Putt v. TripAdvisor Inc.

KRISTIE PUTT, et al., Plaintiffs, v. TRIPADVISOR INC., et al., Defendants.

CIVIL ACTION NO. 20-3836

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

January 25, 2021

PAPPERT, J.

MEMORANDUM

Kristie Putt was injured in front of her sons Gary and Grayson on a tour in New Zealand that she booked through Viator, Inc., a subsidiary of TripAdvisor LLC. Putt and her sons sued Viator and TripAdvisor, Inc., TripAdvisor LLC's parent company, for negligence, misrepresentation and negligent infliction of emotional distress. Defendants move to dismiss the Complaint, and the Court denies the Motion for the reasons that follow.

I

A

Viator hosts a website allowing customers to book and purchase tours and browse customer reviews of tour packages. (Compl. ¶ 16, ECF No. 1-4.). Plaintiffs allege Viator and TripAdvisor "sell and advertise travel services to customers wherein the point of sale is at the customer's location." (Id.) They "target customers throughout the country" and "recommend and place their customers with tour operators, and guide their customers in designing a tour itinerary." (Id. at ¶ 18.)

On August 15, 2017, "Defendants brought their guidance to bear" when Ms. Putt used Viator's website to book a three-day tour package in New Zealand. (Id. at ¶¶ 9, 14, 19, 26.) The tour was to be operated by Canterbury Leisure Tours, which also supplied the tour's travel services. (Id. at ¶ 26.) Ms. Putt booked the tour for herself and her sons from October 22 through October 24. (Id. at ¶ 9.)

On October 23, Ms. Putt and her sons boarded a bus run by Dune Rider Unique Tours for a day trip that included a drive along Ninety Mile Beach. (Id. at ¶¶ 25, 32-33.) She sat in the bus's back seat next to a window and her sons sat nearby. (Id. at ¶¶ 32, 33.) The bus had its seatbelts ripped out and the driver, without addressing the missing seatbelts, advising passengers of safety precautions they could take or warning passengers the drive could get bumpy, sped along the beach. (Id. ¶¶ 27, 29-31, 35.) At one point he hit a large ditch that "threw every person on the bus out of their seats." (Id. at ¶ 36.) Ms. Putt "was flung three feet into the air, at least twice, and also flung against the window and side of the bus." (Id. at ¶ 38.) She hit her head, neck and shoulders on the bus's roof "with such force that the roof was dented" and her glasses "flew off her face." (Id. at ¶¶ 39-40.) She also "slammed her right side, including her head, arm[] and shoulder with force against the window and side of the bus." (Id. at ¶ 41.) She experienced a concussion and suffered traumatic injuries to her head, neck, shoulders, back and spine. (Id. at ¶ 44.) Her sons witnessed her being injured. (Id. at ¶ 42.)

Ms. Putt was taken to the hospital immediately after the incident where she was x-rayed, treated and eventually discharged. (Id. at ¶ 46.) Her sons watched as she was removed from the bus by emergency medical personnel and placed on a gurney with aneck brace, rode with her in the ambulance and "were terrified." (Id. at ¶ 45.) After she was discharged, Ms. Putt continued to experience pain in her head, right arm, right shoulder, collarbone and back as well as substantial limitations in movement. (Id. at ¶ 48.) The rest of Plaintiffs' New Zealand trip was ruined, and after the trip Ms. Putt endured "endless doctor's visits, testing and injections" which revealed she fractured her C7 vertebra. (Id. at ¶¶ 49-51.) She eventually underwent surgery on her right shoulder. (Id. at ¶ 54.)

Ms. Putt alleges she has been in pain daily, has continued to suffer emotionally, physically and financially in the years since the incident and believes her injuries may be permanent. (Id. at ¶¶ 58, 60-65.) Her sons also have injuries and damages that may be permanent, including severe emotional distress and related physical manifestations. (Id. at ¶¶ 60, 66.)

B

Plaintiffs filed this suit as well as a separate suit against Canterbury Leisure Tours in the Philadelphia County Court of Common Pleas. See generally (Compl.); (Mot. to Dismiss 2 n.2, ECF No. 6-3). They filed their Complaint on July 7, 2020 and Defendants removed to this Court on August 6 based on diversity. See generally (Compl.); see also (Notice of Removal ¶ 6, 8-9, ECF No. 1).¹ Plaintiffs claim Defendants are responsible for their injuries because Defendants failed to use reasonable care intheir duties to investigate, examine, select, monitor and supervise their tour operators to ensure they operated safely and were qualified as well as to disclose any information relating to whether they vetted Plaintiffs' tour operator or the risks associated with Plaintiffs' tour, thereby "misrepresent[ing] and/or conceal[ing] material facts and perpetuat[ing] the illusion that the bus tour would be operated by qualified, vetted[] and safe operators." See (Compl. ¶¶ 69-72, 74, 77-79, 81-82).

Defendants argue that Plaintiffs' claims are barred for three reasons: (1) Defendants are immune from suit as publishers of third-party content pursuant to Section 230 of the Communications Decency Act; (2) Plaintiffs waived their claims in a binding agreement they entered with Defendants; and (3) the same agreement's forum selection clause requires Plaintiffs to sue in Massachusetts. (Mot. to Dismiss 2-3.)²

II

To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that[a] defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

When a complaint includes well-pleaded factual allegations, a court "should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 679). However, this "presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face." Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). "Conclusory assertions of fact and legal conclusions are not entitled to the same presumption." Id. This plausibility determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (quoting Connelly, 809 F.3d at 786-87).

While "courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record" in deciding a motion to dismiss, Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), "an exception to the general rule is that a 'document integral to or explicitly relied upon in the complaint' may be considered 'without converting the motion into one for summary judgment.'" In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis in original) (citation omitted). "[W]hat is critical is whether the claims in the complaint are 'based' on an extrinsic document and not merely whether the extrinsic document was explicitly cited." Id.

District Courts in the Third Circuit "may grant a Rule 12(b)(6) motion on the basis of an affirmative defense 'if the predicate establishing the defense is apparent from the face of the complaint.'" Brody v. Hankin, 145 F. App'x 768, 771 (3d Cir. 2005) (quoting Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 n.10 (3d Cir. 1978) (emphasis in original)); cf. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 657 (3d Cir. 2003) ("[W]ith some exceptions, affirmative defenses should be raised in responsive pleadings, not in pre-answer motions brought under Rule 12(b)" because "[t]he facts necessary to establish an affirmative defense must generally come from matters outside of the complaint."). "Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract." Jones v. Bock, 549 U.S. 199, 215 (2007). A defendant bears the burdens of production and persuasion for affirmative defenses. See Moore v. Kulicke & Soffa Indus., Inc., 318 F.3d 561, 566 (3d Cir. 2003). "Under Federal Rule of Civil Procedure 8, a complaint need not anticipate or overcome affirmative defenses; thus, a complaint does not fail to state a claim simply because it omits facts that would defeat" an affirmative defense. Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014).

III

A

Plaintiffs' Complaint fairly establishes the predicate for Defendants' claim that they are entitled to immunity under Section 230 of the Communications Decency Act ("CDA") because it contains allegations discussing or alluding to Viator's website, the content thereon and Defendants' actions and duties relating to the content. Seegenerally (Compl. ¶¶ 14, 16-24, 69-72, 74, 77-80). Nonetheless, Defendants have not shown they are immune from liability at this stage of the litigation.

Section 230 immunizes from liability (1) an interactive computer service provider (2) whom a plaintiff seeks to treat as a publisher or speaker of information (3) provided by another information content provider and states "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. §§ 230(c)(1), (e)(3); see also Green v....