Deanne Niedziela v. Viator, Inc., Tripadvisor, Inc., and Does 1-50, inclusive

Summary

The United States District Court for the Central District of California grants in part and denies in part defendants Viator, Inc. and Tripadvisor, Inc.’s motion to dismiss a negligence action arising from injuries sustained during a Costa Rica tour booked through Viator. The court holds that Section 230 immunity applies to portions of the claim based on publishing or failing to vet third-party content, but does not foreclose claims based on an alleged failure to warn or Viator’s material contribution through its Badge of Excellence. The excerpt begins consideration of defendants’ additional argument that Viator’s Terms of Use waived liability.

Holdings

1. Section 230 did not immunize defendants from liability to the extent Niedziela's negligence claim was based on failure to warn about the tour's risks, because that theory did not seek to hold defendants liable as publishers or speakers for failing to monitor or remove third-party content. Section 230 did apply to the extent the claim was based on advertising or including the tour listing on the website, but the Badge of Excellence allegations sufficiently pleaded material contribution to the listing.
2. The Terms of Use did not bind Niedziela because Viator's booking screen did not provide reasonably conspicuous notice of the terms and therefore did not establish inquiry notice and unambiguous assent.
3. The complaint failed to allege facts supporting a cognizable theory of direct liability against Tripadvisor beyond its parent-subsidiary relationship with Viator, so the claims against Tripadvisor were dismissed without prejudice.
4. Niedziela was permitted to amend her complaint to allege additional facts concerning Tripadvisor's liability.

Questions Presented

1. Whether Section 230 of the Communications Decency Act immunized Viator and Tripadvisor from Niedziela's negligence claims.
2. Whether an exculpatory clause in Viator's online Terms of Use barred Niedziela's claims.
3. Whether Niedziela adequately pleaded a cognizable basis for liability against Tripadvisor separate from its parent-subsidiary relationship with Viator.
4. Whether Niedziela should be granted leave to amend her claims against Tripadvisor.

Disposition

other