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Travel law: Tourist accident while riding a water attraction at Splish Splash water park

Travel law: Tourist accident while riding a water attraction at Splish Splash water park

In this week’s article, we discuss the case of Bryant v. Festival Fun Parks, LLC d/b/a Splish Splash, New York Law Journal (August 19, 2016) involving a who was seriously injured when the raft she was on flipped over while traversing Bootleggers Run in Splish Splash water park located in Calverton, New York. Of particular interest is the Court’s discussion of the defense theory of assumption of the risk which may be defined as “By voluntarily engaging in a sport or recreational activity, a participant assumes, or consents to, the commonly appreciated risks that are inherent in and arise out (of) the activity generally, and which flow from the participation” (see Morgan v. State of New York,. 90 N.Y. 2d 471). See also our article Tough Mudder-adventure tourism taken to its extreme, eturbonews.com (6/12/2014) for discussion of disclaimers and assumption of the risk doctrine in extreme sporting activities.

Travel Law Update

Zika Not A Problem?

In D’Ambrosio, World Health Organization Ends Zika Public-Health Emergency Status, travelmarketreport.com (11/21/2016) it was noted that “Following a meeting of its Emergency Committee on Zika, the United Nations World Health Organization (WHO) yesterday announced that the disease and its associated consequences no longer present a public health emergency of international concern. Removing the international emergency designation puts Zika in the class of other dangerous mosquito-borne disease, like malaria or yellow fever. The WHO committee, which is charged with overseeing the monitoring and coordinated efforts to combat Zika, stressed the need for continued research into the disease…WHO first declared a state of emergency on Feb. 1, and the virus has since spread to almost every country in the Western Hemisphere except Canada. For the travel industry, fears of Zika caused a fall in bookings to Florida, the Caribbean, Puerto Rico, Central and South America and other vacation destinations, especially among travelers in their 30s”.

Race For Zika Vaccine

In Thomas, The Race for a Zika Vaccine, nytimes.com (11/19/2016) it was noted that “Madison, Wisconsin-The Zika virus thrives in tropical climates. But it is also growing in this cold-winter city-up a flight of stairs, past a flier for lunchtime yoga and behind a closed door. That is where scientists working in a lab for Takeda, the Japanese drug company, inspect and test vials of the virus. They are engaged in an all-out race to halt Zika, a disease that has set off worldwide alarm because of its links to severe birth defects. Day and night these researchers are trying to crack the code to the virus”.

Plane On Fire

In Ampel, Passengers of Plane That Caught Fire to File Florida Suit, Daily Business Review (11/17/2016) it was noted that “South Florida law firms are representing four passengers who were on board an American Airlines flight bound for Miami that caught fire on the runway in Chicago. Attorneys…plan to file a federal lawsuit against American Airlines (and others) alleging the Flight 383 passengers suffered physical injuries and ‘tremendous anguish’ during evacuation…The Oct. 28 fire at Chicago O’Hare International Airport was caused by an uncontained failure of the plane’s right engine. All 170 passengers and crew members evacuated the plane as it became engulfed in thick black smoke, and about 20 were hospitalized with minor injuries”. Stay tuned.

Welcome To The Zone of Endless Shaking

In Todras-Whitehill & Povoledo, Italy’s Zone of Endless Shaking, nytimes.com (11/19/2016) it was noted that “Norcia, Italy-Over centuries, residents of this Umbrian city and its environs have grown accustomed to the ragged tempo of earthquakes in the mountainous region. Resilience is a point of local pride. But the quake that struck on Oct. 30, the strongest to hit Italy in 36 years, was drastically different…The Oct. 30 quake was catastrophic, but hardly a one-off event. Since Aug. 24, the broader area has endured some 28,500 earthquakes and aftershocks, with at least 47 about 4.0 magnitude. Some have cracked buildings; some have merely rattled dishes in cupboards. Others have not been felt at all. But every day the earth is still moving”.

There’s More Than Uber

In Peterson, How to Use Uber and Other Ride-Shares, nytimes.com (11/16/2016) it was noted that “Ride-sharing has become a multibillion-dollar business over the last several years…Millions of us now use these apps regularly, but some still have questions. One thing is certain: These apps are popular because the rides are usually considerably cheaper than a taxi (when prices aren’t surging, that is). Here are a few ride-share tips for the uninitiated, and some pointers for the casual user”.

Topics discussed include (1) There’s More Than Uber (try “Gett, an Israeli-based start-up, is available in only one American city (New York) but has a solid presence in Russia, Britain and Israel”, (2) Beyond Ride-Shares (“Zipcar works as something of a bridge between ride-shares and the traditional car rental”), (3) Communicate With Your Driver, (4) You Can Always Cancel a Ride, (5) Car-pooling’s Challenges (“Both Uber and Lyft offer car-pooling options, called UberPOOL and Lyft Line (The navigation system Waze is also testing a car-pool service in the Bay Area)”, (6) Speak Up if Something Goes Wrong, (7) Be Safe and (8) To Tip or Not (“One of the many appealing things about ride-share apps is that they provide a cashless experience-no fumbling around for loose bills when you’re exiting the car. When you arrive at your destination, you simply get out”.

Avoid Trains In India

In Najar, Train Derailment in India Kills More Than 100, nytimes.com (11/20/2016) it was noted that “Fourteen coaches of an Indian train derailed early Sunday, killing at least 108 people in one of the worst rail accidents here in recent years, the police said. At least 75 others were admitted to hospitals, many of them with head injuries and fractures and the death toll was likely to rise…The accident occurred at 3 a.m. about a mile from the Pukhrayan railway station, about 40 miles southwest of the northern city of Kanpur, on a train bound for Patna, the capital of Bihar State”.

Travel Law Article: The Bryant Case

In the Bryant case the Court noted that “The defendant, Festival Fun Parks, d/b/a Splish Splash (“Splish Splash”) moves for an order…dismissing plaintiff’s action…The plaintiff claims that she was a passenger on a raft or boat on Bootleggers’ Run when she was caused to travel at an excessive rate of speed causing the raft or boat to flip over, and/or capsize”.

Plaintiff’s Story

“The submissions herein contain evidence of conflicting testimony. The plaintiff testified that at the end of the rise, the boat or raft flipped over, she hit the bottom, her shoulder dislocated, she came up and her brother, another passenger, had to flip the boat back over so that they could get back in to avoid collision with other riders”.

The Defendant’s Expert

The defendant submits an affirmation by (an) ‘Aquatic Safety Expert’ who avers the Bootleggers’ Run was operating in accordance with the manufacturer’s standards trades and usage, the three conveyors operates at an appropriate speed, and concludes not only that it was ‘unlikely’ for the raft to flip at the end of Bootleggers’ Run, but that if the raft flipped over or capsized, it was because the plaintiff failed to hold on to the handles of the raft ‘at all times’. The plaintiff claims that she was holding on to the handles before the raft flipped over. In any event, the record herein indicates that a question of fact exists as to whether the plaintiff could have fully appreciated the nature of the risk that the raft or boat could flip or capsize”.

Assumption Of The Risk

“‘The doctrine of assumption of the risk is based on the principle that athletic and recreational activities possess enormous social value, even though they involve significantly heightened risks’ (Mussara v. Mega Funworks, Inc., 100 A.D. 3d 185)…The doctrine of assumption of risk provides ‘[a] plaintiff is barred from recovery for injuries which occur during voluntary sporting r recreational activities if it is determined that he or she assumed the risk as a matter of law’ (Reidy v. Raman, 85 A.D. 3d 892)”.

Concealed Risks

“However, a voluntary participant is not deemed to have assumed the risk or reckless or intentional conduct, concealed or unreasonably increased risks, or ‘a unique and dangerous condition over and above the usual dangers that are inherent in the activity of sport’…In the Mussara case, supra, the plaintiff was injured in the recreational activity of riding down a water slide, did not come into contact with the interior of the slide, nor collide into another rider, nor was injured by hitting a barrier, but rather, when exiting the drop slide, he was cased to travel across the entire length of the pool causing him to collide with the stairs at the end of the pool. The Court found that the record could support defendant’s conclusion that the injured rider appreciated the nature of the risks that the splash pool would be inadequate to bring him to a safe halt upon his exit from the slide”.

Unique Risks And No Warning

In this case “the risk that the raft would flip over or capsize at the end of the ride was ‘unique and over and above the usual dangers that are inherent’ in riding on the raft, and such a risk was not conclusively ‘fully comprehended or perfectly obvious’ to the plaintiff herein…The defendant points to the sign posted at Bootleggers’ Run, refers to the transcription of audio advising riders of the risk of the ride, and the fact that the lifeguards stationed at the attraction advised plaintiffs group as to how to board the multi-person raft. However, while the sign, the transcription of audio and lifeguards may have advised riders of height and weight restrictions, and that the ride can go extremely fast, neither sign or the transcription of audio, or the lifeguards, advised the plaintiff, or other riders, of the risk that the raft or boat might flip over”.

Conclusion

“Mr. Bengston, the manager of Splish Splash, testified that he never saw a raft ‘turn over’. Accordingly, upon the record herein, it cannot be concluded as a matter of law that the risk that the raft or boat might flip over or capsize was ‘fully comprehended or perfectly obvious’ or a commonly appreciated risk inherent in and arising out of the activity, generally…the defendant’s motion for summary judgment is denied”.

Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.

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