McReynolds v. RIU Resorts & Hotels

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McREYNOLDS v. RIU RESORTS & HOTELS
Cite as 293 Neb. 345
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
Jeannette L. McReynolds, appellant, v.
RIU Resorts and Hotels, S.A., et al., appellees.
880 N.W.2d 43
Filed April 15, 2016. 	No. S-15-423.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material
facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Negligence. The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a particular
situation.
3. Judgments: Appeal and Error. When reviewing a question of law, an
appellate court resolves the question independently of the conclusion
reached by the trial court.
4. Negligence: Damages: Proximate Cause. In order to prevail in a neg-
ligence action, a plaintiff must establish the defendant’s duty to protect
the plaintiff from injury, a failure to discharge that duty, and damages
proximately caused by the failure to discharge that duty.
5. Negligence. The threshold inquiry in any negligence action is whether
the defendant owed the plaintiff a duty.
6. Negligence: Words and Phrases. A “duty” is an obligation, to which
the law gives recognition and effect, to conform to a particular standard
of conduct toward another.
7. Negligence. If there is no duty owed, there can be no negligence.
8. Agents: Negligence. Travel agents do not owe a duty to disclose infor-
mation about obvious or apparent dangers.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
James R. Place, of Place Law Office, for appellant.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:28 AM CST

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McREYNOLDS v. RIU RESORTS & HOTELS
Cite as 293 Neb. 345
Dan H. Ketcham and Sara K. Houston, of Engles, Ketcham,
Olson & Keith, P.C., for appellees The Mark Travel Corporation,
doing business as Funjet Vacations, and Ultimate Cruise and
Vacation, Inc.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Cassel, J.
NATURE OF CASE
After Jeannette L. McReynolds’ jewelry was stolen from a
safe in her hotel room, she sued the companies that arranged
her vacation, claiming that they should have warned her the
hotel’s key system did not meet industry standards and that
they breached their contractual duty to provide a safe hotel
room. The district court entered summary judgment in favor
of 	the 	companies, 	and 	McReynolds 	appeals. 	Because 	we
conclude that the companies did not owe a duty to warn
McReynolds about the obvious defect of the key system and
that McReynolds failed to produce evidence showing that a
genuine issue of material fact exists regarding her breach of
contract claim, we affirm.
BACKGROUND
Vacation
In February 2011, McReynolds traveled to a resort in Puerto
Vallarta, Mexico. The trip was an all-inclusive vacation pack-
age arranged by two companies, Ultimate Cruise and Vacation,
Inc., and The Mark Travel Corporation, doing business as
Funjet Vacations (collectively the companies).
When McReynolds checked into the hotel in Mexico, she
received a key to the safe in her room, and she began storing
her jewelry and cash in the safe. A few days later, a traveling
companion told her that she should not keep her room key
in the same bag as her safe key, because her room number
was engraved on her room key. He told her that she “should
keep them separate because of [their] sitting down at the

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beach, going in the water and how unattended [her] beach bag
was.” After receiving this advice, McReynolds continued to
use the safe and began to hide the safe key in her room. She
did not consider keeping the safe key on her person or giv-
ing it to another person for safekeeping, and she did not ask
the companies for recommendations regarding where to keep
the key.
Near the end of her stay, McReynolds left her room and
stowed eight pieces of jewelry and some cash in the safe.
She hid the safe key inside a purse and hid the purse inside
a drawer in her room before she left. When McReynolds
returned, she discovered that the safe key was missing and that
the safe was locked. Hotel staff used a drill to open the safe,
which was empty. There were no signs that entry into the room
was forced.
Hotel staff reported the theft to the police, but McReynolds
never recovered the items taken from the safe. She claims that
the jewelry taken from the safe was valued at $63,985 and that
$560 in cash was also taken.
When McReynolds returned from the trip, she contacted an
employee of the companies. That employee told her that the
other hotel at the resort “‘included a credit card key system as
opposed to the antiquated room key system’” used at the hotel
where McReynolds stayed.
District Court
McReynolds filed a complaint in district court and named
as defendants the companies and the local and corporate own-
ers of the hotel. She stated four theories of recovery, including
negligence and breach of contract.
McReynolds claimed that the companies were negligent
in failing to warn her of the “defect in the key system of the
hotel.” According to McReynolds, a key system “in which
the key displays the room number does not comply with the
international hotel industry’s standard . . . when the in-room
safe also requires a key instead of a combination,” because it

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“necessitates the two (2) keys to be separated.” She claimed
that the companies should have warned her of “this industry
standard violation.”
Regarding her breach of contract claim, McReynolds claimed
that she contracted with the companies for her hotel room and
that they breached their duty under the contract to provide her
with a secure room free from criminal acts. She did not point to
any language in any contract to support this argument.
The companies moved for summary judgment. In support of
the motion, they offered affidavits of their employees and their
attorney. McReynolds offered her own affidavit in opposition
to the motion.
The companies’ employees averred in their affidavits that
McReynolds “was charged for services which were limited to
the booking of a hotel room in Mexico for the purpose of a
vacation.” They stated that the companies “did not undertake
to contract with [McReynolds] or provide [McReynolds] with
any other services.” They also stated that they were not aware
that McReynolds planned to take valuable jewelry with her
to Mexico.
McReynolds stated in her affidavit that the companies pro-
vided her services beyond merely booking a hotel room. She
claimed that they provided an all-inclusive vacation package
that included airfare, lodging, meals and drinks, a sailing
excursion, ground transportation, and a designated representa-
tive who was present at the resort and available to respond to
inquiries from guests or arrange additional excursions. She
also claimed that before her vacation, she communicated with
an employee of the companies. According to McReynolds, the
employee said that she had personal knowledge of the hotel
because she had recently traveled there herself. The employee
also provided a photograph of the companies’ designated rep-
resentative and promised to share “‘travel tips.’” McReynolds
did not make any claims in her affidavit regarding the promises
the companies made to her by contract.

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McREYNOLDS v. RIU RESORTS & HOTELS
Cite as 293 Neb. 345
The district court granted summary judgment for the com-
panies on all of McReynolds’ theories of recovery. Regarding
McReynolds’ negligence claim, the district court first con-
cluded that assuming that the key system was defective, the
companies did not have a duty to warn McReynolds about the
key system. Second, it concluded that even if the companies
were negligent, McReynolds was also negligent in leaving her
safe key in the room, and that her negligence superseded any
negligent act by the companies. Third, it concluded further that
the theft was the result of an intentional act by a third party,
which also superseded any negligent act by the companies.
Regarding her breach of contract claim, the district court found
that there was no evidence that the companies contracted with
McReynolds to protect her jewelry and cash.
McReynolds filed this timely appeal, and we moved the case
to our docket.1
ASSIGNMENTS OF ERROR
McReynolds assigns, restated, that the district court erred
in granting the companies’ motion for summary judgment,
because material issues of fact exist regarding (1) the nature
of the services provided by the companies and their duty to
disclose pertinent information and (2) whether they breached
their contract with McReynolds by failing to disclose perti-
nent information.
STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law.2
1 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2015).
2 DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d 867 (2015).

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McREYNOLDS v. RIU RESORTS & HOTELS
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[2,3] The question whether a legal duty exists for action-
able negligence is a question of law dependent on the facts in
a particular situation.3 When reviewing a question of law, an
appellate court resolves the question independently of the con-
clusion reached by the trial court.4
ANALYSIS
Duty to Warn
[4-7] On appeal, McReynolds claims that genuine issues
of material fact exist regarding whether the companies acted
as her special agents and whether they therefore owed her
a duty to disclose pertinent information. An “agent may be
subject to tort liability to the principal for failing to per-
form his duties.”5 In order to prevail in a negligence action,
a plaintiff must establish the defendant’s duty to protect
the plaintiff from injury, a failure to discharge that duty,
and damages proximately caused by the failure to discharge
that duty.6 Thus, the threshold inquiry in any negligence
action is whether the defendant owed the plaintiff a duty.7 A
“duty” is an obligation, to which the law gives recognition
and effect, to conform to a particular standard of conduct
toward another.8 If there is no duty owed, there can be no
negligence.9
This court has never considered whether a travel agent
owes a duty to disclose pertinent information to its clients.
3 Olson v. Wrenshall, 284 Neb. 445, 822 N.W.2d 336 (2012).
4 Id.
5 Restatement (Second) of Agency, ch. 13, topic 1, Introductory Note for
§§ 376-398 at 171 (1958).
6 Olson v. Wrenshall, supra note 3.
7 Id.
8 Id.
9 Id.

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McREYNOLDS v. RIU RESORTS & HOTELS
Cite as 293 Neb. 345
Courts from other jurisdictions generally agree that a travel
agent who arranges vacation plans acts as more than a mere
“ticket agent” and is a special agent of the traveler.10 Those
courts hold that as special agents, travel agents or tour opera-
tors are subject to the duties of care and skill imposed under
the law of agency.11 Under agency principles, travel agents
do not owe a general duty to warn travelers of general safety
precautions,12 but they do owe a duty “‘to use reasonable
efforts to give [the] principal information which is relevant to
affairs entrusted to him and which, as the agent has notice, the
principal would desire.’”13
However, courts in other jurisdictions also agree that travel
agents and tour operators do not owe a duty to disclose
10 Afflerbach v. Cunard Line, Ltd., 14 F. Supp. 2d 1260 (D. Wyo. 1998);
Stafford v. Intrav, Inc., 841 F. Supp. 284 (E.D. Mo. 1993); Maurer v.
Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 890 P.2d 69 (Ariz. App.
1994); United Airlines, Inc. v. Lerner, 87 Ill. App. 3d 801, 410 N.E.2d
225, 43 Ill. Dec. 225 (1980); Grigsby v. O.K. Travel, 118 Ohio App. 3d
671, 693 N.E.2d 1142 (1997); Douglas v. Steele, 816 P.2d 586 (Okla. App.
1991).
11 See Douglas v. Steele, supra note 10 (citing Restatement, supra note 5,
§ 379(1)). See, also, 2 Restatement (Third) of Agency § 8.08 (2006).
12 See, e.g., Sova v. Apple Vacations, 984 F. Supp. 1136 (S.D. Ohio 1997);
Davies v. General Tours, Inc., 63 Conn. App. 17, 774 A.2d 1063 (2001).
13 Maurer v. Cerkvenik-Anderson Travel, Inc., supra note 10, 181 Ariz. at
296, 890 P.2d at 71 (quoting Restatement, supra note 5, § 381). See, also,
United Airlines, Inc. v. Lerner, supra note 10; Markland v. Travel Travel
Southfield, 810 S.W.2d 81 (Mo. App. 1991); 2 Restatement, supra note
11, § 8.11. But see, Lavine v. General Mills, Inc., 519 F. Supp. 332, 335
(N.D. Ga. 1981) (stating that “the court can discern no duty that [tour
package planner and seller] owed to plaintiff to warn her of or protect
her from the hazard that caused her injury”); Lachina v. Pacific Best Tour,
Inc., No. 93 Civ. 6193 (HB), 1996 WL 51193, at *1 (S.D.N.Y. Feb. 7,
1996) (unpublished opinion) (holding that “[u]nder New York law, tour
companies and travel agents . . . owe no duty to tour members to inform
them of possible hazardous conditions on the property of others”).

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information about obvious or apparent dangers.14 It appears
well settled in other jurisdictions that an agent’s duty to warn
travelers of dangerous conditions “applies to situations where
a tour operator [or travel agent] is aware of a dangerous con-
dition not readily discoverable by the plaintiff. It simply does
not apply to an obvious dangerous condition equally observ-
able by plaintiff . . . .”15
This view appears consistent with § 18 of the Restatement
(Third) of Torts,16 which governs an actor’s “Negligent Failure
to Warn.” Comment f. to that section provides:
A defendant can be negligent for failing to warn only if
the defendant knows or can foresee that potential victims
will be unaware of the hazard. Accordingly, there gener-
ally is no obligation to warn of a hazard that should be
appreciated by persons whose intelligence and experience
are within the normal range.17
In the instant case, we do not need to decide whether the
companies were McReynolds’ special agents who therefore
owed her a duty to disclose pertinent information. Assuming
that they were McReynolds’ special agents and that they owed
her a duty to disclose pertinent information, we conclude
that the companies did not owe a duty to warn her about the
hotel’s key system, because any dangers it may have posed
were obvious.
14 Hofer v. Gap, Inc., 516 F. Supp. 2d 161 (D. Mass. 2007); Sachs v. TWA
Getaway Vacations, Inc., 125 F. Supp. 2d 1368 (S.D. Fla. 2000); Sova v.
Apple Vacations, supra note 12; Passero v. DHC Hotels and Resorts, Inc.,
981 F. Supp. 742 (D. Conn. 1996); Stafford v. Intrav, Inc., supra note 10;
Davies v. General Tours, Inc., supra note 12; Markland v. Travel Travel
Southfield, supra note 13.
15 Passero v. DHC Hotels and Resorts, Inc., supra note 14, 981 F. Supp. at
744.
16 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 18 (2010).
17 Id., comment f. at 208.

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McREYNOLDS v. RIU RESORTS & HOTELS
Cite as 293 Neb. 345
We find two cases from other jurisdictions particularly
instructive. Both cases addressed situations involving obvi-
ous dangers.
In Hofer v. Gap, Inc.,18 the plaintiff was injured when she
fell into a pond at a hotel. She sued the operator of the Web
site that she used to book her hotel room, claiming that the
Web site operator, as her agent, had a duty to warn her of
dangerous hazards of which it was aware through its “‘inside
information.’”19 The court concluded that the Web site opera-
tor had no duty to warn the plaintiff, because there was “no
evidence to suggest that [the Web site operator] had ‘inside
information’ about the conditions of the turtle pond and stairs
that [the plaintiff] did not herself have. The alleged hazards
were just as open and obvious to [the] plaintiff as they were to
[the Web site operator].”20
The court in McCollum v. Friendly Hills Travel Center21
reached a similar conclusion. There, the plaintiff used a travel
agency to book a trip to a resort in order to water-ski. He asked
the travel agent whether he would need to bring his own skiing
equipment with him, and she told him that he did not. When
he arrived, he discovered that the resort had only one pair of
water skis, which was in disrepair. He also found that the resort
did not provide water-skiers with an observer. The plaintiff
inspected the skis, concluded that they were worn but safe, and
used them to water-ski three times. The third time, the boat
driver took the plaintiff into rough water, and he was injured.
The plaintiff sued the travel agency, claiming that the agency
should have warned him about the dangerous skiing conditions
at the resort.
18 Hofer v. Gap, Inc., supra note 14.
19 Id. at 176.
20 Id. at 179.
21 McCollum v. Friendly Hills Travel Center, 172 Cal. App. 3d 83, 217 Cal.
Rptr. 919 (1985).

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McREYNOLDS v. RIU RESORTS & HOTELS
Cite as 293 Neb. 345
The California court, discussing the issue in terms of the
breach of a duty rather than the existence of a duty, concluded
that the travel agency did not breach its duty to warn. It rea-
soned that there was no breach, because
if the equipment or skiing conditions, including, but
not limited to the absence of an observer in the boat,
are obviously unsafe it is incumbent upon the traveler
to refrain from using those facilities. He cannot simply
ski with impunity, mistakenly secure in the knowledge
that the travel agent who arranged his vacation consulted
a book, learned that the hotel had ski equipment and
therefore assume that the equipment and conditions must
be safe despite his observation of their obvious defec-
tive appearance.22
In the instant case, McReynolds claims that the hotel’s key
system was defective because her room key was engraved
with her room number. She argues that the engraved number
created a risk of theft, because if she kept the room key in
the same bag as her safe key and the bag was stolen, “the
thief would have access to both the room and the room safe.”
Therefore, the system “necessitate[d] the two (2) keys to be
separated.” She claims the companies negligently failed to
warn her of this defect in the key system, but she also admits
that she recognized the defect and that she continued to use
the safe anyway.
[8] We adopt the majority rule that travel agents do not
owe a duty to disclose information about obvious or apparent
dangers and conclude that the companies had no duty to warn
McReynolds of the obvious risk created by the key system.
Because this particular risk of the defective key system was
obvious, it was incumbent upon McReynolds to avoid the
obvious danger it created. She apparently attempted to do so
by hiding her safe key in her room. She does not claim that
22 Id. at 95, 217 Cal. Rptr. at 926.

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the companies should have warned her that hiding the safe
key in her room created a risk of theft. And even if she had
made such an allegation, the risk of theft created by hiding
the key to a safe in the same room as the safe itself is obvi-
ous. Because no duty was owed, there was no negligence,
and the lower court properly granted summary judgment as to
this claim.
McReynolds’ arguments that the companies owed her a duty
to disclose are unconvincing. She relies almost exclusively
upon an unpublished opinion from Missouri, Lewis ex rel.
Houseworth v. Eisin,23 which we do not find persuasive. In
Eisin, the mother of a boy who drowned in a hotel pool while
on a school trip sued the man who organized and served as
the tour guide for the trip, claiming that the tour guide had a
duty to disclose information regarding the dangers of the pool.
The tour guide had not disclosed that several days before the
trip at issue, another boy on one of his guided trips had nearly
drowned in the same hotel pool. The Missouri court concluded
that the tour guide had a duty to disclose his “inside informa-
tion” about the pool.24
We find the dissenting opinion in Eisin more persuasive
than the majority opinion upon which McReynolds relies.
The dissenting opinion noted that the law in Missouri is that
a travel agent does not have a duty to disclose information if
“‘that information is so clearly obvious and apparent to the
traveler that, as a matter of law, the travel agent would not be
negligent in failing to disclose it.’”25 It concluded that the tour
guide had no duty to disclose, because the dangers of the pool
were obvious and apparent to the tour group, and it noted that
23 Lewis ex rel. Houseworth v. Eisin, No. ED 79341, 2002 WL 337775 (Mo.
App. Mar. 5, 2002) (unpublished opinion).
24 Id. at *5.
25 Id. at *6 (Ahrens, J., dissenting) (emphasis omitted) (quoting Markland v.
Travel Travel Southfield, supra note 13).

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the majority’s analysis “implicitly overrule[d] the ‘obvious
and apparent’ exception to the general rule.”26 If we adopted
McReynolds’ suggested analysis, we would be rejecting the
majority rule. We decline to do so.
Our conclusion is consistent with our revised jurisprudence
on duty.27 In A.W. v. Lancaster Cty. Sch. Dist. 0001,28 we
adopted the approach of § 7 of the Restatement (Third) of
Torts29 and held that an actor ordinarily has a duty to exercise
reasonable care when the actor’s conduct creates a risk of
physical harm.
But we also noted that § 7(b) of the Restatement provides
that “in exceptional cases, when an articulated countervail-
ing principle or policy warrants denying or limiting liabil-
ity in a particular class of cases, a court may decide that a
defendant has no duty or that the ordinary duty of reasonable
care requires modification.”30 We explained that “[a] no-duty
determination . . . is grounded in public policy and based upon
legislative facts, not adjudicative facts arising out of the par-
ticular circumstances of the case.”31 This power to make a no-
duty determination also applies to duties imposed under other
Restatement sections.32
Thus, we make the no-duty determination in the instant
case as a matter of policy, based upon a traveler’s ability to
perceive obvious dangers. Imposing a duty to warn of obvi-
ous dangers would be a waste of time and could actually
26 Id.
27 See A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010).
28 Id.
29 1 Restatement, supra note 16, § 7.
30 A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 27, 280 Neb. at 213,
784 N.W.2d at 915.
31 Id.
32 2 Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 42, comment b. (2012).

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inhibit safety, because it “would produce such a profusion of
warnings as to devalue those warnings serving a more impor-
tant function.”33
This no-duty determination applies only to the class of cases
involving obvious dangers. We do not address any other duties
owed by travel agents to their clients.
Breach of Contract
McReynolds fails to clearly articulate the basis for her
breach of contract claim—citing one theory in her assignment
but a different one in her argument. Her assignment of error
states that the district court erred in granting summary judg-
ment, because material issues of fact exist with respect to “the
resulting breach of contract by [the companies] in failing to
disclose pertinent and critical information to [McReynolds]
prior to the herein vacation.” But the argument in her brief
does not mention any contractual duty to disclose informa-
tion. It instead argues that the companies had a contractual
duty to provide a safe hotel room. Under either theory, this
claim fails.
The party moving for summary judgment has the burden
to show that no genuine issue of material fact exists and must
produce sufficient evidence to demonstrate that the moving
party is entitled to judgment as a matter of law.34 After the
movant for summary judgment makes a prima facie case by
producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence was uncontroverted at
trial, the burden to produce evidence showing the existence of
a material issue of fact that prevents judgment as a matter of
law shifts to the party opposing the motion.35
To support their motion for summary judgment, the compa-
nies presented affidavits in which they averred that they “did
33 1 Restatement, supra note 16, § 18, comment f. at 208.
34 Latzel v. Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014).
35 Id.

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not undertake to contract with [McReynolds] or provide [her]
with any other services” other than booking her hotel room.
This evidence was sufficient to shift the burden of production
to McReynolds. McReynolds did not present any evidence
to the contrary. As we noted above, McReynolds’ responsive
affidavit did not address the terms of any contract with the
companies. Therefore, she did not meet her burden to produce
evidence showing the existence of material issues of fact, and
the district court did not err in granting summary judgment as
to this claim.
CONCLUSION
McReynolds’ negligence claim fails because, even if the
companies were her special agents and owed a duty to dis-
close pertinent information, they did not owe a duty to warn
her about the obvious risk of hiding the key to the safe in the
room in view of the nature of the hotel’s key system. And
McReynolds did not show that a genuine issue of material fact
exists regarding her breach of contract claim. Accordingly, we
affirm the district court’s order granting summary judgment for
the companies.
Affirmed.