center
ad2
events

Bus and Motor Coach Library

Do You Defend or Settle?

Author - Tom Frenkel (2003)

When someone is injured as a result of another's negligence, our system of jurisprudence is intended to compensate the injured party at the expense of those responsible. When someone is injured it is not uncommon for lawsuits to be brought against every conceivable party which may have been related to the circumstances surrounding the injury. When a lawsuit is brought against a party who did no wrong, defense lawyers commonly call upon the courts to apply the law and enter judgment for the defendant. In one such case a tour passenger was injured when a second passenger was retrieving a piece of "carry-on" luggage from an overhead compartment and that bag struck the first passenger in the head. That incident caused lawsuits against four defendants.

Before we review the factual basis for this case, let's discuss a couple legal principles regarding allegations of negligent conduct. Before a party can recover for negligent conduct the complaining party must prove several elements. First, the party who is alleged to be at fault must owe a "duty of care" to the complaining party. Second, that duty of care must have been breached (violated). Third, there must be an injury which resulted in damages for which legal relief is available. Finally, the fourth requirement is that the breach of that duty must be an actual and proximate (legal) cause of the injury and damage.

The distinction between actual and proximate cause is a matter which has filled thousands of volumes of text, and is too involved to discuss in a detailed fashion within this column. Here's a very simple example: A driver strikes a parked vehicle, forcing it into the rear of a vehicle parked in front of it. There are two actual causes of the damage to the front vehicle. The first is that it was struck from behind by the vehicle which was parked to its rear. The second is that the driver who struck the vehicle which was parked to its rear put a force into motion which caused damage to two cars. Absent other circumstances, the proximate (or legal) cause of the damage to the front car is the driver's action. Determining the legal cause is rarely that simple, as there are often extenuating circumstances. Imagine, for example, if the front car was in a "no-parking" zone and the rear car was angled into the curb, with its trunk protruding into the traffic lane. Now let's review the facts of the lawsuit which we discussed earlier.

A bank travel club contracted with a tour operator to provide a vacation tour for its members. The tour operator chartered a motorcoach and provided a tour escort. During the course of the tour, a passenger placed a "cosmetic bag" in the overhead compartment. That passenger had some difficulty when he was, later, removing the bag and the bag struck the head of another passenger. The passenger who was struck sued the passenger who was removing the bag, the bank, the charter carrier, and the tour operator. The carrier settled with the claimant and was released from the lawsuit. The court issued "summary judgments" in favor of both the bank and the tour operator. A court can issue summary judgment when it determines that there is no genuine issue of any fact which is material to a finding of liability, such that the court may rule as a matter of the law. In other words: There were no facts for a jury to decide; rather, the case could be decided by the judge's application of the law.

The evidence which was presented for the court's deliberations included, in part, testimony by the tour escort, the driver, the passenger who was removing the bag, a statement by the tour company's president, and the tour company's brochure. The tour director testified that he was not responsible to assist passengers with carry on bags, but would do so "voluntarily" if he saw someone having difficulty. He was not on the motorcoach at the time of the incident. The driver testified that his employer instructed him to be available to assist passengers with carry-on bags when the tour director requested that assistance. The passenger who was removing the bag testified that the tour company's representative advised the group that they could bring small carry-on bags. He further testified that the tour director advised him, when boarding, that he should inform the tour escort if he had any problems. The president of the tour company offered his affidavit that, in the history of the company, there had never been an incident in which a passenger removed a piece of luggage from an overhead rack in such a way as to strike another passenger with it. The tour company's brochure provided that "In addition to the  small carry-on" the tour company would tend each passenger's large piece of luggage. The brochure also had a "disclaimer" which said the tour company was "not able to accept responsibility for any losses or damages to personal property or for injuries . . . incurred by any Tour Member."

In entering its judgment in favor of the tour operator, the court held that there was no evidence that the tour operator voluntarily undertook a duty to assist or supervise passengers' placement or removal of carry-on luggage, nor was there evidence presented that the tour company gratuitously undertook that duty which would cause passengers to reasonably rely on the tour company to protect them from harm under the circumstances. The claimant appealed the court's judgment for the tour company.

The appellate court affirmed the trial court's judgment. It held that there was no evidence that the tour company voluntarily assumed a duty to assist with the claimant's carry-on, nor was there evidence that the tour director or driver were ever asked to do so. The appellate court also declined to impose a duty as a matter of public policy. To impose such a duty the law balances the following factors: the foreseeability of the harm, the likelihood of injury, the magnitude (or difficulty) in guarding against the injury, and the consequences of placing the burden on the defendant tour company. While the court found that it may be foreseeable that a passenger would be struck by a small carry-on, there was no evidence presented that a person who was struck would be injured. The court considered the sworn statement of the tour company's president that such an injury had not occurred in the prior history of the company. The court also held that "it would be unduly onerous" to require the tour company to supervise and assist all elderly travelers with carry-ons. Further, such individual supervision would make boarding and disembarking a lengthy process.
Risk management for transportation companies involves an evaluation of the potential financial exposure and the message your company sends regarding future claims. The tour company in this matter made a decision to defend against the lawsuit and it prevailed. There is no mention in the appellate record as to whether the passenger who removed the bag was held responsible for the injury to his fellow passenger.

However, there is little doubt in my mind that the actions against the tour company, the bank, and the carrier were an effort to reach "deeper pockets." The current news brings daily headlines regarding increased insurance rates due to lawsuits, settlements, and verdicts. Settlement should always be considered when you believe you have liability exposure. It is an appropriate option. You must also consider the cost of your defense. I personally salute those who stand on principle and choose to defend against suits with little merit, rather than settle. When you believe that you are right, there's no better way to send a clear message that you won't "roll over" every time someone files a lawsuit, than to defend against the claim. That's good risk management!

Thomas R. Frenkel is an attorney, licensed to practice in Illinois, Minnesota, and the District of Columbia.  Mr. Frenkel has a unique blend of legal and practical transportation and hospitality industry experience.  He is a past president of the National Tour Association (NTA), a past two-term board member of the Travel Industry Association of America (TIA), a founding member of the Hospitality Skills Standards Board (which was created under directive of the United States Department of Labor), and a member of the Transportation Lawyers Association.  Tom Frenkel was the Editor in Chief of the Southern Illinois University Law Journal.  He practices law from his office at Feirich/Mager/Green/Ryan, Attorneys at Law, a law firm which enjoys the highest ratings in both quality of legal service and quality of ethical standards by Martindale-Hubbell, an independent service which rates legal professionals.  Tom Frenkel may be contacted at FMGR, 2001 West Main Street, P.O. Box 1570, Carbondale, Illinois, USA, 62903-1570.  Phone: (618) 529-3000, email: tfrenkel@fmgr.com.  This magazine is proud to feature Mr. Frenkel's commentary, as a contributing writer.  This column is featured for the interest of our readers, but does not constitute legal advice; nor does any attorney-client relationship arise through its publication.