Lavine v. General Mills, Inc.

• Decision Date: 02 July 1981
• Docket Number: No. C79-1643A.,C79-1643A.
• Citation: 519 F. Supp. 332
• Parties: Dorothy W. LAVINE v. GENERAL MILLS, INC. d/b/a Olson-Travelworld Organization and Travelworld; Olson-Travelworld Organization, a Division of General Mills, Inc., and Ambassador Travel, Inc. d/b/a Rich's Travel Agency.
• Court: U.S. District Court — Northern District of Georgia

519 F. Supp. 332

Dorothy W. LAVINE v. GENERAL MILLS, INC. d/b/a Olson-Travelworld Organization and Travelworld; Olson-Travelworld Organization, a Division of General Mills, Inc., and Ambassador Travel, Inc. d/b/a Rich's Travel Agency.

No. C79-1643A.

United States District Court, N. D. Georgia, Atlanta Division.

July 2, 1981.

Ben Weinberg and J. M. Hudgins, IV of Long, Weinberg, Ansley & Wheeler, Atlanta, Ga., for plaintiff.

Robert E. Corry, Jr. of Dennis, Corry, Webb, Carlock & Williams, Atlanta, Ga., for defendants.

ORDER

NEWELL EDENFIELD, District Judge.

This action under the court's diversity jurisdiction seeking damages for personal injuries is before the court on defendants' motion for summary judgment, Rule 56(b), Fed.R.Civ.P.

In the summer of 1977, plaintiff began making plans for a fall trip in the South Pacific. In October of that year she purchased from defendant Ambassador Travel, Inc. d/b/a Rich's Travel Agency (Ambassador) a tour package to Australia, New Zealand and certain South Pacific islands. The tour package was planned and arranged by defendant Olson-Travelworld Organization (Travelworld), a business entity separate from and unrelated to Ambassador. Although Ambassador itself organizes travel packages, it also sells group tour packages planned and arranged by Travelworld and others.

The Travelworld tour plaintiff purchased through Ambassador was called "South Pacific Holiday." It was an escorted tour on which Steven E. Rosebaugh, a Travelworld tour manager, accompanied the group and arranged hotel accommodations, airport luggage handling, ground transportation and local guides.

The package consisted of a visit to Australia and New Zealand, and also included a separate, optional ocean cruise to the Fiji Islands. This three-day, two-night Fiji excursion was aboard a motor vessel owned and operated by the Blue Lagoon Cruising Company (Blue Lagoon), an entity unrelated to any of the defendants in this action. The Blue Lagoon cruise was booked by United Touring, Ltd. in Fiji, through Ambassador and Travelworld. United Touring, Ltd. also is a business entity unrelated to any of the defendants.

Although the Blue Lagoon cruise carried approximately forty passengers, only fifteen were members of plaintiff's Travelworld tour group. These fifteen were not segregated from the other passengers, however, and all passengers on the Blue Lagoon cruise received substantially the same service and accommodations. During this cruise, the captain and crew of the motor vessel served as guides for various points on the islands the passengers visited.

On the second day of the Blue Lagoon cruise, the motor vessel anchored so that the passengers could explore the island nearby. According to the depositions of several passengers, prior to disembarking, the captain assembled all passengers and explained to them the activities available on the island. This deposition testimony indicates that the captain warned the passengers of dangerous and slippery steps at the mouth of the caves on the island, and that he also warned them about dangerous and slippery rocks along the beach. Although plaintiff acknowledges being present while the captain addressed the passengers, she denies that she heard any warnings about slippery rocks and in fact denies that any such warning was given. The deposition testimony of one passenger indicates that plaintiff was talking to another passenger during the captain's address and that she was not paying attention to the warnings he gave.

Following the captain's address, plaintiff went ashore with other passengers, visited the island's caves, and then began to walk alone along the beach. According to plaintiff's deposition, she stopped adjacent to a rock with the intention of removing her shoe, looked down at the rock, placed her foot on it and fell backwards, breaking her right arm.

Immediately after plaintiff fell, tour manager Rosebaugh and others came to her assistance. A medical doctor, fellow-passenger Dr. Clifford R. Schneider, supervised moving plaintiff back to the vessel. Dr. Schneider then administered a sedative to plaintiff and applied an ice pack to her arm. Two passengers who were nurses attended plaintiff on the return voyage to the port of Lautoka.

After assisting in plaintiff's return to the motor vessel, Rosebaugh requested that the captain secure a helicopter to transport plaintiff to medical facilities on the main island. The captain was unable to secure a helicopter, however, since it was late in the day and the helicopters would not operate in darkness. Rosebaugh then persuaded the captain to terminate the cruise and return the vessel to the main island. Upon the vessel's arrival at Lautoka, plaintiff was transferred to a waiting ambulance that the captain had requested by radio, and she was immediately transported to the hospital. Plaintiff was x-rayed at the hospital, but she declined to permit the local physicians to treat her injuries. She was flown to Los Angeles, California several days later, and ultimately returned to her home in Atlanta for medical treatment.

According to the pretrial order entered February 23, 1981, plaintiff seeks to recover from defendants for her injuries on the grounds that defendants allegedly:

(1) Failed to warn her of a known hazardous condition (i. e., the slippery rock);

(2) Failed to take adequate precautions to protect her as an invitee from latent defects (i. e., the slippery rock);

(3) Failed to provide to her adequate medical care, equipment, supplies or staff in order to handle known medical emergencies;

(4) Failed to select and retain a competent and experienced tour manager trained in the handling of known medical emergencies; and

(5) Failed to select and retain a competent cruise operator and captain.

Thus plaintiff apparently claims that some or all of these failures constituted negligence by defendants, or that defendants breached certain warranties or contractual obligations they owed to plaintiff. Plaintiff relies upon "the general common law principles of tort and contract law as codified in Ga.Code Ann. Title 20 and 195," but has abandoned her reliance "on certain safety regulations existing in the Fiji Islands at the time of the accident." Pretrial Order at 8. See infra.

Defendants move for summary judgment on the ground that there is no factual issue for trial on either of two questions: that defendants breached no legal (tort) duty to plaintiff, and that they breached no contractual duty to her. Accordingly, defendants argue, they are entitled to judgment as a matter of law.

Although plaintiff's injuries occurred in the Commonwealth of Fiji and, under Georgia's application of the conflict of law doctrine lex loci delicto, the court should apply that country's substantive law to gauge liability, the parties agree that Georgia law should apply in this case due to the insurmountable difficulty in obtaining Fiji authority. Accordingly, since neither party has come forward to prove the applicable Fiji law, the court will apply Georgia's substantive law to this claim. See Commercial Insurance Co. of Newark v. Pacific-Peru Construction Corp., 558 F.2d 948, 952 (9th Cir. 1977).

The court is convinced that plaintiff's claims against these defendants must fail for several reasons.

To the extent that plaintiff's first two claims are based upon premises liability (i. e., failure to warn of a hazardous condition, failure to protect an invitee), they support no cause of action against these defendants, since neither of them was the owner or occupier of the island where plaintiff fell. In addition, pretermitting consideration of any warning that may have been given, the court can discern no duty that these defendants owed to plaintiff to warn her of or to protect her from the hazard that caused her injury. Plaintiff cites no direct authority recognizing such duty, and this court declines to impose one on the facts presented here.

An essential premise supporting much of plaintiff's claim is that the Blue Lagoon Cruising Company, not a defendant, was defendants' agent and that defendants are liable for their agent's alleged transgressions. That assertion ignores the plain facts, however. The record indicates beyond peradventure that Blue Lagoon was an independent contractor that provided a service to defendants and their tour members. Plaintiff argues that since the vessel returned to port at her tour manager's request following her injury, the vessel was under her tour manager's...