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Court Rejects Water Park’s ‘High Thrill’ Ride Defense

[Renderings of Schlitterbahn Water Park's Verrückt waterslide, graphic created by Nicole Bell]
[Renderings of Schlitterbahn Water Park's Verrückt waterslide, graphic created by Nicole Bell]

This article appeared in the October issue of Athletic Business. Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.

On August 7, the nation was shocked by the news that 10-year-old Caleb Schwab suffered a fatal neck injury while riding Verrückt — which, at 17 stories tall, is believed to be the world's largest waterslide — at Schlitterbahn Water Park in Kansas City, Kan. Though certainly tragic, the accident was probably preventable with better staff training. (As of this writing, the facts surrounding the incident have yet to be fully established, but early reports indicate that the riders — Schwab and two adult women — may have been seated improperly, causing a weight distribution issue.) While the Schwab fatality illustrates an extreme circumstance, risks of failing to properly control and position those using raft waterslides had already been established as a serious problem in Perez v. Great Wolf Lodge of the Poconos LLC, 2016 U.S. Dist. LEXIS 97513.

The court concluded that the fact that a particular injury “happened before” or that a particular individual has “prior knowledge of the risk of injury” does not make a risk customary or an “inherent part” of a particular activity.The court concluded that the fact that a particular injury “happened before” or that a particular individual has “prior knowledge of the risk of injury” does not make a risk customary or an “inherent part” of a particular activity.

Actionable negligence?
In 2009, Great Wolf Lodge installed a waterslide called the Double Barrel Drop (DBD). The operations manual for the DBD states the ride "may accommodate two, three or four riders with a maximum cumulative weight of 700 pounds." During the breaking-in process, however, because speeds could fluctuate, the weight limitation for the DBD was reset at 600 pounds. Despite the revised 600-pound weight limit, the signage at Great Wolf Lodge reflected a weight limit of 700 pounds for DBD riders. It is the job of the attendant to ask the riders their weights and to place the heavier of the riders opposite each other to ensure proper balance.

On December 12, 2010, Brian Perez went on the DBD with three other men. At some point during the ride, Perez was separated from the raft and his face and neck struck the slide. The combined weight of the four men was in excess of the DBD's weight limitation. None of the four riders claims to have known about the weight limit, nor read any signage for the DBD. The lifeguard/attendant at the DBD's dispatch point said nothing to the group about the maximum weight limit, nor was that attendant asked anything.

Claiming that Great Wolf Lodge and its employees' failure to enforce the weight limitations was the cause of his injuries, Perez sued the water park for negligence.

The court held that in order to prevail in a negligence action, Perez must establish four elements: that Great Wolf Lodge and its employees had a duty to conform to a certain standard of conduct, that they breached that duty, that such breach caused the injury in question, and actual loss or damage resulted. Great Wolf Lodge sought summary judgment on the theory that it had no duty to Perez, and that Perez failed to show that Great Wolf Lodge's negligence caused Perez's injury.
 

'High thrill' defense
In reviewing Great Wolf Lodge's first defense that it had no duty toward Perez, the court held that under Pennsylvania law, the duty a land possessor owes to a person who enters his land is to be determined based on whether the entrant is a trespasser, an invitee or a licensee. Since Perez was at the water park as a paying customer, it is clear that he qualifies as a business invitee, and is entitled to the highest duty of care. Great Wolf Lodge, however, argued that because of the nature of the activity, riding a "high thrill" water slide, it owed no duty to Perez under the assumption-of-risk doctrine.

In rejecting this argument, the court noted that under the doctrine of assumption of risk, Perez must "knowingly" or "consciously appreciate" the particular danger from which he is subsequently injured. According to the court, Great Wolf Lodge failed to establish any evidence to support a finding that the risk of a head/neck injury resulting from ejection was known or obvious to Perez and that he nevertheless voluntarily chose to assume that risk. Moreover, the court concluded that under no imaginable circumstances would what happened to Perez be within the realm of what was to be expected by a guest on a "high thrill" waterslide, especially since the water park caters to families with young children. Therefore, the court found that the assumption-of-risk doctrine does not apply and that Great Wolf Lodge had a duty to Perez.

The court further explained that, even though an operator of an amusement facility for which admission is charged is not an insurer of his patrons, he will be liable for injuries to his patrons where he fails to use reasonable care in the construction, maintenance and management of the facility, having regard to the character of the exhibitions given and the customary conduct of the patrons invited. The same logic applies here, and the court concluded that the fact that a particular injury "happened before" or that a particular individual has "prior knowledge of the risk of injury" does not make a risk customary or an "inherent part" of a particular activity.

Simply put, the court held the risk of complete ejection from the ride and striking one's head on the fiberglass slide with sufficient force to render an individual unconscious and with apparently severe and life-altering injuries is simply not an inherent, frequent, common and expected risk of riding a waterslide, even if that waterside may be considered "high thrill."

Next, Great Wolf Lodge argued that Perez failed to present any evidence to establish the causation element of his negligence claim. In other words, he failed to establish that Great Wolf Lodge or its employees' breach of duty caused his injuries.

In rejecting this argument, the court held that while the cause of Perez's injury was hotly contested by the parties, causation is a question of fact for a jury to determine. Finding that Perez had presented sufficient evidence from which a reasonable fact-finder could conclude that Great Wolf Lodge's negligence was the cause of the injuries, the court rejected Great Wolf Lodge's summary judgment request.
 

Avoidable accidents
While both the Schwab and Perez accidents illustrate the inherent dangers involved in waterslides, it is important that water park operators learn from these tragedies. First, proper signage and verbal instruction from the ride attendant are key to keeping the ride safe. All riders need to be aware of the risks of such rides and the need to keep their hands on the raft at all times due to forces exerted from all sides during the rides. Second, all employees must be vigilant in policing weight limits and placing people properly on the ride. It is possible that both accidents could have been avoided if the riders were properly seated based on their weight in order to keep the raft properly balanced throughout the entire ride.

Greater risk: sliding or coasting?

The death of Caleb Schwab involved a roller coaster-type waterslide, and Brian Perez sustained injuries on a slide that likewise utilized a raft. National safety statistics have been scarce since Congress removed permanent amusement rides from the purview of the Consumer Product Safety Commission in 1981, but existing evidence at the state level suggests that waterslides may be more dangerous than actual roller coasters.

In June 2014, NJ.com reviewed safety data obtained from the New Jersey Department of Community Affairs and found that among 552 amusement park accidents over the previous five years, 122 of them occurred on waterslides while 39 were related to roller coasters. Moreover, 40 percent of the accident total involved water (including rapids rides, wave pools, etc.) — an alarming figure considering water attractions comprise only 11 percent of the amusement park rides permitted to operate in the state.

 


Attorney John Wolohan is a professor of sports law in the David B. Falk College for Sport and Human Dynamics at Syracuse University.


This article originally appeared in the October 2016 issue of Athletic Business with the title "Court rejects water park’s ‘high thrill’ ride defense"

 

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