Negligence: Do Water Park Visitors Assume The Risk Of Injury?

Negligence: This week, the Appellate Division of the Supreme Court of New York, Second Department handed down a decision in the case of MUSSARA v. MEGA FUNWORKS, INC., 2011-01511 (2d Dept 10-10-2012). The case involved an appeal by the plaintiffs, in an action to recover damages for personal injuries against defendant Mega Funworks, Inc., doing business as Splashdown Park in Fishkill, New York.

Anthony Mussara sustained injuries while participating in the summertime, recreational activity of riding down a water slide. The appeal required the appellate court to decide if Mussara assumed the risk of his injuries by voluntarily riding down the water slide, and whether the injured plaintiff’s weight, which was in excess of the weight limitation imposed for the water slide, and his failure to pull back on certain handles while exiting the water slide, were the significant causes of his injuries.

Background Facts:

In 2007, Splashdown installed a new ride called “Pirate’s Plunge.” Plunge consisted of two slides, a “drop” slide and a “serpentine” slide. Each slide involved riding down a water slide on an inflated inner tube that would exit into a 50-foot long “splash pool.” After the construction of Pirate’s Plunge was complete, but prior to its opening to the public, Splashdown performed tests of the ride. There were approximately 40 to 50 test rides of the drop slide performed by Splashdown lifeguards. Less than 10 times during the testing, after exiting the slide, the rider traveled across the entire length of the splash pool and struck the stairs on the other side of the pool.

As a result of the testing, Splashdown decided to instruct riders to sit all the way down into the tube, to hold the handles for the length of the ride, and, once they hit the pool, to pull on the handles and lean back to slow down. Splashdown also investigated what changes could be made to prevent riders from traveling too far across the splash pool. Splashdown made changes to the water level in the pool and the water flow rate in the slides. Splashdown instituted a 200-pound weight limit and decided to instruct riders to pull back on the handles once they entered the splash pool to decrease their speed. The 200-pound weight limitation, a height restriction, and the instruction to pull back on the handles were placed on several warning signs to the ride.

On July 11, 2007, the injured plaintiff went to Splashdown with his son and wife for the first time. After spending a few hours at other rides and attractions, the injured plaintiff and his son decided to ride on Pirate’s Plunge. The injured plaintiff checked the warning sign to see if his son was tall enough to qualify for the ride, but did not read the rest of the warnings. The injured plaintiff, who weighed in excess of the 200-pound limitation, rode the drop slide. As the injured plaintiff exited the base of the slide leading into the splash pool, his tube traveled at a high rate of speed across the splash pool, hit the stairs at the other end of the pool, and he was ejected from his tube onto the concrete ground surrounding the pool, sustaining injuries. When giving pre-trial testimony, the injured plaintiff stated that he was pulling back on the handles when he entered the splash pool, but he did not remember if it slowed him down. The lifeguard in the splash pool testified at his deposition that, as he saw the injured plaintiff riding down the slide, he did not believe that he could stop him and did not try to do so.

The Lawsuit:

The plaintiff’s claims were based upon several theories: breach of express and implied warranty (that the ride was fit for use), strict products liability (that the ride was unreasonably dangerous and defective), and negligence for failure to warn. The trial court ruled that since Splashdown had no role in the manufacture, sale, or distribution of the injury-producing product, it could not be held liable for breach of express or implied warranty, or strict products liability. The court also held that with respect to a negligent failure to warn, that claim failed since the plaintiff admitted that he read the height restriction on the warning sign but failed to read the rest of the warnings.

However, the appellate court also ruled that the trial court erroneously dismissed plaintiff’s claim based upon the defense that the plaintiff had assumed the risk of his injury (which would make him responsible for his injury). The court stated that by voluntarily engaging in a sport or recreational activity, a participant assumes, or consents to, the commonly-appreciated risks that are inherent in and arise out of the activity generally, and which flow from the participation (see Morgan v State of New York, 90 NY2d at 484; Reidy v Raman, 85 AD3d at 892). However, participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks (see Joseph v New York Racing Assn., 28 AD3d 105, 108). Furthermore, in Morgan, the New York Court of Appeals held that a participant will not be deemed to have assumed the risk of a unique and dangerous condition over and above the usual dangers that are inherent in the activity or sport (see Morgan v State of New York, 90 NY2d at 485).

The appellate court reversed the lower court and stated that it could not conclude that the injured plaintiff had “an appreciation of the nature of the risks” presented (Morgan v State of New York, 90 NY2d at 484), and was “aware of the risk[]” (id.) that the 50-foot splash pool would be inadequate to bring him to a safe halt upon his exit from the slide. The court also found that there were issues of fact that required a jury determination and referred the matter back to the lower court for trial.

If you or a loved one has been the victim of a serious injury or fatality, you may be entitled to compensation. Contact an experienced personal injury trial lawyer at The Maurer Law Firm, PLLC to schedule a free consultation to discuss your rights by filling out our free website “Tell Us About Your Case” review form, or phone us directly at 845- 896-5295.

Posted by Ira M. Maurer, Esq. for The Maurer Law Firm, PLLC

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