DALE CHIMENTI V APPLE VACATIONS INC
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STATE OF MICHIGAN
COURT OF APPEALS
DALE CHIMENTI, LIZABETH CHIMENTI,
JOEY CHIMENTI and STEFANIE CHIMENTI,
UNPUBLISHED
November 17, 2000
Plaintiffs-Appellants,
v
APPLE VACATIONS, INC., and KIMBERLY
TRAVEL, INC.,
No. 208446
Macomb Circuit Court
LC No. 94-005355 NO
Defendants-Appellees.
Before: Zahra, P.J., and Saad and Gage, JJ.
ZAHRA, P.J. (concurring).
I concur in the conclusion of the majority opinion that plaintiffs do not have a
valid cause of action under the MCPA. I write separately to address the question raised
by Judge Gage in her thoughtful dissent. To the extent that a common law tort claim was
asserted in the trial court and was properly preserved for appeal to this Court, I conclude
that defendants did not owe a common law duty to warn of dangers associated with the
current off the coast of Cozumel.
The preliminary question to be addressed is whether a common law negligence
action can survive the fair trade contract executed between the litigants. This contract
expressly relieves defendants of liability for the negligent acts of third
parties/independent suppliers over whom defendants had no control. The travel agent
knew that it was important to plaintiffs that jet ski equipment be available for use.
However, neither the tour operator nor the travel agent expressly warranted that the jet ski
equipment available for use would be in good repair. Further, neither the tour operator
nor travel agent had reason to know that the jet ski equipment rented to plaintiffs by an
independent supplier would be in disrepair. By executing the fair trade contract, the
litigants agreed that defendants would not be responsible to insure that the independent
supplier of the jet ski maintained its equipment in good repair. For this reason, I conclude
that any common law tort action arising from the injuries sustained by plaintiffs was
properly dismissed.
1
Plaintiffs cannot avoid the effects of the fair trade contract by focusing on the
current off the coast of Cozumel, rather than the malfunctioning jet ski.1 Whether a duty
exists under common law is a question of law to be resolved by the court. When
determining whether to impose a common law duty, courts must apply the facts of a given
case to the following factors: (1) the foreseeability of harm; (2) the degree of certainty of
injury; (3) the relationship between the parties; (4) the closeness of the connection
between the conduct and the injury; (5) the blame attached to the conduct; (6) the burdens
and consequences of imposing a duty and the resulting liability for breach. Terry v
Detroit, 226 Mich App 418, 424; 573 NW2d 348 (1997). These factors are to be weighed
and considered against each other. No single factor is dispositive of the question of duty.
Rather, it is the sum total of these various policy considerations that will determine
whether a duty exists. Id. at 424-425.
Plaintiff Dale Chimenti’s activity in this case must be considered when weighing
the above-cited considerations. The foreseeability of harm, the degree of certainty of
injury, the closeness of the connection between the conduct and the injury, and the blame
attached to the conduct weigh against the imposition of a duty. The undisputed evidence
establishes that Dale Chimenti operated the jet ski more than one mile off the coast of
Cozumel, away from mainland Mexico and into the Gulf of Mexico.2 The hotel provided
a corded-off area of the beach to identify the area that was safe for swimming. Whether
any danger was presented by a current immediately beyond the corded-off area depends
upon the activity undertaken. While Apple Vacation’s on-site representative expressed
the opinion that the current in the water in front of the hotel could be dangerous, no
evidence was presented to support the conclusion that the current in the water in front of
the hotel was so inherently dangerous that it was unsafe to operate small seaworthy
vessels, like jet skis. Similarly, no evidence was presented of any prior incidents in
which a person operating a properly functioning jet ski in front of the hotel was pulled out
to sea by an extraordinary current. Indeed, plaintiffs’ companion, who was also a mile
deep in the Gulf of Mexico, was able to maneuver the currents without incident while
operating his properly functioning jet ski. Thus, it was not the current but the
malfunction of the rented jet ski that resulted in plaintiffs’ misfortune.
The dissent suggests that a duty should be imposed upon defendants in this case
because Apple Vacation’s on-site representative “knew” that the current beyond the
corded-off area of the beach could be dangerous. The Apple representative stated that,
had she been asked, she would have advised plaintiffs to jet ski on the side of the island
1
Even if the parties did not enter into a fair trade contract I would conclude, for the
reasons set forth in this opinion, that defendants did not owe plaintiffs a common law
duty to warn about dangers associated with the current in the Gulf of Mexico.
2
Although not the basis for my opinion, it is worthy to note that the risk of being lost at
sea should have been obvious to plaintiff. It is foreseeable that a small motorized water
craft, like a jet ski, can malfunction while in use. The risk of being pulled deeper into the
Gulf of Mexico when you are floating on a jet ski a mile or more off the coast of Mexico
should be obvious to any reasonably prudent person.
2
that faces mainland Mexico. Therefore, the dissent concludes, defendants knew of a
danger about which they should have warned plaintiffs.
It is a dangerous and unwise proposition to make a legal duty contingent upon
matters that are “known” to a litigant. Such a rule serves as a disincentive for putative
defendants to become informed of significant risks and would actually provide less
protection to putative plaintiffs.
People travel to an island resort, like Cozumel, for a myriad of reasons. Some
intend to relax without leaving the resort; others may want to participate in site-seeing
activities; others may want to shop; some may want to snorkel; some may want to scuba
dive; others may want to para-sail; some may want to fish; and some may also want to jet
ski. There are risks of serious injury inherent in each of these activities. If Apple
Vacations had a legal duty to warn of every known risk inherent in such activities, it
would likely replace its on-site representative with a lengthy contractual disclaimer that
would be ignored by all vacationers except, perhaps, the lawyers.
Viewing the facts of this case in a light most favorable to plaintiffs, I conclude
that there is no duty to warn of all known risks of serious harm, particularly since
plaintiffs executed a fair trade contract that absolved defendants from protecting against
the harm that resulted in plaintiffs’ injuries. I would therefore conclude that plaintiffs
have no cause of action in common law as well as concluding that there is no cause of
action under the MCPA.
/s/ Brian K. Zahra
3
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