Are Your Tourism Business and You Legally Vulnerable?

[Peter Tarlow]

Travel and tourism professionals can never forget that their profession is not only one that evokes high levels of emotions, but is often open to all sorts of liability cases that range from the frivolous to the extremely serious.  To add to the confusion, what may be legal in one place may be illegal or liable in another location and often visitors may not only sue in the location in which an incident occurred but also once they have returned home.  This month's Tourism Tidbits might be read in conjunction with the material found in the October 2012 edition.  Once again, Tourism Tidbits reminds its readers that this article is not written by a lawyer and readers should check with their local legal advisor prior to making any decision.  The material contained in this month's newsletter is merely intended to provoke creative thinking.  All decisions should be made solely on the advice of a licensed legal expert.

-Know if and under what conditions your tourism business is open to almost any form of lawsuit or litigation.   If there is a risk and that risk occurs then be prepared for potential litigation.  In the past people have been sued for everything as an accident on their property to weather. The Bahamas even went so far as to guarantee good weather during the winter months; with a money-back guarantee should the weather turn cold.   The basic rule of thumb is that if there is a risk, then be prepared to be sued by someone.

Learn to live with stochastic models by distinguishing between possible and probable.  Many people in tourism tend to confuse these two terms.  Almost anything is possible.  For example, it is possible that people from outer space attack the earth.  However what is possible is not necessarily probable.  So on a hypothetical scale, outer space aliens may attack the earth, so far the possible is far from probable.  Tourism marketers tend to stress the possible, while lawyers look at the probable. 

-The rule of foreseeabilty rules!  Foreseeablity is a complicated law that can be explained in a simple way: ask yourself if a prudent person would have noted a clear and present physical or other danger that might result in some form of harm to your guest.   Foreseeabilty never works in the realm of the possible, but rather, just as in the case of tourism risk management, seeks out the probable.   Thus, it is highly probable that water on a slippery floor may result in a visitor's falling and bodily injury.

Know your history and know your special circumstances.  Any court is going to examine past incidents on your premises.  If your locale has a history of accidents or specific crimes than it is going to be a lot more difficult claiming that you could not reasonably predict a reoccurrence.  Ask yourself how past events, geographic and demographics may impact the safety and security of your guests.  Are there natural occurrences such as tsunamis, earthquakes or hurricanes that may impact your area?  Are you prepared?

-Avoid legal issues with a good risk management plan.  Make sure that your plan covers all aspects of your business from the physical plant to your technology. Ask yourself not only what can go wrong, but how you would solve the problem if something were to go wrong.  For example, if there are water sports involved, there is a high probability that at some point someone may be injured or hurt or even death. How would you handle such an occurrence?  Can someone attack your for issues of poor communication or negligence?  Is all of your life saving equipment up-to-date and in good working order?  Do you train your personnel and staff not only on safety issues but also what to do in case of an emergency?

-Often we overlook the simple things and these are what cause us legal problems.  Review negligence issues on a regular basis.  Often the best plans fail simply because someone fails to check to see if these plans are being carried out.  For example, are doors that are supposed to be locked, actually locked? Are all of your light bulbs in working order?  Do you check your smoke alarms on a regular basis and do you hold regular fire drills when your staff least expects it? 

-Do not just write down your risk management plan; actually practice it!  Too many tourism entities tend to write down their plans, but the plans on the shelf and then when something happens use the plans as nothing more than a legal fig leaf.  Consider all aspects of your tourism business from work place violence to lack of adequate staffing.  Where are your weak points?  Remember in the end it is not about avoiding a law suite but about keeping people from being injured and saving lives. 

-Be mindful that not every tourist and visitor is a good person.  Protect your self and your reputation with carefully placed observation tools.  All too often we find visitors who seek out their own harm as a way to make money, steal from insurance companies or create unsupported litigation as a means of gaining financially.  Such actions are just another form of theft. Just as you need to protect your community or business from fraud and theft, so too do you have to protect your business from dishonest forms of litigation.

From the April edition of Tourism Tidbits