A woman injured on a raft ride at Six Flags Great Adventure has no cause of action against the Jackson amusement park, a state appeals court found on Tuesday.
The Appellate Division affirmed dismissal of Morgan v. Six Flags Great Adventure, A-2547-11, on the ground that the plaintiff’s exclusive remedy was under the Product Liability Act, which she failed to establish.
The court agreed with an Ocean County judge who found that even if the act did not bar the negligence claim, there was no basis for finding park employees had violated a duty to warn about the ride’s risks.
According to court documents, Lisha Loo Morgan, 48, went on the Big Bambu water ride at Great Adventure with her daughter and granddaughter on Aug. 16, 2009.
They took seats in a three-person circular raft and were instructed by an attendant to sit "Indian style" and to hold onto the handles. The raft proceeded into a tunnel, down a slide and into a pool of water. Morgan claimed that at that point, the raft became airborne and, rather than landing squarely in the pool, struck the edge of the slide, causing her left foot to be caught between her body weight and the hard plastic of the slide.
Morgan allegedly sustained a broken fifth metatarsal — the outside bone of the foot connected with the small toe.
In April 2010, Morgan filed a complaint against Six Flags, claiming negligent manufacture, operation and maintenance, violation of the state Product Liability Act and other causes of action.
Morgan principally relied on her failure-to-warn claims and abandoned others when it was discovered that ProSlide Technology Inc., not Six Flags, manufactured the ride.
Following discovery, Six Flags moved for summary judgment, claiming that Morgan failed to make out a negligence claim. There was inherent risk of Morgan’s injury, argued Six Flags’ lawyer, Douglas Suplee, emphasizing that Morgan did not obtain an expert opinion. As for a duty to warn, those claims were foreclosed as a matter of law, Suplee contended.
Morgan’s lawyer, Richard Ansell, responded that a jury should decide whether a duty to warn existed.
Ocean County Superior Court Judge Rochelle Gizinski, granted the motion from the bench on Dec. 16, 2011, finding Six Flags was excluded from liability under the PLA because it "did not design or manufacture the ride, but merely sells licenses for admissions to its premises."
Any failure-to-warn claim falls under the PLA, the judge said, because the statute "provides the exclusive remedy for all personal injury claims arising out of the use of a product."
"What is really at issue here is duty," Gizinski said. "Even if plaintiff’s cause of action were not precluded by the Products Liability Act, defendant would still have no duty to warn plaintiff that she might suffer injury on the ride," she said, adding that there’s no evidence that Six Flags knew Morgan could be hurt or actively helped cause the injury.
Also, fairness and public policy interests do not require imposing a duty to warn, Gizinski said. "The fact remains that a water slide, in which customers ride on an unsecured tube, propelled only by the force of gravity and gushing water does have an inherent risk that is [open and obvious] to any reasonable person."
Gizinski noted that Morgan and her family waited on line for an hour, observed warnings about height restrictions and pregnancy, and received specific instructions on how to position themselves in the raft.
It would contravene the Legislature’s intent to allow Morgan "to circumvent the Product Liability Act with a general failure to warn theory," the judge said.
As for Morgan’s negligence claim, Gizinski said an expert was needed because it’s "clear that the ride in question was a complex instrumentality" whose maintenance and operation "certainly are an esoteric matter beyond the common knowledge and experience of the average" juror.
Morgan appealed, again pursuing failure-to-warn theories and contending that expert testimony was not necessary to establish negligence.
But Appellate Division Judges Francine Axelrad and William Nugent disagreed and affirmed, based entirely on Gizinski’s analysis.
Suplee, of Marshall, Dennehey, Warner, Coleman & Goggin in Cherry Hill, reached by phone, says the case highlights the idea that "there are inherent risks in any amusement ride."
Ansell, of Ansell, Grimm & Aaron in Ocean Township, did not respond to a call and email seeking comment. Firm associate Kristine Bergman, who assisted, deferred comment to Ansell.
David Gialanella is a reporter for the New Jersey Law Journal, a Legal affiliate.