Bulletproof legal immunity for "platforms" like TripAdvisor seems to have softened in recent years. What's certain is that as tours and activities go more mainstream as an option on booking sites, intermediaries will have to put more effort into vetting the tour operators.
A New Jersey woman has sued TripAdvisor and its Viator brand over injuries she allegedly sustained on a camel ride tour in Morocco that she booked through Viator.
The suit, filed earlier this week and first reported by the Boston Globe, raises questions about whether TripAdvisor can be held liable for damages related to activities booked on its sites but run by third-party tour operators, and how camel rides fit in with its policies on tours involving animals.
The plaintiff, Breanne Ayala of Medford, New Jersey, alleged that she got injured on a sunset camel tour in Marrakech, Morocco, on January 3, 2018, that she had booked on Viator. In the lawsuit, filed in a state court in Massachusetts, where TripAdvisor is based, Ayala alleged that the camel she rode broke away from a caravan of other camels, and that she fell to the ground, breaking her upper right arm and pinching a nerve.
One of the guides, according to the lawsuit, claimed before the incident that the camel was pregnant and would give birth in about a month. The lawsuit alleges that the plaintiff didn’t get a safety briefing before the tour nor a van ride back to the hotel, as described on the website, and there was an inordinate delay in calling an ambulance after Ayala was injured. The van had not shown up for the return trip, and the injury occurred on the resultant camel ride back to the tour’s starting point, according to the suit.
The lawsuit does not name the tour operator that ran the sunset camel ride excursion in Marrakesh. A similar tour, operated by Marrakech Top Excursions, is currently available on Viator.
Over the years, it’s been fairly tough to sue TripAdvisor and win. On the user review front, which is not at play in this lawsuit, U.S. courts have generally shielded TripAdvisor and other online review sites like Yelp from defamation lawsuits because of protections in the federal Communications Decency Act.
On the question of tours booked through TripAdvisor, which is at the core of the lawsuit, it’s important to note that TripAdvisor does not operate the vast majority of tours sold through TripAdvisor and Viator. Most are run by third-party tour operators.
When it comes to tours and activities booked on Viator but operated by third parties, Viators terms and conditions state: “Your interactions with Suppliers are at your own risk. Viator will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches, or negligence of any Supplier or for any personal injuries, death, property damage, or other damages or expenses resulting from your interactions with any Supplier.”
TripAdvisor declined to comment on the lawsuit.
TripAdvisor Settled an Earlier Lawsuit
But in a second lawsuit filed against TripAdvisor and Viator in federal court in Massachusetts in September 2018, TripAdvisor argued that U.S. federal law grants it absolute immunity from liability resulting from operations run by third-party providers.
In that lawsuit, plaintiff Kari Mucciariello alleged that she was thrown from an ATV in rough terrain on a Mexico seashore tour in May 2017 and permanently lost functionality in a wrist. The plaintiff also claimed that defendants TripAdvisor and Viator were negligent because the tour operator conducted the tour in a large group, not a small one, as promised, offered no personal instruction, and the guides and the rest of the group sped away, causing the plaintiff to accelerate the ATV in an attempt to keep pace.
TripAdvisor settled the ATV tour lawsuit on December 4, 2019. Terms of the settlement were not disclosed.
The lawsuit related to the sunset camel tour could raise questions about animal protections on tours, which have become a hot topic. Skift Asia Editor Raini Hamdi recently wrote a deep dive, The Complicated Business of Saving Elephant Tourism, and a follow-up article, Stricter Guidelines on Elephant Tourism Put Thai Travel Agents in Quandary. These articles debate whether elephant tourism should be observation-only or whether it should allow elephant rides but entail more investment, care, and training for operators.
In the Ayala lawsuit against TripAdvisor and Viator, the plaintiff alleged that she was told by one of the guides that the camel she rode was pregnant and would give birth in about a month. While all the other camels in the group kneeled to allow riders to mount them, Ayala’s camel didn’t, and she had to be lifted into the saddle twice during the tour.
“When Ms. Ayala and her family asked about why the camel would not kneel, they (were) told by the handlers that the company acquired the camel when it was older and was too old to be trained,” the lawsuit alleged.
Later one of the handlers told Ayala, according to the lawsuit, that the camel was pregnant. When the plaintiff and her family asked the handlers why they were using a pregnant camel in the tour, they just laughed, the lawsuit claimed.
Intrepid Travel, which unlike TripAdvisor is a tour operator, offers some tours where camel rides are optional and has safeguards for camel welfare. Among them, Intrepid bars camel rides in extreme temperatures and handlers who use physical force, and it aims to ensure that the camels have clear eyes and coats, according to a spokeswoman for Intrepid.
TripAdvisor’s new animal welfare policy bars traveler physical contact with animals in captivity, but considers camels domesticated animals, and thus camel tours are allowed to be booked on its sites.
Airbnb, too, doesn’t bar camel rides per se, but these tours must meet its guidelines, a spokeswoman said. Airbnb has prohibitions against camels being overworked, and the camel’s eyes must be “alert and clear,” according to the policy.
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Photo credit: This is a May 31, 2013, photo of a tourist taking a camel ride at the Giza Pyramids in Giza, Egypt. This photo is unrelated to a lawsuit against TripAdvisor over injuries allegedly received on a camel ride tour. 100721 / 100721