Ejected – Man Knocked Unconscious on Water Slide; Court Permits Amendment to Complaint Alleging Punitive Damages (PA)


Perez v. Great Wolf Lodge of the Poconos (Pennsylvania)
(trial court disposition)

Plaintiff Brian Perez was a paying guest and business invitee of the defendant Great Wolf Lodge, which operates a hotel and water park in the Poconos.  While riding on a water slide with his companions, Perez’s raft began “oscillating excessively,” causing him to strike his head and neck on the side of the ride, rendering him unconscious, and ejecting him from the ride.  Perez and his wife filed a complaint against the defendant alleging negligent overloading of the raft.  Discovery ensued and was very contentious.  There was what was characterized as a “failure of discovery by the defendants for much of the first year of this litigation.”  At some point, the initial attorney representing the defendant was replaced.  Thereafter, some significant additional disclosures, totaling approximately 5,000 pages of material, were made by the defendant.  As a result of the disclosures, the plaintiffs filed a motion to amend the complaint to add a claim for punitive damages to the lawsuit.

Plaintiff offered numerous additional facts in support of the punitive damages claim relating to revisions to the weight limit of the subject ride and the maximum number of adults permitted in the rafts, along with failures on the part of the defendant to change signage and communicate properly with employees.  Plaintiff’s requested amendment also alleged numerous prior documented incidents causing head injuries, purported discussions by defendant’s personnel about the need to implement improved safety measures, and defendant’s failure to implement any of the discussed changes prior to the incident involving Perez.

The defendant opposed plaintiffs’ motion to amend on a couple of grounds.  Defendant first contended that the motion should be denied because “the evidence will show that the plaintiffs have misconstrued the facts.”  However, the U.S. District Court for Pennsylvania stated that the factual argument was better suited for a summary judgment motion.  As noted by the Court, in dealing with a motion to amend pleadings, the Court is “called upon to simply assess the adequacy of the pleadings, and not the sufficiency of the proof.”

Alternatively, the defendant argued that the motion to amend should be denied in that “the facts alleged by the plaintiffs, even if proven, would not meet the threshold prescribed for punitive damages under Pennsylvania law.”  The Court recognized that Pennsylvania law “sets an exacting standard for the award of punitive damages in tort cases” as follows:

“Pennsylvania has adopted Section 908 of the Restatement (Second) of Torts, which provides that punitive damages may be ‘awarded to punish a defendant for outrageous conduct, which is defined as an act which, in addition to creating “actual damages, also imports insult or outrage, and is committed with a view to oppress or is done in contempt of plaintiffs’ rights.” . . . Both intent and reckless indifference will constitute a sufficient mental state.'”

Referring to the Restatement’s definitions relating to “reckless indifference,” the Court also noted that “in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.”

Acknowledging that leave to amend should be freely given “when justice so requires,” and narrowing the scope of its review to the proposed pleading, the Court concluded that the proposed amended complaint adequately stated a claim for punitive damages, and, therefore, the plaintiffs’ motion was granted.  As a result of the ruling, the Court also ordered that the defendant be instructed to withdraw and re-file its motion for summary judgment to fully address the new legal claims and allegations.

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