D. N. v. Dreamland Amusements, Inc.
Filing
45
ORDER granting 38 Motion for Summary Judgment, directing the Clerk to enter Judgment in favor of Defendant, and close this case. Signed by Judge J. Randal Hall on 05/10/2012. (thb)
FILED
IN THE UNITED STATES DISTRICT COURT FOR THE
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA B!V,
AUGUSTA DIVISION
7017 MAY JO P 3
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DESIRE NORTHINGTON,
Plaintiff,
V.
DREAMLAND AMUSEMENTS, INC.,
Defendant.
*CLERK L
.,..
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CV 111-014
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A14141114- m
1
(fl-
ORDER
Presently pending before the Court is Defendant's Motion
for Summary Judgment.
(Doc. no. 38.) For the reasons set forth
below, Defendant's motion is GRANTED.
1. BACKGROUND
A. The Accident
This case arises from injuries Plaintiff sustained on
October 26, 2006, at the Georgia-Carolina State Fair in
Augusta, Georgia.
(Compl. ¶ 17.)
While riding the "Orbiter,"
an amusement ride owned by Defendant, Plaintiff was ejected
from her gondola and thrown approximately sixty feet in the
air.
ride.
(Ex. 1 at 4.)
(Id.)
Plaintiff landed on the base of a nearby
As a result of being thrown from the Orbiter,
Plaintiff suffered a severe closed head injury.
(Compl. ¶ 11.)
She was hospitalized in the intensive care unit at the Medical
A.
q
College of Georgia and placed in a medically induced coma.
(Id.)
She subsequently underwent rehabilitation at the Walton
Rehabilitation Center.
(Northington Dep. at 57.)
Before the Georgia-Carolina State Fair officially opened
to the public, the Georgia Department of Labor ("GDOL")
determined that the Orbiter was safe and cleared it for
operation.
The Orbiter was also
(Rosales Dep. at 41-42.)
inspected by
Defendant's
employees
periodically throughout the day.
every morning
(Id. at 18, 41-42.)
and
These
inspections were performed on the day Plaintiff was injured.
(Id. at 41-42.)
Ricardo Rosales and George Neider operated the Orbiter on
the day of the accident. Rosales testified to his and Neider's
actions during the operation of the ride cycle that injured
Plaintiff.
According to Rosales, once the passengers were
seated, he engaged the ride's lap bar restraint system and
secured it so that passengers could not unlatch the lap bar.
(Id. at 42-43, 45-48.)
He also engaged the ride's secondary
restraint, which is a chain attached to the lap bar that locks
the bar into the engaged position.
(Id. at 46-48.)
Rosales
instructed the passengers to keep their hands and feet inside
the Orbiter while it was in motion.
(Id. at 47.) Neider then
double-checked both the primary and secondary restraints on
each of the gondolas, confirming that they were both properly
secured.
(Id. at 48.)
According to Rosales, after securing the passengers, he
positioned himself at the main control station, known as the
"dog box," which was at the left-hand side of the ride.
at 21.)
(Id.
In the dog box, Rosales activated the "Hercules
switch," a foot pedal that must remain depressed in order to
keep the Orbiter in motion.
(Id. at 39-40, 21-22, 49.) Neider
was positioned at "the pole" on the right-hand side of the
(Id. at 40.)
ride.
Emergency stop buttons were located at
(Id.) Rosales then placed the
both the dog box and the pole.
Orbiter into slow speed which enabled him and Neider to
visually inspect it and ensure that the passengers had not
tampered with the restraints.
(Id. at 26.)
Shortly after the ride began moving, Rosales noticed
Plaintiff's legs hanging out of her gondola.
(Id. at 31, 50.)
The girl seated next to Plaintiff was holding onto Plaintiff's
jacket in an attempt to keep her in the gondola.
(Ex. 1 at 5.)
Upon seeing Plaintiff, Rosales and Neider hit the emergency
stop buttons at their respective stations.
However, by the
time the Orbiter came to a stop, Plaintiff had already been
ejected.
(Rosales Dep. at 50.)
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B.
The Investigations
Following the accident, the GDOL and the Georgia Bureau of
Investigation ("GBI") arrived at the fair to perform an
investigation and reevaluate the Orbiter's safety.
After
interviewing witnesses, consulting with police officers, and
inspecting the ride firsthand, GDOL Safety Inspector Carl
Spitzer ("Inspector Spitzer") prepared an official accident
investigation report, as well as a new inspection report
recommending that the GDOL "release [the] ride for operation."
(Ex. 1 at 15.)
Based on the statements of Rosales and Neider,
(1) the ride was operating
Inspector Spitzer concluded:
properly at the time of the accident, and (2) Neider activated
the emergency stop button as soon as he saw Plaintiff's legs
coming out of the foot-well of the gondola.
(Id. at 3-5.)
Upon concluding that the Orbiter was functioning properly and
that Defendant's employees acted reasonably, Inspector Spitzer
opined that Plaintiff had panicked and attempted to exit the
(Id. at 5)
Orbiter while it was in motion.
At the request of Daniel J. Craig, District Attorney
("DA") for the Augusta Judicial Circuit, the GBI began its own
investigation of the underlying incident. On November 5, 2006,
GBI Special Agent Kicklighter and DA Craig travelled to Delco,
North Carolina, to observe the Orbiter in its storage facility.
(Id. at 57-70.)
They took photographs of the ride but could
4
not properly inspect it because trained professionals were not
present to set it up.
(Id. at 61-62.)
DA Craig, the GBI, and the GDOL agreed that it would be
beneficial to retain an independent expert to conduct a
separate investigation to determine the operational accuracy,
safety, and readiness of the Orbiter.
selected
David Collins,
an
(Id. at 25.)
electrical
They
engineer widely
recognized as an expert in the field of amusement ride design
and operations.
(Id.)
On November 17, 2006, Mr. Collins, along with DA Craig,
GBI Agent Kicklighter, and GDOL officials, traveled back to
North Carolina to inspect and test the Orbiter. Upon observing
Defendant's employees set up the Orbiter, observing the ride in
operation, and testing its systems, Mr. Collins concluded that
the Orbiter had been properly maintained and was functioning
normally at the time of Plaintiff's accident.
(Id. at 25-28.)
In conducting his inspection, Mr. Collins tested the electrical
and hydraulic systems of the ride and concluded that the
Orbiter was in good working order and had not been tampered
Mr. Collins also determined
with or modified. (Id. at 29.)
that the lap bar restraint system in the Orbiter was
functioning properly.
(Id.)
Mr. Collins performed testing to determine the effect of
the "accelerations" or G-forces that Plaintiff was subjected to
5
while seated in the Orbiter.
These measurements confirmed
"that a rider seated upright with there [sic] feet in the foot
tub and hands at there [sic] side or on the closed and latched
lap bar would not be ejected from the [Orbiter]."
20.)
(Ex. 2B at
Had Plaintiff "remained properly seated," she "would not
have been ejected." (Id.) Mr. Collins likewise concluded that
the Orbiter's lap bar restraint system was in compliance with
the current American Society for Testing and Materials ("ASTM")
standards governing amusement ride restraint systems. (Id.)
Mr. Collins also determined that an unrestrained but
seated rider would not have been ejected from the Orbiter.
(Id. 17-20.)
To demonstrate, he placed an open-top can filled
with water on the seat of the gondola and sent the ride through
a cycle.
(Id. at 13.)
The unrestrained can remained upright
throughout the cycle. (Id.)'
Upon completion of his investigation, Mr. Collins reached
the following conclusions: (1) prior to the accident the ride
was mechanically and electrically functioning and carrying
riders properly, (2) following the accident the Orbiter was
mechanically and electrically functioning and carrying riders
properly, (3) the mechanical and electrical design of the
Orbiter did not contribute to the accident,
1
(4)
the
This test mirrored an earlier test performed by the GBI. On November
9, 2006, GRI Agent Kicklighter had performed an experiment whereby he placed
buckets of water on the seat of a gondola and initiated a ride cycle. (Ex.
1D at 6.) The buckets remained upright on the seat throughout the cycle, and
no water was dispersed from them.
(Id.)
6
"accelerations" or G-forces of the Orbiter were within
acceptable engineering tolerances, (5) the Orbiter's Patron
Restraint System was in compliance with the industry standard
for patron containment, (6) the measurements of the
"accelerat±ons" or G-forces established that a "properly seated
patron" would not be ejected from the ride, (7) Defendant
properly maintained the Orbiter in accordance with current ASTM
standards, () Defendant's employees set-up the Orbiter in
accordance with the procedures in the operations manual, and
the set-up did not contribute to the accident, (9) at the time
of the accident, Defendant's staff was operating the ride in
accordance with the procedures in the operations manual and
governing ASTN standards, (10) Defendant's employees operated
the ride in a manner that did not contribute to the accident,
and (11) Plaintiff would not have been ejected from the Orbiter
had she remained properly seated.
C.
(Id. at 17-20.)
Procedural History
On May 12, 2010, Plaintiff filed suit in the Superior
Court of Richmond County claiming that Defendant's negligence
caused her injuries. (Doc. no. 1, Ex. 1.) The Complaint
alleged that Defendant: (1) negligently represented that the
operation of the Orbiter would be conducted in a safe manner;
(2) negligently misrepresented that the Orbiter was constantly
maintained;
(3) failed to properly warn patrons of the
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dangerous nature of the Orbiter; (4) failed to properly inspect
and maintain the Orbiter to ensure that the rotation of the
center shaft and occupant pods were properly counterbalanced
and operated in such a way that inertial and centrifugal forces
safely restrained occupants in their seats; (5) failed to
provide additional supplementary restraints; (6) negligently
operated the Orbiter; and (7) failed to properly monitor the
Orbiter and to properly shut it clown with the available
emergency stop switch.
(Compl. ¶ 14.)
Defendant subsequently removed the action to this Court on
the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332. (Doc. no. 1.) On October 7, 2011, Defendant moved for
summary judgment asserting that there is no evidence that
Defendant or its employees acted negligently. Defendant
further claims that Plaintiff both caused the accident and
assumed the risk of injury by leaving her seated position in
the Orbiter.
(Doc. no. 38 at 11-15.)
11. SUMMARY JUDGMENT STANDARD
The Court should grant summary judgment only if "there is
no genuine issue as to any material fact and . . . the moving
party is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(c) . Facts are "material" if they could affect the outcome
of the suit under the governing substantive law.
8
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court must
view the facts in the light most favorable to the non-moving
party, Matsushita,
475 U.S. at 587, and must draw "all
justifiable inferences in [its] favor."
Four Parcels, 941 F.2d
at 1437 (internal punctuation and citations omitted)
The moving party has the initial burden of showing the
Court, by reference to materials on file, the basis for the
motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
How to carry this burden depends on who bears the burden of
proof at trial.
Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993) .
When the non-movant has the burden of
proof at trial, the movant may carry the initial burden in one
of two ways—by negating an essential element of the non-movarit's
case or by showing that there is no evidence to prove a fact
necessary to the non-movant's case. See Clark v. Coats & Clark,
Inc., 929 F.2d 604, 606-08 (11th Cir. 1991) (explaining Adickes
v. S. H. Kress & Co., 398 U.S. 144 (1970) and Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)).
Before the Court can evaluate
the non-movarit's response in opposition, it must first consider
whether the movant has met its initial burden of showing that
there are no genuine issues of material fact and that it is
entitled to judgment as a matter of law.
Jones v. City of
Columbus, 120 F.3d 248, 254 (11th Cir. 1997) (per curiam) .
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A
mere conclusory statement that the non-movant cannot meet the
burden at trial is insufficient. Clark, 929 F.2d at 608.
If—and only if—the movant carries its initial burden, the
non-movant may avoid summary judgment only by "demonstrate[ing]
that there is indeed a material issue of fact that precludes
summary judgment." Id. When the non-movant bears the burden of
proof at trial, the non-movant must tailor its response to the
method by which the movant carried its initial burden.
If the
movant presents evidence affirmatively negating a material fact,
the non-movant ' T must respond with evidence sufficient to
withstand a directed verdict motion at trial on the material
fact sought to be negated."
Fitzpatrick, 2 F.3d at 1116.
If
the movant shows an absence of evidence on a material fact, the
non-movant must either show that the record contains evidence
that was "overlooked or ignored" by the movant or "come forward
with additional evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency."
Id. at 1116-17. The non-movant cannot carry its
burden by relying on the pleadings or by repeating conclusory
allegations contained in the complaint. See Morris v. Ross, 663
F.2d 1032, 1033-34 (11th Cir. 1981) .
Rather, the non-movant
must respond with affidavits or as otherwise provided by Federal
Rule of Civil Procedure 56.
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In this action, the Clerk gave Plaintiff appropriate
notice of the motion for summary judgment and informed her of
the summary judgment rules, the right to file affidavits or
other materials in opposition, and the consequences of default.
(Doc. no. 40.)
Therefore, the notice requirements of Griffith
v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam),
are satisfied. The time for filing materials in opposition has
expired, and the motion is now ripe for consideration.
111. DISCUSSION
As an initial matter, Defendant moved for summary judgment
on all theories of negligence raised in Plaintiff's Complaint.
However, in her response to Defendant's motion for summary
judgment, Plaintiff only challenges the issue of whether
Defendant's employees acted negligently when loading passengers
into the Orbiter on the day of the accident. Therefore, the
Court treats the other claims of negligence as abandoned and
will only address the question of whether Defendant's employees
acted negligently. Lazzara v. Howard A. Esser, Inc., 802 F.2d
260, 269 (7th Cir. 1986) (a ground not pressed in opposition to
a motion for summary judgment ±3 to be treated by the district
court as abandoned) ; see also Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995) (grounds alleged in the
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complaint but not relied upon in summary judgment are deemed
abandoned)
•2
Based on the record before the Court, there is no evidence
to support Plaintiff's claim that the negligence of Defendant's
employees
caused
the
accident.
"Issues
of
negligence,
contributory negligence, assumption of the risk, and lack of
ordinary care for one's own safety are not susceptible of
summary adjudication."'
Woolbright v. Six Flags Over Georgia,
Inc., 172 Ga. App. 41, 41 (1984) (citing Oglesby v. City of
Atlanta, 166 Ga. App. 192, 193 (1983)) .
However, "where the
trial court can accurately conclude upon plain, palpable and
indisputable evidence that there was no negligence attributable
to the defendant, then it is not improper in such a case to
direct summary judgment in favor of the defendant." Id.3
Here, the evidence presented establishes that Defendant's
employees acted reasonably during the operation of the ride and
that Plaintiff would not have been injured had she remained
seated in the gondola. Inspector Spitzer and Mr. Collins both
concluded that Rosales and Neider operated the Orbiter properly
and that Plaintiff panicked and attempted to exit the Orbiter
while it was in motion.
They also concluded that even if
2
Even if the Court considered the other allegations of negligence,
Defendant would be entitled to summary judgment as Plaintiff has not
presented any evidence demonstrating that d question of material fact exists.
In diversity cases, a federal court applies the law of the forum in
which it sits. Continental Cas. Co. v. Aciamo, 326 F.3d 1181, 1182 (11th Cir.
2003)
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Plaintiff was not properly restrained, she would not have been
ejected from the Orbiter had she remained properly seated.
There is no evidence suggesting that Defendant's employees
should have known that Plaintiff would attempt to exit her seat
while the Orbiter was in motion or that they had a reasonable
opportunity to prevent Plaintiff's accident. Thus, there is no
evidence supporting Plaintiff's assertion that Defendant's
negligence caused the accident.
In opposition to Defendant's motion, Plaintiff relies on
the testimony of Rosales to demonstrate that a question of
material fact exists in this case. When asked whether it would
be possible for someone to unlock either the primary or
secondary restraint system while the Orbiter was in motion,
Rosales stated that it was not possible because the G-forces of
the ride would cause the passengers to be 'pressed against the
back seat" making it "impossible to move."
(Id. at 55, 56.)
He also stated that ''you can [move your hands], but . . .
soon as you lift them, they're getting pulled back."
as
(Id.)
Plaintiff contends that these statements conflict with Rosales'
previous testimony that Plaintiff panicked and attempted to
exit the ride.
According to Plaintiff, if the G-forces
prevented Plaintiff from moving her arms, she would have been
unable to remove the restraints while the ride was in motion.
Plaintiff contends that this case should be submitted to a jury
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because Rosales contradicted both himself and the other
evidence in the record.
See Griffin v. Bremen Steel Co., 161
Ga. App. 768, 771 (1982)
("If a witness [is] successfully
contradicted as to a material matter, his credit as to the
other matters shall also be for the jury.") .
Despite Plaintiff's claim to the contrary, Rosales'
statement does not contradict his previous testimony or the
other evidence in the record. First, Rosales was not qualified
as an expert and thus cannot testify as to the effects of the
G-forces on the Orbiter's passengers. He did not testify as to
any special education, training, or experience in the field of
engineering or in the laws of physics.
Thus, while the Court
is required to consider Rosales' testimony that is based on his
personal observations, the Court cannot consider his testimony
regarding the G-forces when determining whether a question of
fact exists.
Second, even if this Court does consider Rosales'
testimony regarding the effects of the G-forces on passengers,
there is no material inconsistency in his testimony.
When
Rosales testified to the effects of the G-forces, he was
Rosales is currently incarcerated in the Camden County Sheriff's
Detention Center awaiting trial on the charge of possessing a controlled
substance.
He also has a prior felony criminal conviction for entering an
automobile for which he received five years probation.
Plaintiff asserts
that she will use these convictions to impeach Rosales at trial.
She
believes that impeaching Rosales "could lead the jury to discredit [his]
testimony that he and . . Neider assured [Plaintiff] was properly
restrained in her seat, and allow a finding that Defendant's employees acted
negligently."
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discussing the effects on passengers generally, not the effects
on Plaintiff specifically.
Nowhere in his deposition did
Rosales indicate that the G-forces prevented Plaintiff from
removing or maneuvering under her restraints. Indeed, he said
He testified that she panicked and was
just the opposite.
ejected from the ride, which suggests that she had already
bypassed the restraints before the G-forces reached full force.
Rosales' testimony is also consistent with the accident
report and the findings of Mr. Collins' investigation. Rosales
testified as to the effects of the G-forces while the Orbiter
is at full
speed.
Inspector Spitzer, like Rosales, testified
that when the Orbiter "reaches full
speed,
there is a
considerable amount of G forces to hold the occupant in the
tub."
(Ex. 2 at 5) (emphasis added) .
However, Rosales stated
that he saw Plaintiff in distress as the Orbiter "almost hit
full speed."
(Rosales Dep. at 31.)
This is consistent with
Inspector Spitzer's conclusion that Plaintiff "managed to
maneuver herself into a position to attempt going underneath
the lap bar before the ride reached full speed."
(emphasis added) .
(Ex. 2 at 5)
Therefore, Rosales' statement is consistent
with Inspector Spitzer's report.
Both indicated that although
the G-forces on the Orbiter can prevent a passenger from
removing the lapbar restraints when the ride is operating at
15
full speed, Plaintiff managed to maneuver out of the restraints
before the
Orbiter reached full speed.
Based on the evidence, there is no question of material
fact regarding whether Defendant's employees acted negligently
in restraining Plaintiff. The investigative reports, which are
unchallenged by Plaintiff, found that the employees acted
reasonably and that Plaintiff panicked while the ride was in
motion, tried to exit the ride, and was ultimately ejected.
The reports also establish that even if Defendant's employees
failed to properly restrain Plaintiff, she would not have been
ejected had she remained in the seated position. Therefore,
Defendant is entitled to summary judgment.
IV. CONCLUSION
Upon the foregoing, Defendant's Motion for Summary
Judgment (Doc. no. 38) is GRANTED. The Clerk is directed to
ENTER JUDGMENT in favor of Defendant, and CLOSE this case.
ORDER ENTERED at Augusta, Georgia this 2 7 ' day of May,
2012.
11O1WBB-LE J.'RANDAL HALL
UNITFJD STATES DISTRICT JUDGE
SOERN DISTRICT OF GEORGIA
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