Six Flags Am., L.P. v. Gonzalez-Perdomo

• Decision Date: 16 December 2020
• Docket Number: No. 1620,1620
• Parties: SIX FLAGS AMERICA, L.P. v. STEPHANIE GONZALEZ-PERDOMO
• Court: Court of Special Appeals of Maryland

SIX FLAGS AMERICA, L.P.
v.
STEPHANIE GONZALEZ-PERDOMO

No. 1620

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019
December 16, 2020

NEGLIGENCE - DUTY OF POSSESSOR OF LAND - INVITEE - DUTY TO WARN OF OPEN AND OBVIOUS CONDITION

In a slip-and-fall case involving an invitee who was injured after falling on a bridge at an amusement park, the evidence overwhelmingly established that the bridge was openly and obviously wet, but the dangerous condition caused by the wet surface was not so clearly open and obvious as to permit no reasonable factfinder to conclude otherwise and the defendant was not entitled to judgment as a matter of law.

NEGLIGENCE - DUTY OF POSSESSOR OF LAND - INVITEE - DUTY TO WARN OF OPEN AND OBVIOUS CONDITION - JURY INSTRUCTION

The trial court's decision not to propound requested instructions regarding the open and obvious defense constituted reversible error when the requested instructions were accurate statements of law drawn from reported Maryland opinions, the requested instructions were applicable under the facts of the case, the instructions were not fairly covered in the instructions actually given, and the appellant demonstrated probable prejudice as a result of the trial court's decision not to propound these instructions.

NEGLIGENCE - DUTY OF POSSESSOR OF LAND - INVITEE - DUTY TO WARN OF OPEN AND OBVIOUS CONDITION - VERDICT SHEET

The trial court's decision to decline to include a question regarding the open and obvious doctrine on the verdict sheet was not an abuse of discretion. The determination of whether the dangerous condition was open and obvious was relevant to the jury's determination of whether Six Flags was negligent, but the trial court was not required as a matter of law to ask the jury to separately issue written findings as to a particular factual finding that would have influenced the jury's finding as to a particular element of negligence.

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Circuit Court for Prince George's County
Case No. CAL-18-15218

REPORTED

Berger, Arthur, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

Opinion by Berger, J.

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This case is before us on appeal from a jury verdict in the Circuit Court for Prince George's County awarding damages in a negligence action. The negligence lawsuit was filed by Stephanie Gomez-Perdomo (the "appellee") on behalf of her minor son, Daniel Gomez-Gonzalez, after he suffered a slip and fall injury on a pedestrian bridge at an amusement park operated by Six Flags America LP ("Six Flags").

Six Flags presents two issues for our consideration on appeal, which we have rephrased slightly as follows:

I. Whether the circuit court erred by denying Six Flags' motion for summary judgment and/or motions for judgment at trial.

II. Whether the circuit court erred and/or abused its discretion by declining to propound a jury instruction on the "open and obvious" condition defense and/or by declining to include a question regarding this defense on the verdict sheet.

For the reasons explained herein, we shall hold that the circuit court did not abuse its discretion by denying Six Flags' motions for summary judgment and/or for judgment at trial, nor did the court abuse its discretion by declining to issue a verdict sheet containing the question requested by Six Flags. We shall, however, hold that the circuit court abused its discretion by declining to propound two of Six Flags' requested jury instructions. Accordingly, we shall reverse the judgment of the circuit court and remand for a new trial.

FACTS AND PROCEEDINGS

On July 22, 2015, then-ten-year-old Daniel Gomez-Gonzalez ("Daniel") visited a Six Flags amusement park (the "amusement park" or the "park") in Upper Marlboro, Maryland. During his visit to the park, Daniel was injured after he fell while crossing a

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wet wooden pedestrian bridge near the Shipwreck Falls ride.¹ On May 17, 2018, Daniel's mother, Stephanie Gomez-Perdomo, filed a complaint in the Circuit Court for Prince George's County alleging, inter alia, that Six Flags "allowed water from a water ride in the amusement park, which it knew or should have known would and did continuously splash and accumulate water on the floor of the walkway of a nearby wooden bridge, which was constantly wet and dangerously slippery when wet . . . which created a dangerous slipping/tripping hazard on the walkway of the wooden bridge."

Following discovery, Six Flags filed a motion for summary judgment on August 9, 2019. Six Flags asserted that the undisputed facts demonstrated that the wet and slippery condition of the bridge was "open and obvious," and, therefore, Six Flags owed no duty to warn or cure the alleged dangerous condition. For this reason, Six Flags contended that the appellee's claim failed as a matter of law. The trial court denied Six Flags' motion for summary judgment.

At trial, the appellee first presented testimony from amusement park safety expert Kenneth Vondriska. Mr. Vondriska testified that, in connection with his involvement in this case, he visited the park and assessed the bridge where Daniel fell. He concluded, based upon the photographs that he had reviewed as well as his on-site inspection, that water was allowed to stay on the walkway and that "[d]uring the course of the operation [of the amusement park] there was water in and around the bridge that was not removed,

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or was not dissipated or there was nothing protecting the walkway." Mr. Vondriska further testified that the signage provided at the bridge was "inadequate." There was a sign at the entrance to the bridge warning visitors that the walkway was wet,² but the sign was, in Mr. Vondriska's characterization, "a smaller sign" that was located "about eight to nine feet above the walking surface." Mr. Vondriska explained that he would have recommended that "two signs" be placed "more at eye level." Mr. Vondriska further testified that there was no non-skid material placed on the bridge, although there was non-skid material installed on the nearby exit bridge from the Shipwreck Falls ride. Mr. Vondriska further testified that there was no yellow paint marking the transition from the asphalt to the wooden bridge surface. On cross-examination, Mr. Vondriska acknowledged that the standing water on the bridge was visible and that nothing was obscuring the water on the wooden bridge.

The appellee presented additional testimony from Shirley Foster, the family friend who accompanied Daniel to the park on the day of the fall. Ms. Foster explained that she was walking "a little bit in front" of Daniel when they walked onto the bridge, so she did not see him fall. After hearing Daniel "yelling and screaming," she "turned back and realized that he was on the floor." Ms. Foster testified that she was aware that the bridge was located in a "splash zone area" because of the splashing water from the Shipwreck Falls ride. Ms. Foster further testified that she was able to see the flooring of the bridge as she approached it and that she observed that the bridge was obviously wet. Ms. Foster

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"believe[d] [that the ride had] just splashed" before Daniel's fall. She further explained that there was water "splashing while [Daniel] was on the ground."

Daniel, who was fourteen years old by the time of trial, also testified. He testified that he and Ms. Foster walked toward the wooden bridge on the way to the Superman ride. Daniel testified that he did not see any warning sign in the area, nor did he know that the bridge would be wet, nor did he see any yellow paint on the ground leading up to the bridge. Daniel was not looking at the ground before he fell, but, after he fell, he felt that it was very wet around him. Daniel was in pain after he fell, and Ms. Foster called for help. Eventually, Daniel was put in a wheelchair and taken to a room at the park. After his injury, Daniel was able to return to sports, but he explained that he was unable to move as quickly when moving in certain ways. Daniel testified that he did not have any continuing leg pain, but he did walk with a limp.

Excerpts of deposition testimony from Six Flags' three corporate designees, Bradley Cole McClain, Troy Shortridge, and Spencer Lucas, were also played for the jury. All three corporate designees testified that the operation of the adjacent Shipwreck Falls ride caused water to repeatedly and continuously splash an abundance of water onto the wooden bridge. The corporate designees further testified that this condition is plainly visible to all visitors to the amusement park.

After the plaintiff's case was presented, Six Flags moved for judgment. Six Flags argued, inter alia, that the appellee had not proved a prima facie case of negligence because the evidence unequivocally demonstrated that the wet condition of the bridge was open and

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obvious, and, accordingly, Six Flags had no duty to warn or cure the condition. The circuit court denied the motion.

During Six Flags' case in chief, the jury heard testimony from Jasmine Taylor, the Director of Human Resources and Safety for the amusement park. At the time of Daniel's fall, Ms. Taylor was employed as the Loss Prevention Supervisor for the Amusement Park. Ms. Taylor testified that the bridge is "very wet" when the Shipwreck Falls ride is in operation. Ms. Taylor testified that there had been matting on the decking of the bridge in prior years, but...