Is there a duty to warn Olympic travelers about Zika?

The Summer Olympics are less than two weeks away, and among the many concerns facing these Olympics is the Zika virus. The virus, most commonly spread through the bite of an infected Aedes mosquito, has been actively reported in a number of countries in Central and South America, including Brazil. The virus can also be spread from a pregnant woman to her fetus and through sexual intercourse. While many people have no symptoms of an infection, it can cause serious birth defects, including microcephaly, a brain defect.

Zika has also been associated with Guillain-Barré syndrome and acute disseminated encephalomyelitis, which are debilitating and sometimes fatal. There is currently no vaccine or medicine available to treat Zika. The Centers for Disease Control and Prevention (CDC) recommends that pregnant women refrain from traveling to any area with Zika. It also cautions women trying to get pregnant and their male partners to seek medical advice before traveling and follow recommended steps to prevent insect bites.

A number of athletes are foregoing this year's Summer Olympics in Rio de Janeiro, scheduled to begin on Aug. 5, due to concerns regarding the Zika virus. Golfers Jason Day, Jordan Spieth, Rory McIlroy, and Dustin Johnson, cyclist Tejay van Garderen, and basketball player Stephan Curry are among those declining to participate, citing Zika as a factor in their decisions.

While a group of 150 doctors, scientists and bioethicists wrote to the World Health Organization (WHO) calling for the Rio Olympics to be postponed or moved because of Zika, the WHO concluded there is no need to postpone the games. The CDC likewise determined that the global risk presented by Zika in light of the games is low. In particular, research demonstrates that travel during the Olympics typically does not exceed baseline travel volume patterns to the host city at other times. Specifically, the estimated Olympic-related travel to the U.S. from Rio only comprises 0.11 percent of all 2015 travel to the U.S. from countries where Zika is now spreading.

Given the relatively low risk, do travel providers still have a duty to warn of the risk from Zika?

Generally, travel providers owe a duty of care to travelers to disclose information that is material to the services provided. The scope of this duty to disclose is limited to what is reasonable in any given instance. Foreseeability of harm is a key inquiry in determining whether travel providers have met their duty of care. While a travel provider is not expected to act as an insurer and warn of any number of potential risks inherent in traveling no matter how unlikely or remote, it does have a duty to its travelers to warn of those risks which it is aware of or can reasonably be expected to be aware. There is no duty to warn of unforeseeable risks. On the other end of the spectrum, there is generally no legal duty to warn of obvious risks.

Here, the critical question is whether it is foreseeable that a traveler to Rio could become infected with the Zika virus. The answer is - yes. Is this a risk that is also so clearly obvious and apparent that travelers would be expected to already know about it? If the answer to the latter question is likewise in the affirmative, then travel providers may not necessarily owe a duty to warn their customers of the risk of contracting Zika. Although Zika has certainly been in the news lately, not everyone reads or watches the news. It is also important to remember that Zika has not been shown to cause harm in the majority of individuals who are infected.

Ultimately, it is always better to err on the side of caution when it comes to fulfilling duties of care and warning of risks. While some may consider Zika to be an obvious danger inherent in traveling to the Olympics, it would be prudent to direct travelers to the CDC's website and recommend they consult with a medical professional before traveling to Rio. This enables travelers to make informed health decisions and determine whether to proceed with their trip. Additionally, it would be prudent for travel providers to include Zika in their liability waivers.

Travel providers should also be cautious about making representations concerning the safety of travel to Rio for the Olympics although it may well be "safe" for the majority of travelers based on research conducted by the CDC. While this sort of "puffing" is not considered an actionable guarantee of safety, Zika has received a significant amount of negative press, which has been magnified by the number of athletes publicly voicing their unwillingness to travel to Rio to compete in the games. While travelers would face an uphill battle in making a claim based on such representations of safety, it is always better to minimize the risk of litigation at the outset from a risk management perspective.

Laurie E. Sherwood is a partner in Walsworth's San Francisco office where she focuses on the travel, tourism and hospitality industry. Her practice encompasses the representation of travel agencies and companies, tour operators, travel insurance companies and hotels in a variety of federal and state court cases ranging from disgruntled travelers to catastrophic injuries.