Club Mediterranee v. Stedry

283 S.E.2d 30, 159 Ga. App. 53, 1981 Ga. App. LEXIS 2484

• Court: Court of Appeals of Georgia
• Decided: June 24, 1981
• Docket: 61659
• Status: Published

Opinions

Deen, Presiding Judge.

1. We do not agree with the appellant that the damages were based on the plaintiffs “subjective evaluation of defendants’ brochure,” or on mere puffing. The line between advertising which merely creates a promise, prophecy or expression of opinion, and advertising, although structured to future results, which conveys a false impression so intentionally overreaching as to rise to the level of an implied contract is often a fine line but it exists nevertheless. “If by number of statements you intentionally give a false impression and induce a person to act upon it, it is not the less false although if one takes each statement by itself there may be a difficulty in showing that any specific statement is [deliberately] untrue.” Downey v. Finucane, 205 N. Y. 251, 264, 98 NE 391, 395. An excellent example may be found in Stad v. Grace Downs Model and Air Career School, 319 N. Y. S. 2d 918, where strong and overreaching blandishments of the result to be obtained from the courses offered (“If you were accepted you may rest easy about your future in the fascinating airlines field”; “Free Placement to Graduates,” etc.) were held to create an implied contract to secure employment for the school’s graduates and acted to create an atmosphere of guaranty of placement which became a part of the enrollment contract under the entire climate of the situation, instead of the “laminated 31/2 by 21/2 inch card diploma” which proved to be the plaintiffs only reward for the investment of her time and money.

The trial judge in a lengthy and accurate analysis went over the evidence as it contrasted with the specific promises of the brochures on which the plaintiff acted. Guaranteed air reservations were nonexistent, and the family underwent several days of standby wait both coming and going between Los Angeles and Papeete. On arrival there was also a lengthy wait for a cottage. Promised sports, tennis, scuba, boat transportation to reefs, etc. were unavailable except at undesirable hours and after long waits. The same was true of meals. All facilities were overcrowded. Rooms were bug infested, promised services were not provided, and so on. After numerous complaints the family was offered a transfer to Club Med’s other village at Bora Bora. They tried this, found it worse than the first one, and eventually moved to a hotel where they completed their vacation. The judge found the factual evidence a total misrepresentation of the vacation offered: “The good life ... A carefree ambiance ... a casual yet elegant reflection of the local environment... facilities with the emphasis on fun... uncrowded white beaches... active sports... The Club gives them all to you . . . first class equipment rent-free and instruction at all levels for sports . . . Tranquility is yours ... a fun-filled vacation to remember... Lots of space to be alone... Fall under the spell of our gentle natural lifestyle as you begin discovering the true meaning of the Tahitian saying . . . only happiness is important.” Here, as in Stad, supra, the court concluded that this fairly costly vacation raised a reasonable expectation that a certain ambiance and amenities were guaranteed which in fact degenerated into a hot, buggy, overcrowded and unpleasant experience with few services provided.

2. The award of punitive damages is supported by some evidence relative to each of the five elements of fraud: that the representations were made, that they were false, that the defendant necessarily knew of their falsity at the time the offer was made to the plaintiff and was intended to deceive him, and that the plaintiff did in fact suffer damages as a result of his reliance on the offers made. City Dodge, Inc. v. Gardner, 232 Ga. 766 (208 SE2d 794) (1974). It is true that this case differs from the usual fraudulent advertising situation in that the defendant did in fact have an apparent ability to offer each of the factually listed elements of the vacation — the flower filled paths, turquoise reefs, uncrowded white beaches, clean comfortable living quarters, ambiance of relaxation, array of sports, and so on. But the vacation which is what the customer thinks he is buying, was destroyed by lack of services, overcrowding of facilities, and failure to make the individual arrangements guaranteed. Under the evidence offered punitive damages were authorized. It cannot be argued that the plaintiff failed to exercise diligence to discover the true situation ahead of time (Lawton v. Byck, 217 Ga. 676 (4) (124 SE2d 369) (1962)) since he could hardly explore Papeete and Bora Bora personally in advance, nor that he had no right to rely on the representations made, since he had in fact had a prior vacation at the defendant’s facilities in Mexico which he had found satisfactory.

3. There was no error in failing to reduce the plaintiffs damages by sums which he had contracted to pay. Certainly the defendant was not entitled to keep sums for which it had put out nothing after the defendant and his family departed the premises nor sums as to which there had been a failure of consideration. From that point until they were at last able to arrange for and obtain transportation back to Los Angeles their damages were the amount it was necessary for them to spend for room, board and other essentials in the meantime. These were the costs the plaintiff necessarily incurred after declaring a breach of contract and thus repudiating the remainder of performance on the part of the defendant. “Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered.” Code § 105-2009. The case might be analogized to Brown v. Ga. C. & N. R. Co., 119 Ga. 88 (3, 4) (46 SE 71) (1903), where the defendant breached its contract to transport its passengers, who in consequence suffered damage from being forced to spend the night in a station-house lacking minimum facilities. Here the plaintiff not only proved failure of consideration under the contract but was forced to spend additional funds for other facilities. The amount of damages is supported by the evidence.

Judgment affirmed.

Quillian, C. J., McMurray, P. J., Banke, Birdsong and Pope, JJ., concur. Shulman, P. J., concurs specially. Carley and Sognier, JJ., dissent.