In this week’s travel law article, we examine the case of Balukjian v. Virgin America, Inc., Case No. 18-cv-00185 (N.D. Cal. March 9, 2018) wherein “the complaint alleges Balukjian and her father, Valdez, took a red-eye flight (and were traveling) with a ‘portable oxygen concentrator’ for her father’s use (and which was) stored…the overhead bin. Approximately three hours into the flight, Valdez awoke and said ‘oxygen’…Balukjian told the flight attendant that her father was having difficulty breathing (and) was able to activate the oxygen concentrator…’The flight attendants did not offer any assistance and did not seem to comprehend the urgency of the situation, namely, there was a man struggling to breathe on the plane’…Suddenly, Valdez stopped breathing…The flight attendants then made an announcement requesting that any medical care professional identify themselves…(A) medical student and the flight attendant placed Valdez on the floor of the plane and the medical student began to perform chest compression. Nobody performed mouth-to-mouth resuscitation…Eventually, an automated external defibrillator was brought to the area…None of the life-saving measures the medical student undertook was effective…CPR was performed on father for 90 minutes”. Motion to dismiss cause of action alleging violation of California’s Elder Abuse And Dependent Adult Care Protection Act granted.
Terror Targets Update
Las Vegas, Nevada
In Mother of Las Vegas stabbing victim to travel to US to collect body, travelwirenews (6/6/2018) it was noted that “The bodies of Neghia Boi Sang, born in 1979, and Mguyen Le Ba Khuong, born in 1988, were found at Circus Casino hotel with multiple stab wounds at 2 am on June 2. Sand was director of Trieu Hao Tourist Company and Khoung was Sang’s employee. They came to Las Vegas with a tour group”.
Students Get Bullet Shields
In Hauser, So It’s on to High School Now? Here’s a Bullet Shield for your Backpack, nytimes (6/5/2018) it was noted that “As the school year wound down this week at St. Cornelius Catholic School in Chadds Ford, Pa., eighth-grade students were handed a gift meant to prepare them for their transition to high school-a bullet-resistant shield that can fit in their backpacks. ‘It is their life now, which is very sad’, Barbara Rosini, the school principal, said in an interview on Tuesday. ‘But it is something that will help keep our kids…safe, that is unfortunately where we are now”. Flack jackets next?
Where Are 43 Mexican Students?
In Ahmed, Disappearance of 43 Mexican Students Must Be Investigated Anew, nytimes (6/5/2018) it was noted that “A federal court in Mexico ordered the government on Monday to investigate the 2014 disappearance of 43 college students again, but this time under the supervision of a truth commission to be led by the nation’s top human rights body and parents of the victims…The ruling shocked lawyers representing the families of the disappeared-not only because it validated years of painstaking effort to seek an impartial inquiry in the face of government intransigence, but also because it cannot be appealed”.
Hawaii Still Burning
In Romero, Hundreds More Hawaii Homes Destroyed as Lava Surge Fills Coastal Bay, nytimes (6/5/2018) it was noted that “Lava flows from the Kilauea volcano on Hawaii’s Big Island wiped out hundreds more homes and then quickly filled a nearby coastal bay, officials said on Tuesday, pointing to a volatile new phase in the eruption of one of the world’s most active volcanos…Kilauea has been erupting with greater intensity since early May in parts of the Big Island, forcing thousands to evacuate while dealing a severe blow to the island’s tourism industry”.
Dueling Volcanos, Anyone?
In Fountain, Why Guatemala’s Volcano Has Been More Deadly Than Hawaii’s, nytimes (6/8/2018) it was noted that “The recent volcanic eruptions in Hawaii and Guatemala are a reminder that not all volcanos are created equal: Some types pose a far greater hazard to life than others. In the most recent eruption of Kilauea on the Big Island of Hawaii…most of the lava has oozed from fissures, spreading slowly enough that it is no threat to people…But the two eruptions that have occurred so far at the Fuego volcano near Guatemala City have been explosive, creating pyroclastic flows-fast-moving, searingly hot clouds of volcanic ash and gases-that have killed more than 100 people so far”.
Tourist Fined L10,000 For Lying
In wedding guest who claimed food at Mexico resort made him sick is ordered to pay travel firm L10,000, travelwirenews (6/11/2018) it was noted that “A lying wedding guest who claimed the food and drink at a Mexican resort made him sick, has been ordered to pay travel firm TUI L10,000. Jadeep Singh, 24, of Salford, appeared to be having a good time at the all in-inclusive Beach Palace in Cancun, as the wedding guest posted selfies during the November 2015 holiday. However, he later claimed he was suffering from a gastric illness that lasted three weeks due to the resort’s food that also made the other 12 guests in his party sick. But a Manchester county court judge didn’t believe Singh, calling him ‘fundamentally dishonest’ and ordered him to pay L10,000 in costs to the travel firm”.
Drunken Passenger Exposes Himself In Dubai
In Transit passenger jailed for offensive gesture to policeman, travelwirenews (6/10/2018) it was noted that “A drunk air traveler who exposed his private parts before a policeman who barred him from boarding an aircraft (at the Dubai International Airport) after finding prohibited items in his bag, will be jailed for three months.
First Class Bathrooms For The Cheap Seats
In Matyszcryk, American Airlines Just Revealed Stunning Information About Its Flights, inc (6/3/2018) it was noted that “For as long as I’ve been flying…I’ve always been under the impression that First Class bathrooms are for the high-paying, or merely high-falutin’, passengers only. I’ve heard countless announcements warning passengers to stick to the toilet in their own class”. A tweet dated May 30, 2018 from @AmericanAir stated “‘The First-Class bathrooms can be used by everyone on the plane when you’re flying domestically, but we agree they shouldn’t be loitering’. Loitering is one of those lovely words that suggests someone’s up to no good. But what these people are doing appears perfectly OK with American…It only on flights returning to the U.S. where the TSA requires passengers to use bathrooms in their ticketed cabin”.
War On Fake Reviews
In Parkin, The Never-Ending War On Fake Reviews, The New Yorker (5/31/2018) it was noted that “Last year, Oobah Butler, a reporter at vice, decided to test the effectiveness of brushing in restaurant reviews. Years ago, Butler told me he used to write bogus reviews on TripAdvisor for money. He found clients via freelance job postings…and charged about twenty dollars a pop…For the recent test, he created his own fake business, which he called the Shed at Dulwich (It was named for his garden shed, in Dulwich, London). He photographed plates of carefully arranged food (created using household products such as shaving cream and dishwater tablets) bought a burner phone and added the Shed to the site. Within four weeks, he had posted enough fake reviews to move the establishment into the top two thousand restaurants in London. Eventually, it became the highest-rated restaurant in the city, and Butler was fielding scores of calls from people hoping to book a table. Such was the nonexistent restaurant’s success that it even attracted a one-star review, from what Butler assumes was a rival. ‘TripAdvisor removed the review on the grounds that it was a fake’, he said. For online retailers, the war on the fake-review industry is now a major part of the business. Today, when a review is submitted to TripAdvisor, it goes through a tracking system that examines hundreds of different attributes, from basic data points, such as the I.P. address of the reviewer, to more detailed information, such as the screen resolution of the device that was used to submit the review”.
Stop Diverting Sharks, Please
In Shark Interaction with tourists: Why cage diving is an unwelcome tourist boom?, travelwirenews (6/7/2018) it was noted that “The chance to go diving and safely see some of the world’s most spectacular and bloodthirsty predators up close in their own environment is regarded as the opportunity of a lifetime for many tourists. Great white sharks are altering their behavior, diverting them from hunting, and making them needlessly waste energy-all because of interaction with tourists. Australia, South Africa, the U.S., Mexico and New Zealand are all offering cage diving”.
Travel Insurance: Read The Fine Print, Please
In Small print on travel insurance leaves holidaymaker with L30,000 bill, travelwirenews (6/11/2018) it was noted that “Read the small print: travelers are urged to make sure everything is covered by insurance…During a holiday in Cape Verde in January, Juliet Taylor was diagnosed with a kidney tumor and airlifted to Tenerife for surgery and two blood transfusions. While she was in intensive car, her travel insurance provider, AXA, told her it would only fund a third of her care costs. She was liable for the remaining L30,000 because she failed to declare a single prescription of sleeping tablets when she bought the policy. Taylor’s plight exposes a minefield travelers face when choosing travel insurance…Axa says it agreed to pay a third of Taylor’s medical costs as a ‘goodwill gesture’ because she had bought a basic policy designed for those with no recent health problems”. Consult Squaremouth for travel insurance advice next time.
Watch Out For Alligators, Please
In Caron, Body of Woman Attacked by an Alligator Is Found in Florida, nytimes (6/9/2018) it was noted that “The body of a Florida woman who went missing on Friday was found just hours after some of her remains were discovered inside an alligator…The woman, identified as Shizuka Matsuki, 47, of Plantation, Fla., was last seen walking her dogs near a lake in the Silver Lakes Rotary Nature Park in Davie, about 25 miles north of Miami…A 12-foot, 6-inch alligator was removed from the lake…local news outlets reported that an arm was found inside the alligator. Mr. Matsuki’s brother identified it by its distinctive tattoo…Search teams found Mr. Matsuki’s body at the lake later on Friday”.
Dead Rattlesnake Bites Back
In Gomez & Jacobs, Texas Man’s Near-Fatal Lesson: A Decapitated Snake Can Still Bite, nytimes (6/7/2018) it was noted that “It is widely known fact that a chicken with a severed head can still run, but a decapitated snake? It can still bite. Jeremy Sutcliffe, a 40-year old Texas native, found this out the hard way. He and his wife, Jennifer, were outside doing yard work…when Ms. Sutcliffe discovered a four-foot-long, dirt-colored rattlesnake in their garden. She screamed. Her husband abandoned his lawn mower and ran to her, grabbing a shovel and lopping of the creature’s head with a single swing. After 10 minutes, her husband tried to dispose of the snake’s severed head…When he reached down, the snake-a Western diamondback-sank its fangs into his hand and held on for about 20 seconds…Eventually, even with 26 doses of antivenom in his body (the average treatment is between two and four), the doctors had to put him in a medically induced coma. Four days later (he) woke up”.
Love Those E-Scooters
In Roose, How I Learned to Stop Worrying and Love Electric Scooters, nytimes (6/6/2018) it was noted that “I wanted to hate the scooters. I really did. Before going to the Los Angeles region last week, I had heard about the area’s invasion by dockless, rent-by-the-minute electric scooters. I saw their sudden arrival described as a plague of two-wheeled terrors that had crowded sidewalks and endangered pedestrians, and I knew that some cities had issued cease and desist orders and passed emergency ordinances to get them off the streets. I also knew that Los Angeles’s leading e-scooter company, Bird-which reportedly just raised $150 million at a valuation north of $1 billion-was run by Travis VanderZanden, a former executive of Uber and Lyft…Tech hubris on wheels-what’s not to loathe?…And here’s my verdict” E-scooters might look and feel kind of dorky, but they aren’t an urban menace or a harbinger of the apocalypse. In fact-sigh-they’re pretty great”. nytimes
The Heads-Down Tribe In China
In May, For Chinese Pedestrians Glued to Their Phones, a Middle Path Emerges, nytimes (6/8/2018) it was noted that “So ubiquitous in China are pedestrians glued to their cellphones, they have earned a nickname: the heads-down tribe. In their natural habitat, tribe members can be seen texting, watching videos and conducting financial transactions, all while dodging cars, tripping at potholes and jamming up subway station entrances. The World Health Organization calls such behavior ‘distracted walking’, and it is a growing health concern in China, where pedestrian deaths make up a significant number of traffic-related fatalities. This spring, the managers of the giant shopping mall in Xi’an, a city in the northwest province of Shaanxi, implemented a novel strategy to protect members of the tribe: pedestrian lanes specifically for cellphone users”.
Mercado Roma Coyoacan
In Farley, Grazing an Entire Country at a Mexico City Market, nytimes (6/9/2018) it was noted that “At Mercado Roma Coyoacan, visitors devour a delicious mishmash of foods and fusions all over Mexico (and beyond). The best time to visit Mercado Roma Coyoacan-the new three level food hall made up of 42 different vendors in the Mexican City neighborhood of Coyoacan-is during a televised soccer game. As the scent of simmering pork and just-heated corn tortillas lingered in the air, the cries of “gooooaaaalll” from various TVs echoed through the apace as patrons fist-pumped and high-five each other”.
Ten Great Island Adventures
In 10 great island adventures: readers’ travel tips, travelwirenews (6/7/2018) it was noted that “From the windswept Outer Hebrides to exotic Japanese archipelagos, our tipsters have explored some of the world’s most unique islands on foot, by bike and kayak”. The destinations in rank order (1-10) include (1) Pellworm, Germany; (2) Iriomote, Japan; (3) Ile Sainte-Marie, off Madagascar; (4) Vallay, Outer Hebrides; (5) La Palma, Canary Islands; (6) Chiloe, Chile; (7) Northern Haiti, Caribbean; (8) Rottnest, Australia; (9) Ile de Porquerolles, France; (10) Koh Rong, Cambodia.
The Hip-Hop Dancing Dermatologist
In Caron, Doctor Who Danced During Surgery In Suspended by Georgia Medical Board, nytimes (6/7/2018) it was noted that “A dermatologist who can be seen on video dancing to the hip-hop song ‘Cut It’ while performing a surgical procedure was suspended on Thursday by the Georgia medical board, which said her continued practice ‘poses a threat to the public health, safety and welfare’…She wanted to be known as the ‘dancing doctor’ said…the patient who appears in the video and who is now planning to sue (the Doctor) for pain and suffering”.
Sports Betting Takes Off In Delaware
In Salam, Delaware Kicks Off Full-Scale Sports Betting, a First Outside of Nevada, nytimes (6/5/2018) it was noted that “Delaware is officially giving Las Vegas a run for its money. On Tuesday afternoon, the small state on the Eastern Seaboard began offering full-scale sports betting, making it the first state to take advantage of the Supreme Court’s decision last month to strike down a 1992 federal law that banned commercial sports betting in most states”.
Maine Over-Loaded With Cruise Ships?
In Some in Maine fear cruise-ship tourism has gone overboard, travelwirenews (6/10/2018) it was noted that “Bar Harbor expects 230,000 cruise ship passengers to march ashore on Water Street this year, a 257 percent increase from 2003, snarling traffic with tour buses and overwhelming sidewalks. From the top of Cadillac Mountain, the biggest ships-17 stories tall, with 6,400 passengers and crew-will dwarf the Porcupine Islands and adds plumes of exhaust to Acadia National Park’s most famous vista…Maine’s state government and coastal communities have been working hard to lure cruise ships to the state…Until recently, little attention has been paid to the critical questions…Are cruise ship crowds trampling the fabric of our towns? What are the real costs and benefits?”.
Summer Snow Skiing, Anyone?
In Vora, 5 Summer Skiing Getaways in the Southern Hemisphere, nytimes (6/5/2018) it was noted that “Summer is a popular time for beach vacations, but if you’re not into sun and water, why not consider a ski getaway instead? In parts of the southern hemisphere where it’s winter during the warm weather months in the United States, the slopes beckon travelers who prefer snow over sand”. The 5 deals include (1) Terrain Skiing and Free Meals in Santiago, (2) Luxury Ski Lessons and Slopes in Patagonia, (3) Budget Friendly Weekend Getaways for Couples at Valle Nevado, (4) Slopes in New Zealand for Young Adventurers and (5) Luxury Skiing in Tierra del Fuego.
Travel Law Case Of The Week
In the Balukjian case the Court noted that “The complaint alleges the following causes of action: (1) a violation of California’s Elder Abuse and Dependent Adult Civil Protection Act; (2) negligence; (3) negligent infliction of emotional distress; (4) wrongful death; (5) a survival action and (6) unlawful business practices against a senior citizen…defendants have moved to dismiss the first and sixth causes of action for failure to state a claim”.
Allegations Of Elder Abuse
“The complaint alleges that the decedent was over the age of 65 and that at the time of his death, had a physical or mental limitation that restricted his ability to carry out normal activities and/or to protect his rights. The complaint also alleges that ‘[w]hile Decedent was in Defendants’ custody and care, Defendants were actually aware that Decedent originally required medical care and care related to his basic needs. Defendants knew that failure to provide these services to Decedent would pose a high probability of serious physical injury to Decedent. Despite such knowledge, Defendants knowingly and recklessly failed to provide basic needs to and for Decedent’. The complaint alleges that defendants’ acts and omissions constitute neglect within the meaning of the Elder Abuse Act”.
Heightened Remedies To Elders
“The Elder Abuse Act provides heightened remedies to elders or dependent adults who can prove ‘by clear and convincing evidence that a defendant is liable for physical abuse…or neglect…and who can demonstrated that the defendant acted with ‘recklessness, oppression, fraud or malice in the commission of [this] abuse…”neglect” (is defined as ‘[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care than a reasonable person in a like position would exercise’”.
The Winn Case
Citing Winn v. Pioneer Medical Group, Inc., 63 Cal. 4th 148 (2016) the Court noted that in Winn “the California Supreme Court held that ‘a claim of neglect under the Elder Abuse Act requires a caretaking or custodial relationship-where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able-bodied and full competent adult would ordinarily be capable of managing without assistance’…the focus of the statutory language is on the nature and substance of the relationship between an individual and an elder or a dependent adult. This focus supports the conclusion that the distinctive relationship contemplated by the Act entails more than casual or limited interactions”.
Legislative History
“‘What the text…conveys about the Legislature’s purpose here…supports tethering the concept of neglect to care taking or custodial situations. But the legislative history of the Act likewise suggests that the Legislature was principally concerned with particular caretaking and custodial relationships and the abuse and neglect that can occur in that context…The Legislature took note that the ‘factors which contributed to abuse, neglect or abandonment of elders and dependent adults [such as] economic instability of the family, resentment of caretaker responsibilities, stress on the caretaker, and abuse by the caretaker of drugs or alcohol’…the legislative history tends to support the view that the Legislature enacted section 15667 in large part to combat pervasive abuse and neglect in certain health care facilities”.
At The Mercy Of
“Plaintiffs argue that they have alleged a care taking or custodial relationship because ‘Decedent was at the mercy of Defendants for basic necessities such as food, water, access to a restroom and access to emergency medical care’…Plaintiffs assert that neither decedent nor Ms. Balukjian had the ability or authority to force the landing of the plane in order to obtain emergency medical assistance”.
Conclusion
The Court is not persuaded by plaintiff’s arguments and agrees with defendants that the complaint does not allege facts showing that defendants had a care taking or custodial relationship with Valdez. Under Winn, a care taking or custodial relationship is established ‘where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder”…and the ‘distinctive relationship contemplated by the Act entails more than casual or limited interactions…Here, plaintiffs allege a caretaking or custodial relationship based upon the fact Valdez flew on a domestic plane flight operated by defendants and during that plane flight he was dependent upon the airlines for medical care and car related to his basic needs. These allegations fail to establish a ‘substantial care taking or custodial role’ and instead describe ‘circumscribed, intermittent, or episodic engagement’ that the Winn court held to be insufficient”.
The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 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.
Read many of Justice Dickerson’s articles here.
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