With temperatures rising and summer around the corner, area waterparks are sure to see a high volume of guests looking to beat the heat. While most visitors enjoy their day, leaving with at worst a sunburn, unfortunately some depart with injuries, turning guests into litigants. Such was the case at New Jersey’s Six Flags Great Adventure, and the Appellate Division recently (and timely) decided in Morgan v. Great Adventure that Great Adventure was not liable for plaintiff’s injury where no duty to warn, by statute or otherwise, existed where the risks associated with using a water slide are open and obvious.

Plaintiff Lisha Morgan waited in line for an hour with her daughter and granddaughter to ride the “Big Bambu,” a popular water slide which propels a multi-person raft through the twists and turns, splashing into the pool below. As plaintiff ascended the stairs to the top of the slide, she observed the posted warning signs regarding height and personal health. She was instructed as to the proper sitting position by the attendant and followed the instructions. As the raft neared the end of the slide, plaintiff alleges that it went briefly airborne. Instead of landing squarely in the pool, the raft struck the edge of the slide causing plaintiff’s foot to become pinned between the raft and her body. She suffered a fracture of her fifth metatarsal (the long outer bone connecting the fifth toe to the foot).

Plaintiff argued that Great Adventure was negligent in the design, manufacture, operation and maintenance of the slide, had failed to warn against the risks associated with using the slide, and violated New Jersey’s Products Liability Act. In affirming the lower court’s dismissal of plaintiff’s complaint, the Appellate Division held that where Great Adventure did not manufacture or design the water slide, the Products Liability Act was inapplicable, which, by extension, rendered the park immune from liability based upon a failure to warn. Recognizing that plaintiff’s exclusive remedy was under the Products Liability Act, the Court went even further to articulate that Great Adventure also had no duty to warn plaintiff of the risk of injury. From a legal perspective, Great Adventure did not know or have reason to know that plaintiff would be injured, nor did it overtly facilitate the injury. Practically speaking, the court found that plaintiff, like any reasonable person, was, or should have been, aware of the open, obvious and inherent risks of using the water slide.

In this case, plaintiff assumed the risk of using the slide through no negligence of the park. While this surely will not be the last lawsuit of its kind, in ruling for Great Adventure, the court highlighted the open and obvious nature of amusement rides and the inherent risks that accompany them.

Thanks to Emily Kidder for her contribution to this post.  If you would like more information please write to Mike Bono.