Desai v. Silver Dollar City, Inc.

• Decision Date: 15 October 1997
• Docket Number: No. A97A1963,A97A1963
• Citation: 229 Ga.App. 160,493 S.E.2d 540
• Parties: , 97 FCDR 3861 DESAI et al. v. SILVER DOLLAR CITY, INC.
• Court: Georgia Court of Appeals

Page 540

493 S.E.2d 540

229 Ga.App. 160, 97 FCDR 3861

DESAI et al. v. SILVER DOLLAR CITY, INC.

No. A97A1963.

Court of Appeals of Georgia.

Oct. 15, 1997.

Reconsideration Denied Nov. 5, 1997.

Certiorari Denied Feb. 27, 1998.

Rubin & Wildau, Martin H. Rubin, David Markus, Atlanta, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Brian R. Neary, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Mrs. Desai appeals the grant of summary judgment to Silver Dollar City, Inc., doing business as White Water Theme Park, on her claim against White Water based upon an injury she sustained to her knee while using one of the theme park's water slides. The trial court also granted summary judgement on Mr. Desai's claim for loss of consortium.

Mrs. Desai's deposition testimony shows that she was a frequent visitor to White Water and that she and her family had season passes for at least three years, including the year she was injured. In fact, by the day of her injury, June 26, 1994, this was the fourth or fifth trip to White Water that year. Mrs. Desai testified that she was injured when, after going down the water slide at White Water in a raft as she had numerous times, she got out of the raft without being told to by an attendant and was struck by another raft. The record also shows that Mrs. Desai had observed the water slide in operation on many occasions.

On the day Mrs. Desai was injured the following announcement was played continuously over the public address system at the beginning of the slide and on the walkway leading to the top of the slide:

"Welcome to Bahama Bob-Slide. This is a thrilling ride. When you get to the top, the lifeguard will instruct you on how to board the raft. Listen carefully to these instructions. While in the raft, sit facing the center with legs crossed and hold onto the handles. Do not lean forward as you might bump heads. Remain seated throughout the entire ride. At the bottom of the ride do not get out of the raft until a lifeguard instructs you to do so. Other rafts will be coming down behind you and the water is shallow. Disregard for these rules may result in injury to yourself or others." (Emphasis supplied.)

Although Mrs. Desai's affidavit states that she did not hear this recorded message, she has not disputed that the message was being played.

Further, this sign was posted near the entrance of the slide:

BAHAMA

BOB-SLIDE

RATING: THRILLING

WATER DEPTH: 0-3 FEET

RESTRICTION: MAX 6 people per Aquadiscs

HOW TO RIDE

AQUADISCS:

PLEASE STAY SEATED ON THE BOTTOM OF YOUR RAFT

HOLD ON TO ONE OF THE HANDLES

RENTAL TUBES CAN BE CARRIED TO TOP OF PLATFORM AND WILL BE SENT DOWN POOL

PICK-UP AT BOTTOM OF RIDE

CAUTION

DO NOT EXIT RAFT UNTIL ATTENDANT INSTRUCTS YOU TO

DO NOT STEP ONTO CONVEYOR

FAILURE TO ABIDE BY THESE RULES MAY RESULT IN INJURY TO YOUR SELF OR OTHERS

Although Mrs. Desai admits she definitely read the sign the first time she rode in 1992 or 1993, she testified that she did not read the sign on the day of the incident even though nothing prevented her from reading it. Nevertheless, Mrs. Desai testified that two years earlier when she read the warning sign, she knew that she should wait for an attendant to tell her to exit the raft even though she may not have remembered that on the day she was injured because she was not consciously thinking about it.

In response to a question concerning whether she knew that she should wait for the attendant before exiting the raft, Mrs. Desai testified: "See, what happened, I came out immediately from the thing. I didn't have any problem to come out. Okay. My mother was with me, who was 65 years old. I wanted to make sure she got off properly from the ride. Because it was wobbly on the water, the raft. So I was holding her raft so she can get off. And the lifeguard at that time was not present. They were doing something. And I wanted to make sure she got off. Because I was worried about her being the older person, and so she could come up safe. And I had no idea the raft from the back would come up and hit me from the back. And I was unaware of that."

Mrs. Desai testified that her mother wanted to go on a slide and Mrs Desai selected the Bahama Bob-Slide because she had been on it herself so many times. Mrs. Desai testified that she went in one raft with her children and her mother and others from her family went in another raft. She testified that, "I came out immediately, as soon as--because of--you know, because I wanted to make sure it wasn't any problem for me to get out. Because I wanted to make sure my mother could get up properly because it was wobbling. And she was sixty-five years old. And I was worried about her, that if something happened to her, because she was visiting from India. And I wanted to make sure she didn't get hurt. Because this was the first ride in her life. So I wanted to make sure. So I was holding the tube so she could get off properly. And I had no idea the other tube came and hit me on the side. And I was not aware of it. And due to the impact, I fell down immediately into the water. At that time, the lifeguard ran to me to help me out." Mrs. Desai further testified her mother was still seated on the right side of the raft and it was her plan to stabilize the raft so that her mother could get out. Mrs. Desai also testified that on all of her previous rides on this slide she also exited the raft without the assistance of lifeguards.

Thus, Mrs. Desai's deposition establishes that she left the raft first because she wanted to make sure her mother got out safely. Mrs. Desai also testified that she could not recall whether there was any reason why she could not wait for a lifeguard to assist her from the raft or whether there was any sense of urgency on her part to get out of the raft. In response to the question that, "[i]n other words, there was nothing that would have prevented you from waiting for the lifeguard to come and help you get out of the raft," Mrs. Desai responded, "I don't remember, sir. I did not think about it." And in response to the question that, "[t]o your recollection, there was nothing that prevented you from waiting on the lifeguards," Mrs. Desai answered, "Sorry. I don't remember anything about that. It was a routine thing. And we just did the routine things."

Mrs. Desai also testified that her children were getting out of the raft at the same time she was getting out and her mother was the last one to get out of the raft. Further, Mrs. Desai testified that, although she knew another raft would be coming down the slide, she did not expect it to be that close in time, and she never looked to see if another raft was coming.

In response to White Water's motion for summary judgment, Mrs. Desai submitted an affidavit that states that she did not hear the recorded message, and she further testified that her mother panicked and attempted to get out of the raft by herself, head first; that Mrs. Desai looked for lifeguards but they were 25 feet away doing something with rafts and conveyor system; that she jumped out of the raft to help her mother; and that it was no longer than 15 seconds before she was hit. Additionally, Mrs. Desai's unverified complaint alleges that Mrs. Desai stepped out of the raft "to assist her mother out of the raft."

The record also shows that Mrs. Desai is a certified public accountant who works as a senior accountant for the Federal Deposit Insurance Corporation managing several departments. She graduated from college with degrees in physics and chemistry.

After White Water moved for summary judgment contending that Mrs. Desai assumed the risk of her injuries, the trial court granted summary judgment on both Mrs. and Mr. Desai's claims. This appeal followed. The Desais contend the trial court erred by granting summary judgment because genuine issues of material fact remain for trial. Held:

1. The standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. On appeal, a grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga.App. 764, 767, 431 S.E.2d 746. Further, when ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843. When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Goring v. Martinez, 224 Ga.App. 137, 138(2), 479 S.E.2d 432; Bishop v. Mangal Bhai Enterprises, 194 Ga.App. 874(1), 392 S.E.2d 535.

2. Because White Water's motion for summary judgment was based on the affirmative defense of assumption of the risk, White Water had the burden of proving all the elements of that defense. Based upon the evidence set forth above, there can be no reasonable dispute but that White Water met that burden.

Both the recorded announcements and the posted sign clearly advised Mrs. Desai that she should remain in the raft until a lifeguard assisted her. For her own reasons, however, she disregarded those repeated warnings. Moreover, Mrs. Desai's deposition testimony plainly shows that there was no emergency requiring her to leave the raft before she was instructed to do so. As she testified, "it was a routine thing. And we just did the routine things."

Mrs. Desai's affidavit is of no assistance to her because her affidavit contradicts her deposition in most every significant portion and she provided no explanation for these blatant contradictions. On motion for summary judgment a party's self-conflicting testimony is to be construed against her unless a reasonable explanation for the contradiction is offered. Gentile v. Miller, etc., Inc., 257 Ga. 583, 361 S.E.2d...