Facts

In 2000, plaintiffs Byung Kho, 75, and her husband, Won Kyu Kho, 76, were on vacation in Europe. Their son-
in-law, plaintiff Bonghan Cho, treated his inlaws to a guided tour arranged by Los Angeles-based A-Ju Tours
Inc. The plaintiffs allege that A-Ju Tours targeted Korean tourists. One of their two tour guides was A-Ju
ToursÆ Young H. Park and the other was from Europe.
While in Geneva, Switzerland on June 25, the tour group, consisting of 15 members, was transferring from a
high-speed train to a nearby bus. The doors of the bus were open for boarding. Because the tour members were
scheduled to use the bus for the next 10 days, most of the group, even the children, moved quickly to the bus to
get the best seats.
According to the plaintiffs, an 11-year-old boy was dragging a suitcase. He hit the suitcase Mrs. Kho ("the
plaintiff") was dragging. This caused the plaintiff to lose her balance and fall. Landing on her side, the plaintiff
broke her hip. One of the tour guides went with the plaintiffs to a nearby hospital but left after several hours.
The couple could not communicate with hospital personnel since nobody there spoke Korean. A-Ju Tours sent
an Italian-speaking guide from Rome, but the plaintiffs could not communicate with him. Further, the guide
did not arrive until two days after she had checked in at the hospital and only stayed for two hours. The
plaintiff husband was not given lodging by A-Ju. Thus, he had to sleep on the floor of the plaintiffÆs room.
Surgery was delayed for four days since the plaintiff had no means to spend for her medical treatment. The
couple returned home to the United States, spending out of their own pockets, after staying 15 days in the
hospital.
According to the defense, the plaintiff was rushing to get a front seat on the bus when she caught her left foot on a
suitcase of another tour member, an 11-year-old boy walking with and holding his fatherÆs hand. The defense
alleged that the plaintiff could see those tour members and their suitcases in front of her, however, she was
inattentive in her hurry. The defense further contended that the plaintiffs did not purchase travel insurance for
the trip and that Mr. Kho was a bus driver for the Chicago Tranit Authority for over 13 years and speaks
English sufficiently to have been understood in Switzerland.

PLAINTIFFSÆ CONTENTIONS:
The plaintiffs sued A-Ju Tours and its employee guide for negligent training
and negligent infliction of emotional distress. Cho sued for breach of contract against A-Ju for failure to
provide a safe tour.
The plaintiffs claimed A-Ju Tours did not properly train its directors and guides. They also claimed the directors
and guides did not receive any training in accommodating elderly passengers with physical handicaps,
specifically with respect to boarding buses.
The plaintiffs claimed there was no priority boarding for seniors and no seat assignments. The plaintiffs alleged
that Byung Kho could not run to the bus, but she requested priority seating. Her request was not addressed.
The plaintiffÆs travel law expert, Alexander Anolik, contended A-Ju failed to take proper care when mixing small
children and elderly adults in a tour. According to the expert, A-Ju had an overall lack of interest toward safety
and risk management.
The plaintiffs alleged there were no procedures for boarding the tour buses, priority seating for the elderly and the
safe exit of injured tourists. The guides did not have any training in crisis management, particularly in helping
injured tourists to receive medical treatment, translators, food, accommodations, meals and transportation
home.
Anolik also contended that A-Ju Tours did not provide a safe tour in violation of the Swiss Package Tour Statute
and the European Travel Directive. He emphasized that under the European Travel Directive, tour operators are
strictly liable for injuries suffered by tourists in their care. A contract cannot limit this duty. The expert
concluded A-JuÆs failure to provide safe boarding procedures and deal with young tour members caused
plaintiffÆs injuries.

According to the plaintiffs, the defendants persistently denied liability. Throughout the case, they denied any duty
toward the plaintiffs and failed to cooperate with the discovery process. The plaintiffs brought three motions to
compel and were awarded sanctions.

DEFENDANTSÆ CONTENTIONS:
The defense contended that the plaintiff was responsible for her own fall; she
was rushing and inattentive to where she was walking. The defense contended that it was not negligent; it was
not possible for a tour company to guarantee to protect tour members from any and all harm and it was not
possible for the plaintiffs to have contracted for a "safe tour" in the broad sense the plaintiffs claimed. The
defense also contended that because the accident occurred in Switzerland, a country which is not a member of
the European Union, the European Travel Directive cited by the plaintiffÆs travel law expert Anolik was
inapplicable.
The defense contested the characterization of Alexander Anolik as a "travel expert" stating that although Anolik,
a lawyer, has written books on the topic of the travel industry, there were no reported cases in which he had
qualified as a "travel expert." The defense counsel further notes that Co Opera, an Italian Company that
provided the bus and the driver involved, was not sued by the plaintiffs and that the Americans With
Disabilities Act is inapplicable.

Settlement Discussions

The plaintiffs made a CCP Section 998 demand of $390,000.

Specials in Evidence

$23,196

Damages

Mrs. Kho sought damages for her inability to communicate and for having no means to pay for her medical treatment abroad. Mr. Kho alleged negligent infliction of emotional distress and loss of consortium. He alleged severe emotional distress due to the trauma his wife suffered. The plaintiffs lost the benefit of their trip and their son-in-law lost the benefit of his gift. The plaintiffs alleged incidental expenses totaling $8,047. Cho claimed $5,680 for loss of his gift. The plaintiffs sought a total of $500,000.

Injuries

Mrs. Kho fractured her hip, sustaining a Garden IV left femoral neck fracture have the highest risk of avascular necrosis. She sought damages for hip replacement surgery, which was postponed for four days after the initial trauma. During the hospital stay, she sustained severe hip and lower back pain and eventually had to undergo a left hemiarthroplasty.

Result

The case settled for $200,000. Prior to settlement, the plaintiffs were awarded $762,164 in a non-binding judicial arbitration by William G. Priest, Jr., Esq. ($695,117 for Mrs. Kho, $60,000 for Mr. Kho, and $5,680 for Bonghan Cho). The defense rejected the award and filed a request for trial de novo of this award. A month before trial, when expert discovery was scheduled, defense offered to settle.

Other Information

Per the plaintiffs' attorney, the key factor to their success was establishing venue in Santa Clara County given the defendant's principal place of business was in Los Angeles, the injury took place in Switzerland, the Khos lived in Arizona and Cho lived in Korea. Their attorney opined the Santa Clara venue was proper because though the tour was advertised in Los Angeles, the solicitation was accepted by Cho in Santa Clara. Per the plaintiffs' attorney, the Santa Clara venue combined with European law applied on issues of liability was controlling. The case was settled on March 31, 2005, following the parties' stipulation to proceed with voluntary mediation with Judge Ellen James (JAMS) for $200,000. Trial was scheduled for May 2, 2005.