Opinion
Civil Action No. 98-2745 (NHP).
December 17, 1999
Frank J. Zazzaro, Esq., IMPERIAL, ZAZZARO CALABRO, P.A., Montclair, N.J., Attorneys for Plaintiffs.
John M. Falzone, Jr., Esq., Colonia, N.J., Attorney for Defendant, Vista Travel, Inc.
Joseph A. Ricchezza, Esq., RAWLE HENDERSON, Marlton, N.J., Attorneys for Defendant, American Aruba Beach Resort and Casino.
Frank J. De Angelis, Esq., MOUND, COTTON WOLLAN, Newark, N.J., Attorneys for Defendants, Travel Impressions, Ltd. Group and Americana Aruba Beach Resort and Casino.
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on the motion by defendant Vista Travel, Inc. for summary judgment. This Court heard oral argument on December 13, 1999. For the reasons stated herein, the motion by defendant Vista Travel, Inc. for summary judgment is GRANTED and plaintiffs' Complaint is DISMISSED WITH PREJUDICE AS TO DEFENDANT VISTA TRAVEL, INC.
STATEMENT OF FACTS PROCEDURAL HISTORY
Plaintiffs Sharon and Anthony Plinio (hereinafter "plaintiffs") filed the within action against defendants Americana Aruba Beach Resort and Casino, Vista Travel, Inc., and Travel Impressions Ltd. Group.Defendant Vista Travel, Inc. (hereinafter "Vista"), in its capacity as a travel agency, arranged a vacation package through Travel Impressions Ltd. Group, a tour operator, for plaintiffs to travel to Aruba. This package included round trip airfare, ground transfers between the airport and hotel, and accommodations at the Americana Aruba Beach Resort Casino (hereinafter "Americana Aruba"). Essentially, plaintiffs contend that Vista breached its duty of care by "failing to ensure that the premises [of the Americana Aruba] were safe and not hazardous." See Amended Complaint, Count Two, ¶ 5. Specifically, plaintiff Sharon Plinio alleges that she was injured as a result of a slip and fall while using the bathtub in her hotel room during the course of her and her husband's stay at the Americana Aruba. Plaintiffs assert that a reasonable investigation by Vista would have revealed that the bathtub at the Americana Aruba did not contain slip resistant materials or handles and, presumably, would have prevented Mrs. Plinio's fall.
It is undisputed that Vista did not own, operate, manage, control, or maintain any of the services provided in connection with the subject tour. It is further undisputed that Vista has not received one complaint from any individual prior to or since plaintiffs' Complaint regarding the accommodations provided at Americana Aruba.
On November 10, 1999, Vista filed the subject motion for summary judgment.
DISCUSSION
The standard governing a summary judgment motion is set forth in Fed.R.Civ.P. 56(c), which provides, in pertinent part, that:
[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Procedurally, the movant has the initial burden of identifying evidence that it believes shows an absence of genuine issues of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When the movant will bear the burden of proof at trial, the movant's burden can be discharged by showing that there is an absence of evidence to support the non-movant's case. Id. at 325. If the movant establishes the absence of a genuine issue of material fact, the burden shifts to the non-movant to do more than "simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In this matter, there are no genuine issues of material fact and therefore, summary judgment is appropriate.
In diversity cases, a federal court must apply the substantive law of the forum state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938);Howell v. Celotex Corp, 904 F.2d 3, 4 (3d Cir. 1990). Pursuant to New Jersey law, the question of whether a duty is owed by defendant to plaintiff is one of law and is to be determined by the court. See Port Authority of New York and New Jersey v. Arcadian Corporation, 991 F. Supp. 390, 399 (D.N.J. 1997), aff'd, 189 F.3d 305 (3d Cir. 1999);Rustay v. Consolidated Rail Corporation, 775 F. Supp. 161, 163 (D.N.J. 1991).
A negligence claim must fail if plaintiff's claim is based upon circumstances for which the law imposes no duty of care on the defendant. See Bradshaw v. Rawlings, 612 F.2d 135, 138 (3d Cir. 1979),cert. denied, 446 U.S. 909 (1980). See also Abraham v. Raso, 997 F. Supp. 611, 613 (D.N.J. 1998), aff'd, 183 F.3d 279 (3d Cir. 1999). "`Duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection." Bradshaw, 612 F.2d at 138 (citing W. Prosser, Law of Torts 333 (3d ed. 1964)). See also Hahn v. Atlantic Richfield Co., 625 F.2d 1095, 1103-04 (3d Cir. 1980), cert.denied, 450 U.S. 981 (1981). Furthermore, a duty indicates conformance "to the legal standard of reasonable conduct in the light of the apparent risk." Id. (citing McKinley v.Slenderella Sys. of Camden N.J., Inc. 63 N.J. Super. 571, 581 (N.J.App. Div. 1960)).
In this matter, plaintiffs allege that Sharon Plinio was injured as a result of a slip and fall while using the bathtub in her hotel room during the course of her stay at Americana Aruba and that Vista, as the travel agent, had a duty to investigate the hotel to insure that such an event would not occur.
This Court finds that although Vista may have had a duty to inquire into whether a particular establishment which it recommends to tour participants is reliable, see Rodriguez v. Cardona Travel Bureau, 216 N.J. Super. 226, 231 (N.J.Super.Ct. Law Div. 1986); Josephs v. Fuller, 186 N.J. Super. 47, 50 (D.C.N.J. 1982), Vista did not have a duty to physically investigate the bathtub to determine if the bathtub contained slip resistant materials. The duty placed upon travel agencies is not as specific as plaintiffs seek to make it.
Liberally construing plaintiffs' allegation against Vista as one of "negligent selection," plaintiffs would have to allege that Vista specifically received complaints from other tour participants about the accommodations at the hotel, failed to make specific inquiries into the complaints and, despite such complaints, continued to recommend the hotel to future tour participants. See Wilson v. American Trans Air, Inc., 874 F.2d 386, 390 (7th Cir. 1989); Sova v. Apple Vacations, 984 F. Supp. 1136, 1142 (S.D. Oh. 1997); Ramage v. Forbes International Inc., 987 F. Supp. 810, 818 (C.D. Calif. 1997); Stafford v. Intrav, Inc., 841 F. Supp. 284, 288 (E.D. Miss. 1993), aff'd, 16 F.3d 1228 (1994); Manahan v. Yacht Haven Hotel, 821 F. Supp. 1110, 1114 (D.V.I. 1992), aff'd, 995 F.2d 218 (3d Cir. 1993). The record in this matter, however, reveals that Vista has not received one complaint about the accommodations at Americana Aruba from any client prior to or since plaintiffs utilized Vista's services. As this Court noted in its earlier opinion in this case, as far as Vista was informed, the Americana Aruba lived up to its good reputation of providing quality accommodations. Under such circumstances, Vista had no duty to make specific inquiries into the safety of the bathtub basin and was not acting negligently in selecting the Americana Aruba.
Furthermore, to the extent that plaintiffs' claim can be construed to allege a theory of premises liability, namely, failure to warn of a hazardous condition, plaintiffs do not state a cause of action against Vista since it is undisputed that Vista does not own, operate, manage, control, or maintain any of the services provided in connection with the subject tour. See Honeycut v. Tour Carriage, Inc., 997 F. Supp. 694, 699 (W.D.N.C. 1996); Loeb v. United States of America, Dept. of Interior, 793 F. Supp. 431, 437 (E.D.N.Y. 1992); Stafford v. Intrav, Inc., 841 F. Supp. 284, 287 (E.D. Miss. 1993), aff'd, 16 F.3d 1228 (1994). Additionally, plaintiffs have failed to allege that Vista was indeed aware of a dangerous condition at the Americana Aruba which was not readily discoverable by plaintiffs, as aforementioned. See Passero v. DHC Hotels and Resorts, Inc., 981 F. Supp. 742, 744 (D.Conn. 1996).
CONCLUSION
For the foregoing reasons, the motion by defendant Vista Travel, Inc. for summary judgment is GRANTED and plaintiffs' Complaint is DISMISSED WITH PREJUDICE AS TO DEFENDANT VISTA TRAVEL, INC.
An appropriate Order accompanies this Letter Opinion.