Terror Targets Update
In Bennhold & Castle, Deadly Attack Near U.K. Parliament; Car Plows Victims on Westminster Bridge, nytimes.com (3/22/2017) it was noted that “A knife-wielding assailant driving a sport utility vehicle mowed down panicked pedestrians and stabbed a police officer outside Parliament on Wednesday in a deadly assault, prompting the hasty evacuation of the prime minister and punctuating the threat of terrorism in Europe. At least four people, including the assailant were killed and at least 40 others injured in the confusing swirl of violence, which the police said they assumed had been ‘inspired by international terrorism’”.
In Bilefsky, Castle & Rao, ‘We Are Not Afraid’, Theresa May Proclaims After U.K. Parliament Attack, nytimes.com (3/23/2017) it was noted “The Islamic State claimed responsibility on Thursday for the deadly attack outside the British Parliament, as Prime Minister Theresa May described the assailant as a British-born man whom the country’s domestic intelligence agency had investigated for connections to violent extremism”.
In Bilefsky, de Freytas, Olivennes & Yeginsu, Toll of London Attack Is Global for an Assailant Born in Britain, nytimes.com (3/23/2017) it was noted that “The roster of the dead and wounded spanned the globe: a veteran Scotland Yard constable. A Mormon couple from Utah, South Korean tourists, French high schoolers and Romanian lovers. The killer turned out to be homegrown, a 52-year-old Briton, Khalid Masood”.
In Schmitt, Warnings of a ‘Powder Key’ in Libya as ISIS Regroups, nytimes.com (3/21/2017) it was noted that “After B-52 bombers struck an Islamic State training camp in Libya in January, killing more than 80 militants, American officials privately gloated. On the heels of losing its coastal stronghold in Surt the month before, the Islamic State seemed to be reeling.
But Western and African counterterrorism officials now say that…its leaders are already regrouping, exploiting the chaos and political vacuum gripping the country…’The instability in Libya and North Africa may be the most significant near-term threat to U.S. and allies’ interests on the continent’”.
In Three people wounded after gunman opens fire at metro station in Lille, France, etn.travel (3/24/2017) it was noted that “At least three people, including a minor, have reportedly been injured in the city of Lille after a gunman opened fire near the central Porte d’Arras metro station. A heavy police presence is reported at the scene…Police said they do not consider the case to be terror-related”.
Travel Ban Update
In Medina, Travel Ban Dampens Persian New Year Celebration, nytimes.com (3/19/2017) it was noted that “This was one of the busiest times of year, with Nowruz, the Persian New Year and celebration of the first day of spring, just days away. And as she had done for decades, Ms. Yousefi had already begun preparing the special dishes of herbed rice and lamb to serve her family. But this year something would be missing. Her mother and brother would not join the celebration. They are stuck in Iran, their visas…canceled two days after the Trump administration’s initial travel ban went into effect at the end of January”.
In Shear, Trump Administration Orders Tougher Screening of Visa Applicants, nytimes.com (3/23/2017) it was noted that “The Trump administration is making it tougher for millions of visitors to enter the United States by demanding new security checks before giving visas to tourists, business travelers and relatives of American residents…The new rules do not apply to citizens of 38 countries-including most of Europe and long standing allies like Australia, New Zealand, Japan and South Korea-who can be speedily admitted into the United States under the visa waiver program”.
And in Canadian school trips to the USA: No more, etn.travel (3/23/2017) it was noted that “As first reported by CNN, Canada’s largest school system announced it will no longer allow student of staff trips to the U.S., citing uncertainty over the travel ban.”.
Devices Banned On Flights
In Nixon, Goldman & Schmitt, Devices Banned on Flights From 10 Countries Over ISIS Fears, nytimes.com (3/21/2017) it was noted that “Intelligence showing that the Islamic State is developing a bomb hidden in portable electronics spurred the United States and Britain on Tuesday to bar passengers from airports in a total of 10 Muslim-majority countries from carrying laptop computers, iPads and other devices larger than a cellphone aboard direct inbound flights…Two… American officials said the explosives were designed to be hidden in laptop batteries”.
In Chen, What Travelers Should Know About New Restrictions on Devices, nytimes.com (3/21/2017) it was noted that: The new policy affects people flying to the United States from airports in Amman, Jordan; Cairo; Istanbul; Jidda and Riyadh in Saudi Arabia; Kuwait City; Casablanca, Morocco; Doha, Qatar; and Dubai and Abu Dhabi in the United Arab Emirates”.
Shamu & Tilikum Head To China
In de la Merced, SeaWorld Stake, Long Held by Blackstone, Is Sold to Chinese Firm, nytimes.com (3/24/2017) it was noted that “Over seven years, the Blackstone Group nearly tripled its investment in SeaWorld, the home of Shamu and other killer whales. But that home-run return came with a major headache: dealing with the repercussions of ‘Blackfish’, a searing documentary that castigated SeaWorld’s treatment of orca whales in captivity. Now Blackstone is finally free of that burden. On Friday, the company sold its stake in SeaWorld to Zhonghong Group, a Chinese investment firm, for about $449 million. The deal will pave the way for SeaWorld to open parks in China…‘Blackfish’ debuted at the 2013 Sundance Film Festival (and) offered an indictment of SeaWorld’s care of Tilikum, an orca that became one of the park’s biggest stars, but that also was involved in the deaths of three people, including the trainer. Outrage over the film metastasized quickly into calls to prohibit keeping killer whales in captivity. Firms like Southwest Airlines severed ties to SeaWorld. The controversy eventually depressed attendance at SeaWorld’s theme parks…Nevertheless, SeaWorld proved a winner for Blackstone financially. The firm’s final return amounted to about $1.7 billion or 2.7 times its original investment”.
Indoor Rock Climbing
In Kaufman, A Boom in Rock Climbing, Minus the Rocks, nytimes.com (3/15/2017) it was noted that “Once a niche sport, indoor rock climbing is becoming more and more mainstream, thanks in part to facilities like Brooklyn Boulders, which also has gyms in Brooklyn, Chicago and Somerville, Mass. Plans for other locations are on the drawing board…There were 414 commercial climbing gyms across the country at the end of 2016, up from 388 in 2015, according to data from the Climbing Business Journal, a website dedicated to the indoor climbing industry”.
Adventure In Medical Tourism
In Moon, A Family Adventure In Medical Tourism, nytimes.com (3/8/2017) it was noted that “It is hard to recommend taking a 19-hour flight with a toddler to get a root canal with a straight face. But after going on just such a mission in December, I will aim to get all future dental work done in Thailand…Even within my immediate circle of friends and family, a surprising number of people had traveled abroad to get fillings and crowns, whitening and implants. With good reason, it turns out. If the work needed is extensive, it is possible to save money even after accounting for the cost of travel”. nytimes.com
Hotel Management Agreements
In Bernstein & Spinella, Hotel Management Agreements And Enforcement of Forum Selection Clauses, New York Law Journal (3/13/2017) it was noted that “Data from STR’s October 2016 Pipeline Report indicates that are 190 hotels currently under development in the Caribbean/Mexico regions. The projects comprise more than 32,000 rooms, which represents a 14.3 percent increase over just the last year. The hotel management agreements that govern such projects…often contain forum selection clauses that select New York as the forum for litigation. This is so despite the fact that often neither the parties nor the hotel in question has any connection to the state…When disputes inevitably arise between the owner and the operator, the question becomes whether those forum selection clauses are enforceable and whether the doctrine of forum non conveniens applies. This article examined the issue”.
Self-Driving Car Market Heats Up
In Scott, Intel Buys Mobileye in $15.3 Billion Bid to Lead Self-Driving Car Market, nytimes.com (3/13/2017) it was noted that “In the world of driverless cars, household names like Google and Uber have raced ahead of rivals, building test vehicles and starting trials on city streets. But when it comes to what is under the hood, an array of lesser-known companies will most likely supply the technology required to bring driverless cars to the masses, and in a $15.3 billion deal announced on Monday, Intel moved to corner the market on how much of that technology is developed. The chip maker’s acquisition of Mobileye, an Israeli company that makes sensors and cameras for driverless vehicles, is one of the largest in the fast-growing sector and sets the stage for increasing competition between Silicon Valley giants as well as traditional automakers over who will dominate the world of autonomous cars”.
Traffic Dodging Apps
In Weise, Waze and other traffic dodging apps prompt cities to game the algorithms, usa.today.com (3/6/2017) it was noted that “Call it planners versus algorithms. Smartphone apps like Waze, a godsend for some road warriors because they shave minutes and even hours off their commutes with their creative detours off main highways, are causing headaches for city planners. Using crosswalks, wider sidewalks and traffic lights, these transportation engineers aim to make neighborhood traffic slow, safe and friendly for pedestrians-not send frustrated commuters barreling down side roads. But the GPS-enabled computer programs often don’t know that, or care. Their creators, such as Waze (owned by Google) are sympathetic, to a degree. They may give cities tips on how to effectively game the program so a neighborhood detour doesn’t seem that appealing. But at the end of the day, the purpose of the bots is to make use of available road space, main thoroughfare or country lane. The upshot is mounting frustration from cities, which are trying to thwart computer systems that are savvier than ever”.
Zika Active: But Pandemic Its Not
In Belluck & Franco, For Brazil’s Zika Families, a Life of Struggle And Scares, nytimes.com (3/11/2017) it was noted “In the impoverished northeast, devoted parents live around the needs of children whose grave disabilities are only beginning to be understood…Now more than a year old, Sophia is a child of the Zika epidemic, one of nearly 2,500 babies in Brazil born to infected mothers, with brain damage so profound the consequences of which are only beginning to be understood. Thirteen months after the World Health Organization declared Zika a global health emergency, some of the public alarm over the mosquito-borne virus that swept through Latin America is receding. (However) Thousands of new Zika infections continue to be reported throughout Latin America and W.H.O. officials said that their action simply signals that, like malaria or yellow fever, Zika is a continuing threat in the region rather an urgent pandemic”.
Of Tourists And Toilets
In MacFarquhar, A Russian Lake’s Future Hangs on Tourists and Toilets, nytimes.com (3/13.2017) it was noted that “Toilets are the talk of Lake Baikal these days, at least among the ecologically minded. For years, their main bogeyman was the Soviet-era Baykalsk Paper and Pulp Mill that sat of the shoreline belching pollutants into the spectacular lake, which contains about one-fifth of the unfrozen freshwater on the earth’s surface. Three years after the plant closed the fight to preserve the lake has shifted to different battle grounds. Some consider the next struggle even harder. It involves changing the daily habits of people who have lived in this distant corner of Siberia for generations, as well as controlling the waxing tide of mostly Chinese tourists for whom the lake has become a romantic destination”.
African Wildlife And Drones
In Nuwer, High Above, Drones Keep Watchful Eyes on Wildlife in Africa, nytimes.com (3/13/2017) it was noted that “Night has fallen at Liwonde National Park, but the trespassers are clearly visible. Three hundred feet in the air, a thermal camera attached to a BatHawk drone tracks their boat, a black sliver gliding up the luminous gray Shire River. ‘They’re breaking the law by coming into the park’ said (Ms. X) one the drone’s operators, pointing to her computer screen. More than two miles from the boat, she and her partner…are seated in a Land Cruiser that serves as their command center…’Let’s give them a scare’…With the tap of a few keys, he switches on the drone’s navigation lights and sends it beelining toward the boat. The reaction is instantaneous: The boat makes a U-turn, high-tailing it out of the park”.
African Art In New York City
In Cotter, African Art in a Game of Catch-Up, nytimes.com (3/13/2017) it was noted that “New York is catching up on Africa’s modern art history, though our big museums aren’t much in the picture. Two of that continent’s leading 20th-century painters are having first major solos here, not at the Museum of Modern Art or the Guggenheim, but at small downtown galleries. And a remarkable contemporary artist collective from the Democratic Republic of Congo is making its New York debut at an alternative space in Queens. The Senegalese artist Mor Faye (1947-1984) make a vivid impression two decades ago in a group show at the now-defunct Museum of African Art, then in Soho. His work…is being introduced by Skoto Gallery in one of the most stimulating painting shows in Chelsea this season”.
Travel Law Article: The Taylor Case
After the trial court partially denied their summary judgment motion the resort defendants raised the following arguments on appeal.
“Defendants first argue that (trial court) erred in denying their (summary judgment motion) as hoteliers are not absolute insurers of the safety of their guests and, generally owe no duty of care to guests who are injured while under the supervision of an unaffiliated entity away from the hotel property (citing Darby v. Campagnie Natl. Air France, 96 N.Y. 2d 343 (2000)). We note, however, that plaintiff does not base her claims upon a direct breach of a duty owed to her or to decedent by defendants or their employees.
“Rather she asserts that defendants are vicariously liable for ARS’s negligence because of the alleged existence of an ostensible agency relationship between them. Indeed, ‘[i]t is fundamental to the principal/agent relationship that [a principal] is liable to a third person for the wrongful or negligent acts…of its agent when made within the general or apparent scope of the agent’s authority’ (citing Rovinsky v. Hispanidad Holidays, 180 A.D. 2d 673 (1992))…To establish a negligence claim based upon apparent agency theory, a plaintiff must show evidence of ‘words or conduct of the principal… communicated to a third party, which give rise to a reasonable belief and appearance that the agent possess authority to [act on the principal’s behalf]”.
“Here, the evidence includes a screen shot of the resort’s website that can be read to suggest that snowmobiling is a service provided by defendant’s agents or employees, as it is listed among the winter activities available on the premises”.
Method Of Payment
“Further, Bishop (snowmobile tour owner) testified that Graham (resort manager) directed him to not discuss money with the guests and to bill the resort for the cost of the tour because ‘he wanted the customers to feel like this was something they were contracting with [the resort] directly to do’”
Dealing Only With The Resort
“[P]laintiff stated that she and decedent only dealt with the resort staff in organizing the tour and had never heard of ASR prior to the court’s commencement…we find that (trial court) properly denied the defendants’ motion seeking dismissal of plaintiff’s negligence claim based upon the doctrine of apparent authority. In our view, defendants’ promotional materials, together with the testimony regarding the overall experience that defendants and their staff strive to provide for guests of the resort, create a question of fact as to whether plaintiff could have reasonably believed that ASR possessed the authority to conduct the snowmobile tour as defendants’ agent (citing Fogel v. Hertz Intl., 141 A.D. 2d 375 (1988)).
Negligent Hiring Claim
“However, we must agree with defendants that (trial court) should have awarded them summary judgment dismissing plaintiff’s negligent hiring claim. ‘’To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employer’s propensity to the conduct which caused the injury’…Here, even if ASR could be considered to have been hired by defendants, there is evidence of only one other snowmobile accident involving ASR and it occurred 11 years prior to the accident at issue. Furthermore, that prior accident-which was nonfatal-occurred under unrelated circumstances and not under the supervision of Bishop or Pinsdorf. Accordingly, there is insufficient evidence in this record to raise a question of fact as to whether ASR had a propensity for conducting snowmobile tours in a negligent manner”.
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
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