Case Number: BC502600    Hearing Date: July 30, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ZOIA ROSE,
Plaintiff(s),
vs.
JAY TRAVEL SERVICE, et al.,
Defendant(s).

Case No.: BC502600

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #11
7/30/14

Defendant’s Motion for Summary Judgment is DENIED.

1. Facts
Plaintiff, Zoia Rose filed this action against Defendant, Jay Travel Service for injuries sustained when she was on a cruise planned by Defendant. Specifically, Plaintiff embarked on an excursion in Mumbai, India to see the “Island of Elephants.” At the beginning of the excursion, Plaintiff was safely transported by boarding a boat directly from a pier. At the end of the excursion, however, Plaintiff was required to walk across several tender boats, which were tethered together and held together by narrow planks, which she was required to traverse. Plaintiff lost her balance during the transfer, fell, and sustained injuries.
Plaintiff filed a complaint against Defendant for negligence and negligent misrepresentation. The negligence cause of action alleges Defendant was negligent in failing to warn Plaintiff of the danger of the transfer prior to booking the excursion. (Complaint ¶¶14 – 15) The negligent misrepresentation cause of action was voluntarily dismissed on 10/24/13.

2. Evidentiary Objections
Plaintiff objects to the facts submitted in Defendant’s Separate Statement. The objections are OVERRULED as to all objections.
.
3. Motion for Summary Judgment
Defendant moves against negligence arguing that there is no triable issue of material fact as to duty to disclose or breach. Defendant asserts that there was no duty to disclose herein because Plaintiff’s injury was not foreseeable. Plaintiff’s injury was not foreseeable in that Defendant did not have actual or constructive notice that the excursion would require a boat to boat transfer to get onto the pier. Defendant provides that she had no knowledge of such.
“[T]he determination that a duty of care exists is an essential precondition to liability founded on negligence.” (Citation omitted) “The determination of duty is primarily a question of law.” (Citation omitted) “A duty of care may arise through statute or by contract. Alternatively, a duty may be premised upon the general character of the activity in which the defendant engaged, the relationship between the parties or even the interdependent nature of human society. [Citation.] Whether a duty is owed is simply a shorthand way of phrasing what is ”’the essential question-whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.“ (Citation omitted).” McCollum v. Friendly Hills Travel Center (1985) 172 Cal.App.3d 83, 90.
For the purposes of the instant motion only, Defendant concedes the agency relationship between the parties.
In McCollum, the Court was asked to determine whether a travel agent has a duty to his clients to warn of known dangerous conditions and, if so, what the scope of that duty is. The Court concluded, “Based upon this analysis, we conclude 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 also noted, with approval of a prior ruling:
That court further held that “[the] scope of this duty of disclosure will be limited, naturally, to what is reasonable in any given instance. A travel agent is not an insurer, nor can he be reasonably expected to divine and forewarn of an innumerable litany of tragedies and dangers inherent in foreign travel. Nonetheless, it does not follow that because a travel agent cannot possibly presage all dangers, he should be excused entirely from his fiduciary duties toward his principal to warn of those dangers of which he is aware, or should be aware in the exercise of due care.” (Rookard v. Mexicoach, supra, 680 F.2d at p. 1263.) ).” McCollum v. Friendly Hills Travel Center (1985) 172 Cal.App.3d 83, 92

It is undisputed that Defendant did not have actual knowledge because Defendant had never been on to India or specifically upon the excursion to Elephant Island. (Defendant’s Facts 4, 18) At issue herein is whether Defendant had constructive knowledge (ie: was the information reasonably obtainable?). Defendant’s facts herein show the efforts made by Defendant in booking the excursion. Those efforts were to contact the cruise line, the Indian Embassy in Los Angeles and Luxury India Holidays in order to obtain the same excursion provided by the cruise line but with the addition of a Russian interpreter. (Defendant’s Facts 1 – 9) There are no facts within Defendant’s separate statement attesting to whether information regarding the Elephant Island excursion is reasonably obtainable. Defendant’s Facts 1 – 9, as well as the remaining facts fail to address this issue, despite Defendant’s citation to McCollum. As such, Defendant has failed to meet its initial burden of proof to show that there is no triable issue of material fact as to duty. Even if Defendant had met its burden, Plaintiff provides facts to show that Defendant did not make any effort to obtain information regarding the excursion other than Luxury India Holidays’ ability to provide the excursion with a Russian interpreter. Specifically, there was no inquiry regarding disembarking from any boat that would ferry passengers to the island. (Defendant’s Fact 18 and Plaintiff’s Fact 8 – 10) Further, Plaintiff provides the testimony of their expert to show that information regarding disembarking from the boat is “reasonably obtainable” by a professional travel agent like Defendant in that the method of disembarking from the boat for Elephant Island is “public knowledge” and readily available on the internet. (Plaintiff’s Fact 16 – 19) Because Plaintiff has provided facts to show that the method of disembarking from the boats ferrying passengers to and from Elephant Island is “reasonably obtainable” and, more importantly, because Defendant failed to provide evidence addressing the “reasonably obtainable” standard herein, the first argument as to duty is without merit.
Further, facts above also show that there are triable issues of material fact as to breach because the facts show that Defendant made no attempt to obtain the information and Plaintiff provided that the information regarding disembarking from the boats is reasonable obtainable.
However, per McCollum, the scope of the duty to disclose is tempered by facts showing that the dangerous condition is “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”. Here, there are facts to show that the danger was obvious. The conditions of the sea were “choppy” (whether it was due to the weather or other boats attempting to dock is inconsequential) making the boats lashed to each other unstable. This in turn would make the planks used to transfer from boat to boat unstable. Plaintiff lost her balance and fell off the plank but was caught because she was holding the hand of a deckhand. Further, Plaintiff saw that her companion, who walked with the assistance of a cane, successfully disembarked. These facts provide that the danger of walking over an unstable plank between boats lashed together is obvious. But, Plaintiff provides facts showing that this was the only means of egress off the boat. There was no other means to disembark because of the amount of boats already docked at the pier. As such, even though the danger herein was “obvious”, there are facts to show that the danger could not be avoided. (Defendant’s Facts 12 – 15, 17) Because the danger could not be avoided, there is a triable issue of fact as to the obviousness of the danger. As such, there are triable issues of material fact as to breach.
Accordingly , the motion for summary judgment is DENIED.

Dated this 30th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court