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Stephanie Hofer, et al. v. The Gap, Inc., Expedia Inc., and Turtle Beach Towers

Civil Act. No. 05-40170-FDS (D. Mass., September 28, 2007)

Click-wrap Agreement Entered Into By Travel Companion Binds Plaintiff

Court holds plaintiff bound by a click-wrap agreement entered into by her travel companion with defendant Expedia Inc. (“Expedia”) when she purchased tickets and hotel accommodations on plaintiff’s behalf.  The travel companion was acting as plaintiff’s agent, and by her acceptance of the agreement, bound plaintiff to its terms.  As such, the Court dismissed plaintiff’s claims against Expedia for personal injuries sustained at the hotel she visited when her sandal broke, causing her to fall down stairs and into an ornamental pond, holding them barred by the liability disclaimer contained in the parties’ agreement.  The Court further held that plaintiff’s claims against Expedia failed because it owed her no duty to warn of dangerous conditions that allegedly existed at the resort in question.

The Court did deny defendant Gap Inc.’s (“Gap”) motion for summary judgment, and allowed plaintiff to proceed with her claims that a defective sandal she purchased from Old Navy, owned by the Gap, failed, causing her to fall and sustain the injuries at issue.  The Court rejected the Gap’s motion that such claims should be barred by application of the spoliation doctrine, as plaintiff had not preserved the sandal in question.  The Court held plaintiff could not be held responsible for the absence of the sandal, as she had left it at the resort at the time of the injury, while she was rushed to the hospital, and was unable to locate it subsequently.  Issues of fact as to whether the Gap actually manufactured the sandal in question would await trial for resolution.

Travel Companion Buys Travel Accommodations For Plaintiff With Her Authorization From

Plaintiff Stephanie Hofer and her friend Carrie LaRoche (“LaRoche”) decided to take a trip to Turtle Bay Towers in Ocho Rio, Jamaica.  LaRoche purchased tickets to fly herself and Hofer to the resort, and hotel accommodations, thru defendant Expedia at its website,  Hofer subsequently reimbursed LaRoche for the purchases made on her behalf.
To complete these purchases, LaRoche was required to “click through” and accept Expedia’s terms and conditions.  These terms included a liability disclaimer that provided, in pertinent part:

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, death, property damage, or other damages or expenses resulting therefrom.

Hofer did not visit Expedia’s site during the purchase of the tickets.

Plaintiff Sustains Personal Injuries In Fall At Hotel

Hofer and LaRoche flew to Jamaica, and arrived at the resort they booked at Expedia’s website, the Turtle Beach Towers.  There, Hofer claimed that, wearing new flip-flop sandals purchased at an Old Navy store, she fell down a flight of stairs that did not have a railing into an ornamental pool that contained sharp rocks.  Hofer claimed the cause of her fall was the failure of her sandal, which broke as she turned at the top of the stairs, causing her to lose her balance.  Hofer was rushed to a hospital in Jamaica to be treated for her injuries, and subsequently flown to Massachusetts.  She never returned to the resort.  Her friend did, but was unable to locate the sandal, which had been left at the scene of the accident.

Seeking recompense for her injuries, Hofer commenced this suit against Expedia, the Gap, which is the owner of Old Navy, and the Turtle Beach Towers resort.

On Expedia’s motion for summary judgment, the Court dismissed the claims Hoffer asserted against it.

Plaintiff Bound To Terms Of Click-Wrap Agreement Entered Into By Her Travel Companion, And The Limitation Of Liability Contained Therein

The Court held LaRoche was acting as Hofer’s agent in the purchase of the tickets and accommodations, and as such, her act of clicking through’s terms and conditions bound Hofer thereto.  In reaching this result, the Court followed similar cases that held that travel companions who purchases tickets for another have the authority as their agent to bind them to the terms of travel.  Said the Court:

Plaintiff … contends that she is not bound by the disclaimer because LaRoche’s acceptance of the disclaimer does not bind her.  This claim, reduced to its essence, is that LaRoche was not her agent for purposes of booking travel plans.  That argument is clearly without merit.  …. Plaintiff obviously authorized LaRoche to go online and purchases airline tickets and hotel reservations.  Nothing in that arrangement is remarkable in the slightest respect; family members, friends, and work colleagues routinely book travel plans for others and it would be extraordinarily cumbersome to require that each traveler book his or her own ticket.  Each such arrangement is necessarily an agency relationship: the person booking the tickets is acting as an agent on behalf of the other members of the traveling party.  Implicit in that agency relationship is the power to bind the principal as to matters within the scope of the relationship, including the acceptance of the terms of a disclaimer. … LaRoche accordingly had the authority to purchase tickets and reservations for plaintiff, and to agree to a disclaimer of liability on her behalf to accomplish that end.

Because these terms and conditions contained a disclaimer of liability, the Court granted Expedia summary judgment, and dismissed plaintiff’s claims.  The court reached such result notwithstanding the fact that Hofer never saw this disclaimer or personally ‘clicked through’ or agreed to be bound thereby.

Expedia Had No Duty To Warn Of Dangerous Conditions At Resort

The Court also held that, even in the absence of such a disclaimer, Hofer’s claims against Expedia would fail.  Hofer’s claims were grounded on her assertion that Expedia owed a duty to warn of dangerous conditions at the resort.  Such a duty purportedly arose because Expedia inspected the resort twice a year.  During such inspection, Expedia, if it noticed conditions that needed improvement, would notify the resort which, in turn, would attempt to fix them.

The court held that Expedia owed no duty to warn plaintiff.  The court rejected plaintiff’s claim that Expedia owed such a duty because it controlled the resort – finding plaintiff had not submitted sufficient evidence to establish such control.  There was no evidence that Expedia had the ability to either compel the resort to perform any repairs Expedia suggested, or sanction it for its failure to do so.  The Court similarly rejected plaintiff’s claim that Expedia owed such a duty to warn because it had inside information concerning the property.  Particularly as to the location in question – an open stairway and visible ornamental pool – Expedia had no information plaintiff did not have or could not have obtained herself.  Finally, the court rejected plaintiff’s claim that Expedia assumed such a duty.  In rejecting these claims, the court noted that “in general, courts’ refuse to impose liability upon travel agents … regardless of the theories advanced.’”

Spoliation Doctrine Does Not Mandate Dismissal Of Claims Against Manufacturer Because Of Loss Of Allegedly Defective Shoe That Was A Cause Of Injury

The Court denied the Gap’s motion for summary judgment, seeking dismissal of the claims asserted against it.  The Gap argued that plaintiff’s claims should be dismissed by application of the spoliation doctrine because of her failure to preserve the broken sandal.  “Spoliation is the intentional, negligent or malicious destruction of relevant evidence.”  However, “absent any evidence that the plaintiff was at fault for the loss or destruction of the evidence’ the spoliation doctrine is inapplicable.”  The Court held that plaintiff was not responsible for the loss of the sandal, and that, accordingly, the doctrine did not apply.  Plaintiff left the sandal at the scene of her injury while she was rushed to the hospital.  Her friend was unable to locate it upon returning to the resort.  Apparently, the accident site had been cleaned by the resort staff after plaintiff’s injury, and the sandal was missing.

Finally, the Court denied the Gap’s motion to dismiss plaintiff’s claim on the ground that it did not manufacture the sandal in question.  Plaintiff’s assertion that she purchased it at an Old Navy store was sufficient to create a triable issue of fact, which would be resolved at trial. 

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