962 F. Supp. 2d 92
D.D.C.2013Background
- Plaintiff Norman Mero alleges negligence arising from a Segway tour collision with another rider.
- Defendant City Segway Tours of Washington, D.C., LLC seeks summary judgment on a single remaining negligence claim.
- Plaintiff signed a one-page Release and Indemnification Agreement releasing CST from negligence, with liability limited to gross negligence.
- The tour formation included a 'buddy buddy' pairing; plaintiff alleges improper training and supervision.
- Plaintiff claims the Segway’s “InfoKey” or machine design contributed to the fall, but evidence does not support gross negligence or recklessness.
- The court previously dismissed counts for misrepresentation and breach of warranty; now only the waiver issue remains to bar the negligence claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the waiver bars the negligence claim as a matter of law | Mero argues waiver may be unenforceable under public policy | Waiver clearly releases negligence claims not involving gross negligence | Waiver bars the negligence claim |
| Whether the waiver is clear and unambiguous | Waiver language is ambiguous and overbroad | Language is clear and unequivocal in releasing negligence claims | Waiver is clear and unambiguous and enforceable as to the claimed negligence |
| Whether the waiver has valid consideration | No new consideration beyond the tour itself | Consideration exists in exchange for the tour and waiver of claims | Waiver supported by valid consideration |
| Whether the waiver violates public policy due to unequal bargaining power | Public policy bars enforcement due to unequal bargaining power | Unequal bargaining power alone insufficient; service not mandatory; no public policy violation | Waiver not unenforceable on public policy grounds |
| Whether the waiver precludes gross negligence or recklessness claims | Waiver should allow claims of gross negligence | Under DC law, waiver cannot bar gross negligence or recklessness; but here none shown | Gross negligence/recklessness barred by waiver; no viable exception to enforcement |
Key Cases Cited
- Moore v. Waller, 930 A.2d 176 (D.C. Cir. 2007) (clear, unambiguous waiver of liability enforces release of negligence claims)
- Wright v. Sony Pictures Entm't, Inc., 394 F. Supp. 2d 27 (D.D.C. 2005) (waivers—if conspicuously framed—can bar negligence claims under DC law)
- Potomac Plaza Terraces, Inc. v. QSC Prods., Inc., 868 F. Supp. 346 (D.D.C. 1994) (broad waiver language can encompass negligence claims)
- Moses-Ecco Co. v. Roscoe-Ajax Corp., 320 F.2d 685 (D.C. Cir. 1963) (broad language to indemnify against ‘any loss’ can be sufficient to bar negligence claims)
- Clark v. Clark, 535 A.2d 872 (D.C. 1987) (execution of contract can render it valid even without consideration in fully executed contracts)
- GLM P'ship v. Hartford Cas. Ins. Co., 753 A.2d 995 (D.C. 2000) (release of negligence claims is enforceable if terms show intent to release for tort)