$________ - AMUSEMENT PARK NEGLIGENCE - FAILURE TO WARN THAT 4-YEAR-OLD WAS TOO SMALL FOR RIDE AT AMUSEMENT PARK - CHILD FALLS 35-40 FEET THROUGH OPENING IN CAGE - FRACTURED FEMUR NOT INVOLVING GROWTH PLATE - CHILD SUFFERS FREQUENT NIGHTMARES.

Atlantic County

This was an action in which the plaintiff contended that the defendant owner of an amusement ride known as "Superloops" was negligent in the training, operation and supervision of the ride. The plaintiff also contended that the ride was defectively designed and that the manufacturer provided inadequate warnings as to the size restrictions which should have been imposed.

The infant plaintiff was brought by his mother and aunt along with a group of other children. The aunt permitted the child to go on the ride while the mother was walking slightly behind the loop. The mother related that a few moments later and before the ride started, she observed her son on the ride and expressed concern to the operator that her son was too small. The mother maintained that the attendant reassured her that he met the height requirements and that after she admonished him "to take care of my baby," the operator again reassured her that safety was the no. 1 priority. The incident occurred shortly thereafter.

The evidence revealed that the ride’s safety system consisted of a restraining bar and cage which surrounded patrons. The cage had openings that ranged from approximately 4-5 inches to approximately 11 inches.

The plaintiff contended that the 42 inch height restriction placed by the manufacturer and the owner of the ride was inadequate because although this height would in-and-of itself be sufficient, a child of this height could be too thin to be restrained by the bar and cage.

The plaintiff contended that when the bar closed, there were several inches of space between the bar and the child’s legs.

The plaintiff’s expert engineer related that minimum state height requirements default at 60 inches unless the manufacturer suggests a different limit. The manufacturer had set 42 inches as the minimum.

The plaintiff’s expert maintained this height limit was inadequate because a child of such size could well be too thin to be safely restrained.

The expert related that based upon anthroprometric studies regarding relative height and weights of such children, the minimum height should have been 48 inches. The plaintiff further maintained that after manufacture, but before the accident, the defendant manufacturer had changed the height limit to 48 inches in a ride the plaintiff contended was similar in nature. The plaintiff maintained that the defendant should have advised its purchasers that a 48 inch height limit should apply to the subject ride as well.

The evidence reflected that the defendant ride owner had purchased this ride used and the plaintiff contended that the custom and practice in the industry is to forward all paper work with the ride when it is sold. The plaintiff contended that the manufacturer should have also changed the height limit on this ride and pass on this information to subsequent purchasers.

On the issue of negligent operation, the plaintiff maintained that the defendant’s operator negligently stopped the car at the top of its cycle for several seconds in contravention of the manufacturer’s advisements that the car should stop momentarily only, resulting in the loss of centrifugal force which caused the plaintiff to fall through the cage and land 35-40 feet below.

The plaintiff maintained that the defendant’s operators should have been trained to observe weight and age in addition to height. The plaintiff’s expert related that the State of N.J. has two classifications of rides, including "adult" rides and "kiddie" rides and that since the ride in question was not characterized as a kiddie ride, it was especially important for the operator to make observations of weight and age in addition to height.

The defendant amusement ride operator maintained that it provided adequate supervision and that the child did not appear to be in distress when he was on the ride. The operator could not be located and did not testify in discovery. The manufacturer maintained that the ride was appropriately designed and contended that if the ride owner and his operator had followed the manufacturer’s warnings, the incident would not have occurred.

The infant plaintiff suffered a fracture to the right femur which did not involve the growth plate. The fracture necessitated a few weeks of traction, eight weeks in a body cast and several months of physical therapy. The plaintiff contended that the leg injury will permanently cause pain upon fatigue and changes in the weather. The infant plaintiff also suffered a concussion which the plaintiff indicated has substantially resolved. The defense maintained that the injuries fully resolved.

The plaintiff related that he experiences nightmares about the event, which although more frequent in the past, have continued intermittently up until the time of trial. The plaintiff’s mother, who witnessed the accident, had brought an emotional distress claim under Portee vs. Jaffee and the Court dismissed this aspect, holding that the mother, who had not undergone psychotherapy, could also not point to other evidence of sufficient symptoms of severe emotional distress to warrant submitting this issue to the jury.

The ride was situated on the non-party Steel Pier in Atlantic City and although the owner and lessor were named as defendants, no evidence was presented at trial against them and these codefendants were dismissed at the close of evidence. The various rides are owned by entities who rent the space from the Steel Pier. The evidence disclosed that unlike many amusement parks which use a pay one price system that allows patrons unlimited rides, the arrangement at the Steel Pier calls for patrons to purchase tickets for each ride which they then give to the operator and that the amount of rent owed is associated with the number of tickets received.

The jury found that the ride was not defective, but that both defendants failed to provide adequate warnings, assessing 80% liability against the ride owner and 20% against the manufacturer. They then awarded $________.