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Horry County, SC

In this action for negligence, the plaintiffs alleged that the defendant’s gross negligence proximately caused the plaintiff to suffer traumatic brain injury. The defense denied the allegations, challenged damages and alternatively argued that regardless of possible negligence, the plaintiffs were barred from recovery.

The 44-year-old plaintiff was a passenger on one of the rides owned and operated by the defendant when she fell from the ride due to its sudden deceleration. Several hours later, while at home, the plaintiff became nauseous, dizzy and began vomiting and losing neurologic functioning. Her husband rushed her to the local hospital where she underwent an emergency craniotomy.

As it turned out, she had suffered an intracranial hemorrhage when she fell from the ride earlier that day. The long term results of the traumatic brain injury included an epilepsy seizure disorder, as well as left-sided hemiparesis and facial palsy.

The plaintiff and her husband sued the recreational amusement company for negligence, arguing overall that the reckless operation of the ride proximately caused the plaintiff to fall. In support of this argument, the plaintiffs provided strong evidence that the ride was being operated at twice the manufacturer’s recommended speed of 15 miles per hour. This evidence included a clear manufacturer’s warning, located on the side of the ride, that the equipment should not be operated in excess of 15 miles per hour. The plaintiffs also provided post-injury measurements of the ride being consistently operated at a speed in excess of 30 miles per hour.

The defense denied all allegations of negligence. In addition, the defense challenged the plaintiffs’ damages and argued that they were barred from recovery. In so arguing, the defense suggested that the plaintiff’s injuries could have been the result of a prior spontaneous brain bleed that she had suffered in ________. The defense also highlighted the fact that the plaintiff had signed an “Assumption of the Risk and Liability Waiver” prior to getting on the ride.

The plaintiffs countered the defense’s argument by showing that the prior ________ brain bleed had not resulted in any long-term neurological injury. In addition, the plaintiffs challenged the enforceability of the liability waiver. The plaintiffs suggested that the waiver was ambiguous because its definition of “released activities” did not include the particular ride on which plaintiff was injured. Additionally, it was plaintiffs’ position that gross negligence cannot be released under South Carolina’s law and that intentionally ignoring a manufacturer’s warning was reckless conduct.This matter settled at mediation on August 24, ________ with a $________ recovery for the plaintiffs.

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