, Dao and a travel companion visited Managaha Island as part of a snorkeling package they purchased from co-defendant Win Tour.
..Win Tour took Dao and other customers to an area without lifeguards and provided them with snorkeling equipment, telling them it was âsafe to snorkel'. Dao entered the water, staying in the âvery shallow water close to the beach' while the other tourists ventured out further into chest-deep water. Left alone, there was one present to help Dao when water entered her snorkel and she began to drownâ.
Management Of Managaha Island
âManagaha Island is owned by the Commonwealth of the Northern Mariana Islands (CNMI) and administered by the Department of Public Lands (DPL)...To facilitate tourism and public enjoyment of Managaha Island, DPL granted Tsai Tours an exclusive recreational concession (whereby) Tsai Tours has the use of a âconcession area' of approximately 11,203 square meters-a significant portion of the small island-containing improvements for food service, ballrooms and showers, gift shops, picnic areas, storage lockers and accompanying infrastructure...Tsai Tours has the exclusive right to sell food and beverages, rent or sell âwater sports equipment, recreational equipment or beach equipment and related supplies', conduct tours, sell goods and provide for-profit entertainmentâ.
Tsai Tour's Responsibilities
âHowever, the Concession Agreement tasks Tsai Tours with a number of limitations and responsibilities in exchange for the exclusive concession. Tsai Tours cannot restrict common areas of the concession area to its own paying customers and cannot âprohibit the general public from using any beach on Managaha Island'...Tsai Tours is charged with management and maintenance of the entire island, including: cleaning up any trash on a daily basis, providing nighttime security and keeping vegetation trimmed and paths in good repair...the agreement requires Tsai Tours to lifeguard a roped swimming area near the concessionâ.
Landing And User Fee
âThe cost of maintaining and protecting Managaha Island is borne by tourists. Visitors to the island who do not reside with (CNMI) and tour operators are required to pay a âlanding and user fee' upon reaching the island. That fee pays for the construction, maintenance, repair and/or upkeep of...Managaha Island'...DPL owns the funds, but Tasi Tours may use them to pay lifeguards, as well as other approved expenses (âThe cost of nighttime security, lifeguards and rangers may be paid from the Landing and User Fee as each provides for public safety')â.
â[T]he Court (must) determine the scope of Tsai Tours' duties, not just whether it has any duty to Dao. Plaintiff claims that Tsai Tours breached its duty to exercise reasonable care by providing lifeguarding service to less than 1% of the beach area at Managaha, and for failing to provide lifeguarding services to the most popular and best area for snorkelingâ.
Common Law Negligence
After finding the neither the Lifeguard Act of 1998 or DPL Regulations insulate Tsai Tours from liability for Dao's death by drowning, the Court focused upon the principles of common law negligence. âThere is no âwritten law' in (CNMI) that addresses a landowner's duty to provide a lifeguard at its beach. Accordingly, the Court must rely on the common law...(as) controlled by the Restatement (Third) of Torts: Liability for Physical and Emotional Harm...The Court finds that Tsai Tours owed Dao a duty of reasonable care because it is a land possessor of Managaha Island for negligence purposes. Because the Court finds that Tsai Tours owed Dao a duty of reasonable care pursuant to negligence rules for land possessors, it is unnecessary to determine whether it alternatively owed Dao a duty of reasonable care based on the alleged risk it created by actively encouraging people to visit Managaha Island to engage in water activitiesâ.
The Land Possessor's Duties
âThe Restatement imposes a duty of reasonable care on land possessors...A land possessor is a âperson who occupies the land and controls it'...A possessor of land need not be the owner or legal title holder of the land if another exercises occupation and control...In a broad sense, Tsai Tours occupies and controls Managaha Island as a possessor of land. It cleans the entire island on a daily basis, maintains the concession area and âother improvements on the island', provides nighttime security and tends to all vegetation and nature trailsâ.
Decrease The Probability Of Drowning
âOf course, the most important aspect of Tsai Tours' control of Managaha Island for this case is its authority and ability to decrease the probability of swimmers drowning by posting lifeguards in popular areas...The Restatement imposes the duty of reasonable care on a land possessor when the possessor can decrease the risk of harm to entrants. As described above, nothing limits Tsai Tours from lifeguarding areas outside the zoned swimming areaâ.
âTo be clear, the issue raised in Tsai Tours' motion to dismiss is whether Tasi Tours owed a duty of reasonable care to Dao, Based on Tsai Tours' status as a land possessor, it did. Whether Tsai Tours breached its duty by failing to post lifeguards...is not a matter of duty, but of reasonable care... Whether deploying lifeguards to watch the area in which Dao drowned would have been reasonable based on the Restatement's factors is a jury question. The Court's conclusion only addresses the existence of Tsai Tours' duty owed to Daoâ.
Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
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Hon. Thomas A. Dickerson