ary judgment to a tour operator who did not own, operate, control, or manage another defendant allegedly responsible for misrepresentations to the plaintiff. Other courts have concluded that the tour operator was not liable for injuries caused by the negligence of third parties over which the tour operator exercised no ownership or control. See, e.g., Stafford, 841 F. Supp. at 287 (tour operator not liable for injuries caused by fall on gangplank which was not under the control of the operator); Loeb, 793 F. Supp. at 436 (tour operator not liable for fall which occurred on premises of lodge which was not owned, operated or controlled by operator); Fling, 765 F. Supp. at 1306 (tour operator which did not own, operate or manage hotel not liable for criminal assault which occurred near hotel); Pierre v. American-International Travel, Inc., 717 F. Supp. 435, 437 (M.D.La. 1989) (travel agent not liable for fall on stairs while boarding airplane where agent did not control terminal areas); Lavine v. General Mills, Inc., 519 F. Supp. 332, 335 (N.D.Ga. 1981) (tour operator not liable where it was not the owner of premises where the injury occurred); McDermott v. Travellers Air Servs., Inc., 462 F. Supp. 1335, 1340 (M.D.Pa. 1978) (tour operator not liable for acts of local tour guide who was not an employee of the operator or under its control). Plaintiff states at paragraphs 4 and 5 of her affidavit that the Apple representative employed "hard sale tactics" in regard to the optional tours in the area, "which were sponsored by Apple Tours[,]" and that the representative indicated that the vacation would not be fully enjoyable unless the members of the group purchased optional tours through Apple.
For example, Tour operators are not liable for the negligence of independent groundhandlers or tour guides. Some of the leading cases on the liability of tour operators arose from alleged negligence of independent companies supplying ground services to the tour such as side excursions or guide services. Courts routinely hold that a tour operator like GOGO Tours is not liable for the alleged negligence of a company like Tour Carriage. See, e.g., Manahan v. NWA, Inc., 821 F. Supp. 1105 (D.V.I. 1991), reconsideration denied, 821 F. Supp. 1110 (D.V.I. 1992), aff'd, (3d Cir. 1993) (court granted tour operator's motion for summary judgment, holding that it was not liable for the arguably negligent advice of tour groundhandler regarding safety of walking to restaurant); Lavine v. General Mills, Inc., 519 F. Supp. 332 (N.D.Ga. 1981) (tour operator not liable for injuries the plaintiff suffered when she fell on a rocky beach during an optional shore excursion from a ship). See also Connolly v. Samuelson, 671 F. Supp. 1312, 1317-18 (D.Kan. 1987) (while on an optional walking trip through the jungle during a tour, plaintiff slipped on rocks in a stream and was injured; defendant tour operator arranged the safari but did not own the lodges or local guide operations; relying both on common law principles and an exculpatory clause similar to the one at bar, court granted summary judgment to the tour operator, rejecting plaintiffs negligence and contract theories); McDermott v. Travellers Air Services, Inc., 462 F. Supp. 1335, 1341 (M.D.Pa. 1978) (tour operator not liable for acts of local tour guide who was neither its direct employee nor under its exclusive control).
Since neither party has come forward using the law of the Bahamas, the Court will apply Ohio's substantive law to this claim. See Lavine v. General Mills, Inc., 519 F. Supp. 332, 335 (N.D.Ga. 1981). Defendants also suggest that Florida law may be applicable because defendants are Florida domicilaries.
Wilverding v. Ostrowitz, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 334949 (February 28, 2000) ( 26 Conn.L.Rptr. 632, 633); Francisco v. Hartford Gynecological Center, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 513841 (March 1, 1994) ( 11 Conn.L.Rptr. 191, 192). In Lavine v. General Mills, Inc., 519 F. Sup. 332 (N.D.Ga. 1981), the United States District Court for the Northern District of Georgia granted the motion for summary judgment filed by the defendants, a travel agency and a tour package planner, after concluding that the plaintiff tourist had failed to set forth facts showing that the defendants could be liable for injuries she sustained while traveling abroad. The plaintiff in Lavine had purchased a tour package from the defendants that included an optional cruise to the Fiji Islands.
Society contends that, despite this evidence, it acted merely as an agent for the other service providers involved in the Chans' cruise. Citing Lavine v. General Mills, Inc., 519 F. Supp. 332 (N.D. Ga. 1981), and Weade v. Dichmann, Wright Pugh, Inc., 337 U.S. 801 (1949), Society argues that its participation in the cruise was minimal and did not rise to the level of a carrier. These cases are distinguishable, however.
This is a particularly illogical result where, as here, the agent has no ability to control the possessor, monitor the premises, or remediate conditions that are or could become hazardous. See Lavine v. General Mills, Inc., 519 F. Supp. 332, 335 (N.D. Ga. 1981) (in tort action against travel agent for injury suffered while on vacation, "[t]o the extent that plaintiff's . . . claims are based upon premises liability (i.e., failure to warn of a hazardous condition, failure to protect an invitee), they support no cause of action against these defendants, since neither of them was the owner or occupier of the island where plaintiff fell."). Other provisions of the Second Restatement of Torts bolster the Court's conclusion that before liability will attach to the agent qua agent of a possessor of land, the agent must have at least some physical connection to that land.
As Senior (then Chief) Judge Ronald R. Lagueux of this court noted in McAleer v. Smith, 860 F. Supp. 924 (D.R.I. 1994),aff'd in part 57 F.3d 109 (1St Cir. 1995) Courts have generally declined to impose liability on travel agents and tour operators for injuries sustained by clients aboard vessels, buses and other modes of transportation or at hotels or other destinations. The courts have usually found that there never existed a relationship which would have given rise to a duty on the part of the travel agent to investigate the safety of instrumentalities over which it had no control or knowledge. See, e.g., Ross v. Trans Nat'l Travel, 1990 WL 79229 (D.Mass. 1990); Lavine v. General Mills, Inc., 519 F. Supp. 332 (N.D.Ga. 1981); Connolly v. Samuelson, 671 F. Supp. 1312, 1317 (D.Kan. 1987). See also Wilson v. American Trans. Air, Inc., 874 F.2d 386, 390 (1989), aff'd in part and remanded on other grounds, 916 F.2d 1239 (7th Cir. 1990).
Although the cases discussed hereafter do not apply Florida law, each turned on the same element which dooms Bryant's claims herein: a travel agent has no duty to inspect, or otherwise make safe, a cruise ship which it does not own, control, or otherwise operate. In Lavine v. General Mills, Inc., 519 F. Supp. 332 (N.D.Ga. 1981), for example, plaintiff sought recovery for injuries suffered when she slipped and fell on rocks on a Fiji Island beach during a trip arranged and sold by the defendants, a tour package seller and tour package planner. The court rejected plaintiff's claims:
The courts have usually found that there never existed a relationship which would have given rise to a duty on the part of the travel agent to investigate the safety of instrumentalities over which it had no control or knowledge. See, e.g., Ross v. Trans Nat'l Travel, 1990 WL 79229 (D.Mass. 1990); Lavine v. General Mills, Inc., 519 F. Supp. 332 (N.D.Ga. 1981); Connolly v. Samuelson, 671 F. Supp. 1312, 1317 (D.Kan. 1987). See also Wilson v. American Trans. Air, Inc, 874 F.2d 386, 390 (1989), aff'd in part and remanded on other grounds, 916 F.2d 1239 (7th Cir. 1990).
Markland, supra. See also, Connolly v. Samuelson, 671 F. Supp. 1312, 1317 (D.Kan. 1987); Lavine v. General Mills, Inc., 519 F. Supp. 332, 335 (N.D.Ga. 1981). The plaintiffs next claim that Intrav, as their agent, had a duty to use reasonable care in selecting the vessel upon which to conduct the tour. It is undisputed that Intrav conducted an inspection of the M.S. Olympia and investigated the vessel's owner, Scylla, prior to the charter.