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LOEB v. UNITED STATES

May 20, 1992

LILLIAN LOEB and EMANUEL LOEB, Plaintiffs,
v.
UNITED STATES OF AMERICA, DEPT. OF THE INTERIOR, TAUCK TOURS, a/k/a TAUCK TOURS INC. and GRAND TETON LODGE CO., a/k/a JACKSON LAKE LODGE, Defendants.



The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge.

 This case concerns the liability of a vacation tour operator for personal injuries sustained by a tour patron while she was walking in and about the majestic Grand Teton National Park -- an area not under the control of the tour operator.

 This Court recently decided two motions to dismiss brought by the Government and by the Grand Teton Lodge. In a Memorandum Decision and Order dated March 23, 1992, the Court granted the Government's motion to dismiss the complaint, pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction based upon the plaintiffs' failure to satisfy the condition precedent to suit under the Federal Tort Claims Act. The motion by defendant Grand Teton Lodge to dismiss the complaint, pursuant to Fed. R. Civ. P. 12(b)(2) for lack of in personam jurisdiction was also granted, without prejudice to the plaintiffs filing an amended complaint within thirty days.

 The third defendant, Tauck Tours ("Tauck"), now moves for summary judgment, pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, the motion by Tauck Tours for summary judgment is granted.

 I. BACKGROUND

 The Court presumes familiarity with this case based upon its March 23, 1992 Memorandum Decision and Order, and therefore recites only those facts necessary to the determination of this motion for summary judgment.

 The plaintiffs, Lillian and Emanuel Loeb, were members of a June 1988 tour, managed by the defendant Tauck Tours, which was visiting the Grand Teton National Park in Moran, Wyoming. While at the Grand Teton National Park, the Loebs stayed at the Grand Teton Lodge, a/k/a Jackson Lake Lodge. On June 28, 1988, while walking in an area near the Lodge, Lillian Loeb fell to the ground and "sustained severe injuries and fractures to various parts of her body" (Complaint, P23).

 As to the defendant Tauck, the complaint alleges the following:

 
"FOURTH: Defendant, TAUCK TOURS, is a corporation duly organized and existing under the laws of the State of Connecticut with its principal place of business in that state.
 
* * *
 
TWELFTH: That on or about June 28, 1988, the defendant, TAUCK TOURS, its agents, servants and/or employees did arrange, sponsor, organize and supervise a trip to the GRAND TETON LODGE, its grounds and the trials and paths in Grand Teton Parks and surrounding and abutting the GRAND TETON LODGE.
 
* * *
 
FIFTEENTH: At all times hereinafter mentioned, TAUCK TOURS is an organization that solicits tourists to enroll in their planned and supervised tours.
 
* * *
 
EIGHTEENTH: At all times hereinafter mentioned, it was the duty of said defendant, TAUCK TOURS, to bring plaintiffs to a place that used reasonable care and diligence in the ownership, operation, management, maintenance, care, use, conduct of said premises and at all times kept same in a safe condition for guests and business invitees thereon.
 
NINETEENTH: That on June 28, 1988, the plaintiffs were members of a tour managed by defendant, TAUCK TOURS, and were taken by TAUCK TOURS to the GRAND TETON LODGE and the Grand Teton National Park.
 
* * *
 
TWENTY-SECOND: That defendants, its agents, servants and/or employees were reckless, careless and negligent in its ownership, operation and maintenance in said premises; in failing to keep the premises in good and safe conditions; in failing to maintain said premises in a safe condition for persons lawfully walking thereon; in failing to erect barricades and other devices to prevent the occurrence of an accident; in that they allowed a dangerous condition to exist . . . in failing to give due and adequate warning to the plaintiff of said dangerous and treacherous conditions . . . in failing to exercise due diligence; in knowing of the existence of said dangerous condition and in failing to take steps to remedy or avert said condition which with due diligence could have and should have been corrected; in failing to make proper and timely inspections of said area . . ."

 In its Answer, defendant Tauck Tours advanced the following affirmative defenses: (1) culpable conduct of the plaintiff under New York C.P.L.R. Article 14-A; (2) lack of in personam jurisdiction; and (3) assumption of risk. In addition, Tauck asserted a cross-claim for contribution and/or indemnification against the co-defendants United States of America, Department of the Interior, and Grand Teton Lodge.

 As grounds for its summary judgment motion, Tauck Tours states that it has no involvement in this action because its only responsibility was to "make arrangements for the tour followed by the Loebs" (Declaration of August Englert, Esq., P3). Tauck further contends that there is no proximate cause between its actions or responsibilities and the plaintiffs' injuries.

 According to Tauck, the tour operator is responsible for making arrangements for the accommodations of the plaintiffs. It asserts that it had no control over and no responsibility for the conditions at the Grand Teton Lodge nor for any defective conditions which may have been present there. Consequently, Tauck maintains that it owed no duty to the plaintiffs, did not proximately cause the injury to the plaintiffs, and therefore has no liability in this action.

 In support of the motion, Tauck has provided the affidavit of Chuck Tauck, Director of Operations for Tauck Tours for the past ten years. Chuck Tauck states the following:

 
"3) As per the attached copy of the 'Tauck Tour Condition of Tour,' Tauck Tours was not responsible for any injuries sustained by Mrs. Loeb.
 
4) My records indicate that at the time of the occurance [sic], Mrs. Loeb was not taking part in any ...

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