FRESE v. CITY SEGWAY TOURS OF WASHINGTON, DC, LLC
1:16-cv-02373
D.D.C.Apr 14, 2017Background
- In October 2013 Mary Ellen Frese booked a City Segway guided tour; on the morning of the tour she called and a City Segway employee told her the tour would run and that Segways are “safe in the rain.”
- Frese signed a release, completed training, and rode a Segway PT in heavy rain; while ascending a wet slope the Segway lost traction, destabilized, and Frese fell, fracturing her tibial plateau and suffering permanent injury.
- Plaintiffs sued City Segway in D.C. Superior Court; the case was removed to federal court and an Amended Complaint pleads nine counts under D.C. law.
- City Segway moved to dismiss three counts that arise from the phone assurance: (Count III) deceptive trade practices under the D.C. CPPA, (Count IV) common-law fraudulent misrepresentation, and (Count VII) breach of express warranty.
- Defendant’s sole argument for dismissal was that the complaint fails to allege a false statement because Segway materials merely warn to avoid slippery surfaces rather than state Segways are categorically unsafe in rain.
- The court treated the complaint allegations and incorporated Segway materials as true for purposes of the motion and denied the motion to dismiss as to all three counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff sufficiently alleged a false statement under the CPPA (Count III) | Frese alleges City Segway employee said Segways are “safe in the rain”; Segway manuals warn against wet/slippery surfaces and loss of traction, so the employee’s assurance is false | Segway’s literature only warns to avoid slippery surfaces; that does not establish Segways are unsafe in rain — rider must exercise caution | Court: Reasonable to infer from the manuals and pleaded facts that Segways are unsafe in rain; CPPA misrepresentation adequately alleged; Count III survives |
| Whether fraud claim pleads falsity and satisfies Rule 9(b) particularity (Count IV) | Identifies who (City Segway employee), when (Oct 10, 2013 phone call), what (Segways safe in rain), and reliance (Frese took the tour) | Plaintiffs fail to show the statement was false | Court: Falsity adequately alleged as explained above; complaint meets Rule 9(b) particularity; Count IV survives |
| Whether an express warranty claim requires pleading a false statement or showing nonconformity (Count VII) | Employee’s affirmation that Segways are safe in rain created an express warranty and the Segway’s failure to be safe breached that warranty | Plaintiffs have not pleaded that the statement was false | Court: Breach-of-express-warranty requires showing nonconformity with the affirmation; plaintiffs adequately pleaded that the Segway failed to conform to the warranty; Count VII survives |
| Whether dismissal is appropriate at pleading stage given conflicting factual materials | Plaintiffs: factual disputes about product literature and traction are inappropriate to resolve on 12(b)(6) | Defendant: literature undercuts falsity allegation | Court: Resolve factual disputes at discovery; accept plaintiffs’ factual allegations and incorporated materials at this stage; deny dismissal |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must permit reasonable inference of liability)
- Hancock v. Urban Outfitters, Inc., 830 F.3d 511 (accept complaint facts and draw all reasonable inferences for plaintiff at motion to dismiss)
- United States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251 (Rule 9(b) particularity requirements for fraud pleadings)
- EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621 (materials court may consider on a 12(b)(6) motion)
- Wetzel v. Capital City Real Estate LLC, 73 A.3d 1000 (elements and damages for breach of express warranty)