DALE CHIMENTI V APPLE VACATIONS INC
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STATE OF MICHIGAN
COURT OF APPEALS
DALE CHIMENTI, LIZABETH CHIMENTI,
JOEY CHIMENTI and STEPHANIE CHIMENTI,
UNPUBLISHED
November 17, 2000
Plaintiffs-Appellants,
v
No. 208446
Macomb Circuit Court
LC No. 94-005355 NO
APPLE VACATIONS, INC. and KIMBERLY
TRAVEL, INC.,
Defendants-Appellees.
Before: Zahra, P.J., and Saad and Gage, JJ.
GAGE, J. (dissenting).
I respectfully dissent. I would reach the legal question, argued by the parties both before
the trial court and on appeal, whether according to common law negligence principles the tour
operator and travel agent defendants owed plaintiff Dale Chimenti a duty to warn him of
dangerous currents existing near Cozumel island.
I would find that as a matter of law a travel agency or tour operator owes a legal duty to
warn its clients when, as in this case, the following circumstances exist: (1) the agency or
operator advises the client that it will look after the client’s welfare and keep the client “fully
informed”, (2) the agency or operator has knowledge of inherently dangerous conditions existing
within close proximity to the client’s intended whereabouts; (3) it is reasonably foreseeable that
the client will engage in activities in the dangerous area; and (4) the dangerous condition creates
a risk of death or serious bodily harm.
Because the extent of the relationship, if any, between the individual defendants remains
unclear from the instant record, I would remand this case for a determination whether the facts
establish the elements of a duty to warn on the part of either or both individual defendants, and if
so, for consequent factual determinations whether the applicable defendants breached the duty,
the extent of plaintiff’s comparative negligence, and whether the breach proximately caused
plaintiffs’ harm. The concurrence raises several interesting factual considerations for the jury in
examining the questions of plaintiff’s comparative negligence and whether either one or both of
the individual defendant’s negligence proximately caused plaintiff’s injuries. The concurrence
fails, however, to adequately explain why a travel agent or tour operator as a matter of law should
be immune from any responsibility to protect its clients, even from the simple, easily
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accomplished burden of advising the clients of known, dangerous conditions that they will
encounter.
I emphasize that I would not hold that a duty to warn exists with respect to every
conceivable potentially dangerous activity. I would limit the duty to warn only of dangers known
to the tour operator or travel agent that pose a substantial risk of death or serious bodily injury,
especially where, as here, it is reasonable to infer the client’s unawareness of the danger.
/s/ Hilda R. Gage
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