Perez v. Great Wolf Lodge of the Poconos LLC

• Decision Date: 26 July 2016
• Docket Number: 3:12-CV-01322
• Citation: 200 F.Supp.3d 471
• Parties: Brian PEREZ and Jennifer Perez, Plaintiffs, v. GREAT WOLF LODGE OF THE POCONOS LLC, and Great Wolf Resorts, Inc., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

200 F.Supp.3d 471

Brian PEREZ and Jennifer Perez, Plaintiffs,

v.GREAT WOLF LODGE OF THE POCONOS LLC, and Great Wolf Resorts, Inc., Defendants.

3:12-CV-01322

United States District Court, M.D. Pennsylvania.

Filed July 26, 2016

John R. Lenahan, Jr., Lenahan & Dempsey, Scranton, PA, for Plaintiffs.

Harry T. Coleman, Law Office of Harry Coleman, Carbondale, PA, for Defendants.

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge

Presently before the Court is Defendants Great Wolf Lodge of the Poconos, LLC ("Great Wolf Lodge") and Great Wolf Resorts, Inc. ("Great Wolf Resorts") Motion for Summary Judgment. (Doc. 147). For the reasons that follow, Defendants' motion will be denied.

I. INTRODUCTION AND PROCEDURAL HISTORY

On July 9, 2012, Plaintiffs filed a Complaint against Defendants, (Doc. 1), and moved to amend the Complaint on October 8, 2013. (Doc. 37). After a series of highly contentious discovery disputes, Defendants filed their first motion for summary judgment on February 13, 2014. (Doc. 66). Thereafter, the Court referred all pending motions to Magistrate Judge Carlson. On June 16, 2015, Magistrate Judge Carlson issued a Report & Recommendation, recommending that this Court grant Plaintiffs' Motion to Amend and order Defendants to withdraw and re-file their motion for summary judgment. (Doc. 135). The Court adopted Magistrate Judge Carlson's Report & Recommendation in its entirety on July 2, 2015. (Doc. 137).

Plaintiffs filed an Amended Complaint on July 6, 2015. (Doc. 139). The Amended Complaint asserts two counts of negligence: one count on behalf of Brian Perez, (Id. at ¶¶ 30-51), and one count on behalf of Jennifer Perez. (Id. at ¶¶ 52-54). Defendants filed an Answer to the Amended Complaint on August 8, 2015, (Doc. 140), and on September 30, 2015, Defendants filed the Motion for Summary Judgment now pending before the Court. (Doc. 147).

II. STATEMENT OF UNDISPUTED FACTS¹

A. Background

In 2005, Great Wolf Lodge opened to the public. (Doc. 145, at ¶ 1). Four years later, in 2009, the installation of a waterslide called the Double Barrel Drop (the "DBD") was first discussed during Great Wolf Lodge's budgeting process. (Id. , at ¶ 2). The DBD was designed and manufactured by Proslide Technology Inc., which referred to the DBD as the ProSlide TantrumALLEY CLOVERIeaf tubing slide. (Id. , at ¶ 5). Great Wolf Lodge subsequently renamed the slide the DBD. (Id. , at ¶ 6).

The ASTM International F-24 Committee Standards guide a waterpark operator, and have been adopted in the Commonwealth of Pennsylvania. (Id. , at ¶ 4). Prior to the opening of the DBD, testing was performed on the slide by a number of Great Wolf aquatic team members of differing weights and heights. (Id. , at ¶ 11). The testing was supervised by ProSlide. (Id. ). Allen Grimes of ProSlide testified that the typical break-in period of a new waterside is a few weeks. (Id. , at ¶ 13). He further testified that, consistent with the ProSlide Operations Manual, most new waterslides utilizing vehicles will experience increased velocity with use during the break-in period. (Id. ).

Prior to its opening, the DBD was inspected and approved by the Commonwealth of Pennsylvania, Pennsylvania Department of Agriculture, Amusement Ride Safety Program. (Id. , at ¶¶ 14, 25). The Operations Manual for the DBD, published by ProSlide on January 27, 2009, sets forth the following: "guests ride the ProSlide TantrumALLEY using quadruple CLOVERIeaf Tube[s]. Each CLOVERIeaf Tube may accommodate two, three or four riders with a maximum cumulative weight of 700 pounds on the quadruple tube. *Please note: ONLY Z-PRO manufactured CLOVERIeaf Tubes are recommended for this slide ." (Id. , at ¶ 15). During the commissioning process, however, the weight limitation for the DBD was set at 600 pounds. (Id. , at ¶ 16). Despite the revised 600 pound weight limit in place at the time of opening through the time of Mr. Perez's injury, the signage at Great Wolf Lodge reflected a weight limit of 700 pounds for riders on the DBD. (Id. , at ¶ 17). It is the responsibility of Great Wolf Lodge attendants to ask guests whether they meet the weight requirement, and to gauge the guests' cumulative weight to ensure that they do not exceed the 600 pound operational weight limit for the DBD. (Id. , at ¶ 18).

The DBD opened to Great Wolf Lodge guests on March 28, 2010. (Id. , at ¶ 14). As noted, the Commonwealth of Pennsylvania had approved the DBD prior to the opening. (Id. , at ¶ 25). The DBD starts as an enclosed waterslide flume, which enters a funnel where guests experience a number of oscillations before exiting at a narrow end of the funnel, back into an enclosed or open flume, into another funnel and finally into a ProSplash runout. (Id. , at ¶ 31). The CLOVERIeaf four person vehicle utilized on the DBD indicates:

Quadruple riders will be placed such that the heavier two of the four riders are sitting opposite each other. The remaining two riders may sit in each of the other two positions available...

The guests should step into the start section beside their tube, turn, sit into the tube and swing their legs toward the center of the tube, while firmly grasping the handles. Guests are to remain in their tubes at all times, while continuing to firmly grasp the handles until they have exited the TantrumALLEY and have decelerated safely into the ProSplash runout.

(Id. , at ¶ 32). According to Great Wolf Lodge's 2010 Aquatics Director, when a guest is "in the correct seating posture, sitting upright holding on to the handles, injury cannot occur." (Id. , at ¶ 26).

After an individual is hired to work at Great Wolf Lodge, in addition to the requirement of being a certified lifeguard, Great Wolf Lodge's aquatic's team provides Ride Ops training to its aquatic team members. (Id. , at ¶ 41). Ellis & Associates, an outside aquatics risk management company, provides additional training for the lifeguards. (Id. ). In addition to the training received upon hire, attendants receive daily in-service training prior to each shift and are required to have additional hours per month of training. (Id. , at ¶ 45).

At the time of Mr. Perez's accident, December 12, 2010, the DBD signage (both at the bottom of the stairway leading to the slide and the top of the stairway), read as follows:

• Pool Depth—1 foot 6 inches (.46 meters).

• This is a high-thrill ride. Riders will experience steep declines, inclines, changing directions, and high speeds. Guests who are uncertain how they will react to a high-speed, jostling thrill ride should not participate.

• Riders will experience special lighting effects. Persons sensitive to bright or flashing light should not ride.

• Maximum Rider Weight

• 1 Rider: Not Allowed.

• 2, 3, or 4 riders: 700 lbs. combined

• Minimum Rider Height—48 inches tall.

• Riders should have the ability to remain in an upright, seated position, and grasp handles.

• Footwear is not permitted.

• Secure loose articles prior to riding.

• Lap riding is not allowed.

• Remain seated in the hole, feet in the middle. Hold handles throughout ride.

• Stopping, changing positions, and forming chains are not permitted.

• Riders must exit immediately after coming to a stop.

Failure to abide by these rules may result in injury to yourself and others and could result in removal from the waterpark.

(Id. , at ¶¶ 62-63). According to Joseph Filoromo, Supervisor for the Amusement Ride Safety Program in Pennsylvania, this signage met ASTM standards. (Id. , at ¶ 65).

B. The Incident

On December 12, 2010, Mr. Perez along with Daniel Conklin, Christopher Beitz, and Augusto LaTorre rode the DBD together utilizing a CLOVERIeaf four person vehicle.² Mr. Perez has no recollection of seeing any signage at the Great Wolf Lodge waterpark. (Id. , at ¶ 59). His companions on the DBD ride at issue, Daniel Conklin and Christopher Beitz, testified to not seeing or reading any DBD signage at the waterpark. (Id. ). Augusto LaTorre, also a passenger on the ride with Mr. Perez, testified that while he noticed signage for the DBD at the waterpark, he did not read the sign. (Id. ).

Mr. Conklin testified that when he, Mr. Perez, Mr. Beitz, and Mr. LaTorre went to the top of the landing area of the DBD, the attendant on duty, Michael Grey, said nothing to the group, nor did they say anything to Mr. Grey. (Id. , at ¶ 75). Mr. Beitz testified that he had no interaction with the lifeguard/attendant at the dispatch point of the DBD, and he had no knowledge regarding the maximum weight limit for the DBD. (Id. , at ¶ 83). This testimony is in conflict with the testimony of Mr. Grey and Ian Carmona, another attendant working on the DBD on December 12, 2010. (Id. ). The combined weight of Mr. Conklin, Mr. Perez, Mr. Beitz, and Mr. LaTorre is disputed by the parties. What is undisputed, however, is that their combined weight was in excess of the DBD's weight limitation.

At some point during the ride, Mr. Perez was separated from the tube and his face/neck struck the slide. Mr. Beitz and Mr. LaTorre testified that as the vehicle entered the second barrel they oscillated to the left side. (Id. , at ¶ 67). Mr. Beitz testified that Mr. Perez separated from the vehicle as soon as the raft went up the wall, (Id. , at ¶ 68), whereas Mr. LaTorre testified that Mr. Perez separated from the vehicle at the top of the wall. (Id. , at ¶ 69). Mr. Conlkin described the incident as "he just flew out of the ride." (Id. , at ¶ 80). Mr. Perez maintains that he has no recollection of the DBD ride in which he sustained the injury. (Id. , at ¶ 70).

The parties dispute what caused Mr. Perez's to be separated from the vehicle—whether it was the alleged failure of Defendants to enforce the weight limitations, among other potential causes, or whether it was Mr. Perez's failure to follow instructions and to hold on to the handles during the duration of the ride. Both Mr. Beitz and Mr. Conklin testified that they know from common sense to hold onto the handles and that they did so. (Id. , at ¶¶ 77, 87...