U.S. District Court
Listen to this articleWhere a plaintiff who booked a catamaran boat tour through the defendants’ website has brought a negligence complaint against the defendants after she was injured during the tour, the defendants’ motion to dismiss should be allowed because the plaintiff has not established that the defendants had a duty to warn her about conditions caused by the tour operator, a third party, nor are the plaintiff’s allegations sufficient to state a claim that either defendant negligently selected or retained the tour operator.
“Plaintiff Lisandra Gonzalez alleges that she was injured on a catamaran tour in Greece because of the negligence of defendants Viator Tours, Inc., Tripadvisor LLC, and Sunfos Alessia Yachting. …
“On July 24, 2023, Gonzalez booked an August 3, 2023 catamaran boat tour with Sunfos through the Viator/Tripadvisor website. … She received a confirmation email shortly after completing her booking. … During the tour, at a scheduled stop in Mykonos, Greece, Gonzalez began to disembark from the catamaran via a ramp. … The ramp was not suitable for use at the pier, however, because there was a two- to three-foot gap between the end of the ramp and the pier. … Gonzalez fell from the ramp due to the gap, injuring her left leg and ankle. …
“… Viator and Tripadvisor contend that Gonzalez has not plausibly alleged that they owed her a duty of care. …
“The amended complaint alleges that Viator and Tripadvisor owed Gonzalez three duties of care: (1) ‘to use reasonable care under the circumstances in the operation of the Sunfos yachting tours sold through its website’; (2) ‘to warn of any dangerous conditions which may have existed in relation to the subject tour, including, but not limited to, the existence of an improper docking area and/or improper and unsafe docking/disembarkation procedure; which was known to [Viator and Tripadvisor], but was not readily apparent to the Plaintiff and other invitees, such that the Plaintiff and other invitees would likely be subject to an unreasonable risk of danger’; and (3) ‘to use reasonable care in the selection and retention of Sunfos as a tour operator who sells shore excursions to [Viator and Tripadvisor] customers through [their] website.’ …
“Gonzalez’s first theory fails to establish a duty of care. Read in the light most favorable to Gonzalez, the amended complaint does not plausibly allege that Viator or Tripadvisor were responsible for, or had control over, the operation of the catamaran tour or the placement of the ramp. Rather, the amended complaint alleges that Sunfos was responsible for ‘selling, marketing, and conducting yachting tours for foreign tourists, including American customers of … Viator and TripAdvisor.’ … Viator and Tripadvisor, in contrast, merely offered websites through which tours may be booked. … Gonzalez does not contend that she had any special relationship with Tripadvisor or Viator that would exempt her negligence claims against them from the general rule that a defendant’s duty of care ‘does not extend to taking ‘affirmative steps to protect against dangerous or unlawful acts of third persons.’’ … Accordingly, Viator and Tripadvisor had no duty to take reasonable care in the operation of the Sunfos tour because Gonzalez does not allege that they had a role in, or control over, its operation.
“Gonzalez’s second theory fails for a similar reason. She maintains that Viator and Tripadvisor had a duty to warn her against the dangerous conditions on the tour that, she claims, were known to Viator and Tripadvisor but not to her. But she has not plausibly alleged a special relationship with Viator and Tripadvisor to justify a departure from the general rule that an entity does ‘‘not owe others a duty to take action to rescue or protect them from conditions [it has] not created.’’ … Gonzalez has not, accordingly, established that Viator and Tripadvisor had a duty to warn her about conditions caused by Sunfos, a third party. …
“Gonzalez’s third theory is likewise unavailing. Generally, negligent selection and retention claims arise in the employer-employee and employer-independent contractor contexts. …
“Even if a negligent selection or retention claim could be asserted in this context, these allegations are insufficient to state a claim that Viator or Tripadvisor negligently selected or retained Sunfos. The amended complaint contains no allegations undergirding the assertion that Sunfos was an unsafe or inexperienced catamaran operator, and it lacks allegations as to why Viator or Tripadvisor knew or should have known Sunfos to have such a reputation. The amended complaint also alleges no facts describing the photographs on Tripadvisor or Viator’s website or the dangerous condition allegedly depicted in those photographs. Where analogous negligent selection or retention claims have survived a motion to dismiss, the complaint has contained far more fulsome allegations to support the claim. … Gonzalez’s amended complaint similarly lacks the factual enhancement necessary to withstand a motion to dismiss her claims that Tripadvisor and Viator negligently selected or retained Sunfos.
“Gonzalez’s claims against Tripadvisor and Viator are not saved by her conclusory allegation that they were engaged in a joint venture with Sunfos such that they could be held liable for Sunfos’ actions. …
“… Gonzalez’s allegation that Sunfos ‘was engaged in a “joint venture”’ with Tripadvisor and Viator ‘for the sale of its yachting tours’ is wholly conclusory. … Absent a factual foundation for this legal assertion, Gonzalez has not plausibly alleged a joint venture among Sunfos, Tripadvisor, and Viator, such that Tripadvisor or Viator could be held liable for Sunfos’ alleged negligence in its operation of the tour. …
“For the foregoing reasons, the motion to dismiss filed by Tripadvisor and Viator, ECF 51, is granted. Counts I and II of the amended complaint are dismissed.”
Gonzalez v. Viator Tours, Inc., et al. (Lawyers Weekly No. 02-460-25) (10 pages) (Kobick, J.) (Docket No. 1:24-cv-12304-JEK) (Aug. 20, 2025).