United States District Court, District of Columbia
E. BOASBERG United States District Judge.
as much as possible of the city during their time here, some
tourists choose to spend a few hours scuttling around
downtown Washington in guided convoys of Segways. For one
such tourist, however, the ride was not a smooth one. In the
autumn of 2013, as her particularly rainy Segway tour drew to
a close, Plaintiff Mary Ellen Frese fell from her machine
onto the pavement and broke her leg. She and her husband now
seek six million dollars in damages from the organizer of
that tour, Defendant City Segway Tours. Among the Freses'
many claims is the allegation that a City Segway employee
deceived Mrs. Frese into going ahead with the tour by telling
her that Segways are “safe in the rain” when, in
fact, they are anything but. City Segway now moves to dismiss
three causes of action arising out of that exchange, arguing
that the Freses have failed to sufficiently allege a
misrepresentation. As it does not agree, the Court will deny
to the Amended Complaint, which the Court must presume true
at this stage, in mid-September 2013, Mary Ellen Frese booked
a tour for herself and some colleagues with City Segway,
which runs group Segway tours around Washington's
downtown area. See Am. Compl., ¶¶ 8-10.
She scheduled the tour for October 10, which dawned in heavy
rain. Id., ¶¶ 10, 12. Frese thus called
City Segway that morning to ask if the tour would still
proceed, and a City Segway employee said that it would.
Id., ¶¶ 12-13. Frese then asked if it was
safe to ride a Segway in such conditions; the employee
assured her Segways were safe in the rain. Id.
or not the Segway that Frese rode (and subsequently fell
from) was indeed “safe in the rain” is central to
the dispute before the Court. Segways rely on a technology
called “dynamic stabilization” to remain upright
and allow them to move according to the direction in which
the rider leans. Id., ¶ 15. The more one leans,
the faster the Segway travels. Id. But for the
system to work, the wheels must have traction. Id.,
¶ 16. Segway tells owners that the machine “must
grip the ground for [it] to remain upright” and that if
its “tires cannot generate a reaction force, ”
the Segway “cannot stabilize itself.”
Id. (quoting Basic Rider Optimization Training
for the Segway Human Transporter i Series, e Series and p
Series Models 59 (2004) (“Optimization
to the Amended Complaint, if a wheel loses traction, the
Segway will slow down and pivot towards the slipping wheel,
causing the rider to inadvertently lean as she tries to
regain balance. Id., ¶ 17. But this reaction
has an unfortunate consequence. When the rider leans to
stabilize herself, the machine accelerates suddenly as it
responds to what it perceives as a failure of the slowed
wheel (which has slipped) to keep up with the rider's
apparently intended motion. Id. The sudden
acceleration generally causes the rider to lose balance and
fall toward the side of the slipping wheel. Id.,
¶ 18. This phenomenon - namely, Segway riders'
losing their balance on surfaces with poor traction - is
apparently well known to experienced Segway riders and
engineers, and has been disclosed in the device's patent.
Id., ¶ 28.
surface has around 50% less friction than a dry surface,
making it much more likely that a Segway will slip in such
conditions. Id., ¶ 19. Segway literature
therefore includes various warnings about avoiding slippery
surfaces. The User Manual for the Segway PT model - the model
that Mary Ellen Frese allegedly rode, see Am.
Compl., ¶ 35 - contains the following language:
The [Segway] PT is highly maneuverable and allows you to
easily navigate around obstacles. However, to prevent the
loss of traction, you must always be careful when riding and
learn to identify and avoid slippery, icy, or wet surfaces,
loose materials (sand/gravel), steep slopes, and obstacles.
Stop and step off your PT and use Riderless Balance Mode . .
. to move your PT over unsafe surfaces or terrain.
The PT Tires must be able to grip the ground for the machine
to stay upright! Slips occur when the tires lose traction,
potentially causing loss of control and a fall. Abrupt
maneuvers, and riding over slippery surfaces, loose objects,
and materials, or steep slopes can cause the tires to lose
traction . . . .
Avoid riding on slippery surfaces such as snow, ice, wet
floors, wet grass, or any other surface that might cause
User Manual: Segway Personal Transporter 62 (2014),
Rider's Guide for the Segway HT model (not PT)
has this ...