United States District Court, E.D. Pennsylvania
February 19, 2004.
MALLERIA CASH and FREDERIKA HARRELL, Plaintiffs,
SIX CONTINENTS HOTELS, Defendant
The opinion of the court was delivered by: RONALD BUCKWALTER, District Judge
Presently before the Court is Defendant Six Continents Hotels' Motion
for Summary Judgment, Plaintiffs Malleria Cash's and Frederika Harrell's
(collectively "Plaintiffs") Opposition thereto and Defendant's Reply to
Plaintiffs' Opposition. For the reasons set forth below, Defendant's
motion is granted.
On or around April 30, 2001, Plaintiffs were staying at the Holiday Inn
Sunspree Hotel ("Hotel") while they vacationed in Montego Bay, Jamaica.
The Hotel is owned by SC Hotels & Resorts (Jamaica) Ltd., which is an
affiliate of Defendant. While staying at the Hotel, Plaintiffs arranged
to take a tour of the Dunns River Falls in Ocho Rios, Jamaica. Plaintiffs
booked the tour with a local tour company, Harmony Tours Ltd. For the
convenience of its guests, the Hotel permitted Harmony Tours to maintain
a desk in the Hotel lobby where guests
could purchase tours. It is undisputed that the Hotel and Harmony
Tours have no legal affiliation.
On or around April 30, 2001, Harmony Tours transported Plaintiffs to
Dunns Rivers Falls. Plaintiffs allege that they were dropped off at the
Falls "for a long period of time without any guidance or assistance."
(Compl. at ¶ 3.) Plaintiffs claim that while they were trying to climb
the waterfall without the assistance of a guide they slipped, fell
and sustained injuries.
On May 13, 2003, Plaintiffs filed a one count complaint in state court
alleging that Defendant was negligent for failing to provide a guide as
they toured the Falls. On June 12, 2003, Defendant removed the case to
this Court. The parties do not dispute that Pennsylvania law controls
II. STANDARD OF REVIEW
A motion for summary judgment will be granted where all of the evidence
demonstrates "that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(c). A dispute about a material fact is genuine "if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248
(1986). Since a grant of summary judgment will deny a party its chance in
court, all inferences must be drawn in the light most favorable to the
party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655
The ultimate question in determining whether a motion for summary
judgment should be granted is "whether reasonable minds may differ as to
the verdict." Schoonejongen v.
Curtiss-Wright Corp., 143 F.3d 120, 129 (3d Cir. 1998). "Only disputes
over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment." Anderson, 477
U.S. at 248.
The parties do not dispute that Defendant and Harmony Tours are not
legally affiliated in any way. Additionally, there is no dispute that
Harmony Tours was not a servant or actual agent of Defendant. Rather,
Plaintiffs' sole contention is that Harmony Tours was an apparent agent
of Defendant; therefore, Defendant should be held liable for Harmony
Tours' alleged negligence. (Pls.' Mot. ¶ 5.)
The Restatement (Second) of Agency § 267 outlines the rule for apparent
agency and states, "one who represents that another is his servant or
other agent and thereby causes a third person justifiably to rely upon
the care or skill of such apparent agent is subject to liability to the
third person for harm caused by the lack of care or skill of the one
appearing to be a servant or other agent as if he were such." Drexel v.
Union Prescription Centers. Inc., 582 F.2d 781, 790-91 (3d Cir.
1978)(citing Restatement (Second) of Agency). While Pennsylvania has not
formally adopted § 267, it has adopted the theories of apparent authority
and agency by estoppel, which state that "a principal who clothes his
agent with apparent authority is estopped to deny such authority."
Myszkowski v. Penn Stroud Hotel. Inc., 634 A.2d 622, 629
(Pa. Super. 1993). As the Myszkowski Court noted, apparent agency,
"as embodied in § 267, is substantially similar to the doctrines of
apparent authority and agency by estoppel."*fn1 Id.
Plaintiff has not offered any evidence whatsoever to show that Harmony
Tours had apparent authority or that Harmony Tours was Defendant's
apparent agent. Plaintiffs have not even alleged, let alone offered
evidence to show, that Defendant made any representation to Plaintiffs
that Harmony Tours was its agent. Rather, Plaintiffs stated in their
depositions that they just assumed that Harmony Tours was affiliated with
Defendant because Harmony Tours had a desk in the Hotel's lobby. (Pls.'
Br. ¶ 5.) In fact, Plaintiff Harrell testified that nobody at Harmony
Tours or the Hotel ever represented that the two entities were
affiliated. (Harrell Dep. Tr. at 34-35.) Plaintiffs have simply not
offered any evidence that shows Defendant held out Harmony Tours as its
Additionally, the undisputed evidence shows that Harmony Tours actually
supplied Plaintiffs with direct information that Harmony Tours was not an
agent of Defendant. Both parties submitted photographs of Harmony Tours'
display desk in the Hotel. (Pls.' Br. Ex. 4; Def.'s Br. Ex. D.) Behind
the desk was a large sign that listed each of the tours that were
available. In large capital bold letters, the top of the sign stated
"HARMONY TOURS." Furthermore, the following language was printed on the
tour tickets that Plaintiffs purchased:
take notice that Harmony Tours Ltd. which conducts
tours and excursions sold at this desk is an
independent contractor. Holiday Inn (Jamaica) Inc. is
not responsible for any loss, damage or injury which
anyone may suffer arising out
of, or in the course of, or in connection with any
such tour or excursion.*fn2 (Def.'s Br. Ex. C.)
Not only is there no evidence that Defendant made representations
that it was Harmony Tours' principal, but Harmony Tours directly
represented to Plaintiffs that it was an independent contractor that was
not affiliated with Defendant. Accordingly, Plaintiffs cannot meets its
burden of proving apparent authority or agency by estoppel.
Lastly, even if Plaintiffs could show that Defendant made a
representation that it was affiliated with Harmony Tours, Plaintiffs must
then show that they justifiably relied on the representation.
Myszkowski, 634 A.2d at 629. Plaintiffs have not supplied any evidence
that they relied on any representation made by Defendant. In fact, during
her deposition, with regard to purchasing a ticket for the tour,
Plaintiff Frederika Harrell testified as follows:
Q. Would you have not bought that ticket if you
found out Harmony Tours was not affiliated with
Holiday Inn? A. I don't know. I mean, I probably
would have, because I wanted to take the tour.
(Pls.'Mot. ¶ 5.)
Plaintiff Harrell's own testimony shows that even if Defendant had
made a representation that it was affiliated with Harmony Tours, she did
not rely on that representation in any way. She would have taken the tour
regardless of who was offering it.
For the foregoing reasons, Defendant's Motion for Summary Judgment is
granted and judgment is entered against Plaintiffs and on behalf of
Defendant. An appropriate Order follows.
AND NOW, this 19th day of February, 2004, upon consideration of
Defendant Six Continents Hotels' Motion for Summary Judgment (Docket No.
7), Plaintiffs Malleria Cash's and Frederika Harrell's Opposition thereto
(Docket No. 10) and Defendant's Reply to Plaintiffs' Opposition (Docket
No. 11), it is hereby ORDERED that Defendant's Motion for Summary
Judgment is GRANTED and judgment is entered on behalf of Defendant and
against Plaintiffs. This case is now CLOSED.