Opinion
No. ED 79341.
March 5, 2002.
Appeal from the Circuit Court of the City of St. Louis, Honorable Michael Calvin.
Robert H. Pedroli, Eric A. Ruttencutter, Pedroli Gauthier, 7777 Bonhomme Avenue, Suite 2250, St. Louis, MO, 63105, for Plaintiff-Appellant.
Cheryl A. Callis, 1015 Locust Street, Suite 500, St. Louis, MO, 63101, for Defendant-Respondent.
In this action for the wrongful death of Carlos Houseworth ("Carlos"), plaintiff Carmela Lewis ("Plaintiff") appeals from an order granting summary judgment in favor of defendant Greg Eisin ("Defendant"), d/b/a "Groups Exclusively."
The standard of review on appeal regarding summary judgment is essentially de novo. ITT Commercial Fin. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). Summary judgments are "extreme and drastic remed(ies)" and "great care" must be used when considering them. Id. at 377. Skepticism towards the use of summary judgments has always existed due to the concern that because one party will be denied his or her day in court, this "borders on denial of due process." Id. Accordingly, we review the judgment in the light most favorable to the party against whom it was entered and will give that party the benefit of all reasonable inferences from the record. Id. at 376. We will allow a summary judgment to stand only if there are no factual issues which require a trial, thereby providing movant a right to summary judgment as a matter of law. Id. Summary judgment is not as feasible in negligence cases as it may be in other types of cases.Hammonds v. Jewish Hosp. of St. Louis, 899 S.W.2d 527, 529 (Mo.App.E.D. 1995).
Factual and Procedural Background
Viewing the record in the light most favorable to the non-moving party, the facts are as follows. In February 1996, the Schneider School (the "School") in Chicago contracted with Defendant to plan an eighth grade graduation trip to St. Louis. Pursuant to his contract with the School, Defendant set the itinerary, arranged for transportation and booked the tour group into the Henry VIII hotel in St. Louis. In addition to planning the details of the trip, Defendant also agreed to serve as a tour guide and escort for the students while they visited St. Louis. The literature Defendant provided to the School stated that tour escorts are chosen to make the tour as "relaxing and carefree" as possible and "because of the travel experience and background knowledge of the areas covered in your tour." In his deposition, Defendant testified that he was familiar with the destinations where he took tour groups and that he made sure that such destinations were safe for the type of group he was guiding.
The tour group consisted of over thirty eighth graders and was chaperoned by several parents and teachers. Carlos was among the students on the tour. The tour was scheduled for May 29-30, 1996. On May 29, the group, including Defendant, departed from Chicago for St. Louis on a chartered bus and visited the Six Flags amusement park near St. Louis. Afterwards, the group went to the Henry VIII hotel to spend the evening. Soon after arriving at the hotel, Defendant left the tour group at the hotel and went out for the evening. Meanwhile, Carlos and the other students went to the hotel's indoor swimming pool. The pool was nine feet deep at its deepest point. There was no rope or other divider differentiating the deep end of the pool from the shallow end. There was no lifeguard on duty. Defendant did not inform Plaintiff, the School, or Carlos and the other members of the tour group that several days earlier, another eighth grade student on a tour led by Defendant had drowned and nearly died in the same pool. At some point, a member of the tour group noticed that Carlos was lying on the bottom of the deep end of the pool. Carlos was pulled from the pool and treated by paramedics. Carlos was taken to a local hospital where he later died.
Plaintiff filed the wrongful death action, including two counts against Defendant. Her first count against Defendant was for wrongful death and the second count sought punitive damages for wrongful death with aggravating circumstances. Defendant then moved for summary judgment. In his summary judgment motion, Defendant alleged, inter alia, that children are, as a matter of law, deemed to appreciate the dangers of swimming. Defendant thus argued that he had no duty to warn Carlos of the dangers associated with the pool. Defendant further alleged that he warned the students and teachers that the students should not enter the pool without supervision, thus discharging any duty he had to Carlos. In response, Plaintiff objected to Defendant's legal conclusions and maintained that there was a genuine issue of fact with respect to the sufficiency of Defendant's warning. The trial court found that Defendant was aware that a child had nearly drowned in the pool only a week earlier, and that his only duty, if any, was to warn the students about getting into the pool without supervision. The court found no genuine factual dispute as to the sufficiency of Defendant's warning to the students and therefore granted summary judgment in his favor. This appeal followed.
Discussion
Plaintiff raises three points on appeal. First, she contends that Defendant was under a duty to supervise and protect Carlos by virtue of his contractual obligations as a tour guide and because of the nature of the relationship between a tour guide and tourist. Second, she argues that Defendant breached his duty to properly disclose reasonably obtainable information regarding the dangers presented by the pool. Finally, Plaintiff argues that there is a genuine issue of material fact as to whether Defendant's conduct was outrageous and showed a complete indifference to Carlos' safety and that the trial court therefore erred in granting summary judgment on her claim for punitive damages.
We reverse the grant of summary judgment because there is a genuine issue of material fact regarding the sufficiency of the warning given by Defendant with respect to the dangers presented by the pool. Accordingly, we limit our discussion to the scope of Defendant's duty of disclosure and the factual dispute relating to whether Defendant adequately fulfilled that duty.
I. The Duty of Disclosure
The majority of cases hold that a travel agent who arranges vacation plans and therefore acts as more than a "ticket agent" is a special agent of the traveler for purposes of that transaction between the parties.Markland v. Travel Travel Southfield, Inc., 810 S.W.2d 81, 83 (Mo.App.E.D. 1991). Like every agent, the travel agent owes duties of service and due care to the principal. Id. at 84, quoting United Airlines, Inc. v. Lerner, 410 N.E.2d 225, 228 (Ill.App. 1980). Missouri law thus provides that a travel agent who arranges travel accommodations is under a duty to disclose reasonably obtainable information that is material to the object of the agency unless that information is so clearly obvious and apparent to the traveler that the travel agent would not be negligent in failing to disclose it. Markland v. Travel Travel Southfield, Inc., 810 S.W.2d 81, 83 (Mo.App.E.D. 1991); Stafford v. Intrav., Inc., 841 F. Supp. 284, 287 (E.D.Mo. 1993); see also McCollum v. Friendly Hills Travel Center, 172 Cal.App.3d 83, 94 (1985).
Although Markland dealt with the duty of a "travel agent" as opposed to a "tour guide," the case for imposing a duty of disclosure on a tour guide such as Defendant is even more compelling. Unlike the travel agent in Markland, Defendant was not merely arranging for travel accommodations and otherwise dealing with prospective travelers at arms-length. Instead, Defendant assumed the role of a tour guide and escort with special knowledge of the destinations Carlos and the other students would be visiting. Defendant testified that he was familiar with the destinations to which he took tour groups and that he made sure that such destinations were safe for the type of group he was guiding. Defendant also provided literature to the School stating that he had special experience with and knowledge of the areas covered in the tour. Accordingly, the "object" of the agency relationship assumed by Defendant included the utilization of his special knowledge to make sure that the trip destinations were as safe as reasonably possible. Under the principles announced in Markland, Defendant was therefore under a duty to disclose information relevant to Carlos' safety and of which he was aware by virtue of his special knowledge of the destinations included on the tour.
The scope of a travel agent's duty of disclosure also depends upon the parties' relative access to material information. Absent reasonable access to material information, the tourist is deprived of the opportunity to take appropriate safeguards against potential hazards. TheMarkland court employed this rationale in determining that the travel agency did not breach its duty of disclosure by declining to share information regarding the financial difficulties of the travel services with whom the plaintiffs' trip was arranged. Because the travel agent had no "inside information" regarding these financial difficulties that was not also available to the plaintiffs, the court found that the travel agent did not breach its duty of disclosure. Markland Id. at 84. Consequently, when there is a disparity in access to material information, it is even more incumbent upon the travel professional to disclose that information to the customer.
The scope of Defendant's duty of disclosure is further defined through an assessment of the foreseeability of harm to Carlos or another member of the tour group. Where, as in this case, the existence of a duty of disclosure is premised upon a relationship between the parties, the foreseeability of harm is relevant in determining the scope of the duty.Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc., 700 S.W.2d 426, 433 (Mo.banc 1985). A risk is foreseeable if there is some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it. Lopez v. Three Rivers Elec. Co-op., 26 S.W.3d 151, 156 (Mo.banc 2000). For instance, in a similar tour guide liability case, the California Court of Appeals noted that where a travel agent or tour guide has knowledge that tourists have previously been injured at a destination or during an activity covered in a tour, the agent or guide would likely be under a duty to disclose that information because similar injuries to subsequent tourists would be foreseeable. McCollum v. Friendly Hills Travel Center, 172 Cal.App.3d 83, 95 (1985).
The reasoning of McCollum, on which the Markland court relied, is instructive. In McCollum, the tourist arranged a Jamaican "water skiing and water sports" vacation through Friendly Hills Travel Center ("Friendly Hills"). Id. at 88. Prior to his departure, McCollum was informed by Friendly Hills that his hotel would provide skiing equipment. Upon arriving at the hotel, McCollum found that only one pair of skis was available and that they were "old and in bad repair." Id. McCollum used the skis three times, inspecting them before each use. Nonetheless, he was seriously injured the third time he used the skis. McCollum brought a negligence claim against Friendly Hills, arguing that Friendly Hills breached a duty by informing him that the hotel into which they booked him would provide water skis, thereby making it unnecessary to bring his own skis and that this constituted a breach of duty because he was subsequently injured by the substandard skiing equipment and conditions at the hotel. Id. at 89. In affirming the trial court's grant of summary judgment in favor of Friendly Hills, the California Court of Appeals held that "a travel agent has a duty to disclose reasonably obtainable material information to the traveler unless that information is so clearly obvious and apparent to the traveler that, as a matter of law, the travel agent would not be negligent in failing to disclose it."Id. at 94. The court then explained its holding further:
"Had the travel agent had a traveler report to it a similar experience with this hotel in the past, the case might have been otherwise. For, in that instance, it could very well have been foreseeable that [McCollum] might be injured while water skiing at the hotel. There is nothing in the pleadings or in the evidence, however, to suggest that this occurred."
Here, Defendant knew that just days earlier, another student on a graduation trip that he had led nearly drowned in the swimming pool at the Henry VIII. Given the near drowning just days earlier, Defendant was aware or should have been aware, in the exercise of reasonable diligence, that the pool presented a risk that warranted full disclosure of the his special knowledge of the hazards posed by the pool. Furthermore, Defendant knew that another eighth grade student that he had taken to the Henry VIII nearly drowned in the pool only days before Carlos' death. Carlos' drowning was thus reasonably foreseeable. Moreover, the information regarding the hazardous conditions posed by the pool and prior drowning were not "obvious and apparent" to the tour group until they arrived at the pool and the group was thus deprived of the opportunity to make alternate arrangements or take additional precautions. Defendant was therefore under a duty to disclose this and other information of which he was aware regarding the dangers associated with the pool.
Defendant argues that this duty of disclosure does not apply because the dangers posed by the pool were open and obvious under the holding ofFinn v. Newsam, 709 S.W.2d 889 (Mo.App.W.D. 1986). This case is distinguishable. In Newsam, the court granted summary judgment in favor of a landowner who owned an ice-covered pond in which a seven year old trespasser drowned. The court held that a child "old enough to roam the fields" was deemed old enough to appreciate the dangers presented by the pond. Id. at 892. Newsam is distinguishable from this case in part because there could be no reasonable assumption that the pond would be kept in a safe condition for trespassing children. The unstated premise underlying the Newsam case and similar decisions is, in part, a public policy decision that it is generally unfair to impose liability on a landowner for injuries sustained by trespassers. Conversely, a hotel swimming pool is maintained with the express purpose of attracting business invitees and is assumed to be safe. Therefore, the line of landowner-trespasser cases relied upon by Eisin are inapplicable under the facts of this case.
Similarly, the Markland court's statement that information which is "clearly obvious and apparent" to the traveler need not be disclosed is also inapposite in this case. In Markland, the travel agent derived its information about the travel services' financial difficulties from the same sources as did the plaintiffs. The travel agent therefore had no "inside information" about the financial difficulties and the risk posed to the plaintiffs' vacation plans. The court thus determined that the risk was obvious and apparent to the plaintiffs because the information was equally accessible by both parties. Consequently, the travel agent was under no duty to disclose the information to the plaintiffs. Id. at 84.
In contrast, the dangers presented by the pool were not clearly obvious and apparent to Carlos and the other members of the tour group. Unlike the travel agent in Markland, Defendant had inside information that only eight days before Carlos' death, another boy on one of Defendant's tours nearly drowned at the same pool. This information was material to Defendant's agency relationship with Carlos. Once Defendant was made aware of this information, he was under a duty to disclose it. He did not do so. By failing to disclose this information, Defendant deprived Plaintiff, the School and the members of the tour group of the opportunity to take additional precautions to avoid a similar tragedy. Defendant therefore breached his duty by failing to disclose this information prior to taking the tour group to the Henry VIII hotel. Likewise, information regarding the depth of the pool, the absence of lifeguards and the lack of a divider between the deep and shallow ends of the pool bore directly on Carlos' safety and was therefore also material to the object of the agency relationship. Defendant, as the tour guide and escort with specialized knowledge of the tour destinations, had access to this material information while the members of the tour group did not. Therefore, under the general principles announced in Markland, Defendant was under a duty to disclose this information and warn the students of the dangers associated with the pool.
II. The Sufficiency of the Defendant's Disclosure
Given that Defendant was under a duty to disclose, we must now assess whether there is a genuine issue of fact with respect to the sufficiency of Defendant's disclosure. First, Defendant knew that a near drowning occurred at the Henry VIII pool only eight days prior to Carlos drowning in the same pool. He was under a duty to disclose this information and there is a genuine issue of fact with respect to whether he fulfilled this duty. Second, while Defendant maintains that he told "everyone" that if they were going to use the pool, a chaperone or teacher had to be present, nearly all of the students on the trip had no recollection of Defendant ever giving any warnings or instructions regarding use of the pool. Finally, giving Plaintiff the benefit of reasonable inferences from the record, the testimony of the two teachers regarding the information they received from Defendant with respect to the pool was indefinite. They testified that Defendant may have mentioned that there was no lifeguard and that they did not recall specific discussions with Defendant regarding the pool. Thus, there is conflicting evidence that could lead reasonable minds to disagree as to the sufficiency of the warning given by Defendant. These issues are questions of fact for the jury, not a question of law for this court. See G.E.T. ex rel. T.T. v. Barron, 4 S.W.3d 622, 625 (Mo.App.E.D. 1999).
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Paul J. Simon, concurring.
Clifford H. Ahrens, J. dissenting.
I respectfully dissent. This is a tragic case. But it is this court's responsibility to determine whether the travel agent breached a legal duty owed to plaintiff's decedent. Under Missouri law, "a travel agent has a duty to disclose reasonably obtainable relevant information to the traveler unless that information is so clearly obvious and apparent to the traveler that, as a matter of law, the travel agent would not be negligent in failing to disclose it." Markland v. Travel Travel Southfield, Inc., 810 S.W.2d 81, 84 (Mo.App. 1991) (emphasis added). A travel agent's duty is not breached by failing to disclose information that is obvious and apparent to the traveler. Stafford v. Intrav, Inc., 841 F. Supp. 284, 287 (E.D. Mo 1993) (citing Markland, 810 S.W.2d at 83). The law in Missouri, then, is consistent with the general principle that "[c]ourts have generally declined to impose liability on travel agents and tour operators for injury sustained by clients . . . at hotels or other destinations." McAleer v. Smith, 860 F. Supp. 924, 931 (D.R.I. 1994).
The majority opinion, citing Markland, holds that Eisin had a duty to disclose reasonably obtainable information. But the majority overlooks the specific language in Markland stating that the rule does not apply to situations where the information is "obvious and apparent" to the traveler. Markland, 810 S.W.2d at 84. The majority states that Eisin had access to information regarding the depth of the pool, the absence of lifeguards, and the lack of a divider between the deep and shallow ends of the pool. But the majority acknowledges that the condition of the pool was "obvious and apparent" to the tour group at the time they arrived at the pool. While purporting to follow the Markland rule, the majority implicitly overrules the "obvious and apparent" exception to the general rule spelled out in Markland.
The tour group consisted of teachers, adult chaperones, and eighth grade students. Adult chaperones were present at the pool while the students were swimming. The summary judgment facts show that the tour group either saw or should have seen the signs posted at each end of the pool warning that no lifeguard was on duty and that children under sixteen must be accompanied by an adult. Additionally, the tour group members saw or should have seen the lack of a rope between the deep and shallow end of the pool and the marks on the concrete pool deck showing the depth of the pool. The pool's condition was as equally observable by the tour group as it was by Eisin. Therefore Eisin had no duty to disclose this information because it was equally obvious and apparent to the traveler as it was to the travel agent.
The majority, citing Markland, relies heavily on the fact that a travel guide's duty of disclosure turns in part on the travel agent's access to "inside information" and the traveler's access to such information. The majority then holds that Eisin had "inside information" as to the near drowning of a child eight days prior to Carlos' death and Eisin's failure to disclose this information resulted in a breach of his duty of disclosure.
Eisen's knowledge of the near drowning of a child eight days prior to Carlos' drowning is not "inside information" relevant to the issue of the condition of the pool. There are no summary judgment facts in the record on appeal which show that, as a result of his awareness of a prior near drowning at the pool, Eisen had any relevant knowledge or information that the condition of the pool was unsafe. Likewise, there are no summary judgment facts showing that Eisen had knowledge of the condition of the pool, other than what was readily observable, and equally obvious and apparent to the tour group.
It is therefore unnecessary to reach the question of whether there was a genuine issue of material fact in dispute as to the sufficiency of Eisin's description and warning of the hotel pool, making summary judgment unavailable, because Eisin fulfilled his duty of disclosure as a travel agent and tour guide under Missouri law. I would affirm the judgment of the trial court.