Citation Edit

Hofer v. Gap, Inc., 516 F.Supp.2d 161 (D. Mass. 2007) (full-text).

Factual Background Edit

Plaintiff filed suit against a travel website, alleging that plaintiff was injured when "flip-flop" sandals that she was wearing broke while she was descending a stairway, which made her lose her balance and fall. Plaintiff contended that Expedia, Inc., the travel website used to book plaintiff's reservation, negligently failed to warn her of dangerous conditions at the resort. Plaintiff based her claim on the fact that Expedia sends inspectors to travel locations, who make lists of what needs to be fixed on the grounds and gives the location a travel rating. Expedia moved for summary judgment.

Trial Court Proceedings Edit

To obtain summary judgment the moving party must show that there is no genuine issue material fact and that the moving party is entitled to judgment as a matter of law. The court views the record in the light most favorable to the non-moving party.

It was undisputed that in order to finalize the reservation, the plaintiff had to “click through” and affirmatively accept Expedia's Website Terms, Conditions, and Notices, which included a liability disclaimer provision. The disclaimer stated, among other things, that “[t]he . . . hotels and other suppliers providing . . . services for Expedia, Inc., are independent contractors and not agents or employees of Expedia, Inc., . . .,” and that “Expedia, Inc., . . . [is] not liable for the acts, errors, omissions, representations, warranties, breaches, or negligence of any such suppliers or from any personal [injuries] . . . resulting therefrom.” Plaintiff claimed that she could not recall reading the disclaimer. The court held this assertion was not sufficient to create an issue of material fact.

Travel agents have generally been found not liable for the negligence of third party travel operators. Plaintiff contended that her case was distinguished from these previous cases because Expedia conducted inspections of the hotel and also controlled 10-15% of the resorts revenue through bookings — showing that Expedia exerted control over the resorts.

The court found this argument unpersuasive. First, the evidence showed Expedia merely made inspections in order to rate the facilities for comfort, quality, and value. Second, there was no evidence showing that Expedia could compel the resort to make any repairs if it did notice them. Third, there is no evidence that Expedia held itself out to take responsibility for the condition of the resort. This demonstrated Expedia did not exert control over the resort.

Plaintiff then claimed that Expedia owed a duty to disclose, since Expedia was acting as her agent and had inside information as to the resort’s condition. The court held that there was no evidence that Expedia had this information.

Finally, plaintiff claimed that Expedia assumed a duty to warn. Because Expedia did not control safety at the resort, and had no duty to warn, the court found this claim to have no merit.

The court also noted that ruling in favor of the plaintiff would wreak havoc in the travel industry but do little to improve safety. Summary judgment was granted.

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