By Carla Varriale
The plaintiff alleged that she sustained personal injuries on August 30, 2012 while a patron of Splish Splash water park and was caused to slip and fall and sustain a serious injury due to an “on rush of a massive crowd of riotous patrons as plaintiff was attempting to traverse a steeply inclined/declined pedestrian walkway.”
Plaintiff’s accident was unreported, and the defendants had no knowledge of the alleged accident. There is a countdown leading up to the opening of the park each morning and also a sign that instructs patrons “no running.” The court granted summary judgment to the defendants.
The court highlighted that the plaintiff testified that in the five years prior to August 30, 2012, she had been to Splish Splash on numerous occasions; she had a habit to try to get to Splish Splash early before the park got too crowded; she had observed the park’s opening procedures numerous times; prior to the opening of the park on the date of loss, the plaintiff and family members made their way to the front of the crowd; when the rope dropped, family members took off running, and plaintiff “took off” barefoot, to catch up to them, over a footbridge.
While the plaintiff was running, there were people all around her, but they did not restrict her ability to run. Plaintiff’s fall occurred on the downward side of the footbridge.
To her knowledge, no one pushed her or contributed to her fall. Plaintiff testified that as she was attempting to push off from a jog to a sprint, there was a small rock or pebble “on the top of her foot” at the exact moment when she was pushing her weight into it. She felt something give in her leg, and she went flying to the cement.
She testified that she did not see the rock or pebble prior to the accident or after it; rather, she testified that she felt it on the bottom of her foot before she fell. Festival (which operates Splish Splash) submitted the affidavit of a crowd safety and security expert, who opined that Splish Splash management took all reasonable steps to ensure that on August 30, 2012, the opening procedure for the park was sufficiently safe and ensured orderly entry into the attractions area of the park. He further opined that, on the date of the accident, the plaintiff knowingly ran after her children, despite signage clearly warning of the dangers of running in the water park.
In addition to this, the plaintiff failed to look where she was going, even though she was admittedly aware of the risk.
In a fact intensive opinion, the court held that Festival established its prima facie entitlement to summary judgment dismissing the complaint and the cross-claim against it. In a “crowd control” case, the plaintiff must show that she was “unable to find a place of safety or that her free movement was restricted due to the alleged overcrowding conditions.” Festival established, through the testimony of the plaintiff, and a nonparty witness that the plaintiff could freely move around in the crowd, and could have retreated backwards toward a less crowded part of the crowd; that the plaintiff’s decision to run in the park was not caused by the crowd, and finally, that her accident was not caused by a member of the crowd, but by the plaintiff’s own choices and action.
Therefore, the plaintiff’s crowd control claim was without merit.
The court further held that Festival established a prima facie case that the plaintiff is barred from recovery under the doctrine of primary assumption of risk in that the plaintiff was aware of the risks inherent in running as the rope dropped to open the park’s attractions, having seen people injured on prior visits to the park.
“Plaintiff voluntarily chose to run, and then started to sprint, in a park which she testified that she had visited numerous times, and which is replete with signs requesting that patrons not run.” Plaintiff’s testimony also revealed that her injuries were caused when she stepped on a small pebble or rock while running, as she was attempting to accelerate, causing her to injure herself, which resulted in her fall. “Thus, plaintiff voluntarily assumed the risk of injury, and in fact, her injuries were caused by her own decisions and action, and not due to any negligence on the part of Festival.”
In opposition, the plaintiff failed to raise an issue of fact.
Titan also established its prima facie entitlement to summary judgment and the plaintiff failed to establish that defendants failed to control the crowd because the plaintiff could have safely withdrawn to the rear of the crowd and found a “place of safety,” but chose not to. Titan also established that it owed no duty to the plaintiff, and it is not liable to the plaintiff as a third-party beneficiary of its contract with Festival.
Carla Varriale is a partner at Havkins Rosenfeld Ritzert & Varriale.
Lechtrecker v. Splish Splash, Festival, Fun Parks, LLC, and Titan Global, LLC, Supreme Court, Suffolk Country, Index No. 061850/2013
