Representing the Injured Tourist: The Five Basic Considerations When Representing a U.S. Citizen Injured in the International Travel Marketplace
Each year millions of U.S. residents travel overseas as well as to destinations such as Canada and Mexico. Whether traveling for business or pleasure the risk of injury in the foreign terrain is present. The injured traveler has a host of considerations on the road to recovery. In kind, the lawyer representing an injured traveler must navigate the complex foreign system of law when representing the injured tourist in order to thwart the risk of professional malpractice. The following five basic considerations should be considered when taking on a case involving the U.S. Citizen injured in a foreign destination.
- Make It Your First Priority: In order to preserve your client’s claim you must determine the barriers to suit in the jurisdiction in which the traveler was injured. You don’t want to sit on a case file and let precious time pass by when the injured tourist’s claim could be on the verge of being time barred. Local nuances in the law of the foreign jurisdiction may require you to act in as little as a few months. Research the foreign system of law and know your barriers to suit.
- Grab the Phone and Get Competent Local Counsel: Once you have determined that the suit is not time barred and you have adequate time to act, draft the complaint and identify competent local counsel. You will need someone in the location of the injury to serve all appropriate parties pursuant to the local regulations and rules of procedure.
- Be Prepared to Deal with Real Personal Jurisdiction Issues: In Pennsylvania you will be presented with Preliminary Objections as to the adequacy of personal jurisdiction over foreign defendants when bringing suit stateside. Similarly, in other jurisdictions you will most likely face defenses based on lack of personal jurisdiction. Hone up on your civil procedure and consider how the technology super-highway has opened the door for arguments that general jurisdiction does indeed exist allowing you to haul these foreign defendants into court in your desired forum.
- Consider all Possible Claims and Defendants: You must isolate and identify all viable claims and bring suit against all possible defendants or run the risk of professional negligence lawsuits. These types of cases are unique and a consideration as to how the vacation or business trip was booked should be explored. A proper understanding of the tourism industry and inquiry into whether a “travel tourism destination company” (tour operator or the like) was utilized may broaden your possible claims and defendants. Query whether breach of contract and fraudulent misrepresentation claims are viable when looking at the totality of the planned vacation.
- Understand Conflict of Laws and All Possible Avenues for Damages: When you take on a case involving injury in a foreign destination you will be faced with difficult choice of law issues. You must analyze all jurisdictions where personal jurisdiction may attach for both liability and damage consideration. The law of damages of each state or destination can be the deciding factor as to which jurisdiction will optimize your client’s recovery.
At the end of the day, a proper litigation strategy must be in place in order to allow you to maximize the ultimate exposure of the case. Consideration of the five basic categories above is necessary to avoid common mistakes and oversight that could have you hauled into court by your client.
The posting on this site are my own and don’t necessarily represent Anapol Schwartz’s position, strategies or opinions.