Ramage v. Forbes International Inc.

• Citation: 987 F.Supp. 810
• Decision Date: 31 July 1997
• Docket Number: No. SA CV 96-789 AHS (EEx).,SA CV 96-789 AHS (EEx).
• Court: U.S. District Court — Central District of California
• Parties: George RAMAGE, Plaintiff, v. FORBES INTERNATIONAL INCORPORATED, et al., Defendants.

Page 810

987 F.Supp. 810

George RAMAGE, Plaintiff, v. FORBES INTERNATIONAL INCORPORATED, et al., Defendants.

No. SA CV 96-789 AHS (EEx).

United States District Court, C.D. California, Southern Division.

July 31, 1997.

ORDER GRANTING DEFENDANT FORBES INTERNATIONAL INCORPORATED'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT; GRANTING SUMMARY JUDGMENT AGAINST PLAINTIFF IN FAVOR OF DEFENDANT FORBES INTERNATIONAL INCORPORATED; ISSUING ORDER TO SHOW CAUSE

STOTLER, District Judge.

I. PROCEDURAL HISTORY

On February 13, 1997, defendant Forbes International Incorporated, dba Grand European Tours ("GET"), filed a Motion to Dismiss or for Summary Judgment. On March 18, 1997, plaintiff filed opposition. On April 21, 1997, defendant GET filed reply. The Court issued a notice of taking the matter under submission on April 17, 1997.

II. FACTUAL SUMMARY

Plaintiff George Ramage is a California citizen who claims he suffered severe head injuries on August 20, 1995, when the motorcoach in which he was traveling struck a bump in the road near Glasgow, Scotland, causing him to rise out of his seat and hit his head on the roof of the coach.

The motorcoach in which Ramage was injured was provided as ground transportation as part of a European vacation tour he purchased from Grand European Tours (GET), an Oregon-based tour operator. Ramage booked a 27-day tour package to England, Scotland, Wales and the Republic of Ireland (called "Britain & Ireland Supreme") with GET. He booked the tour on January 3, 1995. The tour dates were August 2 to 28, 1995.

The package plaintiff Ramage bought from GET included round-trip air transportation between Los Angeles and London, airport transfers, 25 nights' accommodations along the ground tour route, breakfasts and some dinners, the services of a local tour director, the services of local guides, admission fees at various sights and ground motorcoach transportation. All of the services were provided by independent contractors. GET's role was to assemble the services and sell them to private parties.

GET contracted with Grand European Inbound (GEI), a British corporation, to provide the entire ground package, including motorcoach transportation. In turn, GEI contracted with Stainton's Coaches to provide the motorcoach transportation facet of the ground package for the tour. Stainton's Coaches is the owner and operator of the bus on which plaintiff Ramage was injured.

When plaintiff Ramage purchased the tour in January, 1995, he signed his name on a booking form which, among other things, acknowledged that he had read and understood the terms and conditions on a disclaimer form entitled "Responsibility," which was on the back of the booking form. Scrugham Affidavit, Exhibit A. The "Responsibility" disclaimer expressly excludes GET from responsibility for breach of contract or negligence on the part of the independent contractors which result in any loss, damage, delay, or injury to the traveler. Id. Specifically, the form says all passenger contracts between the airlines or transportation companies and the passenger are exclusively between the company and the passenger and GET assumes no responsibility in the connection.

On August 20, 1995, Ramage was in Scotland on the tour. The Stainton's Coaches motorcoach in which Ramage was travelling crossed a bump in the road. With no seatbelt in his seat, Ramage was thrown upward, and hit his head on the ceiling of the coach. He immediately reported his injury to the tour director who referred him to a doctor. Upon the doctor's findings, Ramage rejoined his tour group the same day his injury occurred.

Plaintiff Ramage asserts two causes against GET in his complaint. First, Ramage claims he relied on GET's express and implied warranties of safe transportation and freedom of defects in Stainton's motorcoaches. Second, Ramage claims GET is liable for the negligence of its independent contractors, GEI and Stainton's Coaches, because GET had a duty to Ramage created by GET's contract with GEI and Stainton's Coaches. For breach of warranty and negligence, plaintiff seeks damages in excess of $100,000 against GET.

Defendant GET has filed a motion to dismiss or for summary judgment for both of the causes plaintiff Ramage has claimed. In ruling on the motion, the Court grants summary judgment in GET's favor, finding that defendant is not liable for either breach of warranty or negligent selection.

III. PARTIES' CONTENTIONS

A. Defendant GET's Moving Papers

Defendant GET argues that plaintiff Ramage is not entitled to bring claims against GET for breach of warranty and negligence because Ramage signed a disclaimer stating that GET would not be liable for the breach or negligence of independent suppliers of services to the tour Ramage purchased from GET, including providers of transportation services. GET argues because the law is clear that such disclaimers are fully enforceable and that tour operators are not liable for the alleged negligence of independent suppliers of services to tours, GET should be dismissed from the action brought by Ramage.

First, GET contends that the terms and conditions of the contract governing the tour, specifically the disclaimer therein, bar Ramage's claim against defendant. Generally, contractual disclaimers and limitations of liability are binding even though they appear on pre-printed tickets and brochures. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593, 111 S.Ct. 1522, 1527, 113 L.Ed.2d 622 (1991) (holding that a standard form forum-selection clause which appeared on plaintiff's passenger ticket was valid as a disclaimer). More specifically, tour operators' contractual disclaimers for the negligence of suppliers are binding. Corby v. Kloster Cruise Ltd., No. C-89-4548 MHP (ARB), 1990 WL 488464 (N.D.Cal. Oct. 5, 1990) (holding that a standard form disclaimer for negligence of third-party tour operators which appeared on plaintiff's cruise ticket was valid as a disclaimer).

Second, GET argues even absent the disclaimer, GET is not liable for the alleged negligence of an independent contractor. More specifically, GET argues that tour operators are not liable for the negligence of providers of transportation services. Corby, 1990 WL 488464 at 3. GET also cites numerous out-of-state cases which hold that tour operators are not liable for the negligence of third party suppliers of services, and specifically the suppliers of transportation services. GET also argues that tour operators are also not liable for the negligence of other suppliers of services. GET cites several out-of-state cases which affirm that tour operators are not liable for the negligence of hotels.

Third, GET argues that it did not guarantee a trip free from harm caused by third parties, and that GET had no duty to do so. Ramage's claim that GET breached a warranty regarding the quality of coaches fails because Ramage does not and cannot point to any explicit warranty. Moreover, GET argues the tour brochure contains no warranty whatsoever. The general language which appears in the GET travel brochure which mentions "executive motorcoaches" and "experienced European coach drivers" does not constitute a warranty that no harm will befall tour participants. Lavine v. General Mills, Inc., 519 F.Supp. 332 (N.D.Ga.1981) (holding that a general promise that a trip will be "safe and reliable" does not constitute a guarantee that no harm would befall plaintiff). Additionally, the language Ramage quotes as evidence of a warranty did not appear in the brochure for Ramage's 1995 tour; it appeared only in the 1996 brochure. GET contends that as a matter of law the "Responsibility" disclaimer explicitly states that it was not guaranteeing the safety of tour participants while they were in the hands of third-party tour operators.

Fourth, GET argues that as a matter of law it was not negligent in selecting a ground operator for the tour. The scope of the duty of tour operators in selecting independent operators is broad and only compels a general inquiry by the tour operator into the safety of the independent operator. Wilson v. American Trans Air, Inc., 874 F.2d 386 (7th Cir.1989) (holding that a tour operator had "no duty to make specific inquiries into guest safety or security at the hotel" where it already completed a general inspection and relied on the hotel's good reputation). In the instant case, GET had no reason to doubt Grand European Inbound's safety because GET made an inquiry into the reliability of GEI, and used it without incident for more that 10 years before Ramage's alleged accident.

B. Plaintiff's Opposition

First, Ramage claims that waiver of defendant GET's liability is contrary to public policy, and thus unenforceable and void. See Cal.Civ.Code § 1790.1. Ramage contends that he was not put on sufficient notice that the disclaimer was significant because the print of the disclaimer is not of sufficient type size. Moreover, Ramage did not construe his signature on the booking form as acceptance of waiver of GET from liability to warrant injury-free ground travel.

Ramage also claims that GET impliedly warranted injury-free ground travel. Implied warranty for consumer goods may not be waived except when the seller, by instrument of conspicuous writing to the buyer, communicates that the product is "as is" or "with all faults." Cal.Civ.Code § 1792.4.

Second, Ramage argues that the standard for summary judgment is whether there is a triable issue as to any material fact. Cal.Civ. Pro.Code § 437(c); Molko v. Holy Spirit Association, 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46 (1988) (holding that the function of the trial court on a motion for summary judgment is to determine whether issues of fact exist, and not to decide the merits of the issues themselves); Versa Technologies, Inc. v. Superior Court, 78 Cal. App.3d 237, 240, 142 Cal.Rptr. 570 (1967) (holding that if there is any issue of fact which remains upon a motion for...