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Wild Rides and Assumption of Risks

Katherine McGovern and Raquel Lauren Loret de Mola | December 3, 2021

Understanding Personal Injury Claims Occurring at a Florida Amusement Park

There are ten major theme parks in Central Florida alone and hundreds of smaller theme and amusement parks throughout the rest of Florida. In 2019, approximately 20.96 million people visited Walt Disney World’s Magic Kingdom in Orlando, Florida, making it the most visited amusement park in North America that year.

With over 20 million people traversing Florida's vast theme park territory, damages claims inevitably result. For example, slip and falls, alleged instances of dangerous transitory foreign substances, product failures and lapses in security -- to name a few -- often result in claims.

When these personal injury claims are brought against an insured, a carrier’s understanding of the legal duties owed by the insured to the claimant is critical to any assessment of liability and value.

What Duty Does an Amusement Park Owe a Visitor?

While older Florida cases expressly recognized a heightened duty of care owed by amusement parks to their patrons, in recent years, Florida courts have applied the more general, premises liability, standard of care.

For example, in Aguiar v. Walt Disney World, 920 So. 2d 1233 (Fla. 5th DCA 2006), after a patron fell at the Magic Kingdom, the court found Walt Disney World owed the same legal duties as other premises owners to invitees. Specifically, the court held Walt Disney World had a duty of care to maintain the premises in a reasonably safe condition. The court explained Walt Disney World’s legal duties, as follows:

“A landowner can be held liable for reasonably foreseeable injuries if he should have anticipated or foreseen that the dangerous condition would cause injury despite the fact that the condition may have been open and obvious. See Aaron v. Palatka Mall, L.L.C., 908 So.2d 574 (Fla. 5th DCA 2005); Kersul v. Boca Raton Community Hosp., 711 So.2d 234 (Fla. 4th DCA 1998) (hospital can be held liable to plaintiff who tripped and fell over uneven sidewalk, although condition was open and obvious, based on breach of duty to maintain premises in reasonably safe condition); Pensacola Greyhound Racing, Inc. v. Williams, 193 So.2d 628 (Fla. 1st DCA 1967) (holding that racetrack could be held liable for injuries sustained when patron fell when heel caught in degenerated expansion joint); see also Restatement (Second) of Torts § 343A (1965).”

Likewise, in Walt Disney World Co. v. Goode, 501 So. 2d 622, 623–24 (Fla. 5th DCA 1986), the court recognized that whether Walt Disney World was liable for the drowning of an infant decedent, would turn on the “ordinary rules of negligence” as they applied to a business invitee at a place of public amusement. In Schreiber v. Walt Disney World Co., 389 So. 2d 1040, 1041 (Fla. 5th DCA 1980), the court again found that the park owed the standard of care owed to a business invitee, one of reasonable care.

Amusement Park Mandatory Safety Measures Are Required Under Florida Law

Chapter 616, Fla. Stat., outlines certain safety standards that must be met for amusement park rides in Florida.

Smaller / Non-Fixed Site Parks

Section 616.242, Fla. Stat., applies to smaller theme parks and amusement rides that are not fixed, such as rides in fairs and expositions. These smaller parks are required to comply with Florida’s laws for applicable inspections, testing and permits. A few important portions are:

  1. An amusement ride may not be operated without a current annual permit.
  2. In order to obtain an annual permit, an amusement ride must be inspected by the Florida Department of Agriculture and Consumer Services, and receive an inspection certificate.
  3. Subject to some limited exceptions, an owner may not operate an amusement ride unless the owner has at all times, a current affidavit of nondestructive testing from a professional engineer or qualified inspector that the amusement ride has undergone nondestructive testing for metal fatigue at least annually.
  4. The owner of an amusement ride shall maintain a record of employee training for each employee authorized to operate, assemble, disassemble, transport, or conduct maintenance on an amusement ride on a form prescribed by rule of the department.

Fixed Site Parks

The longstanding, “fixed site” amusement parks, such as Walt Disney World, Universal Studios, Busch Gardens, and SeaWorld, are not subject to these statutes. While there is no requirement in Florida that theme parks report the number of injuries occurring on their property, in order to remain exempt from a major inspection, fixed site parks must list all of their quarterly incidents and injuries with the state.

A recent quarter’s report, spanning from January 2020, through March 2020, contained eight incidents. Only incidents or illnesses resulting in a hospital stay of 24-hours or more and deaths are required to be reported. Seven of the eight listed incidents related to illnesses and internal conditions which were experienced during or after rides. The liability for these types of injuries may turn largely on the sufficiency of the park’s warning signs providing patrons with notice of the ride’s tendency to cause and exacerbate motion sickness and heart conditions.

Is the Amusement Park Really Liable?

As discussed above, although amusement/theme parks owe a duty of reasonable care to their patrons to ensure that the premises are reasonably safe, their patrons likewise have a duty to exercise reasonable care for their own safety. To that end, comparative fault and assumption of the risk may serve as defenses to some negligence claims. Many attractions include warning signs, precautionary videos/recordings, and/or height and age restriction signs at the entrance of rides posing some risk of injury. However, these signs may not be a complete defense.

Along these lines, it is noteworthy that Florida courts typically will not grant summary judgment in favor of the defendant on the basis that the plaintiff was contributorily negligent or assumed the risk of injury through their own actions. Instead, courts may rule that these are issues of fact that must be decided by a jury. One such example includes a finding that summary judgment in favor of a theme park was inappropriate even though the minor plaintiff voluntarily left the small car that was being used to transport passengers through the attraction (despite a recorded warning not to do so), which resulted in him falling and sustaining severe injuries.

Conversely, there may be other factual scenarios where Florida courts will find these defenses warrant summary judgment, particularly where the alleged dangerous condition is an “open and obvious” condition. Some examples of a proper grant of summary judgment where the conditions at issue were “open and obvious” include: theme park streets and curbs (where the plaintiff alleged the paint color created an “optical illusion”) and a planter enclosing a palm tree, flowers, and shrubbery.

Plaintiffs’ attorneys will nevertheless attempt to proffer interesting legal arguments in order to limit amusement and theme parks’ potential defenses by raising strict liability issues. For instance, several Florida courts have considered the argument of whether the dangerous instrumentality doctrine applies to go-kart amusement rides such that the park is subject to strict liability. However, Florida courts have typically recognized that go-kart amusement rides do not fit within the statutory definitions or legislative intent contemplated by the dangerous instrumentality doctrine.

What does this mean for you?

It is critical to engage experienced defense counsel early on, and in particular, one who has familiarity with the nuances of Florida law as it relates to personal injury claims brought against amusement and theme parks and the potentially available defenses to liability.



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