The Supreme Court of Missouri splashes with precedent in waterslide injury case.

• Author: Krispin, Joe
• Position: Case note

Chavez v. Cedar Fair, LP, 450 S.W.3d 291 (Mo. 2014) (en banc).

1. INTRODUCTION

   Amusement park rides generally offer patrons a fill for their thrill-seeking desires. In addition to roller coasters and spinning wheels, a popular ride during the summer months is the waterslide. Waterslides come in sizes appropriate for all ages, but some modem day waterslides have reached extraordinary heights, some reaching over eight stories high. (1)

   As the slides grow taller, the importance of operator care and prudence also becomes greater. Water sliders place their lives in the hands of water park operators as they allow their bodies to descend freely down a slick slide, propelled along by rushing water. Not only are operators in total control of the rate at which the water propels patrons down the slides, but they are also in control of the implementation of safety warnings, safety harnesses, and other detailed factors that contribute to the water slide's overall safety. Patrons expect the waterpark operators to exercise enough caution and care to ensure their safety as they plummet down the plastic flume with minimal control over their bodies' movements.

   Many waterslides come in different shapes and sizes, but a legal question remains about the appropriate standard of care to which water park slide operators should be held. Nearly a century ago, the Supreme Court of Missouri held that when determining the appropriate standard of care to which amusement park operators should be held, courts should consider the particular circumstances surrounding the amusement. (2) Subsequently, courts held that some situations required the operator to exercise merely ordinary care; other situations, particularly situations in which the operator exercised complete control over an amusement park ride, required the application of the highest degree of care. (3)

   In 2014, the Supreme Court of Missouri shook up this area of law in Chavez v. Cedar Fair, LP. (4) The court appeared to abandon the original and longstanding method of reviewing the particular circumstances surrounding the amusement park ride and replaced it with a seemingly per se rule that amusement park operators need to exercise only ordinary care. (5) This decision is sure to change the outlook of personal injury cases involving large and dangerous amusement park rides.

   This Note reviews the legal history of amusement park operator liability in Missouri, discusses the application of that law to a recent incident involving a young girl injured at a Kansas City waterpark, and analyzes the various applications of the law made by the Supreme Court of Missouri, the Missouri Court of Appeals, and the dissenting Supreme Court of Missouri judges. This Note concludes by discussing relevant public policy concerns.

2. FACTS AND HOLDING

   Twelve-year-old Jessica Chavez was enjoying a summer afternoon with her family at Kansas City's Oceans of Fun Water Park in 2000. (6) Chavez and her family decided to ride down Hurricane Falls, a giant water slide in which four riders share a circular raft and descend down the 680-foot flume. (7) The only safety feature on the raft was a nylon strap that ran across portions of the top of the tube. (8) Additionally, there was no way for patrons to control the raft as it proceeded down the slide. (9) The raft's descent was affected by several variables, including the raft's rotation, the contact made with the walls of the slide, and "the contour of the layout of the ride." (10) Expectant mothers, patrons with spinal, muscular, or skeletal issues, and persons shorter than forty-six inches tall were cautioned not to ride this water slide. (11)

   After receiving a verbal instruction to "hold onto the straps at all times," Jessica Chavez and her family descended together down the large waterslide on their raft. (12) As the raft made the final turn, Chavez's mouth and her cousin's head collided, causing Chavez to bleed and lose a tooth. (13) As a result of the accident, Chavez needed extensive dental work and lost two more teeth. (14)

   Chavez then filed suit against Cedar Fair, LP, the corporate owners of Oceans of Fun. (15) The petition alleged negligence by: "(1) failing to provide friction devices reasonably sufficient to prevent a raft rider from colliding with another rider and (2) failing to adequately warn of the risk of harm from colliding with other raft riders." (16) At trial, there was conflicting testimony as to whether Chavez and her cousins had voluntarily or involuntarily let go of the safety strap. (17) In addition, both parties called expert witnesses to testify about whether Cedar Fair took adequate measures to ensure passenger safety on Hurricane Falls. (18)

   The trial court instructed the jury to apply the highest degree of care standard to determine Cedar Fair's possible liability. (19) Specifically, the jury was told to determine whether Cedar Fair exercised "that degree of care that a very careful person would use under the same or similar circumstances." (20) Cedar Fair objected, arguing that the ordinary standard of care instruction was appropriate. (21) The trial judge overruled the objection, and the jury awarded Chavez $225,000. (22) Cedar Fair appealed, alleging that the trial judge applied the wrong standard of care in the jury instruction. (23)

   The Missouri Court of Appeals for the Western District affirmed the verdict. (24) In an unpublished opinion, (25) the court relied on four early-twentieth century decisions to hold that the highest degree of care was appropriate in this case. (26) The court held that Cedar Fair should be held to the highest degree of care because it had complete control of the water slide, riders completely depended on Cedar Fair for their safety, and Cedar Fair did more than merely construct the slide. (27)

   The case was transferred to the Supreme Court of Missouri, which reversed and remanded for a new trial that would apply the ordinary standard of care. (28) The court reasoned that the highest standard of care is reserved for persons using inherently dangerous materials, common carriers, and automobile drivers. (29) The court also rejected the appellate court's distinction between waterslide builders and waterslide operators and instead made all waterslide injury suits subject to the ordinary standard of care. (30) Two judges dissented, arguing that the court should have applied the highest standard of care because Cedar Fair had complete control over the water slide. (31)

3. LEGAL BACKGROUND

   One of the first Missouri decisions to apply the common law rules of negligence to amusement parks was Berberet v. Electric Park Amusement Co. in 1928. (32) In Berberet, the fifty-seven-year-old plaintiff fell on some loose floorboards on a boardwalk and sustained injuries while meeting her son as he exited a merry-go-round. (33) After the trial court awarded the plaintiff $2500 in damages, the defendant appealed, arguing that the plaintiff had failed to state a claim. (34) Specifically, the defendant challenged the plaintiffs petition for not alleging sufficient facts to show that the defendant had failed to exercise ordinary care. (35)

   The Supreme Court of Missouri agreed and reversed the trial court's judgment. (36) The court relied on several decisions to determine the factors and considerations for deciding which standard of care applied to amusement park proprietors. (37) As the court stated,

   [T]he 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 to 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. (38) The court held that under the factual circumstances of Berberet, the appropriate standard was the ordinary degree of care because the boardwalk was similar to ordinary property that the owner has a duty to keep reasonably safe. (39) Since the petition failed to allege that the defendant should have known of the loose floorboard, the plaintiff failed to allege that the defendant breached its duty to exercise ordinary care. (40)

   Three years later, in Brown v. Winnwood Amusement Co., (41) a case involving another amusement park accident, the Missouri Court of Appeals suggested applying a higher standard of care for some amusement park incidents. (42) The plaintiff was injured when the rollercoaster on which she was riding made an unexpected "jerk," causing severe injuries to her hip and side. (43) After a jury verdict for the plaintiff in the amount of $2500, the defendant appealed. (44)

   Brown's main holding concerned the application of the res ipsa loquitor doctrine, but the appellate court discussed the appropriate standard of care to which the amusement park operator should be held:

   There have been several cases before the higher courts of this country involving devices similar to the one in the case at bar and, while the courts have been slow in holding that the operator of such devices (roller coasters) is technically a common carrier and that all the rules governing such carriers are applicable to him, they do hold that the rule in reference to the degree of care required of a common carrier applies to the operation of such devices ..., (45) The court equated the duty of amusement park operators with that of a common carrier. (46) Rather than ordinary care, the standard of care for a common carrier is "the...