Sacramento Personal Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

OTHER OUT OF STATE CASES HOLD THAT AMUSEMENT PARK RIDES CAN BE CONSTRUED AS COMMON CARRIERS

Defendants cite cases from Georgia, Virginia, Iowa, Florida and Utah to make the argument that common carrier liability should not extend to operators or owners of an amusement park. As Plaintiff has demonstrated by the Elmer case, the most recent trend allows recovery for amusement rides under common carrier liability. Likewise, other states have held amusement rides to be common carriers. See e.g., Lyons v. Wagers (1966 Tenn. Ct. App.) 404 SW2d 270 (operator of amusement ride known as the Mary Mixer held to highest degree of care equivalent to that of a common carrier); Coaster Amusement Co. v. Smith (1940 Fla.) 194 So. 336 (operator of roller coaster held to highest degree of care equivalent to that of a common carrier); Bibeau v. Fred W. Pearce Corp., (1928 Minn.) 217 N.W. 374 (operator of roller coaster held to highest degree of care equivalent to that of a common carrier); Cooper v. Winnwood Amusement Co., (1932 Mo. Ct. App.) 55 S.W.2d 737 (operator of a roller coaster held to the highest degree of care for passenger safety); Sand Springs Park v. Schrader (1921 Okla.) 198 P. 983 (operator of a scenic railway held to the duty of highest care, skill and diligence).

The most recent case, Elmer v. Speed Boat Leasing, Inc., et al., supra, illustrated the connection of amusement rides to common carrier liability as demonstrated above. The court in Elmer relied on an out of state court decision, i.e. the Supreme Court of Colorado, as persuasive authority. While these court decisions are not binding on the Court in the present case, they should be heavily considered in weighing the decision to factor amusement park rides in as common carriers.

Continue reading "Sacramento-Area Amusement Park Sued By Family For Wrongful Death, Part 10 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

Additionally, the California Supreme Court addressed this very issue in Smith v. O'Donnell (1932) 215 Cal. 714, an airplane collision case. In Smith, the California Supreme Court held that an airplane sightseeing ride over the ocean beginning and ending at the Long Beach Airport should have common carrier liability imposed regardless of the departure and arrival having the same location.

Further, it would be unsound that two passengers seated side- by-side on a tour bus who might have been injured during the carriage would be entitled to different standards of care depending of where each departed. If defendants' argument is followed, a passenger who exists a tour bus before returning to the place of departure would be entitled to a higher standard of care, while the passenger who stayed on to return to the original point of departure would be, by virtue of the fact that he started and ended up at the same place, entitled to a lower standard of care.

A PASSENGER'S INTENT IS NOT DETERMINATIVE IN DECIDING WHETHER COMMON CARRIER STATUS ATTACHES

Defendants argue against the application of common carrier status to the Dinosaur Attraction on the basis that carriage on the ride is sought for entertainment rather than transportation purposes. However, the subjective intent of a passenger is not determinative of the level of care that should attach to a carrier. The court in Squaw Valley upheld common carrier liability against a ski-lift operator irrespective of the fact that undoubtedly people go to ski resorts for entertainment and thrills.

Continue reading "Sacramento Family Files Suit For Wrongful Death At Theme Park, Part 9 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

POINT OF DEPARTURE AND FINAL DESTINATION NEED NOT BE DIFFERENT TO WARRANT THE IMPOSITION OF COMMON CARRIER STATUS

Defendants argue that because the Dinosaur Attraction picks up and returns passengers to the same location it does not qualify as carriage in accordance with California's common carrier statute as the ride does not transport passengers from one place to another. The fact that the attraction may start and finish at the same location does not exempt it from common carrier liability.

As demonstrated above, the court in Elmer v. Speed Boat Leasing, Inc., et al., supra, held that despite the fact that the boat ride commenced and ended in the same location, common carrier liability still applied. Likewise, in the Buckskin Joe's case, the court did not find the absence of transporting the stagecoach from "point A to point B" to be a determining factor in its decision to uphold common carrier liability.

In its demurrer, defendants try to differentiate the Squaw Valley case to the present case by stating that under Civil Code §2168, an entity must transport goods or persons from place to place for profit. Defendants erroneously suggest that because the Dinosaur ride starts and finishes in the exact location, a common carrier liability theory is inapplicable.

Continue reading "Sacramento-Area Thrill Ride Leads To Wrongful Death, Part 8 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

The California legislature intended the definition of common carrier to be broad. Absent a specific exclusion from the statute, amusement park rides fall within this realm. Thus, the Dinosaur Attraction is likewise a common carrier for which Universal Theme Park owes a duty to use the utmost care and diligence to its guests. This duty is imposed upon them by Civil Code §2100.

Additionally, a California court upheld common carrier liability against a ski lift operator. Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal. App. 4th 1499. That court also stated that had the legislature intended to exempt chair-lift operators from common carrier status for the purpose of tort liability, it easily could have amended Civil Code §2168 to accomplish this objective. Id. at 1514. Ski-lift operators were not exempted from §2168, nor were amusement park operators. Until the legislature imposes this limitation, these entities can be subject to common carrier liability as long as they meet the requirements mentioned above.

MORE CASE LAW FAVORS PLAINTIFF'S POSITION THAT AMUSEMENT PARK RIDES SHOULD BE TREATED AS COMMON CARRIERS

As demonstrated by the court in Elmer, the split in authority whether amusement park rides and/or operators constitute common carriers tends to favor Plaintiff. Neubauer v. Disney, supra, identifies California cases which have further found attractions analogous to amusement park rides to be considered common carriers. For example, in McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal. App. 2nd 489 the court found common carrier status in a guided tour mule ride which carried sightseeing passengers over a designated route between fixed points for a round trip fare. As noted above, the court in Squaw Valley found common carrier status on a chair lift carrying skiers at a fixed rate from the bottom to the top of the ski run.

Continue reading "Dinosaur Ride At Amusement Park Kills Sacramento Woman, Part 7 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

CALIFORNIA LEGISLATIVE INTENT DEMONSTRATES A BROAD DEFINITION UNDER THE COMMON CARRIER LIABILITY STATUTE TO ENCOMPASS AMUSEMENT PARK RIDES

California is unique in that it has a statute for common carrier liability and therefore does not need to rely solely on case law authority. California Civil Code §2100 states:
A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.

Civil Code §2168 defines who and/or what constitutes a common carrier in a tort action. This section states that everyone who offers to the public to carry persons, property, or messages, excepting only telegraph messages, is a common carrier of whatever of what he thus offers to carry. California has gradually adopted a broader definition of common carrier to encompass airplanes, buses, taxicabs, escalators, elevators, mule trains and ski-lifts. (Lopez v. Southern Calif. Rapid Transit Dist. (1985) 40 Cal. 3rd 780; Larson v. Blue & White Cab Co. (1938) 24 Cal. App. 2nd 576; Hendershott v. Macys (1958) 158 Cal. App. 2nd 324; Parker v. Manchester Hotel Co. (1938) 29 Cal. App. 2nd 446; McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal. App. 2nd 489; Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal. App. 4th 1499).

Universal Theme Park amusement park rides have been held to be common carriers under California's broad statutory definition of a common carrier. See Neubauer v. Disney (C.D. Cal. 1995) 875 Fed. Supp. 672 (Universal Theme Park's "Pirate Ship" was held to be a common carrier falling within California's statutory definition of a common carrier). The Neubauer court found that under California law a duty of utmost care and diligence upon a common carrier of paying passengers applied to Universal Theme Park. The court relied on the California legislature's long history of broadly defining a common carrier.

Continue reading "Suit Filed For Wrongful Death Of Sacramento Woman At Theme Park, Part 6 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

In the present case, defendant erroneously argues that Ms. Demers' voluntary decision to ride the Dinosaur Attraction coupled with the fact that it was strictly for pleasure, disallows recovery under common carrier liability. Defendants' argument lays heavily in the fact that the Dinosaur Attraction starts and ends in the same location. However, an application of the reasoning in both Elmer and Buckskin Joe's to the case at hand clearly shows that Plaintiff has properly pled common carrier liability irrespective of destination and intention. Ms. Demers surrendered herself to defendants' custody and control when she placed herself on the ride, lost her freedom of movement and actions, and was a helpless passenger in the care of defendants. Ms. Demers could not have prevented the incident, nor was she in any way at fault in causing or contributing to her wrongful death.

This example is analogous to a passenger on an airplane. Should that airplane plummet to the ground, the passenger should not be held accountable simply because he voluntarily chose to board that particular airplane. Similarly, Ms. Demers' decision to ride the Dinosaur Attraction should in no way detract from Defendants' liability. Defendant had sole possession and power over her once the ride began and should be held accountable under the highest degree of care.

Continue reading "Woman From Sacramento Suffers Traumatic Brain Injury At Amusement Park, Part 5 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

This test, hereinafter referred to as the "Buckskin Joe's" test, is a critical factor in light of all the controversy surrounding common carrier liability. While many courts focus on the destination and/or intention of passengers, the Buckskin Joe's test narrows the focus to the heart of the issue, i.e., who had control of the situation, and who had the power to prevent and/or cause the injury.

The Buckskin Joe's case involves a stagecoach ride patterned after the historic stagecoach rides enjoyed by early settlers in Colorado. This ride commenced and ended in the same place. The ride consisted of horses drawing a stagecoach wagon along a designated path. The pace of the ride varied from a slow walk to a gallop, to give paying riders thrill and excitement, simulating the sensation of the old west. Regardless of the fact that the ride did not transport passengers from "point A to point B," and was purely for entertainment, the court still determined that the absence of freedom of movement and control warranted a finding of common carrier liability.

This concurs with Plaintiff's allegations that neither destination nor intention are determining factors in whether a ride is deemed a common carrier. Rather, the focus lays heavily on the operator of the ride, who is in control and who has the ability to prevent and/or cause the wrongful death/injury to riders. This is the crux of the Elmer case. (See Part 5 of 10.)

Continue reading "Deadly Sacramento-Area Amusement Park Ride Results In Traumatic Brain Injury, Part 4 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

DEFENDANTS OWED DECEDENT THE HIGHEST STANDARD OF CARE UNDER COMMON CARRIER LIABILITY BECAUSE DECEDENT LOST HER FREEDOM OF MOVEMENT AND ACTION ONCE SHE WAS PLACED IN DEFENDANTS' CUSTODY

In the most recent decision involving an amusement ride, a Texas appellate court found an operator of a business providing speed boat rides for amusement to be held liable under a common carrier theory for personal injuries suffered by the appellant on the boat ride. Elmer v. Speed Boat Leasing, Inc., et al. (2002) Tex. App. LEXIS 4670. The boat ride was designed solely for the purpose of providing an exciting and fun-packed ride. Its destination commenced and ended in the same location. Irrespective of these facts, the court reversed the district court's decision and remanded the cause for a new trial, finding that the defendant owed a high standard of care rather than merely a standard duty of care under a common carrier liability theory.

The Elmer case is the latest case to analyze the trend across the United States regarding the application of common carrier liability to amusement rides. The court recognized the split in authority whether amusement park rides should be properly labeled as common carriers. After extensive and widespread research of existing cases, the court determined the better reasoned cases upheld common carrier liability for amusement rides. The court was especially persuaded by the reasoning in Lewis v. Buckskin Joes's, Inc. (Colo. 1964) 396 P.2d 933 (the Supreme Court held that the highest standard of care should be applied to amusement rides). As stated, the court in Elmer endorse[d] the rationale of those courts which have held amusement ride operators to a higher standard of care. Tex. App. LEXIS 4670 at 10. The court found:
While appellees have argued, and some courts have stated, that amusement ride operators are not common carriers because they do not offer transportation from one locale to another, we find that reasoning unpersuasive... Instead, we find persuasive the analysis of the Supreme Court of Colorado, which stated:

Continue reading "Woman Sues Sacramento-Area Theme Park Over Deadly Ride, Part 3 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

SUMMARY OF FACTS
This is an action for damages for wrongful death brought by the personal representative of the Estate of Claudia Demers, on behalf of the Estate and on behalf of the heirs of Claudia Demers against various separate and distinct corporations affiliated with The Universal Co. One of the Defendants is Universal World Co., the admitted owner and operator of Universal Theme Park.

One of the theories of liability alleged against Universal World Co. is based upon common carrier liability pursuant to Civil Code §2100 and §2101. Plaintiff will demonstrate how common carrier liability attaches to Universal World Co. with respect to the Dinosaur Attraction.

PLAINTIFF HAS PLED SUFFICIENT FACTS IN ITS COMPLAINT TO CONSTITUTE A CAUSE OF ACTION PURSUANT TO CCP SECTION 430.10.

In the fourth and fifth causes of action, dealing with common carrier liability, Plaintiff has alleged that certain of the Defendants operated the Dinosaur Attraction at Universal Theme Park. The Dinosaur Attraction is described as consisting of a vehicle, referred to as a dynamic ride vehicle, which is used to enhance the sensation of vehicular motion and travel that passengers in the vehicle experience. Paragraph 49 of Plaintiff's Second Amended Complaint states that the vehicle used in the Dinosaur Attraction is used to transport passengers while, at the same time, providing them with entertainment and thrill. The configuration of the vehicle resembles an off-road jeep. The vehicle moves along a predetermined path on a track.

Continue reading "Theme Park Ride Results In Wrongful Death Of Sacramento Woman, Part 2 of 10" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

Plaintiff's Opposition to Defendants' Demurrer to Plaintiff's Second Amended Complaint

MEMORANDUM OF POINTS AND AUTHORITIES
SUMMARY OF ARGUMENT

This is an action for damages arising out of the injury to, and subsequent wrongful death of, Claudia Demers. On June 25, 2000, Ms. Demers, a young Sacramento woman on her honeymoon, rode the Dinosaur Attraction at Universal Theme Park. As a result of the unsafe and violent nature of the ride, she suffered a subarachnoid hemorrhage and hydrocephalus that required extensive hospitalization and multiple brain surgeries. She died of these injuries after incurring over $1 million in medical expenses.

The Complaint in this action was originally filed on September 25, 2001. Defendants thereafter filed a Notice of Removal of this action to federal court. That removal was untimely and ultimately a stipulation to remand the matter back to state court as signed by the Defendants and the Plaintiff, and Defendants paid to Plaintiff's counsel attorneys fees and costs in the amount of $2,850.00 for the untimely removal.

Plaintiff filed a First Amended Complaint for damages on or about January 30, 2002. Defendants filed a Demurrer June 7, 2002. The Court granted part of the demurrer allowing Plaintiff ten days for leave to amend the Complaint. Plaintiff filed a Second Amended Complaint on September 3, 2002.

Defendants filed another demurrer alleging that despite Civil Code §2100 and §2101, and the cases interpreting those Code sections, they cannot be held liable under common carrier law.

Continue reading "Sacramento Woman Dies At Amusement Park, Part 1 of 10" »