Gianocostas v. RIU Hotels, S.A.

21 Mass. L. Rptr. 276
CourtMassachusetts Superior Court
DecidedMay 24, 2006
DocketNo. MICV200002862C
StatusPublished

This text of 21 Mass. L. Rptr. 276 (Gianocostas v. RIU Hotels, S.A.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gianocostas v. RIU Hotels, S.A., 21 Mass. L. Rptr. 276 (Mass. Ct. App. 2006).

Opinion

Smith, Herman J., J.

INTRODUCTION

Plaintiffs, Marilyn Gianocostas (“Marilyn”) and George Gianocostas (“George”) (“the Gianocostases”), administrators of the estate of their daughter, Jennifer Gianocostas (“Jennifer”), have brought this action against Defendants, Riu Hotels, S.A. (“Riu”), RIUSAII, S.A., Delta Holidays, LTD., Visantilla, A.I.E., and Macao Caribe Beach, S.A., and GWV International (“GWV”), a division of Interface Group-Massachusetts, Inc., alleging therein negligence, wrongful death, and negligent misrepresentation. On June 29, 2001, this court allowed the defendants’ motions to dismiss the complaint for forum non conveniens [13 Mass. L. Rptr. 444]. On February 11, 2003, the Court of Appeals of Massachusetts (“the Court of Appeals”) affirmed the dismissal as to all the defendants except GWV and remanded the case to this court for further consideration of the issue of forum non conveniens. In a Memorandum of Decision dated January 27, 2005, this court allowed GWVs motion to dismiss for forum non conveniens as to the Gianocostases’ claim of negligence (Count III) and denied the motion with respect to the negligent misrepresentation claim (Count IV) and the wrongful death claim predicated thereupon (Count V) [19 Mass. L. Rptr. 42]. Therefore, the only claims remaining against GWV are Counts IV and V. Pursuant to Mass.R.Civ.P. 56, this matter is now before this court on GWVs motion for summary judg[277]*277ment as to Counts IV and V. GWV further requests that this court dismiss Counts IV and V based on its renewed motion to dismiss on grounds of forum non conveniens. For the following reasons, GWVs renewed motion to dismiss for forum non conveniens is DENIED, and GWVs motion for summary judgment on Counts IV and V is ALLOWED.

BACKGROUND

The relevant facts, drawn from the materials accompanying GWVs motion for summary judgment and the Gianocostases’ opposition thereto, are as follows. Jennifer, the only child of the Gianocostases, was a twenty-year-old college student, who attended Salem State College in Massachusetts. Jennifer was diagnosed with Type I diabetes in May 1996. Jennifer required daily insulin injections to control her diabetes. Her condition also required that she regularly monitor her blood sugar levels.

In February and March 1999, Jennifer with friends Jacquelyn Dondero (“Dondero”) and Cheryl Darrigo (“Darrigo”) planned a vacation to the Dominican Republic, using the travel services of the American Automobile Association (“AAA”). Anthony Mavrokas (“Mavrokas”), a Massachusetts travel agent employed by AAA, gave Jennifer information about a vacation package in the Dominican Republic offered by GWV, which included air transportation, hotel accommodations and ground transfers. GWV is a Massachusetts-based tour operator which sells all-inclusive package tours. GWV does not own or operate any of the accommodations or other services offered through its Packages.

Jennifer informed Mavrokas of her medical condition and that she would need access to a refrigerator to store her insulin. Jennifer also questioned Mavrokas about the availability of medical services at the Hotel Riu Mambo (“the Hotel”) in Puerto Plata, Dominican Republic, which GWV advertised as the destination hotel. Mavrokas confirmed to Jennifer that the Hotel did offer medical services and that she would have access to a refrigerator. Based on that information, and in spite of George’s misgivings about the Dominican Republic as a destination, Jennifer and her friends purchased a seven-night vacation package, including accommodations at the Hotel.

On March 13, 1999, Jennifer, Dondero and Darrigo arrived at the Hotel in Puerta Plata. Janet Harris (“Harris”), a GWV destination representative, met Jennifer and her friends at the Hotel and provided them with an orientation to Puerta Plata and the Hotel complex. Harris further told Jennifer and her friends that she was available to assist them if necessary and gave them her telephone number. At that time, Harris had worked for GWV as a destination representative in the Dominican Republic for five years. Her job responsibilities entailed meeting vacationers at the airport, holding hospitality desk hours during certain hours at various hotels in the Dominican Republic, acting as a liaison with service providers, and advising GWVs home office of any serious problems or complications.

On the evening of March 15, 1999, Jennifer began to vomit and to suffer from diarrhea. Dondero called the front desk of the Hotel for assistance. A Hotel representative connected Dondero to the Doctor Correa International Touristic Medical Service and CIA (“the Clinic”), which is located within the Hotel complex and provides medical services to its guests. The Clinic does not offer medical services to residents of the Dominican Republic.

Dondero described Jennifer’s symptoms to a doctor at the Clinic and informed the doctor that Jennifer was diabetic. The doctor did not appear to understand the words “diabetic” or “diabetes.” The doctor suggested to Dondero that Jennifer suffered from an upset stomach. The doctor recommended Dondero purchase Imodium from the Hotel pharmacy to treat Jennifer’s symptoms. Dondero was unable to reach Harris that night.

On the morning of March 16, 1999, after learning of Jennifer’s illness through Dondero’s mother, Marilyn telephoned Jennifer in the Dominican Republic. Jennifer told her that she was feeling better and that Dondero and Darrigo were getting Imodium for her from the Hotel pharmacy. Jennifer also told her mother that she had been testing her blood sugar levels and that her glucose levels were fine. Marilyn then telephoned the office of Jennifer’s éndocrinologist, Timothy Stiyker, M.D. (“Dr. Stryker”). She reached Dr. Stryker’s answering service and communicated Jennifer’s symptoms and circumstances. Thereafter, Dr. Januzzi, an on-call physician from Dr. Stryker’s office, returned her telephone call. Dr. Januzzi stated that he believed that a stomach virus had caused Jennifer’s ailments. Marilyn provided Dr. J anuzzi with J ennifer’s telephone number at the Hotel and requested that he or Dr. Stryker telephone Jennifer. Marilyn also contacted GWV to explain that Jennifer had been ill and that her friends had been unable to reach Harris. A GWV representative told her that she would attempt to contact Harris.

That afternoon, Dondero and Darrigo visited Harris during office hours at a hotel next to the Hotel complex, during which they described Jennifer’s maladies. Harris believed that Jennifer suffered from a common stomach ailment and recommended that Jennifer stay hydrated. At that point, Harris did not know that Jennifer was diabetic.

Marilyn again telephoned Jennifer, who said that she was feeling better and was continuing to test her "blood sugar levels, which evidently were testing within the controlled range. Later that evening, George telephoned Jennifer to discuss her illness. During that conversation, George expressed his concern about Jennifer’s condition and the medical care in the Dominican Republic. George then telephoned Dr. [278]*278Stryker’s office and left a message, in which he asked that Dr. Stryker call Jennifer. Subsequently, that evening, Dr. Stryker spoke to Jennifer and advised her on how to manage her diabetic condition in light of her symptoms.

On the morning of March 17, 1999, still feeling ill, Jennifer went to the Clinic with Dondero and Darrigo, where she underwent an IV infusion.

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21 Mass. L. Rptr. 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gianocostas-v-riu-hotels-sa-masssuperct-2006.