HOW SAFE ARE STUDENT TOURS:UPDATED

[ Originally Published In The International Travel Law Journal, Fall 1996 And May Not Be Reproduced Without The Permission Of Thomas A. Dickerson ]

REVISION NUMBER 3
January 10, 2001
by Judge Thomas A. Dickerson 1

It is tragic, indeed, for parents to purchase a package tour designed for students, send their 17 year old high school student or 19 year old college student to Mazatlan, Mexico, Taiwan or the Bahamas only to have their children killed or seriously injured because of a lack of adequate adult supervision and/or the excessive consumption of alcoholic beverages. Such tragedies can be avoided if parents understand just how dangerous student tours can be.

Educational And Cultural Tours

There are a number of tour operators in the business of selling tours designed for high school and college students. Some student tours are educational in nature featuring credit for courses taken at foreign universities and/or guided tours of historically or culturally significant locales;
(1) Tours Of China [ Tei Yan Sun v. Taiwan ² ( student drowns off the coast of Ken-Ting National Park in Taiwan while participating in a cultural tour sponsored by the government of Taiwan to promote understanding of Chinese culture and history )];
(2) Tours Of Russia [ Carley v. Theater Development Fund³ ( tour participant falls through window of Hotel Pulkovskaya during cultural trip to St. Petersburg, Russia )];
(3) Tours Of The Holy Land [ Gyenes v. Zionist Organization of America⁴,( student drowns in Jordan River on tour of Holy Land )];
(4) Tours Of Lake Tahoe, Nevada [ St. John v. Rein Teen Tours, Inc.⁵ ( student left alone and unattended in tour bus overnight without any supervision )];
(5) Tours Of Museums [ Sakellares v. Danbury Scott-Fanton Museum and Historical Society, Inc.⁶ ( teacher of fourth grade class slips and falls during educational tour of museum )];
(6) Boy Scout Trips [ Pitkewicz v. Kane⁷ ( boy scout injured during trip )].

Spring Breaks And Alcohol

Some student tour programs, however, are exclusively social events and take place during traditional college Spring Breaks or after graduation from High School and include a variety of locales;
(1) Mazatlan, Mexico [ Knoell v. Cerkvenik-Anderson, Inc.⁸ ( high school student jumps to death from third story hotel balcony after attending parties and consuming alcohol for three days ); Maurer v. Cerkvenick-Anderson Travel, Inc.⁹ ( high school student is crushed to death by the steel wheels of the Party Train on its way to Mazatlan, Mexico )];
(2) The Bahamas [ Smith v. Chason¹⁰ ( 17 year old high school student purchases Coppertone Spring Break 93' package tour to the Bahamas during which he disappears and, presumably, drowns during Booze Cruise; " Chason advised the group that they could purchase a $15.00 ticket for a Booze Cruise. He further indicated that, by purchasing a ticket for the cruise, a participant could consumed alcohol on the boat regardless of his or her age... During the cruise...Rum punch was served on board without any verification of the ages of the drinkers. The decedent consumer at least three rum punch drinks...Coroner Winston V. Saunders concluded that the decedent jumped from the ( boat ), presumably on a dare for $100.00. Once overboard, the decedent was then caught in the vessel's propellers ); Smith v. West Rochelle Travel Agency, Inc.¹¹ ( same claim but against travel agent in New York State )].
(3) Cancun, Mexico [ Rodriquez v. Class Travel Worldwide¹²
( student, accompanied by mother, traveled to Cancun, Mexico for Grad Trip 1998 and was seriously injured when he was pushed into hotel pool; negligence charged

" in permitting and/or fostering a hedonistic atmosphere, including the illegal and excessive alcohol consumption by the graduates, many of whom were minors " )].

Parents' Concern About The Safety Of Children

Regardless of the whether the student tour is purely social or cultural/educational or a combination of both, the parents' primary concern is the safety of their children. From the standpoint of the students' parents the most important features of student tours are proper adult supervision, the safety precautions taken to protect their children from harm and revealing information about accidents that took place during prior tours. Three recent travel law cases demonstrate just how disastrous inadequate adult supervision can be for the young students participating in these tours.

Peter Goes For A Dip In The China Sea

The parents of Peter Sun, an American student of Taiwanese descent, purchased a " summer-long study tour for youth of Taiwanese descent...to promote understanding of Chinese culture and history ". The program featured Chinese language classes, room, board, cultural tours and sightseeing trip. During one sight-seeing trip Peter drowned off the coast of Ken-Ting National Park. In Tei Yan Sun v. Taiwan¹³ Peter's parents sued the sponsors of the trip and alleged in their complaint

" (1) that while their son was a participant on the tour, the defendant were under a general duty to provide a reasonably safe tour with adequate supervision,
(2) that On August 8, 1993 at Ken-Ting Beach, defendants possessed a duty to exercise reasonable care is selecting a safe and guarded beach, to advise participants of where to swim and warn them of swimming hazards, and to change the itinerary if the beach were unsafe; and
(3) that at no time did the defendants provide warnings regarding the dangers of swimming at the beach...( the defendant were ) under an affirmative duty to exercise reasonable care by disclosing known information concerning prospective dangers on the tour and by not misleading prospective participants ".

Molly & The Mazatlan Party Train

In Maurer v. Cerkvenick-Anderson Travel, Inc.¹⁴, the parents of Molly Maurer brought a wrongful death action after Molly died during a student tour to Mexico. The tour operator, College Tours, was located in Phoenix, Arizona and solicited high school and college students to purchase its student vacation tours to Mazatlan, Mexico. College Tours set the

" itinerary, arrange(d) for transportation and lodging and provide(d) information relating to the students' comfort, convenience and safety on the tour "

Among the many features of the tour was an eighteen hour train ride from Nogales to Mazatlan which the tour operator described as a Party Train. During the train ride Molly and a friend decided to adventure forward on the train to observe the engine. As Molly passed from car to car she came to the forward most car, opened the door and proceeded to fall to her death under the unforgiving wheels of the Party Train. Unbeknownst to Molly and her parents was the unhappy but important fact that three other students had died during previous Mazatlan tours organized by College Tours.

Timothy Takes A Leap From A Balcony

In Knoell v. Cerkvenik-Anderson, Inc.¹⁵,, the parents of Timothy Knoell brought a wrongful death action against Cerkvenick-Anderson, Inc. [ " Cerkvenick " ], the parent company of College Tours. Unlike Molly, Timothy, an eighteen year old high school student, managed to survive the Party Train without incident. Upon safely reaching Mazatlan he attended numerous parties

" allegedly hosted ( by Cerkvenick ) at which...alcoholic beverages ( were ) furnished to trip participants...". After three days of parties young Timothy " allegedly jumped or fell to his death from the balcony of his hotel room after having abused alcohol provided by ( Cerkvenick ) for three days..." .

Failure To Disclose Prior Deaths

In the Maurer case Molly's parents claimed that College Tours should have disclosed a material fact, i.e., the deaths of three students on prior Mazatlan tours, which if known would have convinced them not to allow their daughter to purchase the Mazatlan tour or board the Party Train.

The duty to disclose important information which may have a negative impact upon the travel contract is an ever expanding obligation of tour operators and travel agents and applies to a variety of information including;
(1) financial instability [ Marcus v. Zenith Travel¹⁶ ( failure to reveal travel trade reports about the financial instability of a tour operator )];
(2) weather conditions [ Glenview Park District v. Melhus¹⁷ ( canoeist drowns during trip down river; sponsor should have investigated the water levels and determined imminent flood conditions ); Fleming v. Delta Airlines, Inc¹⁸( air carrier owes duty to tell passengers about serious weather conditions to enable passengers to choose whether or not they are capable of making the trip )];
(3) criminal activity at destination [ Loretti v. Holiday Inns, Inc.¹⁹,( duty to warn of criminal activity ); Gilmore v. Caribbean Cruise Line ²⁰ ( cruise passenger robbed and stabbed on pier; duty to investigate )];
(4) risks of charter flights [ Rodriquez v. Cardona Travel Bureau²¹ ( failure to reveal riskiness of charter flights )];
(5) need for visas [ Levin v. Kasmir World Travel, Inc.²² ( failure to reveal need for visa to enter China )]; and
(6) dangers of high altitude flying [ Philippe v. Lloyd's Aero Boliviano²³ ( failure to reveal dangers of high altitude flying ) ].

The existence of such duties may depend upon the existence of a special relationship [ fiduciary ] between the consumer, tour operator and travel agent. The Court in the Maurer case found Cerkvenick to be a fiduciary and bound by " a duty to disclose material dangers known to the agent".

Misrepresentations Of Adequate Supervision

At the heart of both the Maurer and Knoell cases is the failure of College Tours to properly supervise and protect young students after promising to do so. Whether styled as
(1) negligent misrepresentation [ Pelligrini v. Landmark Travel Group²⁴ ( travel agent misrepresented that tour operator's vouchers were refundable when, in fact, they were not ); Marcus v. Zenith Travel, supra ( misrepresentation of financial stability of tour operator )];
(2) fraudulent misrepresentation; or
(3) violation of consumer protection statutes [ Vallery v. Bermuda Star Line, Inc.²⁵ ( accommodations and facilities on cruise ship misrepresented ); Pelligrini v. Landmark Travel Group, supra ( misrepresentation that tour operator vouchers were refundable was misleading, deceptive and false and violated New York's consumer protection statute )];
(4) consumers often rely upon promises of safety [ Chan v. Society Expeditions, Inc.²⁶ ( tour operator may be liable for boating accident based upon brochure language which advertised

" Zodiac landing crafts....versatility and safety at hands of...highly skilled boatmen " );

Bergonzine v. Maui Classic Charter²⁷ ( cruise line brochure promised special care for handicapped passengers; cruise line liable for failure of crew to assist 350-pound handicapped passenger who breaks ankle disembarking; $42,500 special damages ); Glenview Park District v. Melhus²⁸ ( canoeist who drowned during trip down river was promised that canoeing would " be perfectly safe ": ); Pau v. Yosemite Park and Curry Co.²⁹ ( bike rider killed in National Park; promises in brochure of " safe and enjoyable cycling area " ); Mayer v. Cornell University³⁰ ( tourist drowns on bird- watching tour; brochures promised safe and well-supervised tour; judgment for defendant university ); Rovinsky v. Hispanidad Holidays, Inc.³¹ ( tour bus accident; representations of fleet of safe buses operated by experienced staff )]; and
(5) supervision by experienced personnel [ see e.g., Chan v. Society Expeditions, Inc., supra ( boating accident; promises of highly skilled boatmen ); Cohen v. Heritage Motor Tours, Inc.³² ( consumer slips and falls crossing stream; tour guide may be liable for failing to warn of danger and advise of safer, alternate route ); Torres v. National Association of Underwater Instructors³³ ( scuba accident; certifying organization has duty to supervise instructors ); Stevenson v. Four Winds Travel, Inc.³⁴ ( failure to provide promised experienced tour guides to prevent tourist from slipping on slimy pier )] in purchasing travel services. In both Maurer and Knoell the Courts held that it was proper to charge the tour operator with intentionally misrepresenting its willingness and ability to supervise the students on the tours.

Dram Shop Liability

In the Knoell case the parents charged the tour operator with violating Arizona's dram shop laws by feeding young Timothy large quantities of alcohol. In Arizona as in many states licensed tavern owners may be held liable to a third person for injuries caused by an intoxicated patron of the tavern. The purpose of the law is to encourage tavern owners to make a determination that patrons have had enough alcohol and to refuse to serve intoxicated patrons. In considering this charge the Court first decided that Arizona law would be applied as opposed to Mexican law. Choice of law considerations can be dispositive in travel law cases since there are vast differences in liability and damages concepts as between even neighboring jurisdictions such as Mexico and Arizona [ see e.g., Wendelken v. Superior Court³⁵ ( slip and fall in Mexico; Mexican law on recoverable damages allowed no more than 25 pesos per day in lost wage claims while Arizona had no such limits; Arizona law applied ) ]. Next the Knoell Court held that because Cerkvenick was not licensed to serve alcohol that it could not be held liable for the damages that young Timothy did to himself. In addition, the Court noted that the legal drinking age in Mexico was 18 and in Arizona it was 21.

Tour Escort Liability

Typically, escorted tours are sold to older travelers as well as students and may feature expensive safaris in Kenya [Connolly v. Samuelson³⁶ ( tourist falls during walking safari )] or on the Amazon River [ Stevenson v. Four Winds Travel, supra ( slip and fall on slippery pier )]. Older travelers and the parents of students feel the need for well-trained, experienced and knowledgeable tour guides, directors and escorts. Tour brochures may contain language which consumers rely upon such as that in the Stevenson case;

" Four Winds also guarantees that every tour will be escorted by a qualified professional tour director. Our tour directors have been carefully selected and trained....Your escorts are also informative, they know precisely what you will be seeing and doing every day...they've been there before...".

Tour operators of escorted tours may be charged with negligence in failing to select adequate tour guides and properly train them. Tour escorts may be individually charged with negligence for failing to perform their duties in a reasonable and safe manner. Tour operators and tour escorts may also be charged with breaching a warranty of safety [ see e.g., Chan v. Society Expeditions, Inc., supra ( " highly skilled boatmen " ); Pau v. Yosemite Park & Curry Company, supra ( bike rider killed; " safe and enjoyable cycling area " promised ); Rovinsky v. Hispanidad Holidays, Inc.,, supra ( bus accident; " safe buses " promised )].

State Regulation

Californiahas enacted a model statute regulating educational travel organizations [ ETOs ]. The purpose of the statute is to protect student travelers

" placed in a vulnerable position by traveling with their piers to distant cities at a tender age and ( who are ) unfamiliar with the protections available to them "³⁷.

Student travelers covered are Californiaresidents and in kindergarten through 12^th grade when the tour is purchased. The statute provides that ETO contracts with consumers disclose
(1) the ETO's identity, location and 24-hour emergency number and its experience in arranging similar program;
(2) the services to be provided and their cost;
(3) the amount and nature of the insurance covering student injuries;
(4) the qualifications, experience and training of ETO staff members escorting the students;
(5) prior ETO programs and the number of students who participated; and
(6) any judgments or criminal convictions against the ETO and its owner. It is a violation of the statute for an ETO to place misleading and untruthful advertising or " make a substantial misrepresentation in conducting an educational travel program ".

Conclusion

Student tours require special attention to supervision and safety. A failure to provide appropriate supervision and properly trained tour escorts can lead to tour operator liability.

FOOTNOTES

^1. Thomas A. Dickerson is a Westchester County Court Judge with a Web Page at http://members.aol.com/judgetad/index.html. Judge Dickerson is the author of Travel Law, Law Journal Press, New York, 1981-2000, updated every six months, Web Page at http://members.aol.com/travellaw/index.html; Class Actions: The Law of 50 States , Law Journal Press, New York, 1988-2000, updated every year, Web Page at http://members.aol.com/class50/index.html
and over 170 articles on consumer law issues, many of which are available at http://courts.state.ny.us/tandv.html.

² Tei Yan Sun v. Taiwan, 201 F. 3d 1105 ( 9^th Cir. 2000 ).

³ Carley v. Theater Development Fund, 22 F. Supp. 2d 224 ( S.D.N.Y. 1998 ).

⁴ Gyenes v. Zionist Organization of America, New York Law Journal, August 9, 1989, p. 21, col. 3 ( N.Y. Sup. ).

⁵ St. John v. Rein Teen Tours, Inc., 2000 WL 977685 ( S.D.N.Y. 2000 ).

⁶ Sakellares v. The Danbury Scott-Fanton Museum and Historical Society, Inc., 1998 Conn. Super. LEXIS 2472 ( Conn. Super. 1998 ).

⁷ Pitkewicz v. Kane, 227 A.D. 2d 113, 641 N.Y.S. 2d 664
( 1996 ).

⁸ Knoell v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 394, 891 P. 2d 861 ( 1994 ).

⁹ Maurer v. Cerkvenick-Anderson Travel, Inc., 181 Ariz. 294, 890 P. 2d 69 ( 1994 ).

¹⁰ Smith v. Stuart Chason, 1997 U.S. Dist. LEXIS 7636 ( D. Mass. 1997 ).

¹¹ Smith v. West Rochelle Travel Agency, Inc., 238 A.D. 2d 398, 656 N.Y.S. 2d 340 ( 1997).

¹² Rodriquez v. Class Travel Worldwide, 2000 U.S. Dist. LEXIS 1926 ( E.D. La. 2000 ).

¹³ Tei Yan Sun v. Taiwan, 201 F. 3d 1105 ( 9^th Cir. 2000 ).

¹⁴ Maurer v. Cerkvenick-Anderson Travel, Inc., 181 Ariz. 294, 890 P. 2d 69 ( 1994 ).

¹⁵ Knoell v. Cerkvenick-Anderson Travel, Inc., 181 Ariz. 394, 891 P. 2d 861 ( 1994 ).

¹⁶ Marcus v. Zenith Travel, Inc., New York Law Journal, November 19, 1990, p. 26, col. 3 ( N.Y. Sup. ), aff'd 178 A.D. 2d 372, 577 N.Y.S. 2d 820 ( 1991 ).

¹⁷ Glenview Park District v. Melhus, 540 F. 2d 1321 ( 7^th Cir. 1976 ).

¹⁸ Fleming v. Delta Airlines, Inc., 359 F. Supp. 339 ( S.D.N.Y. 1973 ).

¹⁹ Loretti v. Holiday Inns, Inc., 1986 WL 5339 ( E.D. Pa.
1986 ).

²⁰ Gillmore v. Caribbean Cruise Line, 789 F. Supp. 488 ( D.P.R. 1992 ).

²¹ Rodriquez v. Cardona Travel Bureau, 216 N.J. Super. 226, 523 A. 2d 281 ( 1986 ).

²² Levin v. Kasmir World Travel, Inc., 143 Misc. 2d 245, 540 N.Y.S. 2d 639 ( 1989 ).

²³ Philippe v. Lloyd's Aero Boliviano, 589 So. 2d 536 ( La. App. 1992 ); 710 So. 2d 807 ( La. App. 1998 )( judgment for defendants ).

²⁴ Pelligrini v. Landmark Travel Group, 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995 ).

²⁵ Vallery v. Bermuda Star Line, 141 Misc. 2d 395, 532 N.Y.S. 2d 965 ( 1988 ).

²⁶ Chan v. Society Expeditions, Inc., 123 F. 3d 1287 ( 9^th Cir. 1998 ), cert. denied 118 S. Ct. 906 ( 1998 ).

²⁷ Bergonzine v. Maui Classic Charters, 1995 A.M.C. 2628 ( D. Hawaii 1995 ).

²⁸ Glenview Park District v. Melhus, 540 F. 2d 1321 ( 7^th Cir. 1976 ).

²⁹ Pau v. Yosemite Park and Curry Co., 928 F. 2d 880 ( 9^th Cir. 1991 ).

³⁰ Mayer v. Cornell University, Inc., 107 F. 3d 3 ( 2d Cir. 1997 ), cert. denied 1997 WL 336602 ( 1997 ).

³¹ Rovinsky v. Hispanidad Holidays, Inc., 180 A.D. 2d 273, 580 N.Y.S. 2d 49 ( 1992 ).

³² Cohen v. Heritage Motor Tours, Inc., 204 A.D. 2d 105, 618 N.Y.S. 2d 387 ( 1994 ).

³³ Torres v. National Association of Underwater Instructors, 1996 WL 288217 ( D.P.R. 1996 ).

³⁴ Stevenson v. Four Winds Travel, Inc., 462 F. 2d 899 ( 5^th Cir. 1972 ).

³⁵ Wendelken v. Superior Court, 137 Ariz. 455, 671 P. 2d 896 ( 1983 ).

³⁶ Connolly v. Samuelson, 671 F. Supp. 1312 ( D. Kan. 1987 ).

³⁷ Cal. Bus. & Prof. Code §§ 17552 to 17556.5.

Class Action Litigation Information

A Service of Timothy E. Eble, P.A.