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Norman Mero v. City Segway Tours of Washington Dc

November 28, 2011

NORMAN MERO, PLAINTIFF,
v.
CITY SEGWAY TOURS OF WASHINGTON DC, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Amy Berman Jackson United States District Judge

MEMORANDUM OPINION

Plaintiff Norman Mero brings this action against defendants City Segway Tours of Washington D.C., LLC ("CST DC"), and City Segway Tours ("CST") alleging that their negligence, breach of contract, and unfair trade practices culminated in a collision in which he was injured. Defendants have moved to dismiss Counts II (breach of contract) and III (unfair trade practices) for failure to state a claim, or in the alternative, for summary judgment on those claims. Defendants have also moved to dismiss all claims against defendant CST under the theory that CST is not a proper legal entity that can be sued.

Since plaintiff has not alleged the existence of an enforceable contract, the Court will grant defendants' motion as to Count II, but it will deny it as to Count III. The Court will also deny defendants' motion to dismiss defendant CST from the remaining counts at this time.

FACTUAL BACKGROUND

On May 21, 2010, plaintiff participated in one of the defendants' guided tours of Washington, D.C., in which visitors traverse the city while riding on Segway personal transportation vehicles. This action arises out of a collision between plaintiff and another tour participant that left plaintiff with a fractured right arm.

Plaintiff, a resident of Ontario, Canada, signed up to take a tour with CST DC during a visit to Washington. Am. Compl. ¶ 1. He received an email that confirmed his tour reservation, which included the meeting point for the tour, directions, tips, the cancellation policy, and a section titled "Important Information." Id. ¶ 2. The "Important Information" section contained the following statement: "Your safety is always our highest priority; therefore, we begin each tour with a very thorough orientation of the Segway and its use before going out to enjoy Washington DC!" Id.

Plaintiff alleges that he appeared for the scheduled tour, signed a liability waiver form, and received instructions about how to use the Segway from a CST DC tour guide. Id. ¶¶ 1, 2, 5, 10. He states that the instructions lasted approximately 10 to 15 minutes. Id. ¶ 6. He also alleges that at some point, he noticed that a control key was missing from his Segway. According to plaintiff, when he brought that circumstance to his tour guide's attention, the guide assured him that it was "not important." Id. ¶¶ 44--47. Plaintiff also alleges that defendants "knew or should have known about some of the not so obvious characteristics of Segways and how they operate." Id. ¶ 42.

The amended complaint claims that after the tour was underway, the guide directed the group to pair up in a "buddy buddy" arrangement, which had not previously been demonstrated to the group. Id. ¶¶ 9--11. While plaintiff was attempting to maneuver in this fashion, his Segway collided with another, and he was "thrown violently to the hot asphalt pavement." Id. ¶ 14. He sustained compound fractures to his arm and endured a number of complications due to follow-up treatments. Id. ¶¶ 18--20. Plaintiff attributes the accident to a "violent and unexpected machine reaction." Id. ¶ 15.

Plaintiff instituted this lawsuit in the Superior Court for the District of Columbia on April 11, 2011. Defendants subsequently removed the case to this Court on grounds of diversity jurisdiction [Dkt. # 1], and on June 24, 2011 plaintiff filed his amended complaint in this Court [Dkt. # 17]. Count I alleges negligence, Count II alleges breach of contract, and Count III alleges unfair trade practices under the DC Consumer Protection Procedures Act, D.C. Code § 28-3904, et. seq. (2006) ("CPPA"). Since defendants have not moved to dismiss Count I, discovery is underway.

STANDARD OF REVIEW

I. Motion to Dismiss

"To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal,the Supreme Court reiterated the two principles underlying its decision in Twombly: "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft, 129 S. Ct. at 1949. And "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950.

A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id., quoting Twombly, 550 U.S. at 555, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," id.

When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in plaintiff's favor, and the Court should grant plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or ...


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