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What Information Must Agents Disclose to Clients?July 6, 2009 By: Lauren Smith, Darren Friedman Travel Agent
Your client, an avid water skier, books a vacation at a beach resort in Jamaica through your agency. After learning from the resort that water skiing equipment is available onsite, you notify your client that it will not be necessary for him to bring his own. When your client arrives at his destination, he finds that the resort has only one set of water skis and that they are old, worn and in bad repair. Nonetheless, he uses and sustains injuries when he falls on his third run; of course, he sues you for damages. This story tells the facts of a real case brought against a travel agency in California. While the travel agency ultimately prevailed, the law does impose a duty on travel agents to warn clients of certain information.
A special relationship exists between travelers and their travel agents. Although an agent is somewhat of a middle man, connecting travelers with transportations, accommodation and service providers, the agent is seen as a representative of the traveler rather than of the business or company they direct business to. The weight of authority holds that a travel agent who arranges vacation plans is more than a mere ticket agent and, as a result of this relationship, has a duty under the law to act in the best interest of the traveler and to carry out their relationship in good faith, trust, and confidence. This does not mean that the travel agent is the guarantor of the perfect trip, but rather that the agent must use reasonable care in making travel reservations. Because of this special relationship, the law imposes on agents the duty to use reasonable efforts to apprise their clients of information material the traveler’s objectives.
The scope of this duty of disclosure is limited to what is reasonable in any given instance. Since a travel agent is not an insurer, nor can he be expected to know of any possible circumstance a traveler might encounter, the duty to warn is not absolute; rather, the agent has a duty to warn of foreseeable dangers which he knew or should have known existed and of information known to be material to the client’s objectives. A risk is “foreseeable,” under the law, if there is some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it. An agency must disclose all information the agent knows that is material to the object of the agency unless that information is so obvious and apparent to the traveler that disclosure is not warranted.
In the water skiing case discussed above, while it would be reasonable for the agency to advise a traveler intending to go water skiing whether water skiing was available at the resort being booked, the Court concluded it cannot reasonably be expected that an agent should obtain superior knowledge of the state of the equipment before responding to the traveler’s inquiry as to whether the hotel had skis available. Nonetheless, had a prior traveler told the agency about a poor experience with the equipment, it may have been reasonable to expect the agency to pass on that information.
An example of a case in which an agent was found liable for failing to warn a client of a foreseeable danger involved the drowning death of a boy in a hotel pool. The agent was aware, but had not informed the boy, his parents, or other members of the tour group that several days earlier another boy had nearly drowned in the same pool. The Court ruled that, because a similar incident had recently occurred, drowning was a foreseeable danger of which the agent had a duty to warn. Other cases have suggested that if an agent knows that an accommodation is in a high crime area or that criminal attacks have occurred at or near its premises, the agent is under a duty to warn the client of such dangers.
The law does not expect travel agents to foresee every potential danger, some are simply unpredictable. Typically, dangers arising out of independent excursions booked by the client directly, rather than through the agent, are considered unforeseeable. In one case, the Court found that an agent did not have a duty to warn a client of risks involved in an independent horseback riding tour taken in Mexico. The agent did not know anything about the horseback excursion which the client voluntarily chose to go on and therefore had no way to foresee possible dangers.
Clients rely on the knowledge and expertise of agents to plan the optimal vacation. They expect that pertinent information regarding their destination will be relayed to them. While obviously the law differs throughout the U.S., when an agent has knowledge that it knows is material to a traveler’s stated objective, or of dangers that would not be otherwise obvious to the traveler, the agent should disclose this information. Although disclosure may not prevent a lawsuit, it may prevent liability.
Darren Friedman is a partner at Maltzman Foreman, PA (www.mflegal.com) in Miami and specializes in representing the hospitality industry. Lauren Smith is a third-year law student at the University of Miami and is a law clerk for Maltzman Foreman, P.A. Mr. Foreman can be reached at [email protected].