Personal Injury Attorney Bainbridge GA

NOT SO AMUSING …

As a young child going to Six Flags Over Georgia, I recall being very disappointed that I was not yet tall enough to ride some of the rides.  I recall signs that warned of heart conditions and orthopedic problems.  I also enjoyed having my eyes rolled into the back of my head and all the people screaming as they went down a steep rollercoaster.  Nowadays orthopedic issues prevent my enjoyment of being slammed around and having the G forces pull my cheeks and eyelids back, but it was fun while it lasted.

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“Amusement Park Ride” injuries are some of the most difficult cases there are because courts view the assumption of the risk doctrine as almost an absolute defense.  Assumption of the risk in Georgia basically means that with full knowledge of the dangers presented (gravity, being slammed around, the dropping from great heights, the fast speed of a water slide, etc., etc., – you went ahead and did it anyway.  So, if you were hurt, that’s too bad.  You should have known better.  If you were trying a “thrill ride” or experiencing everything gravity has to offer, you were seeking a thrill – and being addicted to adrenaline is a bad thing in the eyes of the law. (I guess maybe some Judges lead boring lives confined to front porch rocking chairs).

You might ask yourself – “How can I assume the risk of injury, as I assumed the ride was safe?   I assumed the owner and operator and designer all exercised due care for my safety and I paid them a fee to ride it. They owe me a duty of due care.”   I hate to tell you, but they also have liability waivers and warning signs, etc., so these cases are traditionally very hard to win in Georgia (but they can be won).

 As a lawyer, I have sued several amusement parks and water slide parks.

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I was appalled to find out that the inspections are done by the Georgia Department of Labor (same for elevators and escalators in Georgia).  That seemed a bit odd to me, as I had thought that they were in charge only of unemployment and getting people jobs. Silly me.  (I am not dogging the GADOL here, as my dad draws his retirement check from them.  I do know that they have many qualified and devoted employees who try their best to make things safer for all of us).   I was also surprised to find out that industry safety devices that existed were not always utilized.   I would have assumed that everything was state of the art and designed with safety foremost in mind.   I was surprised that my clients had read and followed the directions and yet were being blamed.  And yes, the parents of the injured children were also being blamed.  But my “justice gene” is easily offended and off I went on another mission, David versus Goliath, briefcase in hand. Damned the torpedos!

I put up evidence at a hearing years back and, during my presentation, I had a Judge to tell a defense lawyer that he needed to tell his client (the Park’s corporate owner) that when he (The Judge) showed up at the gate, and presented his Judge credentials, that they were to let him in free of charge.  This was likely improper and certainly completely unexpected for the Judge to go view the scene.  I discussed that with the defense attorney, but the judge was obviously upset and then we found out why: The Judge’s daughter had a season pass and many times the Judge had driven his daughter and her friends to go to that water park for the day.  When the Judge had learned the specifics of the case during a motions hearing, he became quite upset.   This park was a threat to his little girl.  The Judge went to the park and, needless to say, my client won the motions.

We all love fun.  But, do not assume that the safety of you and your family are foremost at every amusement park ride.  While I have seen some safety improvements, I read about a very sad case recently and it causes me to issue this warning:  Do not assume that any amusement ride is safe.  The following news story (horror story) is sadly true:

John Hanna of the AP, wrote the following article on March 27, 2018:

“TOPEKA, Kan. — A water park company co-owner accused of making a spur of the moment decision to build the world’s tallest waterslide and rushing it into service, and a designer accused of shoddy planning, were charged Tuesday in the 2016 death of a 10-year-old boy who was decapitated on the ride when the raft he was on went airborne and hit an overhead hoop.

The Kansas attorney general’s office said Jeffrey Henry, 62, co-owner of Texas-based Schlitterbahn Waterparks and Resorts, and designer John Schooley were charged with reckless second-degree murder in the death of Caleb Schwab on the 17-story ride Verruckt, a German word for insane. The indictment also charges them with injuries to 13 other people on the slide. Second-degree murder carries a sentence of 9 years to 41 years.

The company that built the ride, Henry & Sons Construction Co., which is described as the private construction company of Schlitterbahn, also was charged.

Henry was ordered held in a Texas jail without bond Tuesday, pending extradition to Kansas. The attorney general’s office says Schooley is not in custody. Schooley didn’t have a listed phone number and no one answered the phone at Henry & Sons Construction Co. Eric B Terry, who represented the company in an earlier unrelated case, didn’t immediately return a phone or email message.

The charges announced Tuesday bring to three the number of people accused in Schwab’s death. A Kansas grand jury last week indicted Tyler Austin Miles, the former operations manager of the Schlitterbahn park in Kansas City, Kansas, on 20 felony charges. The charges include a single count of involuntary manslaughter in Schwab’s death. Miles has been released on $50,000 bond, according to one of his attorneys, Tricia Bath.

Indictments say neither Henry nor Schooley had technical or engineering expertise related to amusement park rides. Henry made a “spur of the moment” decision in 2012 to build the world’s tallest water slide to impress the producers of a Travel Channel show, the indictments say. Henry’s desire to “rush the project” and a lack of expertise caused the company to “skip fundamental steps in the design process.”

The indictment said, “not a single engineer was directly involved in Verruckt’s dynamic engineering or slide path design.” The indictment said that in 2014, when there were news reports emerging about airborne rafts, a company spokesperson “discredited” them and Henry and his designer began “secretly testing at night to avoid scrutiny.”

The indictment listed 13 injuries during the 182 days the ride was in operation, including two concussions. In one of those cases, a 15-year-old girl went temporarily blind while riding.

Caleb, the son of Kansas Republican state Rep. Scott Schwab, was decapitated after the raft on which he was riding went airborne on a day on which admission was free for Kansas state legislators and their families. The family reached settlements of nearly $20 million with Schlitterbahn and various companies associated with the design and construction of the waterslide. The two women who rode on the same raft with Caleb suffered serious injuries and settled claims with Schlitterbahn for an undisclosed amount.

“Clearly the issues with Schlitterbahn go far beyond Caleb’s incident, and we know the attorney general will take appropriate steps in the interest of public safety,” the family said in a statement released Monday through their attorneys.

The indictment said Schooley was responsible for doing “the math” that went into the slide’s design and signed an operations manual claiming the ride met all American Society for Testing and Materials standards. But the indictment lists a dozen instances in which the design violated those standards and says investigators could find no evidence that so-called dynamic engineering calculations were made to determine the physics a passenger would experience. The indictment said Schooley lacked the technical expertise to properly design a complex amusement ride such as Verruckt.

The indictment said Schooley admitted, “If we actually knew how to do this, and it could be done that easily, it wouldn’t be that spectacular.”

The company has promised to aggressively fight the criminal charges against Miles and the park, and respond to the allegations in the 47-page indictment “point by point.”

“We as a company and as a family will fight these allegations and have confidence that once the facts are presented it will be clear that what happened on the ride was an unforeseeable accident,” Schlitterbahn spokeswoman Winter Prosapio said in an emailed statement.

Prosapio said Schlitterbahn does not expect any changes to the Kansas City park’s season, which is set to open May 25 and runs through Labor Day. The Verruckt slide, has been closed since Caleb died.

Mike Taylor, a spokesman for the Unified Government of Wyandotte County and Kansas City, Kansas, says it does not believe it has the legal authority to shut down a business, other than for an epidemic or contagious disease outbreak.

The company also operates water parks in Galveston, Corpus Christi, South Padre Island and New Braunfels, Texas, according to its website.

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Associated Press writers David Warren and Terry Wallace in Dallas also contributed to this report.”

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You wouldn’t think such could ever happen would you?  This is hard to believe.  I know.  I see a defense already in a civil case: “Well tens of thousands of people had ridden it over six months without incident or injury”.   Sadly, this is not true as they KNEW of many previous injuries.    Ask yourselves “why?”.  What motivates such abhorrent behavior?

Most times I am against governmental regulations – except when safety is an issue and the industry does a poor job of policing itself.   I hate to use tragedy as the backdrop of a teaching point, but all safety rules result from “blood on the ground” (and typically way too much if it).   Please consider this next article (almost 4 years old now) as hopefully thought provoking:

When Thrill Rides Are Real Risks

By IAN URBINAJULY 26, 2014

“EARLIER this month, nearly two dozen people were stranded midair for hours after a fallen tree branch partly derailed a roller-coaster ride at the Six Flags Magic Mountain amusement park in Valencia, Calif. Last summer, a woman was killed at Six Flags Over Texas in Arlington after she fell out of the Texas Giant roller coaster. That same day, a boat on Cedar Point’s Shoot the Rapids water ride in Sandusky, Ohio rolled backward and flipped over injuring at least six people.

Amusement park horror stories like these are a perennial summer ritual that raise the question of whether roller coasters and other thrill rides, which are faster, taller and more extreme than ever, have also become more dangerous.

Some federal lawmakers certainly believe so. “Roller coasters that hurtle riders at extreme speeds along precipitous drops should not be exempt from federal safety oversight,” said Senator Edward J. Markey, a Democrat from Massachusetts. “A baby stroller is subject to tougher federal regulation than a roller coaster carrying a child in excess of 100 miles per hour. This is a mistake.”

The fact is that no one knows for certain whether the rides are getting safer or more dangerous. There is no single federal agency responsible for collecting data or enforcing standards. Although the Consumer Product Safety Commission regulates portable rides like the ones at county fairs, the most popular amusement park rides are the so-called fixed-site rides, which remain outside the agency’s jurisdiction. As a result, regulation varies by city and state; rides may be inspected by departments that normally handle building inspections or labor issues. Federal regulation of roller coaster safety ended in 1981, before most modern rides were built.

When Mr. Markey was still in the House of Representatives, every year from 1999 to 2011 he proposed legislation — that failed to pass — calling for stricter federal regulation of amusement parks, including the collection of uniform safety data and independent inspections after every accident.

But amusement park officials insist they are very good at giving people a sense of danger without actually putting them in danger. Roughly 300 million people visited the nearly 400 amusement parks in the United States in 2011, taking about 1.7 billion rides, according to the International Association of Amusement Parks and Attractions. The chance of being seriously injured at a park is about one in 24 million, association officials say, far less likely than being injured in a car accident or struck by lightning.

Last year, however, a study by the Center for Injury Research and Policy at the Nationwide Children’s Hospital in Columbus, Ohio, revealed evidence of frequent injuries among children. More than 93,000 children under 18 were treated in emergency rooms for amusement-park-related injuries between 1990 and 2010. Although the researchers were unable to compile amusement-park-related deaths, they estimated that a child is hospitalized once every three days in the summer from an injury related to a park, carnival, fair or arcade ride.

The study’s senior author and the center’s director, Dr. Gary A. Smith, said current oversight is fragmented and ineffective. “A coordinated national system would help us prevent amusement-ride-related injuries through better injury surveillance and more consistent enforcement of standards,” he said.

Amusement park officials say that when accidents do occur, it is often because patrons have risk-increasing, pre-existing medical conditions or fail to heed rules like those about staying seated or keeping their limbs inside the car. “There is no evidence federal oversight would improve on the already excellent safety record of the industry,” said Colleen Mangone, the media relations director for the amusement parks association. She cited a 2013 report prepared for her group that showed that ride injury rates have remained relatively unchanged since the data were first collected more than 10 years ago. Critics of the report say that it is based largely on self-reported data by association members and that many parks, including some with the worst safety records, opted not to participate in the survey.

Nondisclosure agreements regarding accidents have made it even harder to measure safety. When The Orlando Sentinel reviewed more than 100 personal-injury lawsuits related to ride injuries or fatalities filed against the area’s three big theme park companies in the four-year period ending in 2008, the newspaper discovered that nearly every case was settled out of court, with the details sealed from the public.

Some ride experts say it is not just rides but riders who have changed over the years. Not only are there more obese visitors, but there are also more amputees and people with disabilities.

In some cases body size may have played a role in deaths or injuries. Rosa Irene Ayala-Gaona, who died in the Texas Giant accident last summer, weighed over 200 pounds, prompting ride experts and lawyers to question whether her weight may have prevented the T-shaped lap bar from locking properly. Before the 14-story ride began, Ms. Ayala-Gaona had complained that her safety bar did not seem to have been fully secured, witnesses told a local TV news crew.

Amputees also face risks. In 2011, an Army veteran who had lost both legs fighting in Iraq plummeted 150 feet to his death from a roller coaster in upstate New York because he could not stay in his seat. He was permitted on the ride even though he was not wearing his prostheses.

To better screen riders, some parks use “sample seats” to determine if passengers can be properly secured before getting in line, said Dennis L. Speigel, president of International Theme Park Services, an Ohio consulting firm. Other parks have specially designated seats for amputees and larger patrons.

But some rules are hard to enforce. Setting a maximum weight, for instance, is difficult because a 200-pound person who is 6-foot-1 is quite different from one who is 5-foot-5. “Girth matters,” Mr. Speigel said. And the person working the controls is often a teenager who might be nervous to make judgment calls.

Even rejecting riders can carry risks. Two amputees filed a lawsuit last year claiming they were wrongfully barred from riding a roller coaster at Universal Studios Hollywood. The suit argued that the park’s stated policy required only that all riders have at least one hand and one leg.

Meanwhile, we can expect rides to continue pushing the limits.

Jim Seay, president of Premier Rides, a major manufacturer, said that even though technology has greatly improved safety, there is competitive pressure to be the biggest, fastest and scariest.

“Parks in general know they need to provide something new for their guests every year,” he said.”

Ian Urbina is an investigative reporter for The New York Times.

A version of this news analysis appears in print on July 27, 2014, on Page SR6 of the New York edition with the headline: When Thrill Rides Are Real Risks

If you or a loved one are ever injured on an amusement ride – be aware that documenting the conditions then prevailing is extremely important in order to supplement any subsequent investigation.   Do not be afraid to take pictures or have someone else to do so as soon as possible.  By the next day or even in few hours, things may not be as they appeared and subsequent remedial measures are typically excluded from evidence in a court case (in order to “promote safety” is the theory behind such rule of evidence).    My take is if it is unusual in outcome, then it probably should not have happened, so I look for the reasons why it did.

BOTTOM LINE:

Safety should be everybody’s business, but if you think a manufacturer or designer or owner or operator will always act to protect you and your family, hopefully you will reconsider that conclusion.

 UNTIL NEXT TIME: MY WISH IS HEALTH AND HAPPINESS FOR YOU ALL.  AND MAY GOD RICHLY BLESS EACH AND EVERY ONE OF YOU.     

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