Smith Duggan Prevails in Federal Court for Travel Agency and Tour Operator
Smith Duggan Buell & Rufo partners Rodney E. Gould and Robert C. Mueller recently secured the dismissal of a federal lawsuit against their clients, the travel agent that scheduled a European vacation and the tour operator that organized the excursion.
At the end of her trip to Italy, the plaintiff was riding to the airport in a shuttle bus provided by the tour operator. She claimed that the bus driver was driving at a high rate of speed and suddenly slammed on the brakes, causing a piece of luggage to fall from the overhead storage compartment and strike her on the head.
She later filed suit in the U.S. District Court for the District of Massachusetts, alleging against each defendant claims for negligence, vicarious liability, negligent infliction of emotional distress, and breach of contract. The case was heard before U.S. District Judge George A. O’Toole, Jr.
Generally travel agents and tour operators are not liable for the negligent actions of third parties and cannot be held responsible for the negligent acts of third parties that occur on premises not under the control or ownership of the tour operator. The court noted that the complaint was devoid of any non-conclusory factual allegation that the bus was either controlled or operated by either of the defendants or that the bus driver was an employee, agent, or apparent agent of the defendants. A complaint must allege facts that "raise a right to relief above the speculative level,” the court said concerning this particular claim.
The court stated that travel agents and tour operators might be liable for negligence based on a theory of negligent selection - because at a minimum a defendant must exercise due care when choosing a third-party service supplier. Here, the court found that the complaint lacked any factual allegation that either defendant was aware of any prior safety issues with the shuttle bus company that should have alerted them to the possibility of careless operation.
Finally, the complaint alleged that each defendant's acts and omissions “amounted to a breach of the contract” entered into by the plaintiff. However, no terms were offered and the court found that count unconvincing as well.
The dismissal of this action saved the travel agency, tour operator and their insurance carriers the time, energy and resources necessary to conduct pre-trial motions, discovery, and possibly a trial in the federal court with fact witnesses from outside the United States.
Rodney Gould has handled numerous litigations in federal and state courts throughout the country. He is an international authority on travel and tour operator law and co-authored the leading text on the subject, “Litigating International Torts in U.S. Courts.” Robert Mueller has an extensive civil and commercial litigation practice with a concentration in travel and recreation law.