Law Review: Lawsuit over water slide accident
Most of you have been to a water slide theme park. They seem pretty safe to me, especially the Lazy River, but accidents can happen.
RAGING WATERS WATER SLIDE
Sean Sharufa fractured his hip and pelvis riding a water slide at Raging Waters theme park in San Jose. While going down the slide, Sharufa inadvertently slipped from a seated position on an innertube onto his stomach. When he entered the splash pool below, his feet hit the bottom with enough force to cause his injuries. Sharufa sued for negligence, products liability, and a few other theories. The trial court ruled for Raging Waters, Sharufa appealed.
Interestingly, Sharufa argued that Raging Waters was a “common carrier” that must use “utmost care” for the safety of its passengers like other modes of transport, i.e., buses, planes, trains, elevators, and escalators, ski resort chair lifts, and roller coasters.
Indiana Jones, a famous ride at Disneyland, was deemed to be a common carrier. In a case I applauded a few years ago, a bumper car ride was ruled not a common carrier because the rider has control over the steering and acceleration, different than “being passively carried or transported from one place to another,” like common carriers. Similarly, hot air balloons were found not to be common carriers given the control of the pilot.
The issue in our Raging Waters’ case is whether a water slide operator is more like a hot air balloon operator or bumper car driver having some control or more like a rider in a bus or roller coaster having no control.
Of course, it is easier for an injured passenger of a common carrier to prevail in a lawsuit because of the higher standard of care.
The Sixth Appellate District Court of Appeal ruled a water slide operator is “similar to a roller coaster in that the rider surrenders control while being transported from one place to another.” It follows that “a water slide operator owes riders the heightened duty of a common carrier.” Clearly, the rider does not assume the risk of injuries as Raging Waters argued.
However, common carrier status does not trigger automatic liability. The Court of Appeal looked at whether Sharufa’s injuries occurred because Raging Waters failed to “act within vigilance of a very cautious person using utmost care.” The Court of Appeal found no evidence of negligence. Raging Waters prevails.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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