By Kathleen Bianco, J.D.
The evidence in the record was insufficient to determine whether the water park primarily provided a service or use of a product to its patrons.
Judgment in favor of a water park on products liability claims arising from injuries suffered by a patron while riding a water slide was reversed by a California court of appeals because insufficient evidence was presented to determine whether the park was providing a service or a product to consumers. A negligence-based claim was affirmed because while the water park was deemed a common carrier subject to a heightened standard of care, the evidence failed to establish a breach of that duty on the part of the water park. Breach of warranty claims also were deemed to have been properly adjudicated (Sharufa v. Festival Fun Parks, LLC, May 27, 2020, Grover, A.).
A water park guest fractured his hip and pelvis riding a water slide at Raging Waters, a theme park operated by Festival Fun Parks, LLC. While going down the slide, the patron inadvertently slipped from a seated position on an inner tube onto his stomach. When he entered the splash pool at the end of the ride, his feet hit the bottom with enough force to cause his injuries.
The patron sued for negligence, products liability, and negligent misrepresentation. The water park moved for summary judgment. In support of his claims, the patron put forth evidence from a mechanical engineer who opined that going down the slide on one’s stomach could lead to injury because it would cause a person to enter the water with more velocity than sliding on one’s back. The trial court declared the expert’s testimony inadmissible after finding that the engineer did not qualify as an expert on the relevant subject matter. Upon review of the remaining evidence, the trial court granted the water park’s motion for summary judgment on the negligence and products liability claims but denied the motion for judgment on the negligent misrepresentation claim, which the patron dismissed without prejudice to allow entry of judgment and appeal.
Products liability. The water park asserts that the patron’s products liability claims must fail because he received a service, not a product from the park. Under California law, products liability is a tort liability imposed upon entities involved in the chain of distribution of goods or products for the use of others arising from losses incurred by purchasers, users, or bystanders resulting from alleged defects in the products. Under this standard, a defendant need not be the manufacturer of the product to be liable, but at a minimum must be part of the distribution chain. As such, a party delivering a service to a consumer rather than a product would not be liable for defects in a product provided incidentally to a consumer as part of the services provided.
According to the appellate court, while it is highly likely that a water park patron’s primary objective of frequenting the water park is to use the water slides, it is conceivable that the other services offered by the park could be so extensive as to make the use of the water slides secondary. However, the court found that more facts were needed to determine whether the services offered were "ancillary" to a patron’s primary objective of using the water slides, or the other way around. Consequently, because the validity of the products liability claims rested on whether the patron’s primary purpose in paying admission to the park was to use the water slides or to engage in other services provided, summary judgment on the products liability claims based on strict liability and negligence theories should have been denied, the court of appeals ruled. Thus, the lower court’s judgment on those claims was reversed and the matter remanded.
As to the warranty-based products liability causes of action, the water park had argued that the trial court was correct to summarily adjudicate those claims because "[a]n essential element to impose liability on a product warranty theory is the sale of a good between buyer and seller" and no sale occurred in the current case. The injured patron did not provide an argument in response, which the court took as a concession that the trial court’s ruling was correct and affirmed the trial court.
The case is No. H044064.
Attorneys: John Fitzpatrick Vannucci (Law Offices of John Fitzpatrick Vannucci) for Sean Sharufa. Sanaz Cherazaie (Amaro Baldwin LLP) for Festival Fun Parks, LLC.
Companies: Festival Fun Parks, LLC
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