Hofer v. Gap, Inc.
| Citation | 516 F.Supp.2d 161 |
| Decision Date | 01 October 2007 |
| Docket Number | No. CIV.A. 05-40170-FDS.,CIV.A. 05-40170-FDS. |
| Parties | Stephanie HOFER and Douglas Hofer, Plaintiffs, v. The GAP, INC., Expedia, Inc., and Turtle Beach Towers, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Stephanie Hofer and Douglas Hofer, is India L. Minchoff, Law Offices of Russo & Minchoff, Boston, MA, for Plaintiff.
Scott D. Feringa, Sullivan, Ward, Asher & Patton, P.C., Southfield, Michigan, and Sean J. Milano, Morrison Mahoney LLP, Boston, MA, for Defendant The GAP, Inc.
Rodney E. Gould and Robert A. Mueller, Rubin, Hay & Gould, P.C., Framingham, MA, for Defendant Expedia, Inc.
AMENDED MEMORANDUM AND ORDER ON DEFENDANTS EXPEDIA AND GAP'S MOTIONS FOR SUMMARY JUDGMENT
This action arises from injuries sustained by plaintiff Stephanie Hofer at the Turtle Beach Towers resort in Ocho Rios, Jamaica.1 According to the complaint, Hofer was injured when a "flip-flop" sandal that she was wearing broke while she was descending a stairway, which made her lose her balance and fall into an ornamental pond containing sharp rocks. She contends that the sandals had been purchased at an Old Navy retail store, which is owned by defendant The Gap, Inc. She further contends that defendant Expedia, Inc., which operates the travel website used to book plaintiff's reservation, negligently failed to warn her of dangerous conditions at the resort.
Defendants Gap and Expedia have each moved for summary judgment. For the reasons set forth below, Gap's motion for summary judgment will be denied and Expedia's motion will be granted.
The following facts are set forth in the light most favorable to plaintiff.
Plaintiff Stephanie Hofer is a resident of Leominster, Massachusetts, who previously worked as a dental hygienist. At the time of the alleged incident, she was 31 years old,
Defendant The Gap, Inc. is a California corporation that owns the Old Navy chain of retail stores, where plaintiff purportedly purchased the sandals at issue in this case.
Defendant Expedia, Inc., is a Washington corporation that owns the travel website Expedia.com. The Expedia.com website provides online users with access to more than 100,000 travel-related product and service providers, such as hotels, airlines, and rental car agencies.
Defendant Turtle Beach Towers is a resort located in Ocho Rios, Jamaica.2 Turtle Beach is one of the vendors accessible through Expedia.com.3
In early 2004, Hofer and a friend, Carrie LaRoche, decided to take a vacation to Ocho Rios, Jamaica.4 On March 13, 2004, LaRoche accessed Expedia.com on a computer. Using the Expedia.com system, she selected tickets for a round-trip flight from Boston to Montego Bay for herself and Hofer and accommodations at Turtle Beach Towers. Using a credit card, and presumably entering data into various fields, she then purchased the selected items.
Hofer was not physically present when the trip was purchased. There is no dispute that she consented to having La-Roche book the tickets and accommodations on her behalf.5 Hofer later reimbursed LaRoche for the costs of the tickets and the lodging.
After purchase, Expedia provided La-Roche with a travel itinerary in electronic format. LaRoche forwarded the itinerary to plaintiff via e-mail.
According to Expedia, consumers who book travel through Expedia.com must affirmatively agree to Expedia's Web Site Terms, Conditions, and Notices to make on-line bookings; although users can browse the site, tickets cannot be purchased or reserved unless the user has "clicked through" and accepted the terms and conditions. At the time, Expedia's terms and conditions included a "Liability Disclaimer" that stated as follows:
THE CARRIERS, HOTELS AND OTHER SUPPLIERS PROVIDING TRAVEL OR OTHER SERVICES FOR EXPEDIA, INC. ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF EXPEDIA, INC. OR ITS AFFILIATES. EXPEDIA, INC. AND ITS AFFILIATES ARE NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH SUPPLIERS OR FROM ANY PERSONAL INJURIES [sic], DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM.
LaRoche testified that she did not recall having seen the disclaimer. According to Hofer, the itinerary forwarded to her by LaRoche did not include a copy of the disclaimer, and she was never provided with tickets or other printed materials with any similar language.
Hofer and LaRoche left Logan airport in Boston on March 18, 2004. After arriving at the Montego Bay airport in Jamaica, they took a shuttle bus directly to Turtle Beach, arriving at the resort at approximately 6:00 p.m.
At the Turtle Beach Towers, stairs lead up to a glass door in the approach to the main lobby. According to Hofer, the stairway was dimly lit and lacked any handrail. Next to the stairway was a rectangular turtle pond that contained slate, flagstone, and other sharp materials.
Upon arriving at Turtle Beach, Hofer walked up the stairs as she and LaRoche entered the lobby. After they checked into their room, she walked back down the stairs.
After dinner at a marketplace across the street from the resort, Hofer decided to go to the front desk to get information on a possible trip to Dunn's River Falls. She left the room around 11:00 p.m. According to Hofer, she had recently purchased sandals before the trip at an Old Navy store and was wearing them for the very first time.
Hofer walked up the stairs to the lobby and tried the door, but found it locked. She contends that as she turned around to descend the stairs, the thong of her right sandal became detached by pulling through the sole. This caused her to lose her balance, and she fell to her right into the turtle pond. As she fell, she gouged her left leg on the sharp rocks in the pond.
No one but Hofer witnessed the accident. Denroy Scarlett, a Turtle Beach employee, discovered her in the pond, bleeding profusely; she had lost so much blood that the water in the pond had turned blood red. He also saw the sandal at the scene. Resort employees gave her towels and helped her into a car so that she could be rushed to a hospital.
According to LaRoche, when she arrived at the scene of the accident, Hofer told her that the broken sandal had caused the fall. LaRoche also said that she observed the broken sandal on the stairs.
After accompanying Hofer to the hospital, LaRoche returned to the resort to collect Hofer's belongings. The sandals that Hofer had been wearing, however, were now missing. LaRoche spoke to resort employees, but no one was able to locate the sandals. According to Scarlett, the resort's maintenance crew cleaned up the accident scene. He does not know, however, what happened to the sandals.
Plaintiff did not return to Turtle Beach from the hospital. Instead, she was flown to Boston on the next day, March 19, where she was transported to Massachusetts General Hospital for surgery.
Expedia rates the accommodations that are available for bookings through its website. The rating is performed ,according to a "star" system, on a scale of one star ("economy") to five stars ("exceptional"). According to the description on Expedia.com, the ratings are created in the following manner:
We take an objective approach in rating hotels. For any particular hotel, we consider a wide array of factors, including ratings from independent ratings systems, media recognition, and post-trip surveys of our customers. All these points of data ... are plugged into a weighted formula, which calculates our star rating. These calculated ratings are then reviewed to help ensure they reflect any current developments or changes occurring since the compilation of the rating.
In cases where the available data is insufficient to meet our standards, we make an effort to perform additional research, including further review of media and additional visits to the property. We may also consult members of our editorial team for factual information regarding a hotel.
(emphasis added). Based on this system, Turtle Beach Towers was given two stars (a "value" accommodation).6
Faylin Miller is the resort's general manager. She testified at her deposition that representatives of Expedia came approximately twice a year to conduct "room checks" or "inspections" of the "grounds and rooms."7 She then testified as follows:
Bookings through Expedia.com represent ten to fifteen per cent of the resort's revenues. On at least one occasion, Expedia representatives have intervened to require the resort to accommodate guests who booked through Expedia.com, where the resort had failed to advise the company that it was sold out.
Plaintiffs filed the present action on September 27, 2005. The complaint asserts claims for (1) negligent maintenance against ...
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