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This is a hard case–hard not in the sense that it is legally difficult or tough to crack, but in the sense that it requires us * * * to deny relief to a plaintiff for whom we have considerable sympathy.

We do what we must, for ‘it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law. 

Roy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88

State: Rhode Island, Supreme Court of Rhode Island

Plaintiff: Dawn K. Roy, in her capacity as the administratrix of the estate of Brett A. Roy, et al.

Defendant: Rhode Island Department of Environmental Management (DEM), and two individuals in their official capacities as DEM employees 

Plaintiff Claims: 

Defendant Defenses: Open and Obvious and Recreational Use Statute 

Holding: for the Defendant 

Year: 2016 

Summary

The title is a quote from another case and states perfectly the situation most judges face when looking at a case. 

In this one, a man dove into a lake at a State Park in Rhode Island. He broke his neck and became a quadriplegic. The Rhode Island Supreme Court dismissed his claims because the assumed the risk and the Rhode Island Recreational Use Statute prevented his claims. 

Facts 

The state owned the land in question and ran it as a state park. There was a man-made pond in the park that was “treated much like a swimming pool.” Because of changes to the pond, the decision was made to close the pond and now allow swimming. No swimming signs were posted, and no lifeguards were on duty. Other parks of the park were still open, including the bathhouses.

Rhode Island did not allow the operation of a body of water on a swim at your own risk basis. 

The plaintiff was a 29-year-old  husband and father of two. He went to the park with a friend. While at the park he ran and dove into the water breaking his neck and becoming a paraplegic. 

The plaintiff by and through his wife, as Administratrix of the estate of the plaintiff used the state and various agencies for his injuries. The case when to trial and the jury returned a verdict for the defendants. The plaintiff filed a motion for a new trial, which was granted and the defendant filed this appeal to the Rhode Island Supreme Court. 

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

The state based its appeal on the Rhode Island Recreational Use Statute, and the state owed no duty for an open and obvious natural condition. 

The court first looked at the Rhode Island Recreational Use Statute. The statute provided immunity to landowners and to state and municipalities. The limitation was not absolute. A landowner could be liable if the plaintiff could prove “…[f]or
the willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity after   discovering the user’s peril…
” 

The state argued nothing it did established proof of willful or malicious failure to warn. The court could not find any evidence to support the plaintiff’s claims. On top of that, the best defense was provided by the plaintiff when he admitted
he knew about the dangers of diving into shallow water, and that he had not checked the depth of the water. Finally, he admitted he was probably irresponsible. 

The court then looked at the open and obvious danger defense. Here again, the plaintiff failed.  

This Court held that the defendants had not owed any duty of care to the plaintiff in that case in part because “requiring citizens to place warnings against[–]and barriers preventing persons from[–]diving into shallow water would provide little disincentive to individuals * * *. As a practical matter, the danger of diving into shallow water is one of common knowledge, and one [the plaintiff] admit he was aware of.” 

The court concluded. 

Because it is our considered opinion that the state bore no liability for Roy’s injuries–either because diving is an open and obvious danger or because it was protected under the Recreational Use Statute–we conclude that the trial justice erroneously denied its motion for judgment as a matter of law. 

So Now What? 

To many this case might suck, sending this young man to live a life without the financial support he may need. However, as the quote in the beginning said, the law is the law. When you undertake to engage in a sport or activity, you assume
the risks of those activities. 

More importantly when recreating on land for free, the landowner owes no duty to keep you safe from yourself. If not, recreation would only be on federal lands where the chance of proving a claim is negligible. State, City and County Parks and Open Spaces would all close because they could not afford the insurance needed to keep them open.

 What do you think? Leave a comment.

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Roy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88

Roy v. The State of Rhode Island et al., 139 A.3d 480; 2016 R.I. LEXIS 88

Dawn K. Roy, in her capacity as the administratrix of the estate of Brett A. Roy, et al.1 v. The State of Rhode Island et al.

1 The original plaintiff, Brett A. Roy, passed away while the instant appeal was pending. An order substituting “Dawn K. Roy, the  administratrix of the estate of Brett A. Roy” as a party in this case entered on April 15, 2016. See Rule 25(a) of the Superior Court Rules of Civil Procedure.

No. 2013-213-Appeal. No. 2014-39-Appeal.

SUPREME COURT OF RHODE ISLAND

139 A.3d 480; 2016 R.I. LEXIS 88

June 23, 2016, Filed

PRIOR HISTORY: [**1] Providence County Superior Court. (PC 09-2874). Associate Justice Susan E. McGuirl.

Roy v. State, 2013 R.I. Super. LEXIS 54 (2013)

CASE SUMMARY:

COUNSEL: For Plaintiffs: Patrick C. Barry, Esq., Douglas E. Chabot, Esq.

For State: Rebecca T. Partington, Department of the Attorney General; Adam J. Sholes, Department of the Attorney General.

JUDGES: Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION BY: Paul A. Suttell

OPINION

[*482] Chief Justice Suttell, for the Court. A wise jurist once wrote:

“This is a hard case–hard not in the sense that it is legally difficult or tough to crack, but in the sense that it requires us * * * to deny relief to a plaintiff for whom we have considerable sympathy. We do what we must, for ‘it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.'” Burnham v. Guardian Life Insurance Co. of America, 873 F.2d 486, 487 (1st Cir. 1989) (Selya, J.) (quoting United States v. Clark, 96 U.S. 37, 49, 24 L. Ed. 696, 13 Ct. Cl. 560 (1877) (Harlan, J., dissenting)).

This is indeed such a hard case. Tragically, on July 10, 2008, twenty-nine-year-old Brett A. Roy broke his neck when diving into the pond at World War II Veterans Memorial Park in Woonsocket, resulting in his paralysis from the neck down. Roy’s injuries were vast and undeniable. Roy and his wife, Dawn K. Roy (plaintiffs), individually and as the parents of their two children, [**2] filed this action against the state, the Rhode Island Department of Environmental Management (DEM), and two individuals in their official capacities as DEM employees (collectively, the state), alleging several counts of negligence and premises liability. After a multi-week trial and lengthy deliberations, a jury returned a verdict for the state, finding that the state had not “fail[ed] to guard or warn against a dangerous condition, use, structure or activity” or against a “non-obvious, latent dangerous condition” at the pond. Subsequently, both parties filed renewed motions for judgment as a matter of law, which the trial justice denied. However, the plaintiffs also filed a motion for a new trial, which was granted. Thereafter, the state brought the instant appeal arguing that the trial justice erred in granting the plaintiffs’ motion for a new trial, and that, as a matter of law, the state owed no duty to Roy. The plaintiffs filed a cross-appeal arguing that their motion for judgment as a matter of law should have been granted and that the trial justice erred in denying their motion for additur or alternatively their motion for a new trial on damages only. For the reasons set forth herein, [**3] we vacate the judgment of the Superior Court.

I

Facts and Travel

A

World War II Veterans Memorial Park and Pond

In July 2008, the pond at World War II Veterans Memorial Park in Woonsocket [*483] was one of several bodies of water operated by the state as a recreational facility. At trial several state workers testified to the condition and maintenance of the park and pond.

The director of DEM at the time of the incident, W. Michael Sullivan, testified that the man-made pond was “filled mechanically” and “treated much like a swimming pool.” Sullivan testified that, in June 2008, he made the decision to fill the pond, and he appeared at a press conference where he announced his decision.2 Sullivan stated that, in July 2008, there were “no swimming” signs posted, but DEM “expected that there would be people * * * using the park.” Sullivan explained that facilities such as the bathhouses were open, but he stated that he “did not ever consider the beach to be open.” Sullivan agreed that it was prohibited under DEM rules to operate the pond on a “swim-at-your-own-risk” basis, and he explained that, “if there were not lifeguards present at a swimming facility, that the swimming facility was closed.” Sullivan [**4] explained that, in July 2008, staff on-site at the park had been directed “to tell people that the beach — that the water was closed to swimming, to point to signage and refer them to that, but it was not expected that they would stand there and order people out [of the water] * * *.”

2 Sullivan had explained that, in February 2008, World War II Veterans Memorial Park had been “slated for closure” in the budget presented to the Legislature that year. However, at the end of June, after local officials expressed concern, he made the decision as the Director of DEM to fill the pond.

The Associate Director of Natural Resources for DEM, Larry Mouradjian, also testified at trial. He described the pond, explaining that there was a designated lap pool, a swim area, and a diving platform. He testified that he had seen the pond with and without water, and, based on his opinion, diving near the wall into the lap pool would be dangerous because it was too shallow. Mouradjian testified that the pond was typically not filled “until such time as we were able to fully staff the * * * swim area and invite the public to swim at the pond * * *.” Mouradjian stated that he thought the decision to fill the [**5] pond was untimely “[b]ecause the things normally done to prepare the pond to be open to the public had not been done * * *.” He testified that he had spoken to Sullivan and recommended that the pond be drained or left empty until DEM “beg[a]n to acquire the resources necessary.”

The DEM Chief of the Rhode Island Division of Parks and Recreation, Robert Paquette, and the Deputy Chief, John Faltus, also testified at trial. Paquette confirmed that Mouradjian was hesitant to open the pond and that Mouradjian told him that “we should really look into this.” However, Paquette testified that “[Sullivan] was ordering [him] to open up the facility.” Paquette also testified that he had never been told that “there was ever a problem with shallow water [along the wall of the pond].” Faltus testified that he was never “officially informed” that people were diving at the pond, but he had “heard hearsay that there’s possible diving activity after hours.” Faltus stated that generally they did not “allow diving at any [state] swimming areas.” However, he also admitted that “[p]eople [were] allowed to possibly do some shallow entry dives,” explaining that whether diving was allowed “[d]epends on how you define ‘dive.'”

William Mitchell [**6] Jr., the Regional Park Manager for DEM in 2008, testified that there was no “system that was in place to warn people of the depth of the water.” However, he stated that “if a patron * * * [*484] ask[ed] an employee * * * they would advise them as to the depth of the water, [and] if they asked about diving, [they] would tell them the rules and regulations * * *.” Mitchell agreed that Roy’s injury was “[g]enerally” the type of thing that he could foresee and he was concerned that it was the kind of injury that would happen when he was told to fill the pond before lifeguards had been hired.

Peter Lambert, a DEM caretaker supervisor who was employed at World War II Veterans Memorial Park from 1990 to 2008, testified at trial extensively about the physical characteristics and operation of the park and pond. He explained that, as the caretaker supervisor, he was the “acting park manager,” testifying that he “handled pretty much everything that had to do with the park itself: scheduling the staff, supervising the lifeguards, interviewing park rangers, interviewing seasonal people, assigning various work to people.” Essentially he either directly worked on or helped supervise everything that needed to be done at the [**7] park.

Lambert described the park as “16 acres * * * in the center of * * * Woonsocket [with] a man made [sic] pond, * * * two tennis courts, a playground area, horseshoe pits, * * * [an] Olympic pool area, * * * and the beach area * * *.” Lambert described the water depth near the wall where the Olympic pool met the beach area as being “pretty consistent over the years.” He testified that, when the pond was drained, he would try to “smooth the bottom” of it. Lambert explained that the pond “wouldn’t be perfectly level like a pool,” but testified that he “would try to eliminate any erosion, any heels, any high spots.” He testified that he was unable to do “any preparatory work to the bottom” of the pond in 2008 because he had been “informed that the park was closing and the beach wouldn’t be opened that year, and [his] job was being eliminated.” However, Lambert also explained that he did not rake the pond every year because “there were years when there was very little shifting on the bottom.” Subsequently, Lambert testified about the diving policies at the pond. He stated that diving had “never [been] allowed.” However, he admitted to seeing “people periodically dive * * * off of [the] [**8] wall on the pool area, [but] not during hours that [the pond was] in operation.”

B

The Events of July 10, 2008

Kenneth Henderson, a seasonal laborer for DEM who worked as a groundskeeper at the park in 2008, testified at trial that he was working on July 10, 2008. Henderson stated that he saw “about half a dozen” people swimming in the pond that day but did not tell them that swimming was prohibited because, in his words, “[he] had no authority.”

Laura Oliver and Carol Gear had also been at the park on July 10, 2008, and testified at trial. Oliver testified that on July 10 there were no lifeguards, lifeguard chairs, or buoy lines in the pond, and the fountain was off. Oliver said that she allowed her children to go swimming despite the “no swimming” signs “because there [had been] a write-up in the paper, and nobody told [them] different[ly].” She added that there were often “no swimming” signs in place, even when lifeguards were present and watching the swimmers. However, Oliver testified that a DEM employee, who she later learned was a groundskeeper, had told her children not to jump in the water. Oliver explained that she saw people jumping and “do[ing] all kinds of stuff” off the diving platform on July [**9] 10. However, she knew from experience that diving was not allowed in the pond because in previous years if someone [*485] dove into the water, then “lifeguards would be on top of it. If they kept doing it, [the lifeguards] would tell them they had to leave.” She added that she never saw anyone get hurt while diving prior to July 10. Oliver described Roy’s dive as “a belly flop kind of dive; not a complete dive.”

Gear testified that she had been to the pond to swim “[t]hree times” before July 10, 2008, and had seen people dive, but had never seen anyone injured from diving before Roy suffered his injury. Gear described Roy’s actions that she witnessed on July 10, stating: “He threw something on the ground, and [ran], like you run when you bowl, and then he just dove in.” She labeled Roy’s dive as a “[r]egular kind of dive.” She clarified that she would call it “a shallow dive.” She explained that “[i]t was more like he * * * just * * * put his head down and kind of went in. It wasn’t like a real dive like on a diving board.”

Hope Braybon, who accompanied Roy to the pond on July 10, also testified to the events of the day. Braybon stated that she watched Roy “jog” from the car in the parking lot and “d[i]ve in.” She testified [**10] that, as Roy was diving, she “was telling him not to dive over there * * * because it was shallow water.”

Roy was unable to testify at trial but his deposition was read into the record. Roy was six feet tall and twenty-nine years old at the time of the incident. Roy testified that on July 10 he had dropped Braybon, her daughter, and his children at the park and “they * * * walked towards the beach.” He recalled seeing “20 to 30 people, small children, adults, adolescent children in the middle of the pond” swimming, which indicated to him that the park was open. He testified that he “never saw a sign that said ‘[n]o [s]wimming.'” Roy further testified that, when he arrived at the park, he “walked over towards the corner [of the pond], * * * [a]nd * * * wasn’t going to jump in,” but, he described the day as “hot, * * * very hot. So, [he] figured * * * [he would] jump in.” He stated that he looked at the water and “[i]t looked deep enough.” He described the water as “murky” and said that he “definitely couldn’t see the bottom.” He explained that “if the water was too shallow, [he would] be able to see it.” Before jumping in, Roy returned to his car to put his things away and then he “walked down to the end[,] [**11] * * * dove in the water[,] and [he] broke [his] neck.” Roy described his dive as a “shallow dive, just like a normal, flat dive,” meaning, “the only parts that [he] would want to hit the water would be the * * * tops of [his] hand and [his] belly.” Roy testified that around July 2007 he dove in the same spot, and “[n]othing was ever said to [him].” Roy admitted that he knew there was soil erosion in the pond, and, consequently, that soil had been added to the pond in the past. Roy stated that “the way that [he] check[ed] the depth of the water * * * was probably irresponsible * * *.”

C

The Jury Verdict and Posttrial Motions

After the close of evidence, both parties filed motions for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, and the trial justice denied both motions. Subsequently, the jury was charged on May 25, 2011. During the course of deliberations, the jury exchanged over fifty notes with the trial justice. On the morning of the third day of deliberations, the trial justice addressed the jury and asked the jurors to keep deliberating because she was “really confident that the eight [jurors were] going to be able to * * * reach a decision that is fair and just for everyone.”

[*486] On the fourth day of deliberations, [**12] the jury asked the court to “clarify if [six] jurors are for one party and [two] jurors are for another[,] [d]o the questions have to be answered in favor of the way the six jurors feel and the [other two jurors would] not be able to express their own feelings[?]” The trial justice responded that she was “not exactly sure what [they] [were] asking but the jury’s verdict must be unanimous with all [eight] [jurors] agreeing.” Later that day, the trial justice held a chambers conference at which she suggested to counsel that, in light of the jury’s note, the jury might be split six to two.

During the fifth day of deliberations, the jury asked the trial justice to reinstruct them that they needed to follow the instructions of law and not their emotions. After a series of conferences with juror No. 109 and the jury foreperson, individually, the trial justice excused juror No. 109. At approximately 3:50 p.m. that day, the jury sent a note to the trial justice that it could not come to a unanimous agreement. Approximately ten minutes later the trial justice responded: “Is there anything we can do to assist you?” The jury responded that “nothing else will make a difference” and indicated a six-to-one [**13] split. Thereafter, the trial justice released the jurors for the day and asked counsel to think of options and to determine from their respective clients whether they would accept a split verdict.

The following day–day six of deliberations–both parties agreed to accept a six-to-one split decision if the jury was unable to reach a unanimous verdict. The parties expressed that they “understood at the time that the jury would be sent to deliberate” and that if the jury “inform[ed] the [c]ourt that it could not reach a unanimous verdict, [the trial justice] would then disclose [to the jury] that the parties [had] agreed to accept a [six] to [one] split decision * * *.” Subsequently, the jury exchanged additional notes with the trial justice and returned for additional instructions on the Recreational Use Statute and the issue of liability, included as questions 1 and 2 on the verdict form. Thereafter, the jury indicated that it had reached a verdict.

The jury reached a unanimous verdict and found that the state had not “willfully or maliciously failed to guard or warn against a dangerous condition, use, structure or activity at the pond * * *” and therefore was not liable under question 1. However, the jury [**14] found that the state was liable under question 2 for “willfully or maliciously fail[ing] to guard against a non-obvious, latent dangerous condition, knowing that there existed a strong likelihood that a user of the swimming pond would suffer serious injury or death[.]” The jury rejected the assumption-of-the-risk defense and found that both parties were negligent and assigned a 50/50 split with “zero” damages. The trial justice then called counsel to sidebar where plaintiffs argued that the jurors were not following the instructions because they found in favor of them but awarded no damages; the state disagreed. The trial justice instructed the jury that they were required to award damages. At that time, the state moved for a mistrial “based on the inconsistencies of the answers to the questions on the verdict sheet”; plaintiffs objected, and the trial justice denied the motion. The jury then sent a note explaining that they had “reached a unanimous verdict [because] no money was awarded.” They explained that if they had to award damages, “part of [the] jury [would] have one answer [and] part [would] have another. In other words, [they would] have to begin again.” The trial justice clarified [**15] with the jury that they were “referring to the [six-to-one] split/vote” and then released the jury for the day.

[*487] After the jury was sent home, the trial justice held a chambers conference with counsel. The parties discussed four potential options to consider: (1) a mistrial; (2) accept a six-to-one verdict; (3) accept half of the verdict; or (4) allow the verdict to stand. On the seventh day of deliberations, plaintiffs made a motion for additur or, in the alternative, for a new trial on the issue of damages. The trial justice denied plaintiffs’ motion and offered the parties a choice of accepting a split verdict or a mistrial. Both parties agreed to accept a six-to-one split verdict. The trial justice notified the jury that the parties would accept a six-to-one verdict. The jury returned the verdict and answered “no” to questions 1 and 2–finding no liability on behalf of the state, and judgment entered.

Following the jury verdict, both parties made renewed motions for judgment as a matter of law. In support of its motion, the state argued that plaintiffs failed to establish the state’s liability under the Recreational Use Statute and that, as a matter of law, Roy’s conduct was so “highly [**16] dangerous” that “no duty was owed to him.” The plaintiffs argued that the state’s witnesses admitted sufficient facts at trial to establish the state’s liability as a matter of law under the Recreational Use Statute. Additionally, plaintiffs moved for a new trial on damages, or, in the alternative, a new trial on all the issues. The trial justice issued a written decision on March 26, 2013, denying both parties’ motions for judgment as a matter of law, and granting plaintiffs’ motion for a new trial on all the issues. The state timely appealed this decision, and plaintiffs filed a cross-appeal.

II

Parties’ Arguments on Appeal

On appeal, the state argues that the trial justice erred in refusing to apply the decisions in Banks v. Bowen’s Landing Corp., 522 A.2d 1222 (R.I. 1987) and Bucki v. Hawkins, 914 A.2d 491 (R.I. 2007), which, the state contends, “stand for the proposition that the [s]tate owed no duty to Roy to protect him from an open and obvious natural condition * * *.” The state maintains that, “under the proper application of the Recreational Use Statute, the evidence fails to establish that the state willfully and/or maliciously failed to warn against a dangerous condition.” The state also argues that “Roy assumed the risk of injury by diving into murky water without first checking [**17] its depth” and that plaintiffs failed to prove the element of causation. Furthermore, the state contends that it is shielded from liability under the theory of discretionary immunity. The state also asserts that “the trial justice misconstrued material evidence and committed significant errors of law in granting plaintiffs’ motion for a new trial.” However, the state adds, if the matter is remanded for a new trial, “the statutory cap on damages should apply.”

In response, plaintiffs argue that the trial justice properly granted their motion for a new trial. The plaintiffs aver that they proved liability under the Recreational Use Statute and that the “open and obvious danger” rule articulated in Bucki, 914 A.2d at 496, is inapplicable here due to distinguishable facts. The plaintiffs maintain that Roy could not have “assumed the risk” under these facts as a matter of law and that plaintiffs proved proximate causation. Furthermore, plaintiffs contend that the trial justice and two motion justices properly applied the law and limited the state’s defenses with respect to governmental immunity and the damages cap. On cross-appeal, plaintiffs argue that the trial justice incorrectly denied their motions for additur, [**18] a new trial on the issue [*488] of damages only, and judgment as a matter of law. Additionally, plaintiffs argue that a new trial was warranted based on other legal errors made by the trial justice and that the second jury verdict was “the result of bias, prejudice, or passion.”

Because we conclude that the state owed no duty to Roy, we shall address only the state’s renewed motion for judgment as a matter of law.

III

Judgment as a Matter of Law

A

Standard of Review

[HN1] “In reviewing a trial justice’s decision on a motion for judgment as a matter of law, this Court is bound to follow the same rules and legal standards as govern the trial justice.” Hough v. McKiernan, 108 A.3d 1030, 1035 (R.I. 2015) (quoting Perry v. Alessi, 890 A.2d 463, 467 (R.I. 2006)). “The trial justice, and consequently this Court, must examine ‘the evidence in the light most favorable to the nonmoving party, without weighing the evidence or evaluating the credibility of witnesses, and draw[] from the record all reasonable inferences that support the position of the nonmoving party.'” Id. (quoting Perry, 890 A.2d at 467). Thus, a trial justice should enter judgment as a matter of law “when the evidence permits only one legitimate conclusion in regard to the outcome.” Id. (quoting Long v. Atlantic PBS, Inc., 681 A.2d 249, 252 (R.I. 1996)).

B

Discussion

[HN2] The Rhode Island Recreational Use Statute, G.L. 1956 [**19] chapter 6 of title 32, limits the liability of landowners, declaring that one

“who either directly or indirectly invites or permits without charge any person to use that property for recreational purposes does not thereby:

“(1) Extend any assurance that the premises are safe for any purpose;

“(2) Confer upon that person the legal status of an invitee or licensee to whom a duty of care is owed; nor

“(3) Assume responsibility for or incur liability for any injury to any person or property caused by an act of omission of that person.” Section 32-6-3.

[HN3] The purpose of this statute “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability to persons entering thereon for those purposes.” Section 32-6-1. In order to achieve this, “the [Recreational Use Statute] modifies the common law by treating users of public and private recreational properties as trespassers, thus greatly reducing the duty of care that owners owe to recreational users.” Symonds v. City of Pawtucket, 126 A.3d 421, 424 (R.I. 2015). As we have noted, “it is clear from the unambiguous language of the 1996 amendment [to the Recreational Use Statute] that the [L]egislature intended to include the state and municipalities among owners entitled to immunity [**20] under the statute.” Id. (quoting Pereira v. Fitzgerald, 21 A.3d 369, 373 (R.I. 2011)).3

3 In 1996, the General Assembly amended the definition of “owner” in G.L. 1956 § 32-6-2(3) to include the state and municipalities. P.L. 1996, ch. 234, § 1.

[HN4] Although the Recreational Use Statute limits liability, this limitation is not absolute. Section 32-6-5 provides, in relevant part: “(a) Nothing in this chapter limits in any way any liability which, but for this chapter, otherwise exists: (1) [f]or the willful or malicious failure to guard or [*489] warn against a dangerous condition, use, structure, or activity after discovering the user’s peril * * *.” “Thus, the Legislature declared that all people who use this state’s public recreational resources are classified as trespassers to whom no duty of care is owed, save to refrain from willful or malicious conduct as defined in the [Recreational Use Statute].” Berman v. Sitrin, 991 A.2d 1038, 1044 (R.I. 2010).

On appeal, the state argues that the evidence presented at trial did not establish that the state willfully and/or maliciously failed to warn against a dangerous condition. Specifically, the state argues that “there was no evidence of a substantial number of injuries flowing from a known dangerous condition”; that “the state did not fail to guard or warn against a dangerous condition, use, [**21] structure, or activity”; and that “no witness made testimonial admissions sufficient to extinguish protection under the Recreational Use Statute.” Conversely, plaintiffs argue that they proved liability under the Recreational Use Statute because the evidence supported a finding that the state “breached the duty to refrain from willful and malicious failures to guard and warn against known latent conditions.” In support of this argument, plaintiffs rely on Berman.

In Berman, 991 A.2d at 1042, the plaintiff was walking on the Newport Cliff Walk when the ground “gave way,” causing the plaintiff to suffer injuries that rendered him a quadriplegic. This Court specifically noted that this was “not * * * a case in which a visitor came too close to the edge of a cliff and fell off, as tragic as that would be.” Id. at 1049. Rather, “the events leading to [the plaintiff’s] tragic injury were caused by latent defects in the structure of the Cliff Walk that [were] not obvious to the occasional visitor.” Id. This Court explained that “the record before [it was] replete with evidence demonstrating that * * * the city knew that the forces of natural erosion were taking a toll on the Cliff Walk.” Id. at 1050. Thus, this Court concluded that “because [**22] of the multiple incidents of death and grievous injury * * * the city [could] not successfully defend [the plaintiff’s] claim based on an assertion that it had no specific knowledge of [the plaintiff] or any peril confronting him.” Id. at 1051. Consequently, this Court held that “the immunity provided by the [Recreational Use Statute] [was] not available to defendant City of Newport, in the context of the Cliff Walk” because a “fact-finder reasonably could find that * * * the city voluntarily and intentionally failed to guard against the dangerous condition, knowing that there existed a strong likelihood that a visitor to the Cliff Walk would suffer serious injury or death.” Id. at 1052, 1053.

The plaintiffs argue that this case is comparable to Berman because the “record is replete with evidence of DEM’s admitted knowledge of numerous unique dangerous conditions, including shallow water in areas where users had been known to dive from the park’s structures, and the historic presence of the sandbar in the same (normally deeper) area.” The plaintiffs maintain that the “shallow water and dangers of diving at this particular facility were not obvious to users * * * yet were in fact known to DEM.”

In the case at bar, [**23] although the state admitted knowledge of the unique features of the pond, Roy also admitted that he was aware of the danger of making a dive into shallow water and that “the way that [he] check[ed] the depth of the water * * * was probably irresponsible * * *.” He confirmed that he knew the soil in the pond was eroding and, consequently, that soil was added to the pond. We would note that, examining the evidence in the light most favorable to the plaintiffs as we [*490] must, the actions of the defendants are a far cry from the egregious conduct attributed to the City of Newport in Berman. There, we held that “[i]t is because of the multiple incidents of death and grievous injury that we conclude that the city may not successfully defend this claim based on an assertion that it had no specific knowledge of [the plaintiff] or any peril confronting him.” Berman, 991 A.2d at 1051. Here, there is only one indication in the record of a relatively minor injury reported several days before Roy’s catastrophic injuries. Therefore, we are of the opinion that, under these circumstances, this case is distinguishable from Berman. There is no evidence to support a finding that the state “willful[ly] or malicious[ly] fail[ed] to guard or warn against a dangerous condition, [**24] use, structure, or activity after discovering [a] user’s peril * * *.” See § 32-6-5(a)(1). Thus, the state’s motion for judgment as a matter of law should have been granted.

Moreover, even if the Recreational Use Statute did not apply, this Court has held that [HN5] the danger of diving in and of itself is an “open and obvious” danger, Bucki, 914 A.2d at 496, one of “common knowledge,” Banks, 522 A.2d at 1225, such that a landowner does not owe a duty of care to warn individuals who enter the premises. In Banks, 522 A.2d at 1224, the plaintiff filed a negligence claim for injuries he suffered after diving off a railing on the defendant’s property into the Newport Harbor. This Court held that the defendants had not owed any duty of care to the plaintiff in that case in part because “requiring citizens to place warnings against[–]and barriers preventing persons from[–]diving into shallow water would provide little disincentive to individuals * * *. As a practical matter, the danger of diving into shallow water is one of common knowledge, and one [the plaintiff] admit he was aware of.” Id. at 1225. Similarly, in Bucki, 914 A.2d at 493, the plaintiff filed a negligence claim for injuries he sustained after diving into a lake while he was a guest at one defendant’s waterfront property. This Court concluded that [**25] the plaintiff’s harm was foreseeable but again held that the defendants did not have a duty to warn of the dangers of diving. Id. at 496-97. This Court stated that:

“It is only reasonable for a diver, who cannot ascertain the water’s depth by looking, to further inspect the area before diving into dark water. The danger of diving into shallow water was open and obvious to a twenty-four-year-old man, regardless of whether a sign was erected alerting him to the danger.” Id. at 496.

Thus, this Court held that “as a matter of law, [the] plaintiff must be held to have had knowledge and an appreciation of this risk [because][,] [u]ltimately, it was [the] plaintiff’s own behavior that caused his injuries.” Id.

We also note that other courts have reached similar conclusions. For example, the Maryland Court of Appeals commented that:

“Bodies of water like the stream involved in this case have historically and consistently been afforded distinctive treatment in the law relating to landowners’ liability. The necessity, or at least desirability, of maintaining such bodies of water, coupled with known inherent dangers and the difficulty of effectively protecting against those dangers, have led courts across the country to pronounce [**26] water an ‘open and obvious danger,’ for which no warning or special precaution is ordinarily needed.” Casper v. Charles F. Smith & Son, Inc., 316 Md. 573, 560 A.2d 1130, 1134-35 (Md. 1989).

[*491] In a case affirming the grant of summary judgment in favor of the Chicago Park District against swimmers who were injured when they dove into Lake Michigan from concrete seawalls, Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 665 N.E.2d 826, 827, 828, 839, 216 Ill. Dec. 568 (Ill. 1996), the Illinois Supreme Court pronounced:

“In cases involving obvious and common conditions, such as fire, height, and bodies of water, the law generally assumes that persons who encounter these conditions will take care to avoid any danger inherent in such condition. The open and obvious nature of the condition itself gives caution and therefore the risk of harm is considered slight; people are expected to appreciate and avoid obvious risks.” Id. at 832.

The Illinois Supreme Court further reasoned that “bodies of water are ordinarily considered to be open and obvious conditions and thereby carry their own warning of possible danger.” Id. at 835. This is clearly the position adopted by this Court in Bucki, 914 A.2d at 497, where this Court stated that “[w]e are of the opinion that in this case [the] defendant did not owe [the] plaintiff a duty of care, but, rather, that [the] plaintiff voluntarily exposed himself to the perils of an open and obvious danger.” [**27] Because it is our considered opinion that the state bore no liability for Roy’s injuries–either because diving is an open and obvious danger or because it was protected under the Recreational Use Statute–we conclude that the trial justice erroneously denied its motion for judgment as a matter of law.

IV

Conclusion

For the reasons stated herein, we vacate the judgment of the Superior Court and remand the case with instructions to enter judgment in favor of the state. The record shall be returned to the Superior Court.


Montreat College Virtuoso Series 2 Day Outdoor Recreation Management, Insurance & Law Program

2 packed Days with information you can put to use immediately. Information compiled from 30 years in court and 45 years in the field.get_outside_12066-2

Whatever type of Program you have, you’ll find information and answers to your risk management, insurance and legal questions.

CoverYou’ll also receive a copy of my new book Outdoor Recreation Insurance, Risk Management, and Law

Get these Questions Answered

What has changed in the law Concerning Releases? What states still allow releases and which ones do not. What changes have been made in how releases are written? How can you make sure your release is not as affected by these changes?

Everyone is excited about Certificates of Insurance. Why this excitement is not valid and why most of them don’t work. What must you do to make a certificate of insurance work for your program?

What is an assumption of risk document and why are they important. How can your website be used to prove assumption of the risk.

How should you write a risk management plan that does not end up being used against you in court?

How do you handle an accident so it does not become a claim or a lawsuit.

Put February 24 & 25th on your Calendar Now.

Course Curriculum

1.    Assumption of the Risk

1.1. Still a valid defense in all states

1.2. Defense for claims by minors in all states

1.3. Proof of your guests assuming the risk is the tough part.

1.3.1.   Paperwork proves what they know

1.3.1.1.       Applications

1.3.1.2.       Releases

1.3.1.3.       Brochures

1.3.2.   The best education is from your website

1.3.2.1.       Words

1.3.2.2.       Pictures

1.3.2.3.       Videos

2.    Releases

2.1. Where they work

2.1.1.   Where they work for kids

2.2. Why they work

2.2.1.   Contract

2.2.2.   Exculpatory Clause

2.2.3.   Necessary Language

2.2.4.   What kills Releases

2.2.4.1.       Jurisdiction & Venue

2.2.4.2.       Assumption of the Risk

2.2.4.3.       Negligence Per Se

2.2.4.4.        

3.    Risk Management Plans

3.1. Why yours won’t work

3.2. Why they come back and prove your negligence in court

3.2.1.   Or at least make you look incompetent

3.3. What is needed in a risk management plan

3.3.1.   How do you structure and create a plan

3.3.2.   Top down writing or bottom up.

3.3.2.1.       Goal is what the front line employee knows and can do

4.    Dealing with an Incident

4.1. Why people sue

4.2. What you can do to control this

4.2.1.   Integration of pre-trip education

4.2.2.   Post Incident help

4.2.3.   Post Incident communication

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

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

Beth Stolting, et al., Plaintiffs vs. Jolly Roger Amusement Park, Inc. d/b/a Splash Mountain Water Park et al, Defendants

CIVIL ACTION NO. MJG-00-299

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

2001 U.S. Dist. LEXIS 26572

August 24, 2001, Decided

August 24, 2001, Filed

SUBSEQUENT HISTORY: Motion granted by Stolting v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26573 (D. Md., Aug. 24, 2001)

Affirmed by Stolting v. Jolly Roger Amusement Park, Inc., 37 Fed. Appx. 80, 2002 U.S. App. LEXIS 11925 (4th Cir. Md., 2002)

CORE TERMS: slide, pool, exit, patrons, ride, riding, water slides, warning, bottom, summary judgment, amusement park, feet, legs, intelligence, splash, depth, posted, notice, bent, risk of injury, moving party, reasonable jury, appreciated, disclaimer, non-moving, shallow, warned, owed, dangerousness, negligently

COUNSEL: [*1] For Beth Stolting, Plaintiff: Paul D Bekman, LEAD ATTORNEY, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD; Andrew M. Moskowitz, William D. Sanders, Alpert Butler and Sanders, P.C., West Orange, NJ.

For Rohan Cassells, Plaintiff: Andrew M. Moskowitz, LEAD ATTORNEY, Alpert Butler and Sanders, P.C., West Orange, NJ.

For Jollyroger Amusement Park, Inc., doing business as Splash Mountain Water Park, Defendant: J Paul Mullen, LEAD ATTORNEY, Phoenix, MD; Kathleen M Bustraan, Ward and Bustraan LLC, Towson, MD.

JUDGES: Marvin J. Garbis, United States District Judge.

OPINION BY: Marvin J. Garbis

OPINION

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT

The Court has before it Defendants’ Motion for Summary Judgment and the materials submitted by the parties relating thereto. The Court finds that a hearing is unnecessary.

I. BACKGROUND

A. Plaintiff’s Injury on the Shotgun Slide

On June 2, 1999, Plaintiffs Beth Stolting (hereinafter “Stolting”) and Rohan Cassells 1 (hereinafter “Cassells”), went to the Jolly Roger Amusement Park/Splash Mountain Park (hereinafter the “Park”) in Ocean City, Maryland. Stolting had been to water parks on “fifteen to twenty ” separate occasions and had been on water slides “hundreds of times,” [*2] but had never visited the Park. Stolting Dep. 29.

1 Now her husband and a plaintiff in the case.

At the entrance of the amusement park, a prominent disclaimer was posted. The sign read as follows:

The attractions contained within the Splash Mountain Water[]park 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.

Stolting read the sign upon entering the amusement park. She went on several water slides before arriving at the “Shotgun” 2 water slide (hereinafter “slide” or “ride”), which is the slide at issue in the instant case. Stolting Dep. 37. There were no posted instructions on how to ride the slide or any signs warning of the possible dangers posed by the slide. However, there were signs containing height restrictions, signs banning the use of inner tubes, and depth markers displaying the depth of the entry pool 3. Prior to riding the slide, Stolting watched others go down it. As Stolting prepared to go down the slide, she imitated the body positioning of those people who had previously been on the slide. With her knees bent at a “forty degree angle,” Stolting [*3] descended down the slide, hitting the bottom of the exit pool with her feet. Stolting Dep. 39- 40. Stolting does not remember how she landed or the positioning of her legs as she hit the water. Stolting Dep. 40- 41. However, she does allege that she felt her feet “hit the bottom of the pool . . . immediately” upon entering the exit pool. Stolting Dep. 44.

2 Also known as “the Cannonball Slide.”

3 The pool of water at the bottom of the slide is also referred to as the “entry” or “splash” pool.

At that point, Stolting lost her breath. She went to the side of the exit pool and was helped out of the pool and into a chair by lifeguards. At that time, Stolting complained of pain in her back, feet, and legs. The lifeguards gave Stolting ice and suggested that she should go to a hospital.

After resting for ten minutes, Stolting asked Cassells to take her to the Atlantic General Hospital in Ocean City, Maryland. 4 Stolting told the attending physician at the hospital that she was experiencing back and heal pain. The doctor took x-rays of Stolting’s heals, and then “told [her that] if [she] could walk out on crutches that [she] could leave.” 5 [*4] Stolting Dep. 50. Stolting was not given any medication.

4 Stolting never requested an ambulance.

5 No diagnosis was given.

During the next few days, she continued to rest and take Advil. Approximately one week later, Stolting was still experiencing pain and so, she decided to see Dr. Fischer (hereinafter “Fischer”). Fischer diagnosed Stolting with three fractured vertebrae. Stolting was told to remain on Advil and to continue bed rest. Fischer stated that it would take at least six months for her back to heal.

B. Prior Injuries on the Shotgun Slide

In recent years, several other patrons have complained of injuries allegedly sustained while riding the Shotgun slide. In 1997, Myron Custer (hereinafter “Custer”) reported a bruised heel from contacting the bottom of the exit pool of the Shotgun slide. Custer accused the Park of maintaining an unsafe ride.

In 1998, Michael Agnello Jr.(hereinafter “Agnello”), reported receiving injuries from riding the slide. Agnello Affi. After contacting the bottom of the exit pool, Michael complained of bruised legs and walking with a limp for a few days. The Park responded to complaints by stating that a licensed inspector from the Department of Labor Safety [*5] Inspection had investigated the slide and concluded that the slide met all of Maryland’s standards of safety.

C. Procedural Posture

In the Amended Complaint, Plaintiffs sue Defendants, Jolly Roger Amusement Park, Inc., Splash Mountain Water Park, and Bayshore Development Corporation. Plaintiffs allege that the Defendants’ negligence caused Stolting’s injuries. The Defendants deny negligence and assert an affirmative defense of the assumption of risk doctrine. By the instant motion, Defendants seek summary judgment on all claims.

II LEGAL STANDARD

In order for the Court to grant a motion for summary judgment, the evidence submitted to the Court must “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact is one which might affect the outcome of the lawsuit under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The burden of proof weighs heavily on the moving party to establish that there is a lack of evidence in support of the non-moving party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party [*6] must demonstrate to the Court that, viewing all of the evidence in the light most favorable to the non-moving party, a reasonable jury could not find in favor of the non-moving party. Anderson, 477 U.S. at 248. If the moving party has carried its burden of proof, then the non-moving party must produce more than a “mere scintilla of evidence in support of an essential element” in order to prevent the court from granting summary judgment. Id. at 251.

III DISCUSSION

A. Negligence claim

The Plaintiffs’ claim is based on three purported acts of negligence:

1) After being put on notice that patrons had been injured on the Shotgun slide, Defendants negligently failed to post signs warning of the dangerousness of the ride;

2) Defendants negligently failed to post instructions on how patrons should position their bodies when riding the slide; and,

3) Defendants negligently provided too shallow an exit pool at the bottom of the slide.

Under Maryland 6 law, 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 [*7] and the harm suffered; and 4) that damages were sustained. Yousef v. Trustbank Sav., F.S.B., 81 Md.App. 527, 536-36, 568 A.2d 1134 (1990).

6 This case is a diversity action. Since Stolting’s cause of action took place in Maryland, that state’s substantive law applies. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

1) Failure to Warn of Dangerousness

The Plaintiffs contend that the Park was on notice of the dangerousness of the Shotgun slide and should have posted signs warning of the dangers because other patrons had been injured on the slide. In support of their claim, Plaintiffs rely on prior injuries received by Custer and Agnello while they were on the Shotgun slide. The Plaintiffs maintain that notice of such injuries imposed a duty on the Park to post warning signs next to the ride.

The Plaintiffs argue that, as patrons of the Park, they were owed the highest standard of care. Tennant v. Shoppers Food Warehouse MD Corp., 115 Md.App. 381, 388, 693 A.2d 370 (1997), (citing Casper v. Chas F. Smith & Son, Inc., 71 Md.App. 445, 457, 526 A.2d 87 (1987), aff’d, 316 Md. 573, 578, 560 A.2d 1130 (1989)). According to Casper, however, reasonable or ordinary care is the highest standard of care owed to a business invitee. 71 Md. App. at 457. “The general [*8] 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.” Hawkins v. Southern Maryland Agricultural Fair Ass’n, 237 Md. 90, 94 (1964), 205 A.2d 286. 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. See Carlin v. Krout, 142 Md. 140, 147, 120 A. 232 (1923). 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.” Id. at 146.

At issue is whether the Park breached this duty to provide “ordinary and diligent care” by not posting signs warning of the dangerousness of the Shotgun slide. The Plaintiffs contend that reports of injuries sustained from former patrons who used the ride put the Park on notice that the slide was dangerous. The Plaintiffs base their claim particularly on the testimony of Custer, who was allegedly injured from riding the Shotgun slide in 1997.

When Custer reported his injuries to the Park, he insisted that the slide [*9] was dangerous because the angle of slope was too steep. Custer’s claim is unsubstantiated. Indeed, a licensed inspector from Maryland investigated the ride and found that the Shotgun slide met the safety standards set out by Maryland law. In any event, Custer is by no means qualified to provide admissible opinion testimony that the angle of the slide was “too steep.” Moreover, his opinion is not based on any scientific principles and is no more than his grossly unqualified ipse dixit.

Although the Plaintiffs correctly state that “Maryland has gone almost as far as any state in holding that meager evidence of negligence is sufficient to submit the case to a jury,” the opinion offered by Custer is not enough to take the issue to a jury. State v. Thurston, 128 Md. App. 656, 662, 739 A.2d 940 (1999). 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 did all it need have done by having the slide evaluated and vouched for by a licensed professional. Moreover, even if the Park were on notice of a dangerous condition posed by the Shotgun slide, the Park adequately warned [*10] patrons of the dangers of water slides by posting a disclaimer at the entrance of the amusement park. Stolting admitted in her deposition that she saw the disclaimer and that although she did not remember what it said, she read it. Stolting Dep. 90. The sign posted at the entrance of the Park expressly warned patrons that all rides within the Water park “carr[ied] with them an inherent risk of injury.” There is no evidence adequate to establish that a pertinent standard of care required additional warnings. Defs.’ Reply to Pls.’ Mot. for Summ. J. at 4.

2) No Posted Instructions

The Plaintiffs argue that the Park had an obligation to post instructions on how to ride the Shotgun slide. They offered Hanst’s purported “expert” opinion in support of this contention that patrons should have been told to keep their knees bent when riding down the slide 7. For the reasons stated in its Memorandum and Order re: Motion In Limine, issued this date, Hanst’s “expert” opinion has been held inadmissible.

7 Plaintiffs claim that riding with straight legs as opposed to bent knees caused the accident.

Moreover, even if Hanst’s opinion were considered, and there has been a duty to warn Plaintiff to keep her [*11] legs bent, the “negligent” failure to give the advice would be irrelevant. Stolting cannot establish causation. Stolting testified that her legs were bent at a “forty-degree angle” as she slid down the slide. Stolting Dep. 39-40. Thus, even if Plaintiffs had established a duty to instruct a breach of that duty, Plaintiffs cannot establish that the failure to instruct was a proximate cause of her injuries.

3) Depth of the Exit Pool

The Plaintiffs argue that the Defendants were negligent because the exit pool at the bottom of the Shotgun slide was too shallow. Plaintiffs base this claim on the opinion of Hanst who asserted that the exit pool should have been eight to ten feet. 8 As held in the Memorandum and Order re: Motion in Limine issued this date, Hanst’s expert opinion is inadmissible.

8 The exit pool is four to five feet deep. Hanst opined that it should have been four to five feet deeper than it was.

Additionally, both Olsen, the engineer, and the inspector from the Department of Inspection and Safety verified that the slide met the safety standards enforced by the state of Maryland. Even Hanst verified in his deposition that there was nothing in the inspector’s or the engineer’s [*12] reports with which he disagreed. In fact, Hanst’s own investigation of the slide, which consisted of riding the slide himself and watching others on the slide, did not produce any findings contradictory to those of the Defendants. Neither Hanst nor any of the people he watched on the slide were injured after making contact with the bottom of the exit pool.

There is no evidence sufficient to prove to a reasonable fact finder that Defendants negligently provided too shallow an exit pool. No reasonable jury could find that the Park was negligent by virtue of having an exit pool with a depth of “only” between four and five feet. 9

9 Indeed, a reasonable jury might even find that an eight to ten foot deep exit pool, as suggested by Hanst, could create a danger of drowning.

B, Assumption of Risk

The Court notes that even if Plaintiffs were able to establish that some negligence by Defendants caused the accident at issue, Defendants would still be entitled to summary judgment.

In Maryland, assumption of risk is an affirmative defense to a claim of negligence. ADM P’ship v. Martin, 348 Md. 84, 91, 702 A.2d 730 (1997). To establish an assumption of risk defense, the Defendants have the burden of demonstrating [*13] that the Plaintiffs: 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) voluntarily confronted the risk of danger. Id. at 90-91. 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.” Id. (quoting Gibson v. Beaver, 245 Md. 418, 421, 226 A.2d 273 (1967)). 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.” Schroyer v. McNeal, 323 Md. 275, 283-84, 592 A.2d 1119 (1991).

1) Knowledge of the Risk of Danger

Stolting’s experience riding water slides establishes that Stolting had knowledge of the risks she faced when she chose to ride the Shotgun 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 . . . .” Prosser and Keeton on the Law of Torts, § 68, at 485-86 (5th ed. 1984). [*14] Moreover, Stolting in fact read the sign warning of the danger.

2) Appreciation of the Risk

If any person of normal intelligence in [one’s same] position would have understood the danger one faced, then one has appreciated the risk. Leakas v. Columbia Country Club, 831 F.Supp. 1231, 1236 (D. Md. 1993). The Court determined in Leakas that a “twenty-six year old, experienced swimmer,” had the “knowledge and appreciation of the risk of diving into shallow water because any person of normal intelligence in Leakas’ position must have understood the danger.” Leakas, 831 F.Supp. at 1236. Moreover in Casper, the court held that a stream covered over by a sheet of ice was an “open and obvious danger,” which every child could understand and appreciate. Casper v. Chas F. Smith & Son, Inc., 71 Md.App. 445, 458, 526 A.2d 87 (1987), aff’d, 316 Md. 573, 578, 560 A.2d 1130 (1989).

In the case at Bar, Stolting’s age, education and experience on water slides clearly establishes that she was able to appreciate the risk.

Plaintiffs, relying on Maryland State Fair and Agricultural Society, Inc., argue that even though Stolting might have had knowledge of a risk based on her experience, she did not appreciate the risk posed by the Shotgun [*15] slide. Md. State Fair and Agric. Soc’y, Inc. v. Lee, 29 Md.App. 374, 380-81, 348 A.2d 44 (1964) (holding that racetrack owners’ negligence in leaving track sandy created a hidden and unforeseeable danger, which caused plaintiff’s injuries). The facts of Maryland State Fair and Agricultural Society, Inc., however, are distinguishable from those in the instant case.

In Maryland State Fair and Agricultural Society, Inc., the Court held that the dangers posed by the negligent conditions (in particular a sandy track) would not necessarily have been comprehended by “any person of normal intelligence in [the plaintiff’s] position.” 29 Md.App. at 381. In the instant case, there is no danger that a person of ordinary intelligence could not have fully appreciated. There is no evidence of any hidden or unforeseeable dangerous condition that caused Stolting’s injuries. In fact, the evidence establishes that the risk posed by the water slide was an open and obvious risk of which Plaintiff (and all other park patrons) was expressly warned. The risk could be, and should have been, appreciated by Stolting and any other reasonable person.

3) Voluntarily Confronted the Risk of Danger

Finally, the Defendants argue that [*16] in addition to knowing and appreciating the risk, Stolting voluntarily confronted the risk. The Defendants rely on the decision in Leakas in which the Court determined that Leakas assumed the risk when he chose to dive into a pool “of unknown depth.” 831 F.Supp. at 1237. Like the plaintiff in Leakas, Stolting “voluntarily encounter[ed] the danger.” Id. 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 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.

IV. CONCLUSION

For the foregoing reasons:

1. [*17] Defendants’ Motion for Summary Judgment is GRANTED.

2. Judgment shall be entered by separate ORDER.

SO ORDERED this 24th day of August, 2001.

/s/ Marvin J. Garbis

Marvin J. Garbis

United States District Judge

JUDGMENT ORDER

By separate Order issued this date, the Court has granted summary judgment to the Defendants.

Accordingly:

1. Judgment shall be, and hereby is, entered in favor of Defendants JOLLY ROGER AMUSEMENT PARK, INC. d/b/a SPLASH MOUNTAIN WATER PARK and Bayshore Development Corporation against Plaintiffs Beth Stolting and Rohan Cassells dismissing all claims with prejudice with costs.

2. Any and all prior rulings disposing of any claims against any parties are incorporated by reference herein.

3. This Order shall be deemed to be a final judgment within the meaning of Rule 58 of the Federal Rules of Civil Procedure

SO ORDERED this 24th day of August, 2001.

/s/ Marvin J. Garbis

Marvin J. Garbis

United States District Judge