Opinion
No. 99 c 6923
May 19, 2000
MEMORANDUM OPINION AND ORDER
David Dow, Melissa Dow, Robert Dow, and Lawrence Dow (collectively "the Dows") bring this diversity action under Illinois law against Abercrombie Kent International, Inc. ("AK International") for injuries suffered during an assault and robbery while on a safari in Kenya. AK International moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56.
A choice of law analysis is unnecessary because relevant Illinois law and Tennessee law are effectively identical. Mot. Sum. Judgm. at 2 n. 1. Accordingly, the court's analysis is governed by Illinois law.
BACKGROUND
The court views the background facts in a light most favorable to the Dows as the non-movants; all disputed facts must be resolved in their favor for purposes of this motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992). The Dows are residents of Tennessee. AK International is an Illinois corporation that arranges and sells travel services and tour packages, including safaris, to destinations throughout the world, In 1998, the Dows purchased an African safari tour package from AK International. The safari included three days in the Masai Mara game reserve in Kenya.
Upon landing in Nairobi on August 7, 1998, the Dows were met by representatives who identified themselves as employees and agents of AK International. David Dow Aff. ¶¶ 6, 7. The Dows were told by their pilot that the United States Embassy in Nairobi had been bombed. After arriving at their hotel, the Dows expressed concern over safety in light of the terrorist bombing. The AK International representatives, and specifically John Niva, the Dows' safari guide, assured the Dows they would be safe while on safari. Id. David Dow called Harriet Morris ("Morris"), the Dows' travel agent in Memphis, for further assurances of safety. Morris contacted AK International in Illinois. AK International assured her that the Dows would be safe and that AK International would take whatever steps were necessary to ensure their safety. Morris relayed this information to the Dows.
On the same day the Dows arrived in Nairobi, the United States Department of State issued a travel warning advising against travel to Kenya in light of the embassy bombing and urging United States citizens in Kenya to limit their travel in the country and to exercise caution. AK International monitors State Department advisories, but did not inform Morris or the Dows about the advisory.
In the middle of the night on August 15, 1998, the Dows were attacked and robbed by bandits while camping in the Oloolo Escarpment in the Masai Mara reserve. The Dows contend AK International assigned Masai warriors armed only with spears to guard their campsite. David Dow Aff. ¶ 16. According to the Dows, at least one of the warriors positioned himself so that intruders could not sneak up on their campsite from behind. Id. After the attack, the Dows were taken by car to Kichwa Tembo, a permanent camp approximately eight to ten minutes from their campsite. Kichwa Tembo was patrolled by armed security guards and was surrounded by a fence with a locked entrance gate. At Kichwa Tembo, the Dows met Jim Holden and Alex Andrewes, who identified themselves as directors of "AK in Kenya." David Dow Aff. ¶ 22. Andrewes gave a business card to the Dows identifying himself as a director of "Abercrombie Kent." The business card included the same logo that appeared on correspondence sent by AK International prior to the Dows' trip. Id.; Ballantine Dep. Ex. 9.
The Dows contend AK International is liable for their injuries because it operated and controlled their ground services and camping arrangements. The amended complaint contains five counts: negligent misrepresentation (Count I); violation of the Illinois consumer fraud and deceptive business practices act, 815 ILCS § 505/2 (Count II); breach of duty to protect guests (Count III); breach of duty to respond in an emergency (Count IV); and refund of money and an injunction against charging the Dows for the price of the safari until completion of this litigation (Count V)
AK International denies liability. According to Brett Fitche ("Fitche"), an AK International vice president, AK International uses independent contractors to arrange and/or provide many of the actual tour components, such as hotel accommodations, meals, transportation, and local guide services. Fitche Decl. ¶ 3. AK International asserts it did not own, operate, or control any camps in the Masai Mara, including the camp where the Dows stayed. Fitche Decl. ¶¶ 4, 5. Rather, AK International contends it arranged for Abercrombie Kent Ltd. (Kenya) ("AK Kenya") to provide the ground operation services for the Dows' safari and make all arrangements for camping in the Masai Mara. Fitche Decl. ¶ 5. AK International contends that none of its representatives met with the Dows or assured their safety in Kenya.
The Dows respond that AK Kenya is merely an alter ego or agent of AK International. For instance, the Dows note that AK International and AK Kenya use the same company logo. This logo was used on the vehicles that transported the Dows throughout their safari. AK International responds that while AK Kenya vehicles may have transported the Dows, those vehicles did not belong to AK International. Fitche Decl. ¶ 5. The Dows claim they were not informed that their camping services were provided by entities other than AK International.
DISCUSSION
I. SUMMARY JUDGMENT STANDARDS
This motion has been briefed for summary judgment. A movant is entitled to summary judgment when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993)
II. TORT CLAIMS
The Dows bring three tort claims against AK International: negligent misrepresentation that the Dows would be safe in Kenya under the care and custody of AK International, breach of duty to protect, and breach of duty to respond in an emergency. AK International does not attack each of these claims individually, but asserts a host of arguments as to why it cannot be liable to the Dows in tort. The arguments fall into two major themes. First, AK International argues that any duties owed to the Dows were owed by AK Kenya, the independent entity that actually provided the Dows' camping services. AK International asserts that as a tour operator, it cannot be liable for the negligence of independent contractors that it does not own, operate, manage, or control. Second, AK International argues that it had no duty to warn of or protect against possible attack on the Dows because the attack was not foreseeable. The court addresses each of these arguments in turn.
A. AK International's Liability for AK Kenya's Negligence
According to AK International, it arranged for AK Kenya to provide the ground operator and camping services for the Dows' safari. AK International contends that even if AK Kenya owed the Dows a duty to warn of possible attacks or to protect them from attacks, AK International cannot be liable for AK Kenya's breach of that duty because it did not own or operate AK Kenya or the camp where the Dows were attacked. AK International asserts that while it routinely hires AK Kenya to provide safari services and is affiliated with AK Kenya, it does not own, operate, or control AK Kenya or the services it provides. Fitche Decl. ¶ 6. The general rule is that a tour operator ordinarily cannot be held liable for the torts of an independent contractor. Wilson v. American Trans Air, Inc., 874 F.2d 386, 389 (7th Cir. 1989));Semmelroth v. American Airlines, 448 F. Supp. 730 (E.D. Ill. 1978); cf.Carley v. Theater Development Fund, 22 F. Supp.2d 224, 228-29 (S.D.N Y 1998) ("sponsors and operators of international tours do not have a duty to tour participants to insure the non-negligent performance of hotel services by independent contractors")
The Dows do not dispute this general proposition of law. Rather, the Dows respond that AK Kenya is not an independent contractor, but is really an agent of and controlled by AK International. The Dows assert evidence exists supporting an inference that AK Kenya was both an actual agent and apparent agent of AK International. The Dows have the burden of proving agency. Valenti v. Qualex, Inc., 970 F.2d 363, 367 (7th Cir. 1993) (quoting Matthews Roofing v. Community Bank Trust, 550 N.E.2d 1189, 1193 (Ill.App. 1990)). Under Illinois law, "the existence and scope of an agency relationship are questions of fact, to be decided by the trier of fact," unless the relationship is "so clear as to be undisputed."Valenti, 970 F.2d at 367 (citations omitted). The same rule is applied when choosing between agency and independent contractor status. Id. For actual agency, "the right to control the manner in which the work is to be done is the predominant factor in determining the existence of a principal-agent relationship, regardless of whether or not the principal exercises that right to control. Id. (quoting McConnell v. Freeman United Coal Co., 555 N.E.2d 993, 995 (Ill.App. 1990)). The doctrine of apparent agency is based on the idea "that if a principal creates the appearance that someone is his agent, he should not then be permitted to deny the agency if an innocent third party reasonably relies on the apparent agency and is harmed as a result." O'Banner v. McDonald's Corp., 670 N.E.2d 632, 634 (Ill. 1996) (citation omitted). Under this doctrine, a principal can be held vicariously liable for injury caused by the negligent acts of his apparent agent if the injury would not have occurred but for the injured party's justifiable reliance on the apparent agency. Id. The Dows offer a host of evidence purportedly establishing that AK Kenya was AK International's agent. However, this evidence does not support a reasonable inference of agency.
The Dows first point to the fact that AK International and AK Kenya use the same logo. The Dows argue this evinces AK International's control over AK Kenya and communicates the idea that a single entity — Abercrombie Kent — provides all of the touring services to its customers. However, use of the same logo does not establish agency. A logo is a marketing tool, but sharing marketing methods is not probative of control. In Paredes v. Abercrombie Kent International, Inc., 81 F. Supp.2d 162 (D. Mass. 1999), the plaintiffs sought to hold AK International liable for injuries suffered during a tour arranged and sold by AK Egypt. The plaintiffs argued that AK Egypt was merely an alter ego of AK International and that an agency relationship existed between the two. The plaintiffs asserted AK International misrepresented the nature of its involvement with AK Egypt by failing to distinguish between the two entities in its marketing materials. Relying upon Illinois law, the court rejected these arguments. The court concluded that "AK [International] is not liable for AK Egypt's alleged negligence because they have similar names" and that "the distribution of marketing material by AK [International] in which there is no differentiation between AK [International] and AK Egypt is insufficient to impute liability to AK [International]." Id. at 166. See also Wiedemann v. Cunnard Line Ltd., 380 N.E.2d 932, 939 (Ill.App. 1978) ("use of the name `Cunard' by not only defendant Cunard Line Ltd. but also by other subsidiaries of the parent company for advertising purposes . . . does not make Cunard liable for the torts of the other subsidiary")
The Dows place great emphasis on representations made on AK International's Internet website — www.abercrombiekent.com. The Dows argue the website represents that AK Kenya's operations are controlled by AK International. Under the subheading "Faces of AK," the website states in part:
AK employs more than 3,000 travel professionals in its U.S. and overseas offices. . . . AK's escorts are a source of pride — we hire the best in the business . . . In many destinations, these escorts are supplemented by driver/guides who have graduated from a training program unique to AK. . . . These guides work solely from AK — not for an independent transport company used by many other operators. They are responsible only to us [Abercrombie Kent International, Inc.], and are accountable to our [Abercrombie Kent International, Inc.'s] high standards of service and quality control. The result? A level of quality acknowledged not only by our admirers, but by our imitators as well.
The Dows argue this statement unequivocally demonstrates that AK International's guides work "solely" for it and not for "independent" companies, and are "responsible" and "accountable" only to AK International. However, a representation that tour guides work solely for AK International and not for independent companies does not evince AK International's control of AK Kenya. The statement means at most that AK International controls the guides at various destinations. But the Dows offer no evidence that the only service provided by AK Kenya is guide service. The statement does not assert AK International's control over other services, such as camping and ground services of the type provided by AK Kenya.
The Dows also point to a website statement under the subheading "The Company:"
With 32 worldwide offices — we offer a support system virtually unmatched in the industry. Our "on-site" offices are small enough to offer knowledgeable, personalized service, yet as a company, AK is large enough to secure the best available guides, transport, accommodations, activities and amenities for our guests. In addition, quality is maintained by designing, managing, controlling — or in some cases, owning — the product line.
Ballantine Dep. Ex. 12. A November 1999 article in London's Times newspaper quotes Geoffrey Kent, founder of AK, as stating: "In the travel business, you usually have a tour operator and they hire an agent at the destination . . . We own both and the power of this brand name is the two joined together in a seamless manner." The Dows assert these statements show AK International's control over the tour operations at its worldwide offices, and therefore, control over AK Kenya.
References to branch offices and the statement that "AK" manages and controls "the product line" or "agents" are simply too vague to support an inference of actual control by AK International over AK Kenya; the statements do not refer to AK Kenya. Even if the references to branch offices throughout the world and AK International's ownership of both the tour operator and agents at the destination could support an inference that AK International owns and controls AK Kenya, this would not be probative of the status of that relationship at the time of the Dows' injury in August 1998. The news article was printed in 1999, and the website pages submitted to the court bear 1999 copyrights. Representations as to the relationship between the various AK offices in 1999 are not probative of these relationships in August 1998. The Dows offer no evidence of AK International's control of AK Kenya in August 1998. Rather, in August 1998, AK International was 90% owned by Abercrombie Kent Group Holdings SA, Luxembourg. AK Kenya was owned by Geoffrey Kent and Sam Mwura. Def. Reply, Ex. G. In August 1998, three of AK Kenya's nine directors were also directors of AK International. Id. However, control of three of nine directors does not establish AK International's "dominance" of AK Kenya's board. Finally, even if the foregoing creates an impression that AK Kenya is AK International's agent under a theory of apparent agency, a showing of justified reliance on the representations is essential. Butkiewicz v. Loyola Univ. Med. Center, 724 N.E.2d 1037, 1040 (Ill.App. 2000). The Dows offer no evidence that they saw or relied upon AK International's website prior to their trip to Kenya in 1998, and they could not have relied on the 1999 article in 1998.
The Dows argue that AK Kenya's listing of www.abercrombiekent.com as its website indicates it is not an independent contractor because the website states it is "owned and operated by Abercrombie Kent International, Inc." However, the fact that AK Kenya lists a website owned and operated by AK International as its own is not probative of AK International's control over AK Kenya. Sharing a website is akin to sharing a logo, which is insufficient to evince control.
The Dows point to correspondence received from AK International prior to their trip that purportedly led them to believe AK International was providing the services on their safari. They assert that after sending their deposit for the safari, they received a written confirmation stating they had purchased an "Abercrombie and Kent private tented safari." David Dow Aff. ¶ 4. The confirmation did not mention or distinguish AK International from any other similarly named companies.Id. The Dows further note the itinerary received from AK International states that upon their arrival in Nairobi, "you are met outside the customs area by an Abercrombie Kent representative and transferred to the luxurious Norfolk hotel" and that "[a] professional Abercrombie Kent guide in addition to local English-speaking driver/guides will accompany you throughout Kenya." (emphasis in original.) Plaintiff's Resp. Ex. 13. Moreover, the itinerary states "Abercrombie Kent International, Inc. and their representatives reserve the right to withdraw any tour or any part of a tour, to make such alterations in the itinerary as to them seems necessary or desirable, or to refuse to accept or retain as a member of the tour any person any time." Id.
References to an AK "`representative" and "guide" could support an inference that the Dows' guides in Kenya were AK International employees. These references, combined with the statement that AK International reserves the right to withdraw a tour or alter an itinerary, support an inference that AK International exercised control over the Dows' itinerary and the guides accompanying the Dows through that itinerary. These statements could support a finding that guide and hospitality services were not purchased from independent contractors but were instead provided by AK International. However, these statements do not represent that AK International provided or controlled the provision of all services. The Dows fail to show any statement in the itinerary suggesting AK International's provision of or control over camping and security services. AK International did not assume liability for negligence in the provision of these services. This fact was relayed to the Dows in their itinerary, which included the following limitation of liability clauses:
Independent Suppliers (AK International] purchases transportation, hotel accommodations, restaurant services and other services from various independent suppliers that are not subject to its control. ABERCROMBIE KENT CANNOT, THEREFORE, BE LIABLE FOR ANY PERSONAL INJURY OR PROPERTY DAMAGE that may occur due to (1) any act or omission of such a supplier . ..
Acts of God and the Like ABERCROMBIE KENT IS NOT LIABLE for acts of God, fire, acts of governments or other authorities, wars, civil disturbances, riots, terrorist acts, strikes, thefts, pilferage, epidemics, quarantines, dangers incident to sea, land, and air travel, and OTHER SIMILAR ACTS OR INCIDENTS BEYOND ITS ABILITY TO CONTROL.
(emphasis in original). This language disclaims AK International's liability for the negligence of independent contractors, and cannot be ignored. Wilson, 874 F.2d at 388 ("It makes little sense to allow charter tour operators to disclaim contractually vicarious liability for the negligent acts of a hotel and then to impose on the charter operator direct liability
Next, the Dows assert that on August 17, 1998, two days after the attack, David Dow spoke by telephone with Alistair Ballantine ("Ballantine"), AK International's president. According to the Dows, Ballantine informed David Dow that "AK had shut down all of its camps in the Masai Mara" as a result of the attack on the Dows. David Dow Aff. ¶ 23. The Dows argue this statement evinces Ballantine's authority to shut down AK Kenya's camps in the Masai Mara and therefore demonstrates AK International's control over AK Kenya. Ballantine's purported statement that "AK" had shut down the camps is ambiguous; it does not indicate whether AK International or AK Kenya shut down the camps. To support their interpretation of the statement, the Dows cite a memorandum from Alex Andrewes, executive director of AK Kenya, to Ballantine on August 17, 1998. However, this memorandum indicates that AK International did not shut down the camps. The memorandum informed Ballantine of the attack on the Dows and stated that "we have canceled all mobile camping in the Mara." Plaintiff's Resp. Ex. 12. This memorandum indicates that AK Kenya closed the camps, and was informing AK International of this fact, not vice versa.
Finally, the Dows argue that Fitche reviews AK Kenya's financial statements and budgets, and that this demonstrates AK International's control over AK Kenya. Review of AK Kenya's financial statements, without more, does not evince control. The Dows also point to an August 17, 1998 memorandum from Fitche to other employees stating that one of AK International's clients was robbed. Plaintiffs' Resp. Ex. 14. The Dows argue the memorandum's failure to mention the Dows as clients of AK Kenya indicates that AK International was really in control of their safari in Kenya. This is meritless. The Dows were AK International's clients. Acknowledgment of this fact while failing to reference AK Kenya does not support an inference that AK International controlled AK Kenya. In sum, the Dows fail to offer evidence supporting a reasonable inference that AK International controlled AK Kenya or established AK Kenya as its apparent agent.
B. AK International's Negligence
Even though the Dows fail to offer evidence establishing AK International's liability for AK Kenya's negligence, AK International may still be liable for its own negligence. The Dows argue AK International negligently failed to warn them of and protect against criminal attack in the Masai Mara. AK International responds that it did not have a duty to warn or to protect.
In general, Illinois law does not impose a duty to warn or protect another against a criminal attack by a third person. Osborne v. Stages Music Hall, Inc., 726 N.E.2d 728, 732 (Ill.App. 2000); Doe v. Goff, 716 N.E.2d 323, 326 (Ill.App. 1999). However, a duty can exist if (1) the attack was reasonably foreseeable, and the parties stand in one of four kinds of special relationships, Doe, 716 N.E.2d at 326, or (2) where the defendant voluntarily or contractually assumes a duty to protect another from the harmful acts of a third party. Petersen v. U.S. Reduction, Co., 641 N.E.2d 845, 848 (Ill.App. 1994). Whether a duty exists is a question of law. Doe, 716 N.E.2d at 325.
Illinois courts recognize four kinds of special relationships: common carrier and passenger; innkeeper and guest; business invitor and invitee; or voluntary custodian and protectee. Doe, 716 N.E.2d at 326.
AK International argues that even if it stood in a special relationship with the Dows, it had no duty to warn of the attack and cannot be liable for the attack because it was not foreseeable. Foreseeability "must be judged by what was apparent to the defendant at the time of attack, and not by what may appear through hindsight." Id. at 326. "A criminal attack by a third person is reasonably foreseeable when the circumstances are such as to put a reasonably prudent person on notice of the probability of an attack." Id. "Generally, foreseeability is established through prior criminal attacks on the premises," and the prior attacks must be similar to the attacks complained of by the plaintiffs. Ignarski v. Norbut, 648 N.E.2d 285, 289 (Ill.App. 1995). "Generalized allegations of crime will not suffice to establish that future criminal attacks are foreseeable." Doe, 716 N.E.2d at 326.
The Dows argue the attack was foreseeable because AK International monitored State Department advisories and the State Department advised against travel to Kenya in light of the bombing of the United States Embassy there. The Dows point out that AK International assured them they would take the necessary steps to ensure the Dows' safety in light of the bombing. However, knowledge of the bombing of the United States Embassy — an act of political terrorism — is not relevant to the foreseeability of acts of banditry in a remote campsite. Ignarski, 648 N.E.2d at 289; Petrauskas v. Wexenthaller, 542 N.E.2d 902, 906 (Ill.App. 1989) (to impose duty of care, "[t]he prior criminal activity and the injury to plaintiff need not be of the exact same nature but plaintiff's injury must have resulted from the same risk as was present in prior incidents of criminal activity").
This case is not like Elsis v. Trans World Airlines, Inc., 1989 N.Y. Misc. LEXIS 899 (N.Y.Sup.Ct. Nov. 17, 1989), cited by the Dows. InElsis, the plaintiffs purchased a tour that included a boat cruise on the Nile from Trans World Airlines and Travelers International Tour Operators. A fire broke out during the cruise, destroying the boat. The defendant tour operators moved to dismiss, arguing they could not be liable because the boat owner was an independent contractor over whom they had no control. The court disagreed and concluded the defendant tour operators could be liable for their failure to detect safety defects in the boat even though they did not own the boat. The court based its conclusion on the promotional brochure distributed by the tour operators. The brochure boasted that defendants' travel experts examine "every cruise ship on-site" and that their quality control team "ensures that operations run smoothly. All you have to do is sit back and relax, with the peace of mind that only TWA Getaway Egypt vacations can offer."Id. at *1.
The tour operators' potential liability for the fire in Elsis was premised on their specific representations that they examined the boats used in their tours, and that plaintiffs could "`sit back and relax." The court found that in making these representations, the tour operators undertook a duty to ensure adequate safety of the boat. In this case, there was no similar representation or undertaking. The Dows argue that AK International assured them they would take the necessary steps to ensure the Dows' safety in light of the bombing of the United States Embassy and the resulting State Department advisory. However, political terrorism against the United States is not the same type of harm as isolated, random acts of theft and assault in Kenya's game reserves.
The Dows argue the risk of attack was foreseeable because there had been prior attacks on tourists in the Masai Mara. AK International responds that it had no knowledge of prior attacks and considered the area to be safe. Fitche. Decl. ¶ 10. AK International asserts it has arranged safaris in the Masai Mara for over twenty-five years, sending nearly 100,000 customers there, without any clients (other than the Dows) being attacked or robbed while camping in an AK Kenya tented camp. Id. ¶¶ 10, 11. The only evidence offered by the Dows of AK International's knowledge of prior attacks is a single news article released two months prior to their trip describing the Kenyan government's increased security in the Masai Mara in order to eradicate banditry attacks on visitors. The Dows offer no evidence showing AK International saw or was aware of this article. To show foreseeability, the defendant's knowledge of prior attacks must be actual knowledge; constructive knowledge is not enough. Hill v. Charlie Club Inc., 665 N.E.2d 321, 326 (Ill.App. 1996); Davis v. Allhands, 643 N.E.2d 856, 862 (Ill.App. 1994); Manahan v. NWA, 821 F. Supp. 1105, 1109 (D.V.I. 1991) (granting summary judgment for tour operator where plaintiff failed to show operator had "actual knowledge that any of its patrons, or any other tourist to St. Thomas, prior to this occurrence, had even been a victim of violent crime" in area where plaintiff was attacked). As a tour operator, AK International did not have a duty to warn of the possibility of crime in general, but only of known criminal acts. Manahan v. NWA, 821 F. Supp. 1110, 1113 (D.V.I. 1992) (tour operator "does not owe a duty to warn tourists as to general safety precautions"); Fling v. Hollywood Travel and Tours, 765 F. Supp. 1302, 1307 (N.D. Ohio 1990), aff'd 933 F.2d 1008 (6th Cir. 1991) ("courts in the United States do not place a duty upon every travel agent making arrangements to destinations within the United States to warn its clients of the likelihood of a criminal attack simply because the United States is ranked as having the eleventh highest crime rate").
The Dows contend Fitche's declaration fails to meet the requirements of Fed.R.Civ.P. 56(e) because it is not based on his personal knowledge and is instead based on speculation and conjecture. However, the statements regarding AK International's lack of knowledge of prior attacks concerns information in AK International's business records and within the personal knowledge of a vice-president, and Fitche reviewed those records in preparing his affidavit. Def's. Reply, Ex. F. Such statements are admissible. Jenkins v. Heintz, 124 F.3d 824, 831 (7th Cir. 1997)
The other four articles offered by the Dows are not relevant to AK International's knowledge of prior attacks in the Masai Mara because they were printed after the Dows' trip or concern crime in areas other than the Masai Mara.
Finally, the Dows argue the presence of armed guards at their campsite and the surrounding areas supports an inference that a criminal attack was anticipated and foreseeable. The Dows fail to cite any law supporting this assertion. Perhaps this is because foreseeability of criminal attack generally depends on prior knowledge of attack, and not on precautions taken to guard against an attack that may or may not be foreseeable. But even accepting the Dows' premise, the Dows fail to show that AK International provided the guards itself or was aware of the deployment of the guards by AK Kenya. Therefore, any inference of foreseeability drawn from the presence of guards cannot be attributed to AK International. Accordingly, judgment must be entered against the Dows on Counts I and III.
The Dows allege in Count IV that AK International breached a duty to respond in an emergency. The Dows' brief neglects to discuss why AK International had that duty. Judgment must be entered against the Dows on Count IV.
III. ILLINOIS CONSUMER FRAUD ACT CLAIM
A claim for deceptive acts and practices in violation of the Illinois Consumer Fraud Act requires: (1) a materially deceptive act or practice by defendant; (2) defendant's intent that plaintiff rely on the deception; and (3) deception in the course of conduct involving trade or commerce. Connick v. Suzuki, 174 Ill.2d 482, 501 (1996); Duran v. Leslie Oldsmobile, Inc., 594 N.E.2d 1355, 1361 (Ill.App. 1992). It is not necessary to prove actual reliance on the deception. Thacker v. Menard, Inc., 105 F.3d 382, 386 (7th Cir. 1997).
The Dows fail to offer evidence supporting a reasonable inference that AK International's trade practices were deceptive. The Dows contend AK International lead them to believe that it, and not an independent contractor, was to provide safari and camping services. To establish the deceptiveness of AK International's trade practices, the Dows primarily rely on a January 27, 1998 letter to their travel agent, Harriet Morris. They argue the letter thanks Morris for inquiring about travel to Kenya with AK International and closes with a promise that Dows "will have a most memorable trip to the fascinating country of Kenya with Abercrombie and Kent." The Dows assert the letter does not state that anyone other than AK International will provide any services to the Dows or that AK International would not be responsible for all aspects of the trip aside from air travel.
The Dows' argument is not persuasive. Tellingly, the Dows fail to point to any affirmative misrepresentation in the letter that AK International will provide all tour services, including camping. Moreover, it is not reasonable to infer such a representation from the statements actually made in the letter. The two-page letter is primarily a price quotation, listing lump tour and air travel costs. The letter is not a comprehensive itinerary, and it does not discuss any ground services or accommodation arrangements. Even though the letter refers to a memorable trip with Abercrombie Kent, it is not reasonable to interpret this statement as a representation that all ground and camping services would be provided by AK International. Moreover, the letter was sent not to the Dows, but to Morris, the Dows' travel agent. As a travel agent, Morris is presumed to be familiar with the manner in which tour operators arrange tours. AK International's communications with Morris would understandably differ from those with a layman. While it is certainly possible that information intended by a tour operator to deceive a consumer could be disseminated to the consumer via the consumer's travel agent, this letter contains no information misleading to a travel agent, but simply a summary of costs. Morris understood AK International would provide all services, including camp services, and would be responsible for their safety. Morris Aff. ¶ 5, 7. Morris further stated AK International never instructed her to inform the Dows that any entity other than AK International would provide ground services to the Dows. Id. ¶ 8. However, Morris does not state that these beliefs were based on the letter. She does not state any basis for these beliefs, and does not point to misleading or deceptive statements to her by AK International. Morris' belief as to AK International's responsibilities and obligations is insufficient render AK International's statements misleading.
The Dows argue that AK International's sales talk and marketing materials were deceptive. The only materials provided by AK International prior to their trip are the confirmation and itinerary. While these documents could be construed as representing that AK International would provide guide services, they do not represent that AK International would provide all ground and camping services. The Dows argue AK International intentionally failed to reveal that an unidentified, independent Kenyan entity renders the safari services. This argument is belied by the itinerary's express statement that AK International retains independent contractors to provide ground and accommodation services and disclaims liability for negligence of independent contractors. "This warning should have put the plaintiffs on notice that there were various aspects of the tour over which the defendants did not have control, and that the defendants were not warranting the non-negligent operation of these services." Carley, 22 F. Supp.2d at 229. Absent indication to the contrary, "the operation of an independent contractor hotel is a service over which a reasonably prudent person would not expect his or her tour operator to have control." Id. Accordingly, judgment must be entered against the Dows on Count II.
CONCLUSION
The motion for summary judgment is granted.