A Segway “is a gyroscopically stabilized two-wheeled battery-powered personal transportation device upon which the individual stands” [Baughman v. Walt Disney World]. Are Segways safe for tourists or should they be banned? “While Segway riding is not the kind of activity one might initially regard as inherently dangerous, the Walt Disney World Company recently banned the use of the two-wheeled vehicles because the company considers them too dangerous for operation in Disney Resorts” [Heyden v. Celebrity Cruises, Inc., fn 1]. Ironically, a Segway tycoon expired while riding a Segway [Brooke, Millionaire Segway tycoon dies in cliff plunge on one of his own scooters, The Daily Mail Online (February 27, 2013)www.dailymail.co.uk/news/article].
On the other hand several Courts faced with lawsuits brought by injured Segway riders have found that the adventuresome tourists assumed the risk of injury and enforced contractual releases absolving the tour operator of liability for negligence (but not gross negligence). So, which is it? Dangerous instrumentality which should be banned from public places or worthwhile, if perhaps, challenging, tourist attraction, the use of which should be encouraged by protecting Segway operators with enforceable releases?
Assumption Of Risk & Releases
In two recent Segway accident cases the courts have enforced general releases for the negligent acts of Segway operators and found, explicitly or implicitly, that the tourist assumed the risk of the ride. In Hamer v. City Segway Tours of Chicago, LLC the plaintiff arranged to take her son on a tour of downtown Chicago provided by City Segway Tours of Chicago (CST). The tour guide “Taught the tour participants how to use the Segways” and all participants signed a release which provided, in part, “I do hereby…release… (CST) from any and all losses…personal injuries…I may have, suffer or sustain while riding or operating the Segway, whether arising from my own acts…and/or the omissions…of others, except only those arising from the gross negligence of (others)”. In addition (and as further protection of CST) the release set forth an assumption of the risk clause which provided that “I…understand that riding a Segway will…expose me to various hazards and risks, including…dangers arising from irregular road and pavement surfaces…which present a risk of injury, including…the risk that I could fall and…suffer contusions, lacerations, sprains, fractures and other potentially more serious injuries”. During the tour the plaintiff left the flat pavement and rode her Segway onto a “small grassy hill” at which point “the Segway threw her off” causing injuries which prevented plaintiff from “working for four months”. In his deposition an officer of CST “agreed ‘[i]t would be totally reckless’ for the guide to suggest that a novice Segway user ride up a hill”. The Hamer court found assumption of the risk, no special relationship between CST and the plaintiff and enforced the disclaimer.
Off Road Segway Adventure
In Deutsch v. Woodridge the plaintiff purchased an off road guided Segway tour along a trail in Sullivan County, New York. Prior to participating in the tour the plaintiff “signed a waiver and release unambiguously expressing her intent to release the defendant of liability, even if the injury was caused by the defendant’s negligence”. The plaintiff’s Segway got stuck in the mud causing her to fall and suffer injuries. Her lawsuit claims that the defendant was negligent in “conducting the tour along a trial that was too muddy for Segway vehicles to traverse safely”. The Court enforced the release barring claims for ordinary negligence.
Shore Excursion Segway Tours
In Heyden v. Celebrity Cruises, Inc. a cruise passenger signed up for a Segway shore excursion in Philipsburg, St. Maarten. “The tour was operated by an independent contractor, Caribbean Segway Tours. Heyden was injured while attempting to operate the Segway on a pedestrian boardwalk (when) one of the wheels struck a nailed down bench…Heyden fell over onto his right side and the Segway fell atop him, causing his injuries”.
As we have previously discussed [Travel Law: Big Business and Risky Shore Excursions (ETN January 22, 2014)] it is unlikely that the injured U.S. cruise passenger will be able to sue the local St. Maarten Segway operator because of a lack of personal jurisdiction [Travel Law: Personal Jurisdiction Over Foreign Travel Suppliers (ETN February 27, 2014)] and/or the application of the doctrine of forum non conveniens [Travel Law: Where to Sue Part 2: Changing the Playing Field (ETN April 3, 2014)].
Due Diligence In Investigating
However, there are recent cases involving cruise passengers injured during shore excursions which have imposed a duty upon cruise lines to do due diligence and investigate the shore excursion ground operators they recommend for their safety records and insurance coverage [see Smolnikar v. Royal Caribbean Cruises, Ltd (“Though cruise ship owners…cannot be vicariously liable for the negligence of an independent contractor, it is well established that they may be liable for negligently hiring or retaining a contractor”); McLaren v. Celebrity Cruises, Inc. (claims of negligent selection may be appropriate where plaintiff established a “pattern of outwardly apparent misbehavior” on the part of an independent contractor)].
Negligent Selection/Retention
As noted in Heyden “‘In a negligent selection claim, liability is premised upon the inadequate pre-selection investigation into the contractor’s background’ whereas ‘in a negligent retention claim, liability is founded upon a showing that, during the course of the contractor’s employment, the principal was aware or should have been aware of problems evidencing the unfitness of the contractor and failed to investigate or terminate the contractor’…Here, the plaintiff is pleading both negligent selection and negligent retention”. Noting that the plaintiff sufficiently alleged a duty to investigate because the operation of a Segway “is an inherently dangerous activity that carries with it a risk of serious bodily harm and death” the Court also found that plaintiff sufficient alleged that the Segway operator was “not properly trained or experienced; that there was inadequate supervision of passengers; that there was inadequate warnings given to passengers of fixed obstacles on the boardwalk; that tour operators gave only a two-minute orientation on how to operate the Segways; and the boardwalk was not a safe area for the operation of Segways”.
“Fly By Night Operation”
The Heyden plaintiff “alleged that the operator had prior incidents and/or reports of safety issues and that Caribbean Segway Tours was something of a ‘fly-by-night’ operation”. The plaintiff further alleges that “participants of the same tour operator were robbed at gunpoint in Nassau, Bahamas while on a ship-sponsored Segway tour on November 20, 2009. After which… five cruise lines including the Defendant…cancelled the Segway shore excursion at that site”. The Heyden court found that plaintiff adequately stated claims for negligent retention and selection of a Segway ground operator.
Americans With Disabilities Act
Last, but not least, are the efforts of disabled persons to gain and improve access to public places. In Baughman v. Walt Disney World Company, the plaintiff alleged that defendant violated, inter alia, the Americans with Disabilities Act by refusing “to allow her to use a Segway at Disneyland…the Segway is her preferred method of transportation given that her muscular dystrophy substantially limits her ability to walk”. Here, the trial court rendered judgment for Disney finding that “a Segway is an unstable two-wheeled device that could accelerate quickly, either forward or backward, and injure the rider and/or others if the rider is bumped. The undisputed expert evidence showed Segways cannot be used safely in Disneyland crowds due to its method of operation…There is no evidence that Disney’s procedures amounted to a lack of reasonable accommodation”.
Conclusion
It seems clear that Segways can be dangerous and tourists should be careful in deciding to ride them and, of course, careful in operating them. It also seems clear that Segways as tourist attractions are here to stay although under appropriate circumstances may be banned from some public areas.
The author, Justice Dickerson, has been writing about travel law for 38 years including his annually-updated law books, Travel Law, Law Journal Press (2014), and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2014), and over 300 legal articles many of which are available at www.nycourts.gov/courts/9jd/taxcertatd.shtml .
This article may not be reproduced without the permission of Thomas A. Dickerson.
