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noting that the travel agent is not obligated to investigate the safety of accommodations because "a travel agent is not an insurer or guarantor of a customer's safety"
Summary of this case from Abramson v. Ritz-Carlton Hotel Company, LLCOpinion
01-CV-0663E(Sr)
September 9, 2003
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff filed a Complaint September 20, 2001 seeking damages for personal injuries sustained at Prospect Reef, a Carribean resort. Defendant Interval International U.S.A. Corporation ("Interval") filed a motion for summary judgment on July 10, 2003. Oral argument was heard and this matter was submitted August 15. For the reasons set forth below, Interval's motion for summary judgment will be granted.
Interval is a time-share broker. As such, it permits a member of its service to exchange the use of his time-share unit — which he may use during a specified period every year — for the use of another time-share unit. Time-shares available for exchange are located all around the globe. In order to trade one's time-share, however, one typically uses the services of a time-share broker such as Interval.
See Black's Law Dictionary 1492 (7th Ed. 1999) (defining "time-sharing" as the "[j]oint ownership or rental of property (such as a vacation condominium) by several persons who take turns occupying the property [which is also] termed time share"); Tammac Corp. v. Williams, 1993 WL 330639, at *24 (W.D.N.Y. 1993) (noting that "the purchaser of a `time-share' [acquires] the right to use a condominium space for a limited amount of time each year"); Heidle Dep., at 28-29. A travel website operated by the Disney Vacation Club describes Interval as "an international time share swapping organization. If desired, members can exchange a week's stay at their home resort for a week's stay at one of the many timeshare [sic] resorts supported by Intervals [sic] International." http://www.mouseplanet.com/dtp/dvc/ 5_Other/interval_international.htm
Heidle's boyfriend, Philip Taylor, owns a time-share in Cape Cod. Taylor is a member of Interval, which offers various travel-related discounts on, inter alia, airfare, travel insurance, amusement park tickets and luggage. Taylor exchanged his time-share in 2000 for the use of a time-share at Tortola, British Virgin Islands. Taylor was accompanied by Heidle, who injured herself when she fell into a cistern when the cover upon which she was standing caved in. In addition to the resort, Prospect Reef, Heidle sued Interval for negligence and breach of express and implied warranties.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Interval failed to comply with Rule 56.1(d) of the Local Rules of Civil Procedure ("LRCvP") inasmuch as it failed to cite the record in support of its statement of facts. Consequently, this Court has the discretion to deny Interval's motion based on such failure. Nonetheless, the Court will overlook Interval's procedural non-compliance and address the merits of its motion. Plaintiff also violated LRCvP 56(b) by failing to submit an opposing statement of facts. This Court must nonetheless determine whether Interval has satisfied its burden under FRCvP 56 by "demo nstrating that no material issue of fact remains for trial." Amaker v. Foley, 274 F.3d 677, 680-681 (2d Cir. 2001).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion, Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18.
See footnote 4.
Turning to Heidle's negligence claim, New York law requires her to demonstrate
"1) the existence of a duty flowing from defendant to plaintiff; 2) a breach of this duty; 3) [proximate causation of plaintiff's injuries]; and 4) actual loss, harm or damage." Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 79 (2d Cir. 1997) (citation omitted).
For the reasons set forth below, Heidle failed to establish the existence of any duty that Interval owed her.
The "existence and scope of a duty is a question of law requiring courts to balance sometimes competing public policy considerations." Moreover, this Court assumes arguendo that Heidle is an intended third-party beneficiary of the Taylor-Interval contract. Consequently, any duty that Interval owed to Taylor would also be owed to Heidle.
Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138 (2002) ("Under our decisional law a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party.") (citations omitted).
See Levin v. Tiber Holding Corp., 277 F.3d 243, 248-249 (2d Cir. 2002) (setting forth the requirements for an intended third-party beneficiary to a contract); Newman Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 663 (2d Cir. 1996) ("A party need not be specifically mentioned in a contract to be considered a third-party beneficiary."); Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333, 1339 (2d Cir. 1974) (finding that the guest of a swim club member — whose membership agreement permitted members to bring guests who paid a fee — was a third-party beneficiary of the membership agreement).
This Court's research has not uncovered a case involving a time-share broker sued for personal injuries stemming from events occurring during a customer's vacation. There is, however, a line of cases involving travel agents and tour operators that is applicable by analogy. In addition to brokering the exchange of time-shares for its members, Interval performs many functions common to travel agents. For example, Heidle indicated in her interrogatory responses that Interval offered "travel coupons and a `one stop shop' travel agency; `fabulous resort vacations at a low price;' an on-line membership community to gain travel tips *** and make accommodations [reservations] *** and [a] staff of expert travel advisors." The Interval publications attached to Heidle's interrogatory responses further discuss the various travel-related services offered by Interval. Consequently, Interval is analogous to a travel agent for purposes of New York law.
Pl.'s First Resp. to Interval's Second Set of Interrogs. (and exhibits thereto), Resp. 1 at 2-3. Interval describes itself on its website as:
"[T]he Quality Vacation Exchange Network, made up of 2,000 resorts and over 1.5 million member families worldwide. We've been at the forefront of the industry in maintaining the highest standards of quality and excellence since 1976.
"Interval provides its members — vacation owners from around the world — with a variety of exchange services and other exciting benefits to enhance their vacation experiences.
"Membership is limited to owners at the resorts in our network, all of which have met our rigorous criteria for quality. None of these resorts are owned or managed by Interval International." http://www.intervalworld.com/iw/cs?a=60p=about (emphasis added).
"Under New York law, tour companies and travel agents *** owe no duty to tour members to inform them of possible hazardous conditions on the property of others." Lachina v. Pacific Best Tour, Inc., 1996 WL 51193, at *1 (S.D.N.Y. 1996). Moreover, "a travel agent is not an insurer or guarantor of a customer's safety and is not obliged to investigate the safety of accommodations." Ibid.
See also Carley v. Theater Dev. Fund, 22 F. Supp.2d 224, 227-228 (S.D.N.Y. 1998) (granting summary judgment for tour sponsor and tour operator because they owed no duty to insure against traveler's fall from window of Russian hotel where defendants neither owned nor operated the hotel); Loeb v. United States, 793 F. Supp. 431, 437 (E.D.N.Y. 1992) (granting tour operator's motion for summary judgment because it had no duty to warn customer against hazardous conditions existing on property that it did not own); Creteau v. Liberty Travel, Inc., 600 N.Y.S.2d 576, 577 (4th Dep't 1993) ("A travel agent ordinarily is not an insurer or guarantor of its customers' safety and, without a specific request, is not obligated to investigate safety factors of lodging accommodations."); Weiner v. British Overseas Airways Corp., 401 N.Y.S.2d 91, 95-96 (2d Dep't 1978) (holding that tour promoter did not have a duty to insure the safety of its customers or a duty to inspect a rental car that defendant had arranged for plaintiff through an independent third-party rental agency); Cohen v. Heritage Motor Tours, Inc., 618 N.Y.S.2d 387, 388-389 (2d Dep't 1994) ("A tour operator has no duty to warn group members of a possible hazardous condition on property it neither owns nor occupies."); Shlivko v. Good Luck Travel, Inc., 2003 WL 21355059, at *2 (N.Y. City Civ. Ct. 2003) (discussing cases); see generally Tracy A. Bateman, Annotation, Liability of Travel Publication, Travel Agent, or Similar Party for Personal Injury or Death of Traveler, 2 A.L.R.5th 396 (1992 Supp. 2002) (collecting cases).
In Lachina, plaintiff fell into an uncovered manhole while vacationing in China. Ibid. She sued, among others, the travel agent that arranged the trip. Ibid. The district court, however, granted the travel agent's motion for summary judgment because it owed plaintiff no duty to warn her of possible hazards on property owned by others. Likewise here. First, Interval neither owned nor operated the resort where Heidle was injured. Second, Interval neither insured nor guaranteed Heidle's safety. Ibid. Third, the Taylor-Interval contract disclaimed liability for personal injury at either the home or host resort ( i.e., the owned or exchanged time-share). Finally, Prospect Reef, as the property owner, was in a superior position to insure against liability and ensure against potential hazards, Ibid. Consequently, Interval owed Heidle no duty of care and her negligence claim against Interval will be dismissed.
See notes 9-10 supra.
See note 10 supra.
See Oliveri Aff., Exh. I at ¶ 6(d); id., Exh. D, attachment page 596, ¶ 8(e) (Membership Agreement produced by Heidle); Carley, supra note 10, at 229; Loeb, supra note 10, at 438 (discussing Dorkin v. Am. Express Co., 74 Misc.2d 673 (N.Y.Sup.Ct. 1973), aff'd, 351 N.Y.S.2d 190 (3d Dep't 1974)); Weiner, supra note 10, at 93-94; cf. Jacobson v. Princess Hotels Int'l, 475 N.Y.S.2d 757, 758 (1st Dep't 1984) (finding that question of booking agent's liability to be a unclear where record failed to disclose whether booking agent's advertisements disclaimed ownership or control of the hotel). Although Heidle was not a party to the Taylor-Interval contract, Interval does not owe a duty to a third-party beneficiary that is greater than the duty owed to the Interval member because such intent cannot be divined from the Taylor-Interval contract. See BAII Banking Corp. v. UPG, Inc., 985 F.2d 685, 697 (2d Cir. 1993) (holding that a third-party beneficiary "possessed no greater right to enforce a contract than the actual parties to the contract"); Levin, supra note 8, at 248-249.
See Weiner, supra note 10, at 95-96 (finding that tour promoter had no duty to follow plaintiff to her destination to inspect her rental car and that such a duty "would entail a feat of legal legerdemain in no way supported by logic, reason, business custom or precedent"); cf. Tillman v. Continental Plaza Hotels, 2000 WL 33250072, at *1-4 (S.D. Tex. 2000) (discussing, inter alia, New York law and finding that a "travel agent is a broker of services, and in the absence of actual knowledge of the specific condition and the probability of the tourist being affected by it, the travel agent is not liable for injuries occurring on the trip *** [because] [t]ravel agents are not guarantors of the happiness or safety of the tourists [to] whom they sell tickets"). This case is very similar to Tillman, where a travel agent was found to have no duty to inspect the railing in a hotel that ultimately gave way and injured plaintiff. In any event, Prospect Reef has agreed to indemnify Interval, further demonstrating that it is in the best position to insure and ensure the safety of its guests. See Oliveri Aff., Exh. J at 11, ¶ K(2).
Heidle points to various terms in a contract between Interval and Prospect Reef as evidence that Interval owed her a duty of care to warn her about the potential hazards at Prospect Reef. Heidle's argument fails, however, because she was not an intended third-party beneficiary of any Interval-Prospect Reef contract. See Levin, supra note 8, at 248-249 (holding that the circumstances must indicate an intention to give the third-party a benefit of the contract); Oliveri Aff., Exh. J at 11, ¶ 5 ("Nothing herein shall be construed to make any [guest or other individuals] third party beneficiaries to this [Interval-Prospect Reef] Agreement"); Oliveri Aff., Exh. K at ¶ 17 (substantially same limitation). Indeed, a duty by Interval would have to arise from a contract between Heidle and Interval. See Weiner, supra note 10, at 95. Heidle concedes that such a contract does not exist. Even assuming that she is an intended third-party beneficiary of the Taylor-Interval contract, such creates no duty to Heidle as discussed above.
This Court does not construe the Complaint as basing the negligence claim against Interval on a theory of negligent selection. In any event, such a claim fails on the ground that Heidle failed to present any evidence suggesting that Interval knew or should have known about the subject cistern's alleged dangerousness. Accordingly, Interval's motion with respect to Heidle's negligence claim will be granted.
See Wilson v. Am. Trans. Air., Inc., 874 F.2d 386, 390 (7th Cir. 1989); Tillman, supra note 14, at *4-5; Plinio v. Am. Aruba Beach Resort Casino, 1998 WL 1266233, at *2-3 (D.N.J. 1998) (granting travel agent's summary judgment motion because, inter alia, plaintiff failed to demonstrate "negligent selection" theory where it failed to show thattravel agent had received complaints and failed to make responsive inquiries).
Although Heidle has yet to depose Interval, Interval has denied any knowledge of the subject cistern. See Oliveri Aff., Exh. E at 5, Resp. 9. More importantly, Heidle concedes that she lacks personal knowledge for asserting that Interval has such knowledge. See Oliveri Aff., Exh. C at 4, Resp. 7(c). Consequently, it is appropriate to grant Interval's summary judgment motion at this time. Nonetheless, if Heidle uncovers sufficient evidence that Interval knew of or should have known about the dangerous cistern, then Heidle may seek to file an amended complaint to assert a claim based on a negligent selection theory. Such a motion, however, should not be made lightly. Moreover, to the extent that Heidle was opposing summary judgment based on an asserted need for additional discovery, she failed to make the requisite showing. See Miller v. Wolpoff Abromson, 321 F.3d 292, 303 (2d Cir. 2003) (setting forth the showing that must be made in a FRCvP 56(f) affidavit when a party resists a summary judgment motion on the ground that discovery is needed in order to respond).
Turning to Heidle's claim based on the breach of express or implied warranties, this Court finds that Interval made no warranties of safety. Heidle contended in her interrogatory responses that Pat Taylor, Vice-President of membership at Interval, stated that Interval had "quality and safe resorts in their network." Moreover, Interval's brochures indicated that Interval, among other things, conducted resort inspections to ensure quality. Nonetheless, a "general promise that the trip would be "safe and reliable," does "not constitute a guarantee that no harm would befall plaintiff ***." LaVine v. Gen. Mills, Inc., 519 F. Supp. 332, 336 (N.D. Ga. 1981). Likewise, Interval's statements were mere "puffing" and are not actionable. Accordingly, Interval's motion with respect to Heidle's warranty claim will be granted.
Oliveri Aff., Exh. D, Resp. 1.
See Creteau, supra note 10, at 577 (citing LaVine and applying New York law to dismiss reach of warranty claims against travel agent); Wilson, supra note 16, at 391 (citing LaVine and holding that "puffing" did not guarantee safety).
Inasmuch as all of Heidle's claims against Interval will be dismissed, this Court need not address Interval's remaining arguments.
Accordingly, it is hereby ORDERED that Interval's motion for summary judgment is granted and that this action is dismissed as against Interval International U.S.A. Corporation.
Nothing in this Order should be construed to prohibit Heidle from deposing Interval employees — albeit, as non-parties.