Now, the Tennessee defendants in Brown v. Herschend Family Entertainment Corp. have fired back, alleging plaintiff is to blame for her own injuries. Where plaintiff asserts the park is negligent for failure to maintain a working lock mechanism on a motorized swing ride, defense asserts plaintiff voluntarily left the ride before it was finished, jumping to the ground and causing her own injuries.
Although this kind of defense – known as comparative fault – is a challenge that is often raised in personal injury lawsuits across the country, it can be especially damaging here in North Carolina. That’s because we, along with just three other states plus the District of Columbia, adhere to a system of pure contributory negligence. Under this principle, plaintiff may not recover damages if his negligence proximately caused his injury. This is true even when defendant shares more of the blame than plaintiff.
Meanwhile Tennessee, similar to South Carolina, follows a model of modified comparative fault. Under this model, a plaintiff’s right to collect damages will be reduced by his or her own liability. However, plaintiff’s negligence isn’t a bar to recovery unless it exceeds 49 percent in Tennessee or 50 percent in South Carolina.
So someone injured at Carowinds, which is technically in North Carolina, would have to overcome any assertion of personal fault for an amusement park personal injury, while someone hurt at Family Kingdom Amusement Park in Myrtle Beach, SC would only need to show he or she was less at fault than defendant.
In the Brown case, the stakes are high, as the woman alleges she suffered permanent impairments and disabilities as a result of her headfirst fall from the ride, the Waltzing Swinger, while on vacation with her husband and five children.
She said it was raining that day and the seats were wet and slick. For this reason, she was prompted to ask the ride attendant if in fact the ride was still safe, to which the attendant reportedly answered she had nothing to worry about. The swings proceeded to ascend 25 feet into the air and then tilt outward. Although the chairs had a lap bar, it reportedly did not contain a locking mechanism. That meant anyone could lift up the bar at any point in the ride and become unrestrained.
When the ride stopped, plaintiff says she thought the ride was over. She lifted the lap bar, but quickly realized she was still too high up to safely exit. But due to the slippery conditions, she lost her grip on the lap bar and fell headfirst about 10 feet onto the pavement. She suffered traumatic brain injury, as well as spine and neck injuries, broken jaw and torn ligaments.
She alleged defendants failed to exercise due care by first failing to have a locking mechanism on the lap bar and secondly by failing to shut down the ride in slick conditions. She also asserts failure to warn, saying the park didn’t tell patrons to keep the safety bar down until the ride was on the ground.
She is seeking $475,000 in damages.
However, defense has now countered with the assertion the accident was fully plaintiff’s fault because she jumped from the ride before it was over. Park officials assert the ride had not come to a complete stop when plaintiff voluntarily lifted the lap bar and jumped.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
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