|Post by Claude Prevost|
Post by Attorney Claude Prevost, who practices in retail/hospitality law & construction defect litigation
*Hurricane Isaac underscores the important considerations all businesses must make to protect their customers, especially those in the water sports and entertainment industry.*
South Carolina is known for its abundance of natural resources including lakes, rivers and streams that flow from the Upstate to the coastal estuaries of the Lowcountry. South Carolinians and tourists have been taking advantage of these natural resources for decades. Over the past several years, South Carolina businesses including tour groups and outfitters also have been taking advantage of South Carolina’s waterways, and a niche market of the tourism industry has developed: kayak tours. Touring by kayak is an excellent way to observe South Carolina’s vibrant ecosystems, as well as view the cityscapes that surround these systems. Urban kayaking is now a popular alternative for traditional sight seeing.
However, as Ben Kessling recently reported in the Wall Street Journal, “City Kayak Tours Fan Safety Worries,” kayak tours are not without risk. In Chicago, rescuers were called in to retrieve kayaking tourists from the Chicago River. A violent storm tipped over kayaks sending tourists down stream, while others rushed for cover. Fortunately, no one was injured. According to Kessling, two kayak companies in Chicago were issued citations and face possible fines for renting kayaks to a tour group prior to a storm.
In South Carolina, “there is no duty to warn of dangers that are open and obvious. . . when the risk complained of is open and obvious to consumers, there is no duty to warn of that risk as a matter of law.” Moore v. Barony House Restaurant, LLC, 382 S.C. 35, 42, 674 S.E.2d 500, 504 (Ct.App. 2009) (citations omitted). Moreover, while there does not seem to be any South Carolina case law on point, tour providers can look to other jurisdictions for guidance related to duties owed to tourists or kayak renters:
[N]umerous courts have held that tour companies and guides have no duty to warn of obvious dangers their customers encounter on trips. See, e.g., Tei Yan Sun v. Governmental Auths. of Taiwain, 2001 U.S. Dist. 1160, at *31-32 (finding no liability for failure to disclose dangers of “severe undertow, high waives, and strong surf” at beach, and noting that travel agents have no duty to disclose obvious dangers to travelers) (citing McCollum v. Friendly Hills Travel Ctr., 172 Cal.App.3d 83, 95, 217 Cal.Rptr. 919 (Cal.Ct.App.1985)); Passero v. DHC Hotels & Resorts, 981 F.Supp. 742, 744 (D.Conn.1996)(“A tour operator may be obligated, under some circumstances, to warn a traveler of a dangerous condition unknown to the traveler but known to it.... This doctrine applies to situations where a tour operator is aware of a dangerous condition not readily discoverable by the plaintiff. It simply does not apply to an obvious dangerous condition equally observable by plaintiff.”); Stafford v. Intrav, Inc., 841 F.Supp. 284, 287 (E.D.Mo.1993) (noting that travel agents owe no duty to disclose information that is obvious and apparent to the traveler).
In the case of kayak tour providers, it seems those providers may have a duty to warn tourists of conditions not readily discoverable to the tourists. It also may be helpful for providers to discuss, before the tour begins, the likely conditions of the body of water, especially if torrent or laden with obstacles. However, arguably, dangerous weather conditions could be considered an open and obvious danger to which tour providers owe no duty to warn as the weather condition is equally discoverable by the tourist/renter. Nevertheless, a tour provider should probably notify tourists of dangerous weather, cancel the tour, or decline the rental of a kayak. However, it is likely liability would arise if a tour provider embarked on a tour with the knowledge of imminent dangerous weather conditions.
Boaters, tourists, and tour providers alike should consider several factors before getting on South Carolina’s waters. First, tourists should consider the experience and training/certification of the group providing the tour. A well-trained and experienced tour provider is essential when navigating South Carolina’s waters. Second, boaters and tourists should consider their own skill level when heading out on South Carolina waterways. Most South Carolina waterways are flat and calm, but may become rough and choppy in an unexpected afternoon thunderstorm. Finally, tourists and tour providers should consider the weather forecast. The citations in Chicago and above case law suggest tour providers probably have a responsibility to monitor the weather prior to and during a tour. If a tour provider rents kayaks or embarks on a tour knowing dangerous weather is eminent, and someone gets hurt, the tour provider could have some liability issues on their hands. Similarly, tourists should also consider the weather before going out on the water. Considering these factors will hopefully ensure boaters and tour providers alike stay safe, have fun, and enjoy a profitable kayak tour season this summer.