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By eTN Editor
Created 3 Dec 2015 – 3:38am
Hon. Thomas A. Dickerson
In this week’s article we examine tainted food and contaminated water lawsuits brought against hotels, restaurants and tour operators. In particular we will discuss a food-borne illness class action, Williams v. Williamsbridge Restaurant Inc. d/b/a New Hawaii Sea Restaurant, (Bronx Sup. 2015), New York Law Journal (9/29/2015), in which it was alleged that patrons of the New Hawaii Sea Restaurant may have been exposed Hepatitis A virus carried by a restaurant employee.
In Graffam, The Civil Justice System And Food Safety, Trial, November 2015, p. 42 it was noted that “Every year, 48 million people get sick, 128,000 are hospitalized and at least 3,000 die from foodborne illnesses, costing the United States about $77 billion…American families are confronting more problems than ever before-from the rise of antibiotic-resistant ‘superbugs’, to the vast amounts of waste these farms produce, which poisons the groundwater and nearby crops. This contamination is so widespread that leafy green vegetables such as spinach and lettuce are now the second-most frequent cause of food-related hospitalizations and the fifth-most frequent cause of food contamination death”.
Travel Law Update
ISIS-QAEDA Terror Targets Update
Worldwide Travel Alert
The United States State Department issued a Worldwide Travel Alert on November 23, 2015 which stated that “The State Department alerts U.S. citizens to possible risks of travel due to increased terrorist threats. Current information suggests that ISIL (aka Da’esh), al-Qa’ida, Boko Haram and other terrorist groups continue to plan terrorist attacks in multiple regions. These attacks may employ a wide variety of tactics, using conventional and non-conventional weapons and targeting both official and private interests. This Travel Alert expires on February 24, 2016″.
Paris, France
In Nossiter, Paris Attacks Spur Emergency Edict and Intense Policing in France, nytimes.com (11/23/2015) it was noted that “All over France…the police have been breaking down doors, conducting searches without warrants, aggressively questioning residents, hauling suspects to police stations and putting other under house arrest. The extraordinary steps are now perfectly legal under the state of emergency decreed by the government after the attacks on Nov. 13 in Paris that left 130 dead-a rare kind of mobilization that will continue…There have been 1,072 police searches already and 139 police interrogations, and 117 people have been placed in custody”.
Brussels, Belgium
In De Freytas-Tamura, For Third Day, Brussels In Paralyzed by Terror Dragnet, nytimes.com (11/23/2015) it was noted that “On what would normally have been a busy Monday, this city in the heart of Europe remained shut down for a third straight day. Everything was closed-the schools, museums, government offices, public transportation, markets, shops, everything. And still, the fear of a terrorist attack like the one in Paris was so great that the authorities felt it necessary to tell the public it was O.K. to step outside”.
New York’s “Sick” Subway Riders
In Fitzsimmons, A Hated Phrase That Subway Riders Are Hearing More: “Sick Passenger”, nytimes.com (11/23/2015) it was noted that “Sick passengers have accounted for about 3,000 train delays each month this year in New York City, a figure that has grown drastically in recent years, up from about 1,800 each month in 2012, according the Metropolitan Transit Authority…Officials at the authority say the incidents often involve riders who have fainted or vomited. Other passengers might have had a heart attack or a seizure, or could be unconscious or even dead. A sick customer is not, as some surmise, a suicide on the tracks, which workers are instructed to announce as a ‘police investigation’”.
Proposed Drone Regulations Released
In Kang, Proposed Regulations for Drones Are Released, nytimes.com (11/23/2015) it was noted that “Drones, those remote-controlled flying machines, are expected to top many wish lists this holiday season. Now those who open those gifts will most likely need to tell the federal government. On Monday the (FAA), scurrying to prepare for hundreds of thousands of more drones flying into the air, released a list of recommendations for how to better monitor recreational use of the machines. Under the proposal, most drone owners would have to register the machines with the federal government, which would place the information in a national database, the first such requirements …The Consumer Technology Association, a trade group, has estimated that 400,000 drones will be sold this holiday season in the United States”.
Hot Water Spill
In Cordice v. LIAT Airlines, 14-cv-2924 J. Mauskopf (E.D.N.Y. 2015), New York Law Journal (9/22/2015) the Court noted that “Cordice alleges that, on a LIAT flight from Trinidad to Tobago to St. Vincent, a flight attendant knocked over a cup of hot water, spilling in onto her legs. Cordice asked the flight attendant for some ice and cold water to cool the area, but the flight attendant asked if the seat was wet and offered to dry it. Once Cordice arrived in St. Vincent…(she) asked a supervisor and indicated that her seatmate had witnessed the incident, but after an hour of waiting, on one offered her a ride to the emergency room or provided any other assistance. When Cordice returned to the United States, her doctor told her that she had sustained second-degree burns…Cordice filed a complaint seeking $10,000 in damages”. The Court dismissed the case after finding that it had no personal jurisdiction over LIAT because it “is incorporated under the laws of Antigua and Barbuda, with its principal place of business in Antigua…It does not maintain an office or employees, bank accounts or even a phone listing in New York…Nor does LIAT operate flights into or of New York City…Cordice asserts jurisdiction based upon the location from which she purchased her ticket. However, her cause of action arises not from the sale of the ticket (in New York City), but from an alleged tort that took place on a flight from Trinidad and Tobago to St. Vincent. The mere purchase of a ticket in New York is insufficient to establish personal jurisdiction based upon an injury that occurred elsewhere while traveling on that ticket”.
Raceway Release Not Enforced
In Stevens v. Payne, 48 Misc. 3d 512 (Cortland Sup. 2015) it was noted that “Plaintiffs’ negligence action arises out of injuries sustained by George Stevens…while watching his daughter compete in a car race at Skyline Raceway…Plaintiff was seated in bleachers lacking side railings that were located in the inland area of the racetrack. He fell approximately six feet from the side of the bleachers to the ground after suffering a heart attack and sustained serious personal injuries including permanent paralysis of his legs that prevents him from walking. Plaintiff signed (a release) given to Skyline Raceway…when he entered the pit area…It is undisputed that plaintiff entered Skyline as a member of the pit crew for his daughter’s race car. He was watching her race from the pit bleachers when she had a flat tire. He left the bleachers, helped change the flat tire… walked back to the bleachers, where he took a seat two or three rows from the top before he sustained his heart attack and fell…By its terms, the Skyline release plainly addresses only risks inherent in automobile racing…the anticipation for which a release is required, including access to areas in close proximity to a race event, illustrates that the release was required only due to the potential that the releasor would encounter risks inherent in racing…the only reasonable conclusion is that the Skyline release is applicable only to risks rationally associated with the dangerous nature of automobile racing and, therefore it is inapplicable to the negligence claimed by the plaintiff(defective construction and maintenance of the bleachers)”.
Conviction For Murder Of Utah Tourist Overturned
In McKinley, Judge Orders Retrial for Johnny Hincapie, Convicted in ‘90 Subway Killing, nytimes.com (10/6/2015) it was noted that “A state judge…ordered a new trial for a Queens man who was convicted of taking part in the 1990 killing of a tourist from Utah on a New York subway platform, a crime (for which he spent 25 years in prison) that provoked a public outcry and became a milestone in the city’s era of high crime and fear….In his ruling Justice Prado said he was convinced that new evidence presented during a hearing this ear would have changed the outcome of the first trial. Three witnesses came forward and testified that Mr. Hincapie was not on the subway platform when the victim, Brian Watkins, was stabbed while trying to defend his family from muggers. The killing of Mr. Watkins became a symbol of the pervasive and often random street violence that plagued New York during the late 1980s and early 1990s, when crack dealing was rampant and the city had more than, 2,200 murders a year”. See also: Prosecutors to Appeal in 1990 Tourist Slaying Case, New York Law Journal (11/10/2015), p. 1.
Uber Settles Airport Fee Class Action
In Kendall, Uber Settles Suit Over Airport Fees, The Recorder (11/20/2015) it was noted that “The proposed $1,785,913 settlement…would reimburse riders for ‘airport fee tolls’ Uber collected in 2013 and 2014…Riders were charged between $1.25 and $4.50 per trip. The lawyers estimated there are more than 350,000 riders in the class, many of whom took multiple airport trips…Plaintiffs lawyers sued Uber…claiming Uber misled customers by claiming its ‘airport fee toll’ was a fee charged by the airports. In reality, the lawyers claim, the money went to Uber drivers. Uber denies it misrepresented the nature of the fees…The company is fighting a similar suit brought by the district attorneys for San Francisco and Los Angeles over its ‘airport fee toll’ and its ‘safe rides fee’”.
Lyft Sued In Wrongful Death Case
In Lyft Sued in Death of Motorcyclist, law.com (11/19/2015) it was noted “The ridesharing company Lyft is facing a wrongful death lawsuit after one of its drivers allegedly crashed into a Miami motorcyclist…The lawsuit claims Lyft was negligent in its training and background checks for (the driver)”.
Uber & Lyft To Seek New Funding
In Picker & Isaac, Lyft Said to seek $500 Million in Funding, nytimes.com (11/17/2015) it was noted that “Lyft…is seeking about $500 million at a valuation of approximately $4 billion, said the people, who spoke on the condition of anonymity. That’s up from the company’s current valuation of about $2.5 billion…Uber is meeting with investors about a new round as well…Uber is hoping to raise roughly $1 billion at a valuation of $60 billion to $70 billion, other people told The New York Times in October. The company is currently valued by investors at about $50 billion”.
Starwood Malware Security Breach
In Starwood notifies customers of malware security breach, eturbonews.com (11/20/2015) it was noted that “Starwood Hotels & Resorts Worldwide, Inc. announced today that the point of sale systems of a limited number of hotels in North America were infected with malware, enabling unauthorized parties to access payment card date of some customers”.
Travel Law Article: Food And Water Lawsuits
Food and water related lawsuits are quite common and cover the spectrum from false advertising [see Smith v. Atlas International Tours, 80 A.D. 2d 762 (1st Dept. 1981)(tour operator promised Passover tour featuring “‘Glatt Kosher’ gourmet cuisine, which is the ultimate in strict adherence to Jewish dietary laws, under resident rabbinical supervision”)], water contamination [see Amsellem v. Host Marriott Corporation, 280 A.D. 3d 357 (1st Dept. 2001)(hotels guests “continued to drink and bathe in the hotel-supplied water which was later determined to contain unsafe levels of E-coli bacteria”] and tainted food containing some of our favorite vacation microscopic bugs.
Vacation Bugs Not Welcome
Perhaps, the most unwelcome bugs are those microscopic organisms lurking in tainted food and contaminated water such as E-coli bacteria [see Young v. Crookham, 290 Or. 61 (Ore. Sup. 1980)(E-coli outbreak at Crater Lake Lodge)], Shigella [see Averitt v. Southland Motor Inn of Oklahoma, 720 F. 2d 1178 (10th Cir. 1983)(hotel employee “involved in food preparation had Shigella”)], Salmonella [see Camasso v. Dorado Beach Hotels Corp., 689 F. Supp. 384 (D. Del. 1988)(“A November, 1986 alleged outbreak of salmonella poisoning at the Hyatt Regency Cerromar Resort located in Dorado Beach, Puerto Rico”); Corbi v. Harrah’s Hotel & Casino, 2010 WL 4226523 (D.N.J. 2010)(“Plaintiffs’ next expert… ‘concluded that…the eggs over medium seem most likely to be culpable’ because ‘[Plaintiffs] consumer the eggs and this is the most common source of transmission of (Salmonella entercolitis)’”)] and camplyobacter bacteria [see Sarti Salt Creek Ltd., 167 Cal. 4th 1187 (Cal. App. 2009)(restaurant patron and guest “split an appetizer containing raw ahi tuna, avocado, cucumbers and soy sauce…The diarrhea continued for the next ten days…and found to have camplyobacter bacteria”); Jaroslawicz v. Prestige Caterers, Inc., 292 A.D. 2d 232 (1st Dept. 2002) (Passover tour results in alleged food poisoning caused by camplyobacter bacteria “which, Plaintiff claims, developed into Guillain-Barre Syndrome, a serious neurological disorder”)].
A Sampling Of Food & Water Cases
The Averitt Case
In the Averitt case, supra, “Averitt stayed at the Southland (Motor Inn) and dined at the hotel restaurant (and) became ill the next day. After he returned home to Dallas, his condition worsened…after suffering from diarrhea for several days, he was a hospital (and) was diagnosed as having ulcerative colitis…the Tulsa City-County Health Department secured stool cultures from the hotel’s employees (which) indicated that a hotel employee in food preparation had Shigella…the hotel made no attempt to notify Averitt or other hotel guests that they had been exposed to Shigella…During trial, the plaintiff introduced into evidence health department inspection reports covering the period from January 8, 1974 to May 19, 1978 (which) indicated that Southland had committed numerous health and sanitary violations. The jury…awarded the plaintiff $375,000 compensatory damages and $500,000 punitive damages”.
The Amsellem Case
In the Amsellem case, supra, “Castle Harbour’s water tanks and filtration systems are monitored by the Bermuda Ministry of Health (the Ministry)…On February 13, 1998, the Ministry was summoned to Castle Harbour after a large number of guests reported nausea, vomiting and diarrhea…Plaintiffs maintain that on February 14, 1998, Smith became ill and that on the following day, Amsellem also became ill, but that the hotel staff claiming they were unaware of the cause of the problems. Plaintiff contend that, as a result, they continued to drink and bathe in the hotel-supplied water which was later determined to contain unsafe levels of E-coli bacteria. Defendants claim that in the 48-hour period following the first reported illnesses, hundreds of other people became ill after drinking the water (and that after being informed by the Ministry that the water supply was contaminated) shut down the in-house water supply and tapped into the public water system”.
The Crookham Case
In the Crookham case, supra, “Summer of 1975 saw a high incidence of severe intestinal illnesses among employees at the Crater Lake Lodge and visitors to the Lodge. The epidemic was determined by mid-summer to be the product of raw sewage overflowing into the water supply, and on July 11, 1975 the park and lodge were closed for the season by federal authorities. Alleging injury as a result of drinking the contaminated water, 76 persons…initiated a class action against Crater Lake Lodge…During (the) trial evidence was presented…of the conduct of defendants…from mid-June to July 11, 1975. Included was evidence of defendant’s knowledge of wide-spread illness among employees, less-then-whole-hearted cooperation with health investigators, routing of nauseated employees from their sick beds to work in the lodge’s restaurant and food handling operations, failure to warn patrons and visitors of potential injury and attempts to cover up the seriousness of the problem including tearing down warning signs posted by the park management and removing newspapers containing accounts of the extent and severity of the illness”. Compensatory damages and punitive damages awarded.
The Corbi Case
The Corbi case, supra, approximately twenty-four hours after arriving at Harrah’s, Yvonne became violently ill, and shortly thereafter, Joseph also became ill…both…were diagnosed with salmonella entercolitis (SE). As a result of the SE, Yvonne suffered a ruptured colon and developed acute peritonitis (and) underwent (two surgeries, the second of which she) suffered from an infection and abdominal pain…Plaintiffs offer sufficient evidence upon which a reasonable jury could conclude that the cause of their stomach ailment was a food item they consumed at Harrah’s. First, plaintiffs offered expert reports from four experts who concluded that food plaintiff consumed at Harrah’s caused their illness….Dr. Harkins, plaintiff’s family physician, opined that ‘the (SE) was caused by the eggs consumed at Harrah’s Hotel and Casino…Similarly, Dr. Ellner, an expert on internal medicine and infectious diseases, concluded that ‘whereas any of the foods that she consumer at Harrah’s could theoretically have been the cause, either directly or through cross-contamination, the eggs over medium seem most likely to be culpable’”. Defendant’s motion for summary judgment denied.
The Sarti Case
In the Sarti case, supra, “On April 7, 2005 Alexis Sarti and a friend ate at the Salt Creek Grille. They split an appetizer consisting of raw ahi tuna, avocado, cucumbers and soy sauce. Sarti became nauseous and chilled the next day (and thereafter) suffered constant diarrhea, fever and chills (with the diarrhea) continu[ing] for the next ten days…(while in) intensive care (she was diagnosed with) a variant of guillain-barre syndrome (and) fund to have camplyobacter bacteria, which was the only pathogen found in the sample. Expert testimony would later indicate that Sarti’s guillain-barre was an idiosyncratic immuno-suppressant reaction to the constant diarrhea brought on from camplyobacter (which) is not found in raw tuna, unless that tuna has been cross-contaminated by raw chicken, where the bacteria is common. (A subsequent food report by the Orange County Health Department) identified four practices at the Salt Creek Grille that could lead to cross-contamination. Specifically: Wipe-down rags were not being sanitized between wiping down surfaces. There was also an insufficient amount of sanitizer in the dishwater. Chicken tongs were sometimes used for other food (the tongs would take raw chicken off the grill and then cooked food would be touched with the same tongs). Raw vegetables were stored under ‘raw meat’…so that a drop of raw meat juice might get on the vegetables. There was also testimony that the waiter who served Sarti had used a wet, unsanitized rag stored underneath the bar to wipe down Sarti’s table. Sarti…never completely recovered. She had to use a walker for eight months and to this day retains only about 40 percent of what would have been her normal endurance…The jury returned a verdict of $720,000 in economic damages and $2.5 million in non-economic damages…The judgment notwithstanding the verdict is reversed. The case is remanded to the trial court to reinstate the original judgement”.
The Williams Case
In the Williams case, supra, “In this civil matter involving a food-borne illness case, Plaintiff moves for class certification…After careful review of the motion papers along with a hearing…the Court hereby grants plaintiff’s motion to certify this class. On September 17, 2013, Plaintiff…ate at New Hawaii…three days (later) the NYC Department of Health and Mental Hygiene [the Department”] issued a Press Release…urging those who patronized New Hawaii from September 7-19, 2013, to get an immune globulin short [‘IG Shot’] because they may have possibly been expose to the Hepatitis A virus [‘HAV’] from a restaurant employee…3,052 people received the IG shot in direct response to the…Press Release…(In granting class certification the Court stated, inter alia) there are questions of law and fact surrounding the defendant’s (alleged) beach of express and implied warranty with its sale of food, along with defendant’s (alleged) negligence in preparing the food (and) about defendant (allegedly) knowingly allowing its infected employee to continue working”.
The author, Justice Dickerson, has been writing about Travel Law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2015) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2015), and over 350 legal articles. For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
This article may not be reproduced without the permission of Thomas A. Dickerson.
Source: http://www.eturbonews.com/66551/food-and-water-borne-diseases-contracted-hotels-and-restaurants
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