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

• Citation: 242 A.3d 1143,248 Md.App. 569
• Decision Date: 16 December 2020
• Docket Number: No. 1620, Sept. Term, 2019,1620, Sept. Term, 2019
• Parties: SIX FLAGS AMERICA, L.P. v. Stephanie GONZALEZ-PERDOMO
• Court: Court of Special Appeals of Maryland

248 Md.App. 569

242 A.3d 1143

SIX FLAGS AMERICA, L.P.

v.Stephanie GONZALEZ-PERDOMO

No. 1620, Sept. Term, 2019

Court of Special Appeals of Maryland.

December 16, 2020

Argued by: David A. Skomba (Tamara B. Goorevitz, Miranda D. Russell, Franklin & Prokopik, PC on the brief) Baltimore, MD, for Appellant.

Argued by: Michael D. Reiter (Chasen Boscolo Injury Lawyers on the brief) Greenbelt, MD, for Appellee.

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

Berger, J.

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 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, 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 "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 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 the matting had been removed when the bridge was rebuilt some years back. It was Ms. Taylor's understanding that the matting was removed because it presented a trip hazard. Ms. Taylor acknowledged on cross-examination that there was no non-slip coating put on the bridge after the matting was removed.

With respect to the caution sign posted at the bridge, Ms. Taylor explained that the sign was required to be mounted between eighty and 120 inches above the ground to comply with Americans with Disabilities Act Guidelines. She testified that the sign was three feet wide by eight inches tall and was located ninety-eight inches off the ground. Ms. Taylor further testified that a yellow stripe is painted on the ground to warn of a change in elevation and not to warn of a wet condition. Ms. Taylor testified that the total attendance at the amusement park over the past fourteen years was over fourteen million people and there had been no other reported slip and fall injury on the bridge at any time, nor had the park been party to any other lawsuit arising out of any incident on the bridge.

At the conclusion of the case, Six Flags renewed its motion for judgment. The trial court denied the motion. The court then turned to the issue of jury instructions. After considering argument from the parties, the trial court declined to propound four of Six Flags’ requested instructions. The four requested instructions concerned the open and obvious defense. The trial court's instructions to the jury included the pattern jury instructions on negligence, proximate cause, invitee status, and premises liability.

Six Flags also requested that the open and obvious defense issue be presented to the jury via a specific question on the verdict sheet. The trial court declined to use Six Flags’ proposed special verdict sheet. Instead, the verdict sheet asked the jury to determine: (1) whether Six Flags was negligent; (2) whether Daniel was contributorily negligent; (3) whether Daniel assumed the risk; and (4) what damages, if any, to award.³ The jury found that Six Flags was negligent and that Daniel was not contributorily negligent and had not assumed the risk. The jury awarded the appellee $45,000.00 in non-economic damages. Six Flags noted a timely...