Plaintiff failed to prove her injuries were due to the construction of the water park slide, and she also assumed the risk.

An injury is not enough; you must be able to relate your injury to the exact cause, and that cause must be based on a failure to do or not do a duty by the defendant.

Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572

State: Maryland, United States District Court for the District of Maryland

Plaintiff: Beth Stolting, et al.

Defendant: Jolly Roger Amusement Park, Inc. d/b/a Splash Mountain Water Park et al

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: Defendant

Year: 2001

The plaintiff and a boyfriend, who eventually became her husband, went to the defendant’s water park. She had been to water parks 15-20 times over the years, and ridden water slides hundreds of times. However, she had never visited this park.

At the entrance of the park was a sign which warned of the risks of the park.

The attractions contained within the Splash Mountain Waterpark are of a participatory nature and, as such, carry with them an inherent risk of injury. All guests agree, as a condition of admission, to use these facilities at their own risk.

The plaintiff admitted that she read the sign when she entered the park. After entering the park the plaintiff went on several water slides before going down the slide that injured her. Before riding that slide, she watched others go down the slide.

There were no warning signs posted at the slide. Nor were there instructions on how to ride the slide. As the plaintiff prepared to go down the slide, she placed herself in the positions; she had seen other riders with her knees bent about 40 degrees.

After exiting the slide, she hit the bottom of the pool. The plaintiff was assisted out of the pool by a lifeguard who suggested she go to a hospital. The plaintiff transported herself to the hospital. Eventually, she was diagnosed with several broke vertebrae, which required several months of recovery.

The plaintiff sued for her injuries.

Analysis: making sense of the law based on these facts.

Under Maryland law, to prove negligence the plaintiff must prove:

Plaintiffs must establish four elements in order to prevail on a negligence claim: 1) that a duty was owed to the Plaintiffs by the Defendants; 2) a breach of that duty owed by the Defendants; 3) a causal relationship between the breach of that duty and the harm suffered; and 4) that damages were sustained.

The plaintiff argued that the defendant had notice of the dangerous condition because two prior claims had been filed for similar injuries on the same water slide. The plaintiff then claimed that notice of those injuries created a duty on the part of the defendant to post warning signs.

The next issue was the standard of care owed by the defendant to the plaintiff. The rule in Maryland is a water park owes business invitees a duty to use ordinary care.

The general rule is that the operator of a place of amusement owes to business invitees a non-delegable duty to use ordinary care and caution to keep the premises in a reasonably safe condition.” An amusement park is not an insurer of the safety of persons using devices at the place of amusement, but only a proprietor bound to use ordinary care for the safety and protection of its patrons. Hence, the Park’s duty towards its patrons is only to provide “ordinary and diligent care” in keeping the Shotgun slide in a “reasonabl[y] safe condition.”

The plaintiff then argued the defendant breached its duty to provide ordinary and diligent care by not posting warning signs informing patrons of the danger of the slide.

The plaintiff failed on this claim because she presented no admissible evidence that the angle of the slide was too steep. The plaintiff relied upon the opinion of the other injured patrons on the same slide. “The Plaintiffs have not presented evidence sufficient to establish that the Defendants had reason to believe the slide was so dangerous as to require a special warning next to it.”

The park had the slide evaluated after the prior injuries by a licensed professional from the state. Since the plaintiff could not present any evidence of the dangerousness of the slide, the review by the professional was sufficient to defeat this claim. “There is no evidence adequate to establish that a pertinent standard of care required additional warnings.”

On top of that, the plaintiff had read the warnings at the entrance of the park which placed the plaintiff on notice of the dangerous condition, required by the duty owed to business-invitees.

The plaintiff hired an expert witness to assist in her case; however, the expert’s opinion was ruled inadmissible in a prior motion. Consequently, she could not provide any evidence to support here claim that the defendant breached its duty by not posting instructions on how to ride the slide.

Even if her expert’s opinion had been admissible, there was no evidence posted that the way the plaintiff rode the slide was the cause of her injury. There was no connection between riding the slide and riding the slide a specific way that might have caused or would not have caused her injuries.

The final issue was the depth of the pool at the bottom of the slide. Again, she could offer not expert testimony to support that claim. The engineer from the state had inspected the pool and found that its depth was adequate. “There is no evidence sufficient to prove to a reasonable fact finder that Defendants negligently pro-vided too shallow an exit pool.”

The court then found the plaintiff assumed the risk of her injuries. In Maryland, assumption of the risk is a complete bar to a negligence claim. To prove assumption of the risk the defendant must prove:

To establish an assumption of risk defense, the Defendants have the burden of demonstrating that the Plaintiffs: 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) voluntarily confronted the risk of danger.

To determine if the plaintiff knew, appreciated and voluntarily confronted the risk, the court used an objective standard.

An objective standard must be used in deciding “whether a plaintiff had knowledge and appreciation of the risk, . . . and a plaintiff . . . [cannot] say that he did not comprehend a risk which must have been obvious to him.” Overall, the question of whether the plaintiff assumed the risk is usually a question for the jury, however, when it is clear that by using an objective test, “a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.”

The defendant met this standard based on the plaintiff’s experience in riding other water slides and watching people ride this slide. “Those who participate or sit as spectators at sports and amusements may be taken to assume the known risks of being hurt by roller coasters, flying baseballs, [or] hockey pucks . . . .“

Additionally, the plaintiff’s a person of normal intelligence would have understood the risks of this slide. “In the case at Bar, Stolting’s age, education and experience on water slides clearly establishes that she was able to appreciate the risk.”

Finally, the plaintiff voluntarily confronted the risk.

After reading the disclaimer at the front of the Park, watching other patrons maneuver themselves down the slide, and relying on her prior experiences on water slides, Stolting chose to ride the Shotgun slide. Of her own free will, Stolting voluntarily made the decision to go on the ride and take her chances even though, as she was specifically warned, the rides in the Park “carry with them an inherent risk of injury.”

The court found that any reasonable jury would find the plaintiff assumed the risk.

The court concludes that any reasonable jury would have to find that Stolting assumed the risk of injury on the Shotgun slide by having knowledge of the risk, appreciating the risk, and voluntarily confronting the risk of danger. Hence, Stolting’s negligence claim, even if viable, would be barred by the assumption of risk doctrine.

In a rare issue in a decision, the court found two complete and valid defenses to the plaintiff’s claims. Normally, courts only find one reason to support or over throw a decision and stop there.

So Now What?

A lot of this win for the defendant was based on three things. The plaintiff admitted having gone to water parks and down water slides before, she admitted reading the warning sign at the entrance, and she watched other riders before going down the slide herself. That proved she has knowledge and appreciation of the risk and voluntarily assumed the risk.

The second issue was the defendant hired an expert after just a few incidents to check out its slide. Again, acting prior to the lawsuit was better and probably a lot cheaper in the long run to see if the problem was real or isolated incidents.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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