Beware of guests who come for sun, sea, sand and to sue

Henley
Morgan

Wednesday, January 02, 2019

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As a young man I returned to Jamaica from the United States, where I had worked for a major brewing company, to head the packaging quality control department of a well-established bottling operation. Indelibly etched in my memory is one of the first problems I was confronted with. The company, which sanitized and reused glass bottles that were returned from trade, was experiencing a problem with foreign matter found in bottled products. Most complaints came from an impoverished community located not far from the plant. The procedure for dealing with complaints of that nature was to send the complainant to the company's attorney downtown, where payment was made to settle the claim.

I recall asking the company's principal why was this procedure — which amounted to an acceptance of liability — continued when most of the complaints could be proven to be contrived. His response was rather nonchalant. These people, he said, were poor. This was a way of them making a living and paying them an easy way of getting rid of the problem.

Those were simpler times. Jamaica had a closed economy with controlled imports and little in the way of exports. The power of brand and the need to protect it was not well understood. In such an environment, the chance of a consumer complaint, genuine or contrived, taking down a monopoly business operation was close to zero.

Fast-forward to today. Jamaica has an open economy with competing products from all over the world. A few Jamaican companies and their products are themselves considered to be global brands. The value of a company's brand is well understood and carefully guarded, especially through internal quality systems. The level of legal exposure to complaints by customers has increased exponentially. Nowhere is this truer than in the tourism industry.

A conference held a few weeks ago in the resort city of Montego Bay opened the eyes of participants to the many risks. The conference, which was put on by the United States law firm Kaufman Dolowich Voluck used as a theme, Caribbean Hospitality Industry Liability in the United States. Presenters Bruce Liebman and Michel Morgan made some stunning revelations starting with the first slide, which read thus: “US media reports that Jamaica is facing historic tort liability issues relating to assault, rape and negligence.”

Most of these cases, one may assume, are litigated and settled away from public scrutiny. Once in a while the case comes to public attention, usually as a result of an adversarial relationship developing between the plaintiff and the defendant. The allegation of sexual assault being brought by an American couple, Melissa Blayton and Jeff Ashley Pascarella, against Sandals Resorts International (SRI) is a case in point. The story received wide exposure through the online editions of popular American cable television news networks and was discussed on the local Nationwide Radio, where the couple's lawyer revealed that his clients had filed a US$30-million suit against SRI in the New York Supreme Court.

Rated one of the top brands in the Commonwealth by Interbrand Inc, SRI has the reputation and the financial wherewithal to withstand what on the surface appears to be an attempt by opportunistic guests and their attorney to go after “easy money”. The burden of this column is not to take sides in ascribing guilt or innocence in the particular case. It is to open the eyes of providers of goods and services to what is a clear and present danger in the age of global travel and trade. The publicity given to the couple's challenge to SRI's world-recognised and much-awarded customer service standards, values and brand, pulls the cover off a problem many Jamaican businesses suffer in silence, and warns the rest of us to raise our guard.

The Kaufman Dolowich Voluck conference presenters recommended seven best practice actions to limit legal exposure to claims, particularly contrived ones:

(1) Insist on registering guests and include a forum selection clause, ie a clause stating the jurisdiction where claims will be litigated should there be a suit.

(2) Train employees to accept/decline alternate forum selection terms proposed by guests.

(3) Develop simple but effective protocols for recording and reporting incidents involving guests.

(4) Train employees how to respond to incidents to protect the health and well-being of guests while at the same time limiting the legal exposure of the company.

(5) Engage legal counsel during the early stages of an investigation.

(6) Obtain public liability insurance with foreign/US jurisdiction coverage for defence costs.

(7) Ensure unaffiliated resort vendors (eg attractions and tour operators) have adequate insurance.

Community tourism vendors are especially vulnerable to being sued. With the Government's growth agenda being enthusiastically pursued by Tourism Minister Edmund Bartlett, the tourism product is rapidly spreading to every nook and cranny of this beautiful island. A difference in culture, say, in how Jamaicans respond to a person claiming to suffer a belly ache or an injury, recorded and videoed on a cellphone, could be used in a foreign court as evidence of the service provider having accepted liability. No wonder some highly exposed destination management companies are requiring community attractions and tour operators with whom they partner to acquire insurance to cover claims of up to US$1 million per incident and to be included in the policy.

Many visitors come to Jamaica to enjoy the sun, sea and sand. A fourth “s”, sex, is sometimes added. Based on current trends that “s” should stand for sue. Sue, in this context, is not the name of an alluring Jamaican female. Beware!

hmorgan@cwjamaica.com

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