Root of the Problem – Claims of Woman Injured on Segway Tour Barred by Exculpatory Agreement (CA)


Lamb v. San Francisco Electric Tour Company (California)
(not published)

The plaintiff and her husband went to Golden Gate Park with their son and took a guided tour of the park on individual Segway transporter vehicles.  The tour was operated by the defendant.  Plaintiff was injured on the tour and filed a lawsuit against the defendant, alleging vehicle negligence, general negligence, and common carrier negligence.  The defendant filed a motion for summary judgment based on the express waiver provisions of an agreement signed by the plaintiff, the express assumption of the risk provisions of that same agreement, and the primary assumption of the risk doctrine.  The trial court granted the motion, finding that the exculpatory agreement signed by the plaintiff was enforceable and contemplated the circumstances of the accident.  Plaintiff appealed.

Prior to her participation in the tour, plaintiff and her family received a set of laminated documents to read, which included a four-page “Waiver.”  A few minutes later, plaintiff signed the screen of an iPad device.  Although the language of the Waiver was not included on the device, there was no dispute that plaintiff assented to the terms of the agreement.  Before the tour began, plaintiff was also provided a 20 to 30 minutes training session regarding the operation of the vehicles, which included practice riding on uneven surfaces.  Plaintiff contended that she was not told that the tour would include uneven surfaces, but she did acknowledge that she was informed that the tour would not be conducted entirely on paved surfaces.  It was the first time that plaintiff had operated a Segway vehicle.

About 45 minutes into the tour, plaintiff’s tour guide stopped and informed the group that they would be proceeding down a dirt path that was covered by bark or mulch.  The guide stated, “You guys have done so good today that we are going off-roading.”  The tour participants laughed, and the guide advised, “If any of you feel uncomfortable with this, you can hang back a bit and come last so that you don’t feel rushed.”  Plaintiff contended that she did not think the path looked safe and she said she had not thought her Segway vehicle would travel off smooth surfaces.  However, she was not given an alternate route and she was told to keep up with her group.  Plaintiff started down the path, but she rode into a root protruding from the left of the path, and she fell, suffering injuries requiring multiple surgeries.

The California Court of Appeal acknowledged that if the Waiver document was enforceable and applicable to the incident, it was sufficient to constitute an express waiver and assumption of risk.  However, plaintiff challenged the Waiver on four grounds: (1) plaintiff’s execution of the agreement was induced by a material misrepresentation (i.e., that the tour would not go off-road); (2) the defendant materially breached the agreement (i.e., taking the tour off-road); (3) the incident was outside the scope of the agreement (i.e., the incident occurred off-road); and (4) the incident was the result of gross negligence, which could not be expressly waiver under California law.  The Court addressed each argument in turn.

As to the fraudulent inducement, the plaintiff relied on a provision in the Waiver that provided, “I agree to utilize the Segway/Electric Bike only on streetspaved roads and paved bike trails at all times.” (Emphasis by the court.)  The defendant argued that the term “streets” should be defined broadly to include paved or unpaved areas for public passage.  The plaintiff contended that the term “streets” should be narrowly construed to reference only paved thoroughfares.  However, the Court ultimately concluded that the definition of the term did not matter with regard to the alleged fraudulent inducement because the representation in the agreement was made by the plaintiff; it was not a representation of the the defendant.  Moreover, the Court concluded that there was not any evidence that the plaintiff actually relied on any such representation in entering the agreement.

As to the defendant’s alleged breach of the Waiver, the Court noted that the promise that the plaintiff would ride only on streets, paved roads, and paved bike trailed was a covenant made by the plaintiff, not the defendant.  Thus, a breach of that covenant was not a breach by the defendant.  Additionally, the Court noted that “even if [the tour guide] taking the tour down the dirt path had  breached a covenant by [defendant], it would only discharge [plaintiff] from future performance under the Release Agreement; it would not vitiate her assumption of the risk that allowed her to participate in the tour in the first place.”  The plaintiff had gained access to the tour by “expressly assuming the risk of dirt trails and variations in terrain.”  As such, The Court stated that “it would make no sense to conclude that her assumption of those risks evaporated because she did, in fact, encounter those risks.”

As to whether the incident fell outside the scope of the Waiver, the Court explained:

“Whether [plaintiff] thought she would be riding on unpaved surfaces or not, the fact is that she assumed the risks involved in riding a Segway, including—as expressly set forth in the Release Agreement—the risks of ‘rough … dirt trails,’ ‘obstacles and other hazards, including trees,’ and ‘variations in terrain.'”

As to the contention that the incident resulted from the defendant’s gross negligence, the Court held that the plaintiff did not provide evidence that would lead a trier of fact to conclude that the defendants “made an extreme departure from the standard of care or failed to provide at least scant care.”  The Waiver signed by the plaintiff listed specific risks associated with the activity, and the defendant provided detailed training before the tour.  The tour guide informed participants to proceed at their own pace if they were uncomfortable with the conditions.  The defendant had not “created, concealed, or misrepresented the presence of the root or done anything to maneuver her into it.”

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