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CARLEY v. THEATER DEV. FUND

October 5, 1998

ANNE MARIE CARLEY and JOHN CARLEY, Plaintiffs, against THEATER DEVELOPMENT FUND and EDUCATIONAL TRAVEL RESOURCES, INC., Defendants.


The opinion of the court was delivered by: SCHWARTZ

ORDER

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 Plaintiffs bring this negligence action for damages allegedly resulting from an incident that occurred in St. Petersburg, Russia, during the course of a tour of that city organized by defendants. The case is before the Court on defendants' motion for summary judgment. *fn1" For the reasons stated herein, defendants' motion is granted in its entirety.

 BACKGROUND

 Except as otherwise noted, the following facts are not disputed. *fn2"

 Defendant Educational Travel Resources, Inc. ("ETR") is a corporation organized under the laws of the State of Michigan, with its principal place of business in McLean, Virginia. (Defendants' Statement Pursuant to Local Civil Rule 56.1 ("Def. 56.1") P 5.) ETR is a tour operator, engaged in the business of arranging air transportation, accommodations, local transportation, and tickets for various events and destinations for educational and entertainment purposes. (Id. at PP 7, 14.) Although ETR arranges for these services, it does not actually provide the services to the tour participants. (Id. at P 8.) ETR arranges these tours in various countries in Eastern Europe, including the Czech Republic, Hungary, and Russia. (Id. at PP 8, 40.) Among the hotels that ETR often books for tour participants is the Hotel Pulkovskaya, in St. Petersburg, Russia. (Id. at PP 25, 40.)

 Theater Development Fund ("TDF") is a business incorporated in and with its principal place of business in New York. (Id. at P 1.) TDF is generally engaged in the business of selling discounted theater tickets through the mail. (Id. at P 2.) TDF also operates a travel program whereby TDF will arrange, through tour operators, travel to various cultural destinations featuring theater, opera, and/or ballet performances. (Id. at P 3.) TDF had used ETR in 1994 and 1995, booking trips to Prague and Budapest. (Id. at P 9.) TDF was satisfied with these experiences. (Id. at P 10.) In November, 1995, ETR contacted TDF about offering a cultural trip to St. Petersburg, Russia to TDF's customers. (Id. at P 4.) ETR arranged a package tour for TDF consisting of air transportation between New York and St. Petersburg, hotel accommodations in Russia, and tickets for various theatrical performances. (Id. at P 14.) TDF received reservation forms and deposits from its customers, and forwarded these forms to ETR. (Id. at PP 15, 16.) With regard to the trip to St. Petersburg, TDF requested that ETR find for TDF's customers "a first class hotel that TDF's members could afford." (Id. at P 12.)

 Among the hotels selected by ETR to provide services to TDF's customers was the Hotel Pulkovskaya ("Hotel"). (Id. at P 13.) All participants in TDF tours organized by ETR stayed at the Hotel. (Id. at P 25.) The Hotel Pulkovskaya is a "modern, Finnish designed hotel." (Id. at P 39). Although ETR arranged for plaintiffs to stay in the Hotel, ETR does not own, manage, control, or own any stock of the Hotel. (Id. at PP 27, 28, 29.) ETR had sent more than 1500 tour participants to the Hotel from 1991 to March 8, 1998, and no one had ever reported any injuries resulting from the Hotel's windows or from falling out of such windows. (Id. at PP 37, 41.) The Hotel has been widely regarded as an "excellent choice for western tourists, given the fact that it offered modern amenities which were not necessarily found in other hotels in the St. Petersburg area." (Id. at P 45.)

 Plaintiffs John and Anne Marie Carley, residents of Connecticut, paid approximately $ 3,400 to TDF and ETR for a tour to Russia, which departed on March 5, 1996. (Plaintiffs' Statement Pursuant to Local Civil Rule 56.1 ("Pl. 56.1") P 2.) This tour consisted of approximately 200 of TDF's customers, who made the trip in three groups. (Def. 56. 1 P 35.) At least one agent of ETR participated in the travel portion of plaintiffs' tour. (Pl. 56. 1 P 7.)

 As part of the documentation provided to plaintiffs and other participants of the tour, ETR provided a document entitled "Tour Terms and Conditions." (Def. 56. 1 P 19.) This document advised plaintiffs to purchase various insurance policies, and stated that ETR and associated agents did not consider themselves responsible for accidents that may occur on the tour unless the accident was the result of negligence on their part. (Def. 56. 1 P 22.) More specifically, the document provided:

 
Cancellation Insurance. We strongly suggest that you consider purchasing a low-premium passenger travel protection program which includes protection for trip cancellation or interruption, accidents, emergencies or sickness.
 
Responsibility. [ETR] . . . is the tour operator and is responsible for the services provided. However, in the absence of negligence on their part, ETR and other associated agents are not responsible for accidents, loss, detention, annoyance, sickness, loss of enjoyment, upset or disappointment, . . . force majeure . . . and other causes over which we have no control. All services are subject to the laws of the country in which they are rendered . . .. ETR chooses its suppliers with great care. However, we do not own or operate any of the accommodations or other facilities used in conjunction with the tour. We therefore cannot accept responsibility for the negligence of the staff of these organizations.

 (Def. 56. 1 P 22.)

 Plaintiffs were booked in the Hotel Pulkovskaya as part of their tour, and stayed there on March 8, 1996. (Pl. 56. 1 P 3.) On that date plaintiff Anne Marie Carley sustained serious injuries while trying to open her hotel window. (Affidavit of Anne Marie Carley PP 19, 21.) Mrs. Carley fell approximately six floors when the window swung into the room unexpectedly and she fell out. ...


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