A New York state appeals court has given new life to a plaintiff’s claim that a waterpark was negligent when he suffered an injury while exiting a water slide at a water park.
Specifically, it found that the “dangerous condition” posed by the ride invalidated the assumption of risk doctrine that the defendant relied upon.
On July 11, 2007, J. Anthony Mussara went to Splashdown, a park owned by Mega Funworks, Inc., with his son and wife for the first time. After spending a few hours at other rides and attractions, Mussara 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 warning.
There were four lifeguards assigned to Pirate’s Plunge, two at the top, and two at the bottom, one in each location for the drop slide and the serpentine slide. The lifeguard at the top was supposed to make sure the rider was sitting in the tube correctly, holding the handles, and was supposed to tell the rider to hold the handles and to pull back on them when entering the splash pool to slow down. The two lifeguards at the bottom stood in the splash pool to help riders slow down if they were going too fast and to help riders get out of the tubes.
Mussara, who weighed in excess of the 200-pound limitation, rode the drop slide. As he 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. At his deposition, 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.
Mussara sued Splashdown, Proslide and Northeast Aquatic to recover damages for personal injuries. The complaint asserted several causes of action, including negligence, strict products liability, breach of warranty, failure to warn, breach of express warranty, and breach of implied warranty. The defendants successfully moved for summary judgment, and the plaintiff appealed.
In its analysis, the appeals court looked at the testing that took place before the park opened.
“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,” wrote the court. “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.”
Nevertheless, the court found that “The dangerous condition posed by the ride was unique and over and above the usual dangers that are inherent in riding down a water slide (see Owen v R.J.S. Safety Equip., 79 NY2d 967, 969-970, 591 N.E.2d 1184, 582 N.Y.S.2d 998; cf. Reidy v Raman, 85 AD3d at 892-893; Leslie v Splish Splash at Adventureland, 1 AD3d 320, 766 N.Y.S.2d 599). Under these circumstances, the risks to which the injured plaintiff was exposed were not ‘fully comprehended or perfectly obvious’ (Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49) and, thus, the injured plaintiff did not assume the risk of his injuries.”
The court also found that “there were triable fact issues as to whether the water park was negligent. There was a triable fact issue as to whether the proper size inner tubes were in use at the time of the accident.”
Anthony Mussara, et al., v. Mega Funworks, Inc., doing business as Splashdown Park et al.; S.Ct. N.Y, App. Div., 2d Dept.; 2011-01511, 2012 N.Y. App. Div. LEXIS 6748; 2012 NY Slip Op 6787; 10/10/12
Attorneys of Record: (for appellants) Vergilis, Stenger, Roberts, Davis & Diamond, LLP, Wappingers Falls, N.Y. (Lisa M. Cobb of counsel). (for respondent) Roemer Wallens Gold & Mineaux, LLP, Albany, N.Y. (Matthew J. Kelly of counsel).
