Theme Park Defense: 10 Things to Know
05.11.17Florida’s theme parks attract millions of visitors each year. Any business with that volume of visitors is certain to encounter litigation. Theme park litigation is unique because it incorporates many different types of facilities and attractions in one venue including thrill rides, water rides, retail stores, restaurants, theaters, family play areas and animals. In no particular order, this article touches on 10 common recurring issues in the defense of theme park litigation.
- Open and Obvious: Premises owners have no duty to warn patrons of open and obvious conditions. Courts have found certain conditions such as landscaping features to be so open and obvious that they do not constitute dangerous conditions as a matter of law. Some conditions like stairs in theaters and curbs on sidewalks are so commonplace that they generally do not constitute a dangerous condition upon which a premises liability action can be based.
- Spoliation: Spoliation of evidence can give rise to an adverse inference that the absent evidence would have been material in deciding the facts in dispute and the evidence would have been unfavorable to the disposing party. Counsel should be aware of the threshold questions to be satisfied to make a prima facie showing of spoliation in order to defend these claims and to know when such a claim is appropriate against an opposing party.
- Trip Standards: A premises owner owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises. Successfully defending trip-and-fall cases depends on an understanding of what standards exist for variations in elevation on walking surfaces, when the standards apply and when the open and obvious defense may be successful.
- Slip Standards: Just like trip-and-fall cases, for slip-and-fall cases it is important to understand which safety standards apply to slip resistance of walking surfaces, the current arguments for and against utilization of those standards and what methods can be used to establish that a reasonably safe surface existed.
- Lighting Standards: Thematic lighting is an element of many attractions and may include theatrical or special effects. Counsel should be aware of what standards exist for lighting, when those apply, the various methods for measuring illumination and the limitations of those methods.
- Security Issues: Most theme parks have security personnel on premises to assist with issues arising from theft and altercations between guests. Premises owners are generally not liable for criminal acts of third parties over whom they have no control. Understanding whether those acts rise to the level of reasonably foreseeable hazards and whether the shopkeeper’s privilege applies is the key to successfully defending negligent security cases.
- Crowd Control: Courts have held that a duty to supervise patrons for the purposes of preventing injuries for known risks does not require the premises operator to furnish each patron with a personal usher to guard against risks. However, liability can attach if the operator has knowledge of the need for specific supervision and a reasonable opportunity to act.
- Ride Maintenance: When a park patron claims to have been injured on a ride, he or she may claim the ride was improperly maintained. Understanding the amusement ride industry regulations and the applicability or inapplicability to theme parks can change the liability picture of the case.
- Workers’ Compensation Immunity: A premises owner who hires an independent contractor is generally not liable for injuries sustained by the contractor’s employees. Under certain circumstances, the premises owner may also be entitled to workers’ compensation immunity.
- Exculpatory Clauses for Certain Activities: Clear and unambiguous pre-activity releases can bar negligence actions. In fact, a parent can waive his or her child’s right to sue if such a waiver is in line with the Florida statutory requirements.
It is no secret that Florida’s theme parks vigorously defend their brands and their industry. Many patrons assume that simply because they claim an injury at a theme park, the park is liable. That is simply not the case. Understanding the common issues that arise in theme park litigation will help prepare a successful defense.