Casciano v. Jasen Rides, LLC

• Decision Date: 16 June 2015
• Docket Number: Civil Action No. 14–1429 (ESH)
• Citation: 109 F.Supp.3d 134
• Parties: Jordana Casciano and John F. Casciano, Plaintiffs, v. JASEN Rides, LLC, Defendant.
• Court: U.S. District Court — District of Columbia

109 F.Supp.3d 134

Jordana Casciano and John F. Casciano, Plaintiffs,

v.JASEN Rides, LLC, Defendant.

Civil Action No. 14–1429 (ESH)

United States District Court, District of Columbia.

Signed June 16, 2015

Gregory Sean Winton, Aviation Law Firm, Annapolis, MD, for Plaintiffs.

Barry Donald Trebach, Craig L. Sarner, Bonner, Kiernan, Trebach & Crociata LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

Plaintiffs Jordana and John Casciano bring this action against defendant Jasen Rides, LLC, alleging various tort and contract claims arising out of an accident suffered by Jordana Casciano during a guided Segway tour conducted by defendant. Defendant has filed a motion to dismiss three of plaintiffs' five counts. (Def.'s Mot. to Dismiss or, in the Alternative, for Summary Judgment on Counts III, IV and V of Pls.' Second Am. Compl. [ECF No. 19] ("Def.'s Mot.").) For the reasons given herein, defendant's motion will be granted in part and denied in part.

BACKGROUND

In their Second Amended Complaint, plaintiffs allege that on October 15, 2013, they took part in a guided tour of the District of Columbia, organized by defendant, which involved the use of Segway Personal Transporters ("Segways"). (Second Am. Compl. and Demand for Jury Trial [ECF No. 16] ("Compl.") ¶¶ 16–17.) Defendant "owned, operated, maintained, and distributed for purposes of the guided tour" the Segways. (Id. ¶ 16.) Plaintiffs were part of a tour group led by a trainer named "Alex." (See Def.'s Mot, Ex. A [ECF No. 19–1] ("Release"); see also Mem. of P. & A. in Supp. of Pls.' Opp. to Def.'s Mot. to Dismiss, or in the Alternative, for Summary Judgment on Counts III, IV, and V of Pls.' Second Am. Compl [ECF No. 21] ("Pls.' Opp.") at 3.) Defendant has submitted a document, the second page of which is titled "SEGWAYTM TOUR CONTRACT AND RELEASE" and recites the following language:

In consideration of being permitted to participate in a tour and/or rent and operate the Equipment, the use of which is hereby acknowledged to be an inherently dangerous and risky activity, each Participant on his own behalf, and on behalf of each minor whose name appears above and with respect to whom the adult Participant is the legal guardian. his heirs, assigns or legal representatives (each of the foregoing is a "Releasor") does hereby release indemnify and agree to hold harmless JASEN Rides, its officers. directors, representatives, employees, agents, partners and other participants of, for any and all losses, costs, damages, claims, demands, rights and causes of action of whatever kind or nature and including any and all negligence claims or causes of action, which may arise and which result from illness, personal injuries, property damage, death or of any other damages or injuries not included herein occurring during or resulting from participation in a JASEN Rides tour and/or rental.

(Id. at 2.) The names "Jordana Casciano" and "John Casciano" are printed and signed above this Release. (Id. ) Plaintiffs "do not dispute that the names of both Plaintiffs ... appear printed and signed on both pages of the document ...; however, Plaintiffs deny that it was Jordana Casciano who signed the ‘Casciano Release.’ " (Pls.' Opp. at 3.)

Plaintiffs allege that during the tour, Jordana Casciano's Segway "experienced a control malfunction causing a large excursion ... and loss of control, ... which caused it to accelerate backward unexpectedly ..., spin violently, and crash into the cement sidewalk surface, which resulted in her being violently ejected from the Segway." (Compl.¶ 17.) As a result of the accident, Jordana "suffered severe and permanent physical and psychological injuries, including but not limited to bone fractures, [scarring], [and] post traumatic stress disorder

." (Id. ¶ 25.) Plaintiffs contend that defendant "should have known of the Segway['s] dangerous conditions, defects, and accident history," due to several product recalls and past Segway-related injuries. (Id. ¶ 19.)

Plaintiffs' complaint includes five counts. Count I alleges that plaintiffs' guide, Alex, failed to properly train and monitor the tour participants and to conduct the tour in a reasonable manner, and that defendant is liable for Alex's negligence under the doctrine of respondeat superior. (Id . ¶¶ 20–26.) Count II alleges that defendant was negligent in maintaining its Segways and instructing and monitoring the tour participants. (Id. ¶¶ 27–33.) Count III alleges that defendant should be held strictly liable for leasing Jordana Casciano a defective Segway. (Id. ¶¶ 34–42.) Count IV alleges that "an implied contract existed between [defendant] and [Jordana Casciano]" for her participation in the guided tour and that defendant breached implied warranties of merchantability and fitness for a particular purpose that were inherent in that contract. (Id. ¶¶ 43–47.) Count V alleges that plaintiffs suffered a loss of consortium as a result of defendant's negligence. (Id. ¶¶ 48–52.)

ANALYSIS

I. STANDARD OF REVIEW

In evaluating defendant's motion to dismiss for "failure to state a claim upon which relief can be granted" under Rule 12(b)(6), the Court is mindful that a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief."

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Fed.R.Civ.P. 8(a) ). The "complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ).

With respect to the alternative motion for summary judgment, defendant must show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) ; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute as to a material fact exists if a "reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A moving party is thus entitled to summary judgment against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C.Cir.2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). When considering a motion for summary judgment, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

II. STRICT LIABILITY

Defendant argues first that plaintiffs "fail to allege facts sufficient to make a claim of strict liability." (Def.'s Mot. at 8.) Defendant acknowledges that strict tort liability in the District of Columbia extends "beyond the seller of a product to ‘any party that was an integral part of the overall producing and marketing enterprise that placed the defective product into the stream of commerce.’ " (Id. at 9 (quoting Wetzel v. Capital City Real Estate, LLC, 73 A.3d 1000, 1006 (D.C.2013) ).) But defendant contends that, even "as a lessor of Segways, ... Defendant was not ‘an integral part of the overall producing and marketing enterprise,’ such that the Court could extend liability to Defendant in this case." (Id. at 10 (quoting Wetzel, 73 A.3d at 1006 ).) To support this contention, defendant observes that it "did not design, construct, market, or sell any Segways." (Id. )

The Court agrees with defendant that the test enunciated in Wetzel controls the outcome of this case. Moreover, the D.C. Court of Appeals does not seem to have considered the precise issue here: whether strict liability extends to a lessor of products. The Wetzel Court, for example, held that a real estate developer that was "actively involved in [the] renovation" of a condominium could be held strictly liable for its damaged condition, even though the developer did not itself sell the unit. Wetzel, 73 A.3d at 1002 ; see also Berman v. Watergate West, Inc., 391 A.2d 1351, 1359 (D.C.1978) (holding that each of several subsidiary corporations—which were variously involved in building, owning, and selling a piece of real estate—could be held strictly liable for defects).

In the absence of controlling precedent from the D.C. Court of Appeals, this Court must "predict how that court would decide the question in a case like this." Earle v. District of Columbia, 707 F.3d 299, 310 (D.C.Cir.2012). The D.C. Court of Appeals originally borrowed the "integral part" test from the Supreme Court of California. See Berman, 391 A.2d at 1359 (quoting Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168, 171 (1964) ). In Vandermark, the Supreme Court of California applied strict liability to retailers. 37 Cal.Rptr. 896, 391 P.2d at 171 ("Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products."). Employing the same standard, the Supreme Court of California has also extended strict tort liability to lessors of personal property. See Price v. Shell Oil Co., 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722, 726–27 (1970) ("[W]e are of the opinion that the doctrine of strict liability in tort should be made applicable to bailors and lessors of personal property in the same manner as we have held it applicable to sellers of such...