By Doyice Cotten
It is common practice for hotels and resorts around the world to offer optional tours to guests through activity providers. These types of tours include such activities as snorkeling, nature tours, tubing, sightseeing, and any number of other activities. It is not uncommon for a guest to be injured on such tours and seek compensation from the hotel/resort. Whether the injured guest wins or not depends upon the relationship between the hotel/resort and the activity provider – whether the provider is an agent of the hotel/resort or is an independent contractor operating on its own.
A classic example of the situation is found in Johnson v. Unique Vacations, Inc. (2012 U.S. App. LEXIS 23816). Johnson and his wife, Diana Cantu, made their vacation arrangements through Unique Vacations, Inc. and were guests of Sandals Grande in St. Lucia. They booked and paid for a horseback-riding excursion from the Sandals Grande tour desk. The excursion was operated by International Pony Club; International was not named as a party in the suit. Unique Vacations and Sandals Resorts were named as defendants.
After purchasing tickets, Cantu signed an excursion ticket sales receipt which stated:
There exists no relationship of master and servant or of agency between the Operators of Tours and the Tour Desk of Sandals Grande St. Lucia. The Operators of tours sold at the Tour Desk of Sandals Grande St. Lucian are solely responsible for their acts and omissions and Sandals Grande St. Lucian assumes no responsibility for such acts and omissions or for any injury, loss, damage, sickness, or accident sustained on any of the tours offered for sale at the Tour Desk.
They, along with other resort guests were transported to an off-site location by a bus operated by Sandals. At this point the couple signed a waiver on an excursion sign-in sheet. In part, the waiver read:
While we take every reasonable step to ensure your enjoyment and safety, one must recognize the existence of an inherent risk associated with horseback riding and being close to horses. Consequently, each rider will be required to sign this waiver. By doing so, the customer gives up the right to sue International Pony Club and their employees, representatives, officers and agents, for any injuries sustained by the customer and his personal belongings, including other activities engaged on the beach, like swimming, swimming with the horses, exploring, snorkeling, etc.
Johnson claimed that, after he mounted his horse, a tour guide struck the horse causing the horse to start running unexpectedly. Johnson was thrown from the horse and suffered serious injuries. Plaintiffs later filed a complaint against Unique, Sandals Grande, and Sandals, alleging vicarious liability for Johnson’s injuries due to their relationship with International Pony Club.
Defendants claimed failure to establish an agency relationship and contractual waiver as defenses. The court ruled that plaintiffs did indeed fail to establish an agency relationship and, in fact, signed what might be termed a disclaimer labeled excursion ticket sales receipt in which defendant asserted no such relationship and that International Pony Club was “solely responsible . . . .” The court went on to say that the contract between Sandals and Pony Club plainly showed Pony Club to be an independent contractor. It showed that Sandals did not control how the Pony Club operated the tour; how the club maintained animals and equipment; employee hiring or supervision; licensing; or permits.
In conclusion, the claim of the plaintiffs depended upon there being an agency relationship between defendants (Sandals and Unique Vacations) and International Pony Club. Agency depends upon the element of control and no control of the Pony Club operation was found; hence, the court affirmed the lower court ruling in favor of the defendants.
Some Points to Consider:
1. The disclaimer found on the excursion ticket sales receipt helped to clarify the relation as did the contract between Sandals and Pony Club.
2. Interestingly, the Pony Club waiver did not name Sandals or Unique Vacations as protected parties. The case report did not give a reason why Pony Club was not named in the suit; perhaps, because plaintiffs believed Pony Club to be protected by the waiver. If so, Pony Club was fortunate because the waiver had a glaring weakness. The waiver would appear to protect against liability for inherent risks, but does not seem to meet requirements set by Florida courts for protecting against liability for injuries caused by employee negligence.
3. If your organization make use of independent contractors for tours or other activities, it is crucial that control of the operation remains with the independent contractor and that you have concrete evidence to back up your contention (as Sandals did here). If you do not like the way they are conducting the operation, your duty is NOT to change their operation – your duty is to find an independent contractor that conducts the activity safely.
4. If plaintiff had been injured due to a bus accident in transit or while entering or exiting the bus, Sandals might well have been found liable.