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United States District Court, E.D. Pennsylvania

February 19, 2004.


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 Page 2 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 this case.


  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 (1962).

  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. Page 3 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 Page 4 (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 agent.

  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 Page 5 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. Page 6


  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. Page 7


  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.

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