United States District Court, D. Massachusetts
OPINION AND ORDER
George
A. O'Toole, Jr. United States District Judge
Plaintiff
Maria Azza was injured by a falling piece of luggage while
riding on a shuttle bus to the airport at the end of her tour
of Italy. The complaint alleges several claims[1] against Dedham
Travel Agency (“Dedham Travel”), the travel
agency that booked Azza's trip, and Group Voyagers, Inc.
d/b/a Cosmos (“Group Voyagers”), the company that
organized and operated the tour. In response, both defendants
moved to dismiss the claims against them or, alternatively,
moved for summary judgment. Because the plaintiff has not had
an opportunity to conduct discovery, the summary judgment
motion is premature, and I will only consider the
defendants' Rule 12(b)(6) motions to dismiss and will
ignore any information submitted by the defendants not
contained within the complaint.[2]
The
complaint alleges that Azza booked a trip to Italy through
her travel agent, Dedham Travel, and the trip was organized
and operated by Group Voyagers. While she was riding to the
airport in a shuttle bus provided by Group Voyagers, the bus
driver, “who had been driving at high speeds, suddenly
slammed on the brakes, ” causing a piece of luggage to
fall from the overhead storage compartment and strike her on
the head. (Compl. ¶ 10 (dkt. no. 1).)
A
complaint must allege facts that “raise a right to
relief above the speculative level, ” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
omitted), and it 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) (citation omitted) (internal
quotation marks omitted). In order to determine whether
plausibility exists, the court engages in a two-step process.
García-Catalán v. United States, 734
F.3d 100, 103 (1st Cir. 2013) (citation omitted). First, the
court separates the “the complaint's factual
allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be
credited).” Id. (quoting Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). The
court also must disregard “statements in the complaint
that merely offer ‘legal conclusion[s] couched as . . .
fact[].'” Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011)
(alteration in original) (quoting Iqbal, 556 U.S. at
678). Next, the court must decide whether the complaint
permits “the reasonable inference that the defendant is
liable for the misconduct alleged.”
García-Catalán, 734 F.3d at 103
(quoting Haley v. City of Bos., 657 F.3d 39, 46 (1st
Cir. 2011)).
After
careful review of the complaint, both defendants' motions
to dismiss are granted. As a general rule, courts have held
that travel agents and tour operators “cannot be held
liable for the negligent acts of third parties that occur on
a premises not under the control or ownership of the tour
operator.” Weinberg v. Grand Circle Travel,
LCC, 891 F.Supp.2d 228, 248 (D. Mass. 2012) (quoting
Deacy v. Studentcity.com, LLC, 916 N.E.2d 422, at *2
(Mass. Appt. Ct. Nov. 2, 2009) (table decision)). The
complaint is devoid of any non-conclusory factual allegation
that the bus was either controlled or operated by either of
the defendants. The complaint does allege that the shuttle
bus “was provided by Defendant Group Voyagers, ”
(Compl. ¶ 9), and that the bus driver was “an
employee, agent, apparent agent, and/or servant”
controlled by the defendants, (id., Count II ¶
2; Count VI ¶ 9), but these are unsupported conclusory
legal statements masquerading as factual allegations. Maybe
the driver was an employee. Or maybe he was an agent, or
perhaps an apparent agent. No. subsidiary facts are alleged
that would help answer which he was, if any of them. This
lack of specific factual allegations to support the general
conclusory allegations pervades the complaint.
Although
the general rule is that travel agents and operators are not
liable for the negligent actions of third parties, they might
be liable for negligence based on a theory of negligent
selection. At a minimum, a defendant must use due care when
selecting a third-party service supplier, cf. Ross v.
Trans Nat'l Travel, Civ. A. No. 88-1763-Z, 1990 WL
79229, at *2 (D. Mass. June 5, 1990) (rejecting assertion
that tour operator owes a heightened duty of care in
selecting service provider), and failure to do so can result
in “a principal [being] held liable for the torts of a
hired independent contractor when the consequences of the
principal's own negligent failure to select a competent
contractor caused the harm upon which the suit is based,
” Weinberg, 891 F.Supp.2d at 249 (emphasis
omitted) (citations omitted). Here, the complaint alleges
that the defendants were negligent because they breached
their duty to the plaintiff by failing to select a competent
contractor and failing to warn of unsafe conditions of which
they should have been aware. But again, there are no
underlying facts alleged to support these conclusory
statements. For example, the complaint lacks a factual
allegation that either defendant was aware of any prior
safety issues with the shuttle bus company that should have
alerted them to the possibility of careless operation.
Weinberg
does not help the plaintiff get past that problem. There were
additional factual allegations in that case that distinguish
it from the present one. That court found that a negligence
claim based on negligent selection was sufficiently pled
because the complaint alleged that the tour operator selected
a hot air balloon operator when it knew that operator had
previously “had a serious wind related accident, and
that the safety precautions taken by the balloon operators
were not adequate or reasonable.” Id. at 249
(citation omitted). In the present case, the complaint does
not contain any reference to either defendant's knowledge
of prior safety issues with the company providing bus
services that harmed the plaintiff.
Similarly,
the complaint fails to sufficiently allege a breach of
contract claim. It alleges merely that each defendant's
“acts and omissions resulting in injury to Azza,
amounted to a breach of the contract entered into by Azza for
valuable consideration.” (Compl., Count IV ¶ 2;
Count VIII ¶ 2.) What were the terms of the contract?
The complaint does not say. But it must in order to survive a
motion to dismiss. See Higgins v. Town of Concord,
246 F.Supp.3d 502, 518 (D. Mass. 2017) (citations omitted).
For the
foregoing reasons, each defendant's motion to dismiss is
GRANTED. The complaint is dismissed.
It is
SO ORDERED.
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Notes:
[1] The complaint alleges against each
defendant claims for negligence, vicarious liability,
negligent infliction of emotional distress, and breach of
contract.
[2] Generally, when ruling on a motion to
dismiss, a court is not allowed to consider any documents not
attached to or expressly incorporated into the complaint,
unless that motion is converted into one for summary
judgment. Watterson v. Page, 987 F.2d 1, 3 (1st Cir.
1993) (citation omitted). While there are a few exceptions to
this ...