Yellow Flag – Amusement Park Go-Kart Operator Not Liable for Injury from On-Track Collision (TX)


Weaver v. Celebration Station Properties, Inc. (Texas)

Kerri Weaver (“Weaver”) and her three children visited the defendant’s amusement park in Oklahoma City, Oklahoma.  Weaver took one of her children on a go-kart ride at the facility and was involved in an on-track incident.  Another driver bumped Weaver’s go-kart, causing Weaver to suffer a heel fracture.  Weaver filed a state court action in Texas, alleging defendant’s “negligent failure to inspect the amusement area, adequately warn customers not to bump into other go-karts, train and supervise its employees, and instruct and train go-kart drivers, caused her injury.”  Additionally, Weaver filed a claim on behalf of her minor child for “bystander suffering.”  The defendant timely removed the case to federal court on the basis of diversity jurisdiction and, after discovery, moved to summary judgment, “arguing that it owed Weaver no duty to warn her about the open and obvious risks inherent in go-kart racing and, in any event, did not breach that duty.”

In opposition to the motion, Weaver argued that defendant “owed her a duty as a business invitee and breached this duty when it failed to guard against other reckless drivers.”  In her opposition, Weaver referred to her own deposition testimony and the deposition testimony of the defendant’s corporate representative.  However, Weaver failed to attach the deposition testimony to her opposition.  Defendant replied, reiterating its previous arguments and citing Weaver’s failure to attach the evidence.  Weaver filed a surreply, attaching the documents she failed to submit earlier, and the defendant moved to strike the surreply.

Ultimately, the U.S. District Court for the Southern District of Texas granted the defendant’s motion for summary judgment (dismissing plaintiffs’ claims), but denied it’s motion to strike.  First, the court clarified that although the plaintiffs were from Texas, Oklahoma law applied to the case.  The injury occurred at a facility in Oklahoma, the alleged negligent acts occurred in Oklahoma, and most of the evidence and witnesses were located in Oklahoma.

Next, the court addressed defendant’s motion to strike.  The court explained that while surreplies were “highly disfavored” and were often used as improper strategic tactics, in this instance the surreply merely attached the evidence that was already cited in the original opposition.  Thus, the defendant was not prejudiced by the filing.

As to the negligence liability, the court explained that “Weaver was under no obligation to expose herself to the inherent risks of go-kart driving. . . . Weaver was aware of the obvious risks of contact or collision while riding a go-kart on a track with other go-karts traveling at approximately 18 to 20 miles per hour.  Weaver’s personal experiences with go-karts made those inherent risks even more open and obvious.”  As a result, the defendant did not owe a duty to “warn her of the open and obvious dangers of go-kart driving.”

The defendant further argued that “even if it owed a duty to warn Weaver of the risks of riding go-karts, it fulfilled that duty and did not breach any other duties it owed Weaver or her daughter.”  Defendant referred to Weaver’s own “testimony that she saw signs discussing safety at the go-kart track, including signs prohibiting riders from bumping each other on the track, and signs advising riders to keep their arms and legs inside the go-kart.”  Defendant also noted that Weaver admitted that “that she heard an employee give instructions over a loudspeaker before each go-kart ride.”

Weaver countered by pointing out that no employee from the defendant witnessed the incident “despite the company’s policy of having employees look out for “bumping” and bad drivers.”  However, Weaver testified that prior to the incident she had no issues with the facility or any other drivers.  Moreover, the defendant’s employees responded within one to two minutes of the incident and safely cleared the plaintiffs from the track.  Weaver also argued that the defendant failed to maintain a database for tracking “bad apple” drivers who had previously been reckless and involved in incidents.  However, the court stated that Weaver did not alleged or identify any evidence supporting the conclusion that the driver who bumped her go-kart was a “bad apple” who could have been screened by the defendant.  Weaver further argued that because the corporate representative for the defendant has testified that he had given depositions in 20 prior lawsuits, the defendant should have “on notice of the potential harm facing Weaver.”  However, the court noted that Weaver did not identify evidence to show that the prior lawsuits involved go-karts.  Additionally, even if the prior lawsuits involved go-karts, the court said that such a fact would be “consistent with the inherent risks in go-kart rides.”

As to the child’s bystander liability claim, the court held that the claim also failed in light of the conclusion that the defendant did not breach duties owed to the plaintiffs.  Moreover, the court explained that in Oklahoma bystander liability claims are restricted to mental pain and suffering “as arises from an injury or wrong to the person rather than from another’s suffering or wrongs committed against another person.”  In that the plaintiff child did not suffer physical injury, the bystander claim based on the alleged negligence failed.

Weaver had also argued that the defendant’s motion for summary judgment was premature because the defendant had “failed to identify or make available any of its employees who may have witnessed the wreck, and failed to disclose why they no longer work for it,” and because defendant had asserted relevancy objections to an interrogatory asking for information about prior accident and lawsuits.  However, the plaintiffs had not filed motions regarding either of the discovery issues and had not previously brought the issues the the court’s attention.  Plaintiffs had also failed to submit an affidavit or declaration in support of their contentions regarding discovery.

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