Criminal Act Ruled Unforeseeable

Now that summer is unofficially over (at least here in South Carolina, where heat and humidity tend to stick around until October), this may not be the best time for an amusement park post. But the Tennessee Court of Appeals recently affirmed a grant of summary judgment worth looking at. Pictured above is an amusement park ride known as the Hawk, which spins around a fixed pivot point. The ride was manufactured by an Italian firm, Zamperla.

As detailed here, in 2004, June Carol Alexander fell to her death when the Hawk malfunctioned. The Hawk was installed by Zamperla at Rockin’ Raceway in 1998, and the last contact that Zamperla had with Rockin’ Raceway was in 2000. Truncating the facts, Rockin’ Raceway had hired a general manager, Stan Martin, who, for reasons not apparent, intentionally rewired the Hawk to bypass its safety systems, so that it would work even when the safety harnesses were not properly engaged. In July 2003, there was a close call with a patron, and in 2004, Ms. Alexander was killed.

In an apparent attempt to go after the deep pocket, the plaintiff’s estate dismissed Rockin’ Raceway and Mr. Martin without prejudice to pursue an action solely against Zamperla. The trial court granted Zamperla’s motion for summary judgment, and, in Alexander v. Zamperla, No. E2009-01049-COA-R3-CV, 2010 WL 3385141 (Tenn. Ct. App. August 27, 2010) [PDF], the court of appeals affirmed.

The plaintiffs’ basic argument, in negligence and strict liability, was that this criminal act was foreseeable, and that a design allowing such a criminal act to bypass the ride’s security was foreseeable. Based upon the expert discovery in the case, the court ruled that the plaintiffs’ had not shown any genuine issue of material fact. According to the plaintiffs’ expert, the ride’s safety system was state of the art when it was installed. In addition, no witness could recall ever seeing an incident like this, or anything about Mr. Martin’s background that would have given anyone probability to expect anything like this.

Zamperla is a reminder for manufacturers to affirmatively monitor customers and the news to the extent possible for potential misuses of products that plaintiffs’ attorneys will try to attack as reasonably foreseeable. With some better (more favorable or better thought out) expert discovery, the Alexander plaintiffs could possibly have gotten by summary judgment by introducing some evidence that 1) Martin’s conduct was foreseeable or 2) the Hawk’s design was defective by permitting such manipulation by Martin. Defense lawyers know what happens when a case with bad facts gets in front of a jury. In any event, even in these lean economic times, manufacturers would do well not to forget to monitor the news for “foreseeable” alterations of their products.

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