Amusement park personal injury claim, Daubert, duties, summary judgment: WEST V. KKI, LLC D/B/A SIX FLAGS KENTUCKY KINGDOM (COA 10/3/2008)

TORTS:  Amusement park ride injury; Daubert, summary judgment, duties
DATE RENDERED: 10/3/2008

he COA affirmed the trial court’s summary judgment dismissing the plaintiff’s personal injury claims, since there was no competent testimony that the amusement ride (the Chang) at Kentucky Kingdom was dangerous or defective, and the trial judge’s Daubert ruling striking the expert’s testimony was not an abuse of discretion.

Cindy West claimed she was injured when she was jostled while riding the Change, a stand-up roller coaster at Kentucky Kingdom. Judge Morris, Jefferson Circuit Court, granted summary judgment dismissing the claims. This appeal followed with the COA affirming the dismissal and agreeing with the trial court’s conclusions, adding that there is a complete lack of competent evidence contained in the record supporting either a design or manufacturing defect in relation to the Chang.

The appeal claimed ordinary negligence in failure to warn patrons of the unreasonable negligence of the Chang and a products liability against the park that assembled the Chang. However, crucial to both theories was the need to show the ride was dangerous or defective.

Although West did offer medical testimony that her mild central vestibular lesion was caused by the ride, she did not offer competent evidence that the ride was not safe. A crucial underpinning to this medical testimony was West’s anecdotal account of the ride and neither of her medical doctors had personal knowledge of the events nor did they purport to have expertise in amusement park ride safety. Thus critical to her claim was the inadmissibility of her expert’s testimony on ride safety. The COA held that the trial court’s exclusion of the plaintiff’s safety expert (Avery) was not an abuse of discretion and did not meet the principles under Daubert and its progeny. Although the trial court ruled Avery was qualified as an expert, it excluded his testimony under Daubert. Avery’s opinions on the ride’s safety was nothing more than subjective opinions based upon observations of the ride in operation and riding it once; he could not state acceleration rate, g-forces, or any calculations or produce any documentation in support of his conclusions of “I-know-it-when-I-see- it” analysis.

In addition to excluding Avery’s opinions on ride safety, the opinions of Dr. Nichols that the ride caused the injury did not include any competence on his part to opine on amusement park safety.

Thus, without evidence of a dangerous or defective condition, the negligence claim on a duty to warn theory and the products liability claim regarding a dangerous and defective product must fail. Proprietors of amusement parks have no duty to insure its guests’ safety, but must exercise that degree of skill and care ordinarily expected of reasonable and prudent operators of amusement parks under similar circumstances. Kentucky Kingdom is not strictly liable as an insurer of the safety of its invitees and the medical testimony and anecdotal evidence that the ride was dangerous or defective did not establish Kentucky Kingdom had breached a duty to warn. An owner’s duty to invitees is to discover the existence of a dangererous condition on the premises and either correct it or warn them.

Digested by Mike Stevens