‘Tasi Tours owed a duty of reasonable care to drowning victim’

U.S. District Court for the NMI Chief Judge Ramona V. Manglona has ruled that Tasi Tours & Transportation, Inc. owed a duty of reasonable care to Dao Wang, a female Chinese tourist who drowned while snorkeling off Managaha Island in 2012.

Manglona ruled that because no statute or regulations bars liability, and because Tasi Tours possesses Managaha Island and the shallow waters immediately surrounding it for purposes of common law negligence, it owed Dao a duty to exercise reasonable care.

Manglona discussed Tasi Tours’ duties on Managaha in her order denying the company’s motion to dismiss a wrongful death lawsuit filed by Dao’s father, Xiao Ting Wang.

The judge stressed that the issue raised in Tasi Tours’ motion to dismiss is whether Tasi Tours owed a duty of reasonable care to Dao.

“Based on Tasi Tours’ status as a land possessor, it did,” she said.

Manglona said whether Tasi Tours breached its duty by failing to post lifeguards—as suggested by Wang—is not a matter of duty, but of reasonable care.

She said the question of reasonable care—whether Tasi Tours’ decision not to post lifeguards was reasonable—was not addressed in the briefs and is not addressed here.

Manglona said the primary factors to consider in determining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may follow, and the burden of precautions to eliminate or reduce that risk.

“Whether deploying lifeguards to watch the area in which Dao drowned would have been reasonable…is a jury question,” said Manglona, adding that the court’s conclusion only addresses the existence of Tasi Tours’ duty owed to Dao.

According to court records, Dao, a Chinese woman vacationing on Saipan, drowned in the shallow waters off Managaha Island in an area without lifeguards.

Dao’s representative and father, Xiao Ting Wang, sued the company that operates the only lifeguard station on the island for negligence, based on its failure to provide lifeguards at the site where his daughter died.

That company, Tasi Tours & Transportation, Inc., filed a motion to dismiss, arguing that it has no duty to lifeguard the area in which Dao drowned.

Tasi Tours, through counsel Rexford C. Kosack, said it has no duty to lifeguard the area because relevant statutes and regulations preclude such a duty and that common law principles of negligence limit liability to those who create risks or land possessors, and the company neither created a risk nor possessed Managaha Island on the water in which Dao drowned.

Wang also sued on the basis of the lifeguards’ negligence for failing to use a defibrillator or oxygen on Dao when they were attempting to revive her.

All references to Tasi Tours’ parent company, JTB, were stricken from the lawsuit pursuant to the parties’ agreement.

According to the complaint, Dao and a travel companion visited Managaha Island on April 16, 2012, as part of a snorkeling package they bought from Win Tour.

Win Tour took Dao and other customers to an area without lifeguards and provided them with snorkeling equipment, telling them it was “safe to snorkel.”

Dao entered the water, staying in the “very shallow water close to the beach,” while the other tourists ventured out further into “chest-deep water.”

Left alone, there was no one present to help Dao when water entered her snorkel and she began to drown. Five minutes later, the other tourists returned to the beach, saw Dao floating face down “almost on the beach,” and called for aid.

Tasi Tours lifeguards came to the scene and performed CPR, but were unable to revive Dao. She was taken to the hospital and pronounced dead from drowning.

Managaha is administered by the Department of Public Lands, which granted Tasi Tours an exclusive concession.

As the exclusive concessionaire, Manglona said, Tasi Tours has the use of a “concession area” of approximately 11,203 square meters—a significant portion of the small island.

Manglona said the concession agreement tasks Tasi Tours with a number of limitations and responsibilities in exchange for the exclusive concession.

Tasi Tours cannot restrict common areas of the concession area to its own paying customers and cannot “prohibit the general public from using any beach on Managaha Island.”

Tasi Tours is also charged with management and maintenance of the entire island, including cleaning up any trash on a daily basis, providing nighttime security, and keeping vegetation trimmed and paths in good repair.

Finally, Manglona said, the agreement requires Tasi Tours to lifeguard a roped swimming zone near the concession area.

The cost of maintaining and protecting Managaha is borne by tourists. Visitors to the island who do not reside within the CNMI and tour operators are required to pay a “landing and user fee” upon reaching the island.

That fee for the “construction, maintenance, repair, and/or upkeep of the improvements, infrastructure, appearance, safety, and cleanliness of Managaha Island.”

DPL owns the funds, but Tasi Tours may use them to pay lifeguards, as well as other approved expenses.

Tasi Tours’ motion asks the court to determine the scope of Tasi Tours’ duties, not just whether it has any duty to Dao.

Wang, through counsel William Fitzgerald, claims that Tasi Tours breached its duty to exercise reasonable care by providing lifeguarding service to less than 1 percent of the beach area on Managaha, and for failing to provide lifeguarding services to the most popular and best area for snorkeling.

Tasi Tours argues it had no duty to provide lifeguards outside the zoned swimming area where Dao drowned for two principal reasons: first, because Commonwealth written law precludes such liability; and second, because Tasi Tours had no relationship with Dao and Dao drowned in the ocean, outside of any land Tasi Tours possessed.

Wang disagreed, arguing that under the common law of negligence, Tasi Tours possessed Managaha and had a duty of reasonable care to safeguard Dao from ocean risks.

The parties also dispute whether CNMI public policy favors having lifeguards on beaches.

Tasi Tours argues that the Commonwealth’s Lifeguard Act of 1998 and DPL regulations shield it from liability and prevent the court from considering the common law.

Manglona disagrees, saying, among other things, that there is nothing ambiguous about the Lifeguard Act of 1998: if a hotel or property owner charges customers to use its swimming pool, it must keep a lifeguard on duty during open hours or risk a $100 fine for each violation.

Manglona said that when the Legislature removed beachfront owners from the statute, it simply relieved them of a similar obligation.

“Nothing in the statutory language suggests that the Legislature intended to shield beachfront owners from common law negligence liability,” the judge pointed out.

At most, Manglona said, the Legislature relieved beachfront owners from possible negligence per se liability.

In sum, Manglona said, contrary to Tasi Tours’ contentions, the Lifeguard Act of 1998 had no effect on common law negligence liability as the rule in beachfront lifeguard negligence cases.

DPL regulation requires Tasi Tours, as concessionaire, to “provide a lifeguard to supervise the activities of those persons using the roped-off swimming zone.”

It also provides that “the concessionaire and DPL shall not be responsible for lifeguarding the activities of users of watercraft or swimmers outside the swimming zone.”

Tasi Tours argues that the regulation immunizes it from liability for swimming accidents outside the swimming zone.

But Manglona cited two reasons to reject Tasi Tours’ argument.

One, she said, the regulation does not express DPL’s intent to disturb common law negligence principles, but rather its intent to establish baseline rules governing Managaha.

Second, the judge said, even if DPL intended to limit the concessionaire’s potential negligence liability, the agency lacks statutory authority to alter the tort laws of Commonwealth, and any attempt to do so would be ultra vires and null.

Like the concession agreement, Manglona said, the regulations provide the structure of the relationship between Tasi Tours and DPL.

She said the regulations do not dictate a departure from the common law of negligence by their express language or unavoidable implication.

Manglona said the court finds that Tasi Tours owed Dao a duty of reasonable care because it is a land possessor of Managaha for negligence purposes.

“Because the court finds that Tasi Tours owed Dao a duty of reasonable care pursuant to negligence rules for and possessors, it is unnecessary to determine whether it alternatively owed Dao a duty of reasonable care based on the alleged risk it created by actively encouraging people to visit Managaha to engage in water activities,” she said.

Manglona said because Tasi Tours controls and can reduce the risk to swimmers on Managaha, it is a land possessor and owes its entrants a duty to exercise reasonable care.

Tasi Tours argues that it owed no duty of reasonable care to Dao because she drowned in the water, not “on the land,” and Tasi Tours cannot control the ocean.

“Neither argument persuades the court,” the judge said.

Manglona said the fact that Dao was “in the water” when she drowned has no bearing on whether she was also “on the land” for purposes of Tasi Tours’ duty to exercise reasonable care.

As a land possessor, Manglona said, Tasi Tours owed a duty of reasonable care to Dao, an entrant, with regard to the natural sea conditions on the land.

“The issue is control, and Tasi Tours had it,” she said.