Cedar Fair has done it again. In 2011, Cedar Fair came out on the losing end of a surprising California Court of Appeals decision, Nalwa v. Cedar Fair, L.P., a case that stunningly held that guests riding a bumper car ride do not assume the risk of injury caused when the cars bump. In 2013, the California Supreme Court reversed that decision in a decision that represented a major victory for the entire industry. In November 2013, Cedar Fair again suffered defeat in a case called Chavez v. Cedar Fair, L.P. (“Chavez I”), this time in the Missouri Court of Appeals. That case broadly expanded the standard of care applied in negligence cases against amusement parks, likening their operation of amusement rides to the operation of airplanes, explosives or firearms. I strongly criticized the Chavez I decision as not only bad in result, but bad in the flawed reasoning required to reach that result. Well, the Missouri Supreme Court seems to have agreed (although I won’t go so far as to surmise that any of the justices read this blog necessarily). In a decision issued on November 12 called Chavez v. Cedar Fair, L.P. (“Chavez II”), the highest court in Missouri not only overruled the Court of Appeals ruling in Chavez I, but also took the remarkable step of undoing more than sixty years of case law defining the negligence standards applied to amusement parks in Missouri. Whereas, before Chavez II, it could safely be said that some, not all, amusement operators would be held to a heightened degree of “utmost care” in preventing injuries to their guests, after Chavez II, the law in Missouri is the more appropriate “ordinary care” standard in every amusement case. This is a big win for the industry. And once again, we have Cedar Fair to thank for it.
So, let’s dig in a little because this really was a remarkable decision. That being said, the facts of the case are pretty unremarkable as far as facts go. The plaintiff, Jessica Chavez, was injured while riding Hurricane Falls, a Whitewater family raft ride, at Oceans of Fun in Kansas City in 2000. She sued Cedar Fair claiming that the ride was improperly designed and constructed to be safely operated. At trial, the court instructed the jury, over Cedar Fair’s objection, that Cedar Fair must be held to the “highest degree of care,” meaning “that degree of care that a very careful person would use under the same or similar circumstance.”
Now, the standard of care is a big deal. It can, quite literally, be the difference between winning and losing, or between an exorbitant settlement and a reasonable one. In effect, the trial court told the jury that Cedar Fair had to act “more than reasonably” to protect Ms. Chavez from injury. It had to act with “utmost care.” This instruction stands in sharp contrast to the standard generally applied in negligence cases, which only requires that the defendant act “reasonably” or “as a reasonably prudent person would under the circumstances.” That standard is much easier for a defendant to satisfy, whereas the heightened standard is much more difficult and thus more frequently results in liability. Which is exactly what happened in this case: The jury returned a verdict in favor of Ms. Chavez in the amount of $225,000, and Cedar Fair appealed.
In the Court of Appeals, Cedar Fair once again lost. As I’ve discussed in far more detail in another piece, that court drew a rather arbitrary legal distinction between claims relating to the construction and maintenance of an amusement ride and claims relating to the operation of an amusement ride. According to the Missouri Court of Appeals, which based its decision on three earlier Court of Appeals cases dating back to the 1950’s and 1930’s, cases arising from negligent construction and maintenance were to be gauged by the “ordinary care” standard generally applicable in negligent actions, while cases arising from the operation of a ride, any ride, would be subject to the heightened standard of care applied to hazardous activities such as operating firearms, public transportation, or using explosives. This was clearly not a good decision for anyone but plaintiffs and their attorneys. Cedar Fair appealed again.
And then the case got to the Supreme Court and something really remarkable happened. See, assuming that the Supreme Court disagreed with the Court of Appeals and wanted to rule in Cedar Fair’s favor, it had several options. It could have ruled, for example, that the “construction / maintenance vs. operation” distinction recognized by the Court of Appeals was, in fact, valid, but that this plaintiff’s claim actually arose from the construction and maintenance of Hurricane Falls. As the Court noted in its opinion, “Ms. Chavez herself claimed that the rafts on Hurricane Falls were negligently constructed due to their lack of ‘friction devices’.” That would have been enough to warrant reversal without effecting any real change in the Court of Appeals’ analysis. But that’s not what the Court did.
Similarly, the Court could have held (as some other states have) that the operation of some amusement rides, such as roller coasters for example, carry with it a higher standard of care because, like a so-called “common carrier” (a term used generally to describe operators of mass transportation), guests on those rides surrender nearly all control over their safety to the operator once they are strapped in. Following this line of reasoning, the Court could have held narrowly that the facts of this case did not support the heightened standard of care because Hurricane Falls is fundamentally different than a roller coaster. Indeed, the Court seems to have implicitly noticed this distinction when it noted that “there are no mechanical aspects to the ride other than the conveyor that takes the empty rafts from the splash pool at the bottom of the slide back to the loading platform,” and that “with the exception of the initial launch from the loading platform, ride attendants do not control the raft’s descent.” But that’s not what the Court did either.
The Court could also have held that the law relied upon by the Court of Appeals accurately stated the applicable standard of care historically, but that in light of modern understanding of amusement rides, a change was needed. The Court could have found that, whereas amusement rides were once considered “so inherently or extremely dangerous, with such a risk of widespread injury,” and thus subject to a heightened degree of care in their operation, today there is no such concern about amusement rides that warrants more than ordinary care in a negligence case. Here again, the Court gets rather close to such a holding when it recognized that “unlike the danger posed by an electric utility during the early stages of its entry into American homes and businesses, the obvious threat posed by the operation of an automobile, amusement rides are not such new, dangerous, or essential technology that they justify the highest degree of care.” But, you guessed it, that’s not what the Court did here either.
Instead, the Missouri Supreme Court took the rather remarkable step of essentially rebuking the Court of Appeals for ignoring two Supreme Court cases, one issued in 1933 called McCollum v. Winnwood Amusement Co., 59 S.W.2d 693 (Mo. 1933) involving a similar injury on a water slide, and another issued in 1928 called Berberet v. Electric Park Amusement Co., 3 S.W.2d 1025 (Mo. 1928), that specifically held that operators of amusement rides are to be held to an ordinary standard of care. The Supreme Court took the Court of Appeals to task, not just for its erroneous holding in Chavez, but for its erroneous decisions with respect to amusement rides in general over the last sixty-plus years, and in three cases in particular called Gromowsky v. Ingersol, 241 S.W.2d 60 (Mo. App. 1951), Cooper v. Winnwood Amusement Co., 55 S.W. 2d 737 (Mo. App. 1932), and Brown v. Winnwood Amusement Co., 34 S.W.2d 149 (Mo. App. 1931).
Not only is McCollum most similar to the case at hand – collectively in terms of the injurious event, the negligence claims asserted, and the issues raised on the appeal – it is a decision of this Court and as such is controlling. It is the duty of all inferior courts to follow the decision of the Supreme Court en banc. In addition, McCollum, decided by this Court after Brown and Cooper, effectively overruled those cases when it held that the duty of ordinary care is the proper duty owed by owners and operators of amusement parks to their patrons. Consequently, in Gromowsky, when the court of appeals affirmed its prior ruling in Brown without recognizing McCollum, it improperly ruled contrary to this Court’s established precedent regarding the duty of care owed by operators of amusement rides.
Why is this so remarkable? Because unlike those other alternatives I outlined above, which would have allowed the Court of Appeals to “save face” for its decisions over the last sixty years, the Supreme Court effectively told the Court of Appeals that they have gotten it dead wrong for the better part of a century (assuming you go all the way back to those 1930’s cases). It is not unusual for a state Supreme Court to overrule an intermediate appellate court. But it is quite unusual for a state Supreme Court to overrule an intermediate appellate court in this fashion - by ruling that an entire body of appellate case law was wrongly decided decades ago. While, of course, it would have probably been better for everyone if the Court had reversed this case law back in the 1930's or 1950's, in an appeal from those particular cases, I guess this is a situation of "better late than never." The Supreme Court’s decision undid decades of bad law holding some amusement park operators (but apparently not all) to a much higher standard in some cases (but apparently not all). Under the Supreme Court’s decision in Chavez, those days are gone. In the words of the Court, “while there are, of course, dangers associated with riding amusement rides, the ordinary degree of care is sufficiently flexible to adequately protect amusement park patrons.” No distinctions for different rides, no distinctions for different legal claims, no distinctions for different plaintiffs. One rule. That’s it.
So, Cedar Fair deserves a big pat on the back. Once again, it has succeeded in convincing a high court to see reason and good sense – and in relatively dramatic fashion no less. The Supreme Court’s Chavez II decision took what was a disaster for the industry in Missouri (and perhaps beyond), and turned it into a big win that unambiguously sets good law in that state moving forward and should provide a model for the rest of the country. Nicely done, Cedar Fair. Nicely done.