The opinion of the court was delivered by: MUIR
The Plaintiff, Helen McDermott, a resident of Arizona, filed this diversity action alleging that she was injured by the negligence of the Defendant, Travellers Air Services, Inc., a corporation with its principal place of business in New York, and that a purported agent or employee of the Defendant, Madge O'Sullivan, a resident of Ireland, intentionally inflicted emotional distress upon her. The issue of liability was tried before the undersigned judge sitting with an advisory jury from December 4 through December 6, 1978. The advisory jury returned answers to a series of special verdict questions indicating that Travellers Air Services was not negligent, that Mrs. McDermott was not contributorily negligent and that Madge O'Sullivan did not intentionally inflict emotional distress on Mrs. McDermott. The following represent the Court's findings of fact, discussion, and conclusions of law.
1. On or about May 1, 1977, AAA Travel, Carlisle, Pennsylvania, provided and made available to Arthur T. McDermott, son of the Plaintiff and her counsel, a TWA Charter Europe Travel Brochure containing terms and conditions of the trip.
2. The tour operator for the trip to Ireland was the Defendant. (Undisputed)
3. Page 35 in the Brochure (Plaintiff's exhibit) provides in part that ". . . neither the operator nor . . . its cooperating organizations shall be responsible for cancellations . . . Nor shall they be liable . . . for injury . . . arising from . . . negligence of any person not its direct employee or under its exclusive control."
4. A booking form was signed by Mr. McDermott on behalf of Plaintiff (Plaintiff's exhibit 1). (Undisputed)
5. The booking form provided in part that Arthur T. McDermott had read and accepted the "conditions shown on p. 35 of TWA charter Europe brochure on behalf of . . ." Plaintiff.
6. Mr. McDermott did not read p. 35 of the brochure before he signed the booking form.
7. Title 14 of the Code of Federal Regulations § 378.17(h) states that a tour operator such as the Defendant may contract that in the absence of negligence on the part of the operator he is not responsible for injury arising out of the negligence of any person rendering any of the services or accommodations being offered in the tour.
8. The aircraft for the trip on which Plaintiff travelled was chartered by Defendant from TWA. (Undisputed)
9. Defendant orally contracted for land arrangements in connection with the tour with Travellers International AG, a Swiss corporation having principal offices in Basle, Switzerland.
10. On July 28, 1978, Travellers International AG contracted with the Torc Great Southern Hotel to provide hotel accommodations in Kilarney, Ireland, from April 1, 1977, to October 31, 1977, for tours, one of which was the tour on which Plaintiff travelled. (Defendant's Exhibit 3).
11. Travellers International AG arranged for the conduct of the land tour by Travellers International Ireland, Ltd. of Dublin, Ireland.
12. Travellers International Ireland Ltd., employed Madge O'Sullivan as tour director for tours including the one on which Plaintiff travelled. (Plaintiff's exhibits 29 and 30).
13. Plaintiff departed the United States on tour No. TC8905 from New York's Kennedy Airport on June 18, 1977. (Undisputed)
14. The tour was satisfactory to Plaintiff in all respects until June 20, 1977.
16. In the evening hours of June 20, 1977, Ms. O'Sullivan learned of the fall, met with the Plaintiff and hotel manager and Plaintiff was supplied ice to relieve pain in her wrist which had been injured in the fall.
17. On June 21, 1977, Plaintiff participated in a group picture, and a "jaunting cart ride."
18. After the activities referred to in the preceding paragraph later on June 21, 1977, ...