Amusement rides such as roller coasters, zip lines, water slides and free fall lines can make for a great family day filled with adrenaline and excitement. In general they regarded as being safe. In fact, according to a 2017 report produced by the International Association of Amusement Parks and Attractions (IAAPA) for North America, 370 million guests safely enjoyed 1.7 billion rides at 400 North American fixed site facilities. Statistically, the chance of being seriously injured at a fixed-site is 1 in 18 million (see 2017 Ride Incident Survey Report). However, when theme park rides are not constructed or maintained properly, they can also create a living nightmare. Many accidents surrounding adventure parks are the result of negligence and should be prevented. Below is a list of common unfortunate negligent acts that often lead to significant injury including amputation, spinal injuries, head injuries and death.
Amusement park personnel has a duty to inspect and maintain all surrounding components of a ride at regular safety intervals. They should be inspecting the restraint devices, searching for metal fatigue, and listening for irregular or suspicious friction points. The nature of these amusement rides have become faster, higher and intended to allure the feeling of escaping the impossible. Unfortunately when there is an accident combined with the intensity and weight, resulting injuries are often catastrophic.
At Benson & Bingham we have handled cases against most of the Las Vegas roller coasters from the NYNY, to Stateline, and Circus Circus. In addition, we have handled cases against most of the water parks including Cowabunga Bay and Wet n’ Wild. Mini kids’ parks are popping up in warehouses using ziplines and trampoline parks where children are jumping out of control into each other-often without any safety equipment, limited supervision, and untested attractions. We also have handled cases at play parks in malls where stairs were too steep, or rides did not meet safety code. And, won cases against go-cart tracks where drivers have lost control due to equipment failures. In Gardner v Henderson Water Park, LLC Cowabunga Bay Water Park, 133 Nev. 54 (2017). The Nevada Supreme Court held that individual managers of the LLC are not liable for acts of the primary LLC. In Gardner, a child drowned, and it was proven the park lacked enough lifeguards per code (Health Department) to safely operate the wave pool. This approach to liability is negligent per se as there was a breach of statute to help prove a duty existed and the proprietor breached that duty which was the cause of the Plaintiff’s injuries.
In Reingold v. Wet ‘N Wild Nev., Inc 944 P.2d 800, 802 (Nev. 1997), the Court indicated that when a mat and video was destroyed that may have helped plaintiff, an inference that the evidence would have been adverse if kept, may be inferred by the jury when the evidence was not preserved by Wet n’ Wild. In Bass-Davis v. Davis, 122 Nev. Adv. Op. 39 (2006), the Court further clarified the rule that intentional it’s not just an inference, but a rebuttable presumption applies. Where evidence is negligently lost or destroyed a permissive inference that the evidence would be adverse applies to the wrongful party. A rebuttable presumption attaches when a party intends to harm another party by willfully suppressing evidence.
What is a waiver? A waiver is a term of a contract or an agreement that enforces the right not to sue for liability that may result from a company or person’s negligence or harm providing that the person who may be injured assumed such risk by riding or participating in the activity. Waivers can be found on things like valet tickets (attempting to waive liability for property damage while the car is in the valet’s possession), or at amusement rides where it may be placed on the admission ticket. Most attractions involving minors require parental signature’s expressly waiving liability on a separate contract provided at admission or online when tickets are purchased.
Is a waiver enforceable? It depends. Nevada law recognizes that adults can waive liability in the form of a waiver contract if certain conditions are met. First, minor’s do not have the capacity to contract, thus, a minor who signs a waiver will still be able to sue a ride company because, under the law, a minor can’t sign an enforceable contract. Typically, the ride company will require the minor’s parents or legal guardian to sign waiving liability for the minor child. Assuming and adult signs, is the waiver enforceable? Not necessarily.
In Renaud v 200 Convention Center, (102 Nev. 500 (1986). The court confirmed that one must voluntary expose themselves to risk, and the risk must be known and fully appreciated. That is an important consideration, as in many amusement situations the risk may not be fully appreciated. If one is skiing and knows the dangers of using a jump and fully appreciates the injuries from that jump, liability will not be established; however, if someone is on a chairlift on the way up the mountain, and the ski lift cable snaps causing riders to fall down, it is unlikely a waiver would be enforced as that risk was not fully appreciated, nor known to the skier prior to signing the waiver. Also see Sierra Pacific v. Anderson, 77 Nev. 68 (1961). For example, to be known and fully appreciated a person on a zip line may not understand the risk of jumping down on a landing cushion could break their leg. If the landing area was designed harder than a rider anticipates, it could be argued the rider did not fully appreciate the risk as they were thinking more of what could happened on the zip line—i.e. falling off causing injury, going too fast and stopping abruptly. Important to note, waiver clauses are not invalid as against public policy, especially when freely contracted to by the parties. Agricultural Aviation v. Board of Clark County Commissioners, 106 Nev. 396 (1990); Miller v. A & R Joint Venture, 97 Nev. 580 (1981).
Our Nevada Federal Court ruled in Moffitt, that contract law limiting liability and enforcing assumption of risk is not against public policy and will be enforced in the context of using exercise equipment. Moffitt v. 24 Hour Fitness USA, Inc., 2013 WL 1080441 (D. Nev. 2013). The court clarified that in order for it to be enforceable, a contractual exculpatory provision must set forth the parties’ intentions with “the greatest particularity” and expressly state the intent to release liability. Id. at 2 (citing Agric. Aviation Eng’g Co. v. Bd. of Clark County. Comm’rs, 794 P.2d 710, 712–13 [Nev.1990]). Thus, looking at a waiver provision within a contract, it must be prominently clear in the writing what exactly is being waived. The clarity and the particularity of the verbiage used should be on point to the activity and risk being 100% assumed by the participant.
Nevada recognizes that there are degrees of Negligence. Waivers of a party’s negligence will be generally be enforced assuming the points above have been met. When the negligence is “gross” or may be considered “reckless” and that negligence is not waivable. This makes common sense from a public policy perspective. Assume that a person is doing an inherently dangerous activity like rock climbing, off road motorcycling, or parachuting. A person may sign a waiver that the negligence of the company will be waived. In the example of a rock climber tour, if a person signs a waiver that the company will not be liable for their negligence and the during the rock climbing a rock tumbles down from a guide hitting the person causing injury or death, that will likely be enforced as assumption of risk by the participant. However, if the climber is heading up and the rope breaks, and the guide knew the rope to be too weak to hold the climber’s weight, that may be considered gross negligence or even reckless behavior. Similarly, if a Roller Coaster operator fails to check the lap bar or shoulder harness on a ride because are tired despite the policy requiring such, liability will likely apply to the company. When you or a family member are faced with a theme park disaster, it is critical to retain a law firm who can navigate the evidence to determine the cause of the disaster. At Benson & Bingham, we work hand in hand with engineers and metallurgists to assist in identifying the underlying issues. Place your trust in a firm that is compassionate and understanding specific to your tragedy. We provide invaluable assistance in amusement park negligence cases. Call Benson & Bingham with any waiver or assumption of risk questions and get a free case evaluation: 702-600-6000.