Archive for the ‘Amusement Park’ Category

Not Amusing – Assumption of Risk, Contributory Negligence Not Applicable to Injured Two Year Old; Triable Issues RE Accident (MD)

October 26, 2015

McNeill v. Trimper’s Rides of Ocean City, Inc. (Maryland)
(trial court disposition)

A two-year-old boy went to an amusement park under the watch of his uncle.  He was on a ride for young children when the rider operator stopped the ride to remove another rider.  When the ride stopped, the boy apparently thought the ride was over and go out of his seat.  The ride operator then resumed the ride and the it struck the boy.  The boy’s father sued the amusement park, alleging that the ride operator negligently failed to insure that the boy was safely out of the way of danger before putting the ride back into motion.  The defendant filed an answer which included the affirmative defenses of assumption of the risk and contributory negligence.  Defendant also argued that the lawsuit was barred by the statute of limitations.

Plaintiff filed a motion for summary judgment, arguing that the defendants’ affirmative defenses of assumption of the risk and contributory negligence were inapplicable because the boy was only two years old.  Plaintiff further asserted that under Maryland law, any negligence on the part of the child could not be imputed to a parent or caretaker.  The defendant’s opposition to the motion conceded “that the affirmative defenses of statute of limitations, contributory negligence, and assumption of the risk do not apply on the present record.”  However, the District Court explained that the concession did not create a basis for an award of summary judgment in favor of plaintiff because it was not a res ipsa loquitor case and the plaintiff still needed to prove the elements of negligence.

Neither party had been able to locate and depose the operator of the ride at the time of the incident.  Additionally, the boy’s uncle was the only available eyewitness in the case, but his view of the accident was obstructed and he could not testify as to what exactly had happened.  The Court noted that the plaintiff may eventually prevail at trial, but that it could not, by way of a motion, resolve factual disputes as to how the incident occurred.   The Court also ruled that the lawsuit was not time-barred.

 

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No Sympathy – Claims of Injured Passenger in Go Kart Barred by Assumption of Risk; No Product Defect (NY)

October 22, 2015

Garnett v. Strike Holdings, LLC (New York)

The plaintiff rode as a passenger in a two-seat go kart driven by her then boyfriend.  While driving on the track, they were allegedly bumped twice by other go karts, allegedly causing the plaintiff to suffer injuries, including “reflex sympathy dystrophy.”  Plaintiff sued the operators of the indoor recreational facility, alleging negligent and defective design, strict products liability, failure to warn, and breach of warranty.

The defendants filed a motion to strike the products liability claim.  However, the trial court denied the motion finding (1) that [the operators] leasing and rental of the go-karts could support the inference that [the operators] had placed the go-karts within the distributive chain,” and (2) the operators’ “waiver form purporting to contain an “express assumption of risk, waiver indemnity and agreement not to sue” was void as against public policy and unenforceable by reason of” New York General Obligations Law Section 5-326.  The parties proceeded with discovery.

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

September 10, 2015

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.

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Wild Ride – Paraplegic Injured on Roller Coaster Loses Jury Verdict (CA)

July 2, 2015

Rogers v. Magic Mountain, LLC (California)

Plaintiff was involved in an accident in 1996, which caused him to suffer from paraplegia and related medical complications.  In 2010, he rode the X2 “4th Dimension” roller coaster at Six Flags Magic Mountain, an amusement park in Valencia, California.  While on the ride, plaintiff suffered a fracture to his right femur.  Plaintiff did not feel the injury as a result of his paraplegia.  A few days later, his right leg was amputated after blood clotting blocked the flow of blood to his leg.  Plaintiff sued the amusement park and the ride manufacturer, alleging premises liability, general negligence and products liability.

The amusement park filed a motion for summary judgment, which was denied by the trial court.  The case continued, and a ten day jury trial ensued.  After trial, the jury issued a special verdict, finding that the amusement park was negligent, but that its negligence was not a substantial factor in causing harm to the plaintiff.  As to the ride manufacturer, the jury found that (1) the ride did not have potential risks that were known at the time of their design, manufacture and sale that would support a failure to warn claim, and (2) the design of the ride was a substantial factor in causing harm to the plaintiff, but that the risks of the ride did not outweigh the benefits of the design.  Therefore, the jury found that neither defendant had legal responsibility for the harm caused to the plaintiff.

Plaintiff appealed the decision contending that the special verdict was defective and the evidence was insufficient to support the special verdict.  However, the Court of Appeal disagreed and affirmed the judgment in favor of the defendants.  The Court noted that the plaintiff had not objected to the special verdict or any of its stipulated changes.  Regardless, the Court did not find any inconsistency, ambiguity, or unresolved issue in the special verdict.  Plaintiff complained that the jury had improperly allocated 100% fault to the plaintiff without first finding that the plaintiff was negligent.  However, the Court explained that the specific allocation of fault to the plaintiff was merely an “irregularity,” and not an “inconsistency.”  The jury had already determined that neither defendant’s was responsible (the park’s negligence did not cause the harm and the risk of the manufacturer’s design did not outweigh its benefits).  As a result, the Court noted that “it [did] not matter whether plaintiff was negligent or not — he [could not] recover from defendants.”  According to the Court, “the issues of negligence and causation were properly presented to the jury in the special verdict form.”  The Court was also convinced that “there was ample evidence from which the jury could properly conclude that [manufacturer] was unaware of potential risks at the time the X2 vehicles were designed.”

Fender Bender – Claims of Injured “Cyber Sport” Participant Dismissed (NY)

June 5, 2015

Yargeau v. Lasertron (New York)

Plaintiff was injured while participating in a game called Cyber Sport.  In Cyber Sport, participants drive cars similar to bumper cars while they attempt to scoop a ball into a handheld basket and then shoot the ball to score points.  A participant uses a joystick to move the car, but there are no brakes on the cars.  The cars are built to stop moving when the joystick is released or when a signal is sent to the car by an employee of the facility hosting the game.  After riding in her car during a warm up period, the plaintiff was sitting in her car listening to the referee give instructions to the players.  Although the referee had pressed the button that was supposed to give a signal causing all the cars to stop, at least one of the cars still had power and ended up striking plaintiff’s car from behind and causing her personal injury.

Plaintiff sued the manufacturer of the car and the facility hosting the game, alleging products liability claims and negligence.  The defendants filed motions for summary judgment, which were granted by the trial court, and the plaintiff appealed. (more…)

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

June 3, 2015

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.

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Slipping and Sliding Away

September 20, 2012

Close v. Darien Lake Theme Park and Camping Resort, Inc. (New York)
(A guest at an amusement park suffered an injury on a water ride and sued the park; the court held that the park owner was not liable for the injury.)

In this very short opinion, the Court explained, “[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.”  It also noted that “[a]wareness of the risk is ‘to be assessed against the background of the skill and experience of the particular plaintiff’.'”  The defendant had successfully met its burden by proving that the plaintiff understood and voluntarily assumed the risks.  Despite, plaintiff’s contention to the contrary, the plaintiff was unable to raise a triable issue regarding reckless or intentional conduct or that there was a dangerous concealed condition.

NOTE: The published opinion does not include any factual details of the incident or the facility’s specific role in the incident.

Assumption of the Risk Does Not Apply to Amusement Park Rides

June 28, 2011

Nalwa v. Cedar Fair(California)
(The doctrine of primary, implied assumption of the risk could not be applied to bar plaintiff’s claim for negligence against an amusement park operator.)

In this case, plaintiff Nalwa took her children to Great American Amusement Park in Santa Clara, California for a day of fun.  While there, the family decided to ride the “Rue Le Dodge” bumper car attraction.  Plaintiff’s hand was fractured as the result of a head-on collision with another bumper car.  Plaintiff asserted claims for negligence, common carrier liability and willful misconduct against Cedar Fair, the operator of Great America.

Cedar Fair filed a motion for summary judgment.  As to the negligence claim, Cedar Fair asserted that it was barred by the doctrine of primary assumption of the risk, claiming that plaintiff’s injuries arose from bumping, a risk inherent in the “activity” of riding bumper cars.  The trial court granted the motion, and plaintiff appealed.

In reversing the trial court’s ruling, the Court of Appeal ruled that primary assumption of the risk did not apply to the case because bumper car riding was not an “activity” or “sport” according to established case-law definitions.  The Court also held that public policy considerations precluded the application of primary assumption of the risk because amusement park operators had traditionally been held to a “higher standard of care” normally reserved for so-called “common carriers”, which are parties hired to transport passengers.

The Court also found the fact the Cedar Fair had taken steps to make similar rides at its other facilities safer compelling.  The record reflected that Cedar Fair had installed “islands” to prevent head-on collisions at some of its other bumper car rides throughout the country.  The Court felt that the company should have taken similar steps at Great America to “minimize the risks” inherent in the ride.

NOTE: The published decision contains an extensive dissenting opinion making a compelling argument for the application of primary assumption of the risk in this case. The dissent cites to extensive legal authority establishing that participation in bumper car rides could be characterized as an “activity”. The dissent also emphasizes the fact that requiring the park operator to install islands in the ride is tantamount to compelling the operator to “decrease the risks” inherent in the activity, which California case-law clearly does not require.