Planes, Trains, & Waterslides? Missouri Imposes Heightened Liability Standard On Amusement And Water Parks

The Missouri Court of Appeals this week issued a stunning decision in Chavez v. Cedar Fair L.P. holding that a water slide operator (or, in that case, a family raft ride operator) owes the same duty of care as a so-called “common carrier,” i.e. operators of mass transportation – airplanes, trains, ships, etc., to safeguard guest safety.  In so holding, Missouri has become the first state in the country to impose this heightened standard of liability on water park operators.  The Court’s analysis is fundamentally flawed both in its application to the allegations in this case and in providing guidance to future courts in future cases.  Even accepting the Court’s suspect legal analysis, the result ignores the plaintiff’s own allegations of liability – allegations which should have resulted in a lower standard of care than that which the Court imposed.  Moreover, and more importantly, the Court failed to undertake the case-by-case analysis the court claims is required to reach the result it did, thus sending the wrong message to future courts.  If permitted to stand, this decision will increase liability exposure to Missouri amusement operators (both water park and otherwise) and sets a dangerous precedent for amusement industry cases filed in other jurisdictions.  More on all of this after the jump.**

**Before getting into the facts, this case presents a rare circumstance where I feel it necessary to make a brief disclosure.  This case arises from an incident at Oceans of Fun, the water park adjacent to Worlds of Fun, in Kansas City.  The incident occurred in 2000.  At that time, I was the Manager of Ride Operations and Park Services for Worlds of Fun.  While I was, thus, a part of the WoF/OoF management team at the time of this incident, I had no responsibility for Oceans of Fun, do not recall this incident occurring, do not recall discussing it with anyone, and I played no part in any subsequent investigation.  Aside from my personal fondness for my former colleagues at the park (one of whom testified in this case, but for the sake of privacy will remain nameless here), I don’t have a “horse in this race.”**

So what happened here?  The story itself is relatively simple:  In 2000, the plaintiff, Jessica Chavez, visited Oceans of Fun and rode Hurricane Falls, a WhiteWater family raft ride.  Notwithstanding the safety signage and oral safety instructions given at the slide, Ms. Chavez alleges that toward the end of the slide, as the raft approached the splashdown pool, her head struck the head of a fellow passenger, causing her to sustain significant dental injuries.  Ms. Chavez alleged that Cedar Fair negligently failed to warn her about the risks of riding the slide, and that the slide was “unsafe when operated as intended because it lacked adequate safety devices for the protection and safety of passengers.”  The case went to a jury trial in 2012.  The jury ultimately returned a $225,000 verdict in favor of the plaintiff.

How Much Care?

The most predominant issue in the case on appeal concerned whether the jury applied the correct standard of care.  What’s that, you ask?  Well, to try to put in the simplest terms, the standard of care defines what a defendant must do in order to not be found negligent.  In most cases, it is defined under a reasonableness standard, i.e. a defendant must act “reasonably” or “as a reasonably prudent person” would under the circumstances.  But, under some circumstances, a higher duty is imposed – a duty to act MORE than reasonably.  In Missouri, this duty is defined as “the highest degree of care,” or “the care that a very careful person would use under the same or similar circumstances.”  It is a duty to do more than is reasonable, and, because it is a high bar to get over, it has generally been applied only in narrow circumstances involving “common carriers.” The idea is that when a person gets on, for example, an airplane, that person is surrendering total control for their safety to the airline.  The passenger thus must put complete faith in the airline to make sure that he gets safely from Point A to Point B, and thus the law imposes a higher duty to take steps necessary to make that happen.  The difference is critical:  a defendant held to the “reasonableness” standard has a much greater chance of prevailing or achieving a favorable settlement that a defendant subjected to the heightened “common carrier” standard.  

In this case the jury was instructed to apply this heightened standard of care to Cedar Fair’s conduct.  Why?  Both sides pointed to cases that they claimed supported their view of the law – Cedar Fair cited a case involving a water slide injury that applied the “reasonableness” standard of care and the Plaintiff cited to three cases involving hard rides (two roller coasters and a circular airplane ride) that applied the heightened standard.  The Court found that, despite the differing standards applied, these cases were, in fact, consistent with one another.  According to the Court, “the appropriate standard of care required of amusement park operators depends upon the facts and circumstances of a given case.”  More specifically:  

The care required of the proprietor of a place of public amusement is that which is reasonably adapted to the character of the exhibitions given, the amusements offered, the places which patrons resort, and also, in some cases, the customary conduct of spectators of such exhibitions.  It is a care commensurate with the particular conditions and circumstances involved in the given case … The nature of the use itself created the corresponding duty – a duty appropriate to the nature of the object, and of its use by the plaintiff.

The Court of Appeals thus found that the case cited by Cedar Fair applied a lower standard of care because the claim was for negligent construction and maintenance of the water slide, which only requires reasonable care, while the cases cited by the Plaintiff arose from alleged negligence in the operation of the amusement rides, which required a higher standard of care.  Applying this “distinction,” the Court found that imposing a higher degree of care on Cedar Fair was appropriate because, like those cases arising from injuries on roller coasters and other hard rides, “this case involved a plaintiff alleging that her injuries resulted from an amusement park’s negligent operation of an amusement ride, over which the operator had complete control and its patrons were dependent upon the operator for their safety.”  But that can’t be right, can it?

The End of Negligent Construction Claims Forever In Missouri

Even assuming that the “construction vs. operation” distinction makes any sense under the very law the Court claims to be relying upon, and it doesn’t (more on that in a second), this would seem to be a case involving a claim far more akin to a negligent construction claim than a negligent operation claim.  Remember what the plaintiff’s complaint alleged?  “Cedar Fair was negligent in that Hurricane Falls was unsafe when operated as intended because it lacked adequate safety devices for the protection and safety of passengers.”  In other words, one of the two bases for Cedar Fair’s alleged negligence (the other being a failure to warn) is that Hurricane Falls was simply not designed or constructed in a manner that allowed it to be operated safely under normal operating circumstances.  The claim was not that the operator did something wrong on this particular trip to prevent use of safety devices – it was that the ride was constructed without them in the first place.  If the Court’s “construction vs. operation” distinction is correct, this claim should have fallen squarely into the “construction” category of cases and thus the reasonableness standard of care applied.  But, the Court did not do that because …. well, I don’t know.

But does that distinction itself make any sense under the law?  No.  Particularly given the test that the Court purports to be applying.  The Court makes clear that the determination of the appropriate standard of care is not a “one size fits all” question.  Under Missouri law, the Court was required to consider “the particular conditions and circumstances involved in the given case,” before assigning a particular standard of care.  But the Court never did that in this case.  Instead, it considered only the particular theories of negligence raised, and arbitrarily created two “buckets” of cases that are easily manipulated through artful pleading.  Given the Court’s opinion, no plaintiff’s attorney in their right mind will plead a “negligent construction or maintenance” case against an amusement operator in Missouri ever again since to do so would be to significantly reduce the likelihood of prevailing or extracting a significant settlement.  So long as the plaintiff’s injury can be connected to the operation of the ride (and, really, it will be the rare lawsuit that isn’t connected to operation somehow), the Court’s ruling results in a near blanket rule imposing a higher standard of care on amusement operators.  So how exactly does this satisfy the requirement for case-by-case consideration? 

But A Water Slide Is Not A Roller Coaster, Right?

It doesn’t.  The proper test under Missouri law, and the test applied in the very few other states to have even considered similar arguments, is to consider the particular facts and circumstances of the ride at issue, not the nature of the claim alleged.  The Court here utterly failed in this regard.  The Court seems to have assumed that a rider on a roller coaster and a rider on a water slide are equivalent in that both board a ride unit that travels on a course that is under the control of the operator. But that superficial analysis overlooks critical distinctions between coasters and other hard rides and water slides.  For example, in a roller coaster guests are secured within the train by seat belts and lap bars or shoulder harnesses.  The forces on a coaster are such that these restraints are designed to restrict the guest’s freedom of movement significantly.  While I don’t think that even coasters should qualify for common carrier treatment in the first place, given the state of the law in Missouri, I can at least understand the legal analysis that would lead a court to treat a coaster accordingly.  

But a water slide is fundamentally different.  By its nature, guests have far more control over their experience on a water slide than on a coaster or other high-speed hard ride.  Guests on a water slide cannot be restrained or their freedom of movement restricted forcibly, as to do so would potentially create a drowning hazard.  Differences in guest weight, guest distribution in the raft, and body position, which are all beyond the operator’s complete control, can lead to significantly different riding experiences from one ride to the next.  Moreover, a rider on a water slide has the ability to do just about anything once that raft leaves the dispatch point, thus creating a risk of injury an operator cannot control.  A guest that wants to jump out of a roller coaster train must work hard to do it.  A guest that wants to jump out of the raft on a water slide simply has to do it.  Had the Court undertaken the analysis that it said was required, it is difficult to see how the Court could have reached the decision it did.

In a lawsuit, standards of care are a very big deal.  Consequently, the decision in Chavez v. Cedar Fair is a very big deal – particularly for operators in the State of Missouri.  Left unchecked, this opinion just increased the liability exposure for every operator in the state and gave plaintiffs a clear roadmap for pleading amusement cases to avoid ordinary negligence standards applicable in every other state in the country.  Cedar Fair scored a major victory in the Nalwa case at the beginning of the year. Let’s hope it can do it again before the Missouri Supreme Court soon.