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Mero v. City Segway Tours of Washington DC, LLC

United States District Court, District Circuit

May 21, 2010

NORMAN MERO, Plaintiff,
v.
CITY SEGWAY TOURS OF WASHINGTON DC, LLC, et al., Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

Plaintiff Norman Mero brings this action against defendant City Segway Tours of Washington, D.C., LLC (“CST”), arising from injuries that plaintiff allegedly incurred while participating in CST’s guided tour of Washington, D.C., using Segway personal transportation vehicles. After previous rounds of dispositive motions, the only count remaining in this action asserts a common law negligence claim. Defendant has moved for summary judgment on the grounds that: (1) the claim is barred by the liability waiver plaintiff signed; (2) defendant did not breach a duty of care owed to plaintiff; (3) plaintiff was contributorily negligent; and (4) plaintiff assumed the risk. Def.’s Mem. in Support of its Mot. for Summ. J. [Dkt. # 49-2] (“Def.’s Mot. for Summ. J.”). Because the claim is barred by the liability waiver, the Court will grant defendant’s motion for summary judgment.

BACKGROUND

I. Factual Background

On May 21, 2010, plaintiff participated in one of defendant CST’s guided tours of Washington, D.C. (“the District”), in which visitors traverse the city while riding on Segway vehicles. This action arises from a collision between plaintiff and another tour participant that left plaintiff with a fractured right arm.[1] The following facts are uncontested, except where noted.

Upon booking his Segway tour with defendant, plaintiff received an email that confirmed his reservation and payment, and that included the meeting point, directions, tips, and the cancellation policy for the tour. Confirmation Email [Dkt. # 49-16] at 2–4; 2d Am. Compl. ¶ 14. The email also advised plaintiff to arrive fifteen minutes early for the scheduled tour in order to “fill out necessary paperwork, ” and informed him that each member of his party “[would] be required to complete and sign a liability waiver form.” Confirmation Email at 3. Plaintiff signed the liability waiver form on the day of his scheduled tour before the tour commenced. Release and Indemnification Agreement [Dkt. # 49-9] (“the Agreement”); Mero Dep. [Dkt. # 49-4] at 139:8–25, October 28, 2011.

Once the tour was underway, the guide directed the group to form an arrangement called “buddy buddy, ” in which two Segway riders pair up and ride parallel to one another. Mero Dep. at 159:9–15; Chamberlain Dep. [Dkt. # 49-6] at 17:8–13, November 30, 2011; D’Arcangelo Dep. [Dkt. # 49-7] at 20:9–14, October 21, 2011; 2d Am. Compl. ¶ 24; Pl.’s Mem. Supporting his Resp. in Opp. to Def.’s Mot. for Summ. J. [Dkt. # 50] (“Pl.’s Opp. to Summ. J.”) at 4. Plaintiff claims that the arrangement had not been previously demonstrated to the group. 2d Am. Compl. ¶¶ 24–25. While riding in the buddy buddy arrangement, plaintiff’s Segway collided into another Segway, and plaintiff fell to the ground. Chamberlain Dep. at 17:20–18:5; D’Arcangelo Dep. at 20:9–14. Based on those facts, plaintiff alleges that the tour company was negligent “in its failure to provide properly trained tour guides and proper training to the Plaintiff” and grossly negligent in “the manner in which the tour was conducted, ” specifically the “decision to travel in tandem; failure to provide proper training to the Plaintiff and failure to provide properly trained staff.” 2d Am. Compl. ¶¶ 41–42 (emphasis in original).

Plaintiff has also blamed the collision on the vehicle itself; he claims that an “unexpected machine reaction, ” caused the Segway to stop abruptly and throw him to the ground. 2d Am. Compl. ¶ 29–30; Pl.’s Opp. to Summ. J. at 5. He further claims that had the “InfoKey” piece of the Segway been visible to him at the time of lateral impact, he would have been able to safely stop the machine before it abruptly discharged him. Pl.’s Opp. to Summ. J. at 10. Defendant rejects this hypothesis and maintains that the collision itself caused the fall and resulting injuries. Def.’s Mot. for Summ. J. at 29–30. Defendant has also proffered evidence from witnesses who testified that plaintiff was showing off and horsing around on his Segway, and that immediately prior to his accident he had been swerving in the direction of the Segway next to him. Faria Dep. [Dkt. # 49-8] at 19:8–20:24, October 21, 2011 (stating that plaintiff was acting “show-offy” and “cocky, ” that his antics on the Segway made her nervous, and that he was “swerving closer and closer to his significant other” when their Segways collided); D’Arcangelo Dep. at 18:15–20:14 (stating that plaintiff was “fooling around, ” “horsing around, ” that his behavior “seemed immature, ” and that he was swerving “closer and closer to [his partner’s Segway] and eventually the wheels touched and that is when the accident occurred.”)

II. Procedural Background

Plaintiff filed his original complaint in this action against defendants City Segway Tours of Washington D.C., LLC, and City Segway Tours in the Superior Court for the District of Columbia on April 11, 2011, [Dkt. # 1-1], and defendants removed it to this Court on May 2, 2011, [Dkt. # 1]. Plaintiff later filed an amended complaint, which asserted claims of negligence, breach of contract, and misrepresentations. Verified Amended Complaint [Dkt. # 16] (“Am. Compl.”). On November 28, 2011, the Court granted in part and denied in part a partial motion to dismiss or, in the alternative, for summary judgment, filed by defendants. Order [Dkt. # 24]. The Court dismissed plaintiff’ breach of contract claim with prejudice. Id.

On December 23, 2011, plaintiff moved for leave to file a second amended complaint. Pl.’s Mot. for Leave to File 2d Am. Compl. [Dkt. # 26]. In its June 7, 2012 Memorandum Opinion, the Court denied plaintiff leave to add two additional defendants to the case and to assert proposed counts for breach of contract and products liability.[2] 2d Mem. Op. at 15. But the Court granted plaintiff leave to assert a claim for breach of warranty limited to the issue of whether defendant breached the warranty of merchantability, and to assert a count for misrepresentation with limitations that the Court had addressed in its first Memorandum Opinion. Id. at 10, 15.

Plaintiff filed his second amended complaint on June 21, 2012, asserting counts of negligence, breach of contract, misrepresentation, breach of warranty, and products liability. 2d Am. Compl. [Dkt. # 37]. Defendant answered the complaint, [Dkt. # 38], and on the same day, it filed a motion to strike immaterial allegations of the complaint and a partial motion to dismiss or, in the alternative, for summary judgment, as to Count III (misrepresentation) and Count IV (breach of warranty). [Dkt. # 39] (“Def.’s Mot. to Strike”). Plaintiff filed oppositions to the motion to dismiss, the motion to strike, and the motion for summary judgment. [Dkt. # 43–45]. After an August 30, 2012 motion hearing, the Court granted in part and denied in part the motion to strike and denied the motion to dismiss. Minute Entry (Aug. 30, 2012). The Court also directed plaintiff to file a supplemental response to the motion for summary judgment by September 14, 2012. Id. Plaintiff filed his supplemental response on September 16, 2012, [Dkt. # 47], and defendant filed a supplemental reply on September 26, 2012. [Dkt. # 48].

On October 10, 2012, the Court granted defendant’s partial motion for summary judgment on the Misrepresentation and Breach of Warranty Counts (Counts III and IV) in an oral ruling, Minute Entry (Oct. 10, 2012), because plaintiff had failed to come forward with any evidence to show that the absent “InfoKey” played any role in the collision. Defendant has now moved for summary judgment on ...


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