By Doyice Cotten
Disclaimers on tickets or signs usually are not enforced as waivers of liability. The same, however, is not true of disclaimers in contracts used by resorts or tour operators. This post addresses a disclaimer used by Unique Vacations and SRI (Sandals Resorts) and another disclaimer used by Vantage Travel Service. The first applied to a resort vacation in St. Lucia and the second to a tour Europe.
In Santora v. Unique Vacations, Inc. (1914), the plaintiff was injured in an auto accident while being transported to the resort. The vacation contract contained the following disclaimer of liability:
Limitation of Damages: Unique Vacations, SRI [Sandals Resorts International, Ltd.], any hotel or hotel management company, their affiliates, subsidiaries, directors, officers, and employees, shall not be liable to guest in any circumstances, for: (A) any personal injuries or property damage arising out of or caused by any act or omission on the part of any air carrier or ground transportation carrier; (B) emotion distress, mental suffering, or psychological injury of any kind; or (C) any consequential, incidental, punitive, or exemplary damages.
Regardless, the plaintiff filed suit alleging negligence on the part of the vacation company. The defendant was not the employer of the taxi driver and had no control over it. Notice that the disclaimer makes mention that it is not liable for injury resulting from any act or omission by ground transportation carriers. The court ruled that the disclaimer intended to protect the travel agent and tour operators was enforceable; it granted summary judgment on the negligence claim.
In Giuffra v. Vantage Travel Service, Inc. (2015), the plaintiff was on a European tour in Latvia. He was mugged and robbed in an area that the tour director had said to be safe. The travel agreement contained a disclaimer paragraph that read:
Responsibilities & Liability
The responsibility of Vantage . . . is strictly limited. As a tour operator, Vantage organizes, promotes and sells tour programs consisting of certain travel services, including surface, air and water transportation, sightseeing excursions, and cruise/hotel accommodations, that Vantage purchases or reserves from various suppliers (collectively, “Suppliers”). Vantage does not own or operate any of these Suppliers. The Suppliers providing travel services for Vantage’s tour programs are independent contractors, and are not agents or employees of Vantage. As such, Vantage is not responsible for direct, indirect, consequential, or incidental damage, injury, loss, accident, delay, or irregularity of any kind occasioned by reason of any act or omission beyond its control, including, without limitation, any negligent or willful act or failure to act of, or breach of contract by, any Supplier or any other party. . . . By utilizing the travel services of the Suppliers, you agree that you will look only to such Suppliers in respect of any accident, injury, property damage, or personal [*4] loss to you or to those traveling with you, and that neither Vantage nor any representative of Vantage shall be liable.
The disclaimer stated that the company was not responsible for incidents beyond its control and also provided that the client would look only to suppliers in the event of loss or injury.
The court stated that a provider is not a guarantor of safety of clients. The court held that written materials had provided adequate warning to the plaintiff. Summary judgment was granted on the negligence claim.
Caution: Providers of recreational services need to keep in mind that while disclaimers generally work in these types of settings, they do not generally work in a recreation, sport, or fitness setting. A disclaimer is simply a claim of no liability by the provider. For it to be contractual in most settings, the defendant must show that there was a meeting of the minds between provider and client. This is often difficult to prove. Solution: Make use of a liability waiver in which the client contractually agrees to release the provider from liability for provider negligence.
Photo Credit: Thanks to Dennis Jarvis on Flickr.