Publish in Perspectives - Wednesday, July 3, 2019
This year a series of deaths (at least 12 American tourists) have happened in different hotels and resorts in the Dominican Republic, triggering alarm in an economy which relies heavily on tourism. (Photo: Dominican Tourism Ministry).
Alex Guillamont and Daniel Padron, Kennedys. (Photos: Kennedys)
Are the recent tourist deaths a threat for future recovery actions?
BY ALEX GUILLAMONT
AND DANIEL PADRON
The Dominican Republic is the second-largest Caribbean nation by area with approximately 10 million inhabitants, of whom approximately three million live in the metropolitan area of Santo Domingo, the capital city. The island is famous for its beaches, resorts, golf courses, hotels and for its friendly service.
However, during 2019, a series of deaths (at least 12 American tourists) have happened in different hotels and resorts, triggering alarm in an economy where last year, the tourism industry raised US$7.6 billion, which represents over 17 percent of the country’s GDP.
Although online travel insurance companies have confirmed that these deaths have not affected travel interests in the Caribbean country, considering the impact that this kind of event can provoke in the insurance industry, we would like to give you a ‘sneak peek’ of how the legal system works, as well as recovery actions against hotels, tour operators and third parties.
How does the legal system work in the Dominican Republic?
The Dominican Judicial Branch is composed of three instances:
First Instance Courts see all matters that are not attributed by law to another court and other matters expressly attributed to them by law.
The Second Instance Courts or Appeal Courts attend to the appeals against first instance judgments and other matters expressly attributed to them by law.
The Supreme Court of Justice has the power to hear and rule on cassations filed for civil, commercial, criminal, labor and other matters.
The majority of actions in the Dominican Republic, which need to be filed within two years from the date of the loss or damage, go through the three instances, which usually take between three to five years in total.
The relationship between the hotels and their guests is considered contractual, commencing at the time the guest pays for their reservation directly to the hotel. When the reservation is made through a tour operator and/or third parties, although the contractual relationship is between the guest and the tour operator (who would be sued if the guest files a complaint even when the hotel is responsible for the damages), the claimant may also file a claim directly against the hotel due to the hotel’s obligation to ensure the safety and well-being of its guests.
Most of the suits involving hotels are usually related to falls or accidents that occur in the facilities, such as drowning in the pools and some illnesses. In these claims, the plaintiff, on whom the burden of proof lies, must show that the accident or fall was caused by some damage in the area, such as a wet floor, a staircase whose steps have faults, etc. In cases that involve illnesses, the plaintiff also needs to exhibit a toxicological report showing that the disease is the consequence of the consumption of decomposed food or an adulterated drink. The lack of this evidence during trial can lead to a non-favorable judgement.
In regards to jurisprudence, despite the fact that Dominican law is governed by codes (civil, commercial, criminal, etc.), case law exists in which the Supreme Court recognizes that the civil liability derived from defective products (i.e. rotten food, damaged equipment, use of non-approved pesticides) is not limited to the hotel but includes all of the people involved in the manufacturing process.
Is a recovery action possible in the Dominican Republic?
First of all, the plaintiff has to demonstrate the existence of the damage and/or the responsibility (or lack of it) of the defendant to present the case in court.
For any recovery action to be executed in the Dominican Republic, including those cases in which tour operators and/or third parties are involved, there are three conditions:
1. There must be a final judgment recognizing the damage and ordering certain compensation.
2. That the payment ordered by the court to the person who suffered the damage has been executed.
3. That the person responsible for the damage is solvent.
For those who may have interest in claims filed in the Dominican Republic, we can state that generally speaking, the chances of a successful recovery is 50/50. However, if all three requirements above mentioned are present, the chances of a successful recovery increase exponentially.
Alex Guillamont is Head of Kennedys' Latin America & Caribbean Practice in Miami. Daniel Padron is Associate - Foreign Legal Consultant in Kennedys Miami.
This article is based on an alert from Kennedys. Carlos Álvarez, the lead partner of Kennedys’ associate firm in the Dominican Republic, Alvarez & Alvarez, has assisted in preparation of this article.
Republished with permission.
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