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Frese v. City Segway Tours of Washington DC LLC

United States District Court, District of Columbia

April 14, 2017

MARY ELLEN FRESE; BRETT FRESE, Plaintiffs,
v.
CITY SEGWAY TOURS OF WASHINGTON, DC, LLC, a/k/a CITY SEGWAY TOURS, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG United States District Judge.

         To see 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 the Motion.

         I. Background

         According 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.

         Whether 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 Training”), http://www.segway.com/media/1641/basicrideroptimizationtrainingbritv35aa.pdf).

         According 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.

         A wet 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:

Avoiding Hazards
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.
Avoiding Slips
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 slipping.

User Manual: Segway Personal Transporter 62 (2014), http://www.segway.com/media/1195/24010-00001aaseumenusbuser-manual.pdf.

         The Rider's Guide for the Segway HT model (not PT) has this ...


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