Amusement Slides Corp. v. Lehmann

232 S.E.2d 803, 217 Va. 815, 1977 Va. LEXIS 242
CourtSupreme Court of Virginia
DecidedMarch 4, 1977
DocketRecord 760300
StatusPublished
Cited by31 cases

This text of 232 S.E.2d 803 (Amusement Slides Corp. v. Lehmann) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amusement Slides Corp. v. Lehmann, 232 S.E.2d 803, 217 Va. 815, 1977 Va. LEXIS 242 (Va. 1977).

Opinions

Compton, J.,

delivered the opinion of the court.

On the Fourth of July in 1974 at the Ocean View Amusement Park in Norfolk, plaintiff-appellee James F. Lehmann was injured in a fall after he became airborne while riding the “Sky Slide.” The sole issue on appeal is whether plaintiff was guilty of assumption of the risk as a matter of law.

In his tort action against defendant-appellant Amusement Slides Corporation, the owner and operator of the entertainment device, invitee Lehmann alleged that he was injured due to defendant’s negligent operation, maintenance and control of the slide. [816]*816Specifically, plaintiff contended his injuries and damages resulted when he accelerated “suddenly and violently at a high rate of speed on his slide down the ‘Sky Slide’ ”.

At trial, the issues of primary and contributory negligence, proximate cause, and assumption of the risk were submitted to the jury, which found in favor of plaintiff, assessing damages at $19,500. The trial court entered judgment on the verdict on November 7, 1975, after overruling defendant’s motion to set it aside. This appeal followed based on one assignment of error which raised the foregoing issue.

Viewing the evidence in the light most favorable to the plaintiff, these are the facts. On the day of the accident, plaintiff and a female companion went to Ocean View to observe a fireworks display scheduled for 10:00 p.m. Arriving at about 8:00 p.m., the couple decided to “take in” some of the rides in the amusement park. After buying “a book of tickets for [the] rides”, they used several other amusement devices before going to the seaside Sky Slide area about 9:00 p.m.

The apparatus in question was a stationary metal slide, approximately 55 feet high at its uppermost point, with a sliding distance to ground level of about 105 feet. There were 16 polished lanes sloping down, each about three feet wide and separated by smooth metal strips which made a chute of each lane. Access to the ride’s starting point, located on a platform at the top of the slide, was by one of two stairways located on the sides of the device.

Upon reaching the platform, the patron was directed by an employee of defendant to one of the 16 lanes. The rider would then sit inside a burlap sack, approximately six feet by three feet in size, provided by defendant. With legs extended forward, and assisted by the employee, the rider by “push[ing] himself off” would thus begin his descent.

The speed of descent was controlled in several ways. Across the face of the slide were three large humps, spaced equally from the top to the bottom; these slowed the rider’s speed during the trip. But often customers were unable to slide all the way to the bottom when the slide “[became] very slow”, usually from “too much moisture in the air.” When this condition developed, waxed paper was rubbed on the surface of the slide, thereby causing an increase in the speed of descent. In order to curb the [817]*817velocity created by the foregoing procedure, another employee of defendant was stationed on the level surface of one of the humps to squirt water from a small flexible plastic bottle onto the lane or lanes in which any rider appeared, in the opinion of that employee, to be accelerating beyond a safe speed.

Obviously, the allurement of the device was the thrill obtained from a gravity-assisted, fast slide from a great height down an undulating surface.

The plaintiff was 27 years of age and about six feet tall, and weighed approximately 175 pounds. He had ridden, .without difficulty, similar slides at other locations on two previous occasions and even though he observed, while waiting to ride this slide, a child “[fall] over on the median strip and hurt her arm somehow”, he testified he did not consider it “a dangerous amusement device.” Plaintiffs companion decided not to ride the slide because she had “a severe back problem.”

As plaintiff approached the stairway to begin his ascent to the platform, he observed and read two large signs posted near the base of the slide. One read:

“NOTICE!
Keep Your Hands In Your Lap Until You COME TO A COMPLETE STOP. Do Not TRY TO STOP YOURSELF. Do Not Turn Around While GOING DOWN Slide. Do Not Play Or Show Off While GOING DOWN Slide. If Two Person [sic] Are Sliding On One Mat One Person Must Be Between The Legs Of The Other.”

The other stated:

“ATTENTION
Water Is Used To Control The Speed Of The Ride. If You Get Slightly Wet, We Are Sorry. IT’S FOR YOUR SAFETY.”

Plaintiff failed to see a third sign placed at a different location near the slide which advised:

“If You Are Over Twenty-Five This Ride Ain’t Your Thing.”

As he ascended the stairway, he heard the following tape recording being continuously played through a loudspeaker:

[818]*818“For those who are about to ride the thrilling Sky Slide, please listen and follow the instructions very closely:
“When you reach the top of the slide the operator will assist you and tell you exactly what to do. As you come down the slide lean slightly forward and hold onto the sack and do not let go for any reason. Do not turn around or rock back and forth as you are coming down the slide. Follow all the instructions very closely and have a wonderful slide.”

Plaintiff testified that when he reached the platform, he “sat down in the middle of the top preparing to go down”. One of defendant’s employees directed plaintiff to move and sit in “the fourth lane from the ocean side.” Plaintiff followed this directive. The employee then told him “to put [his] feet in the bag, to lean forward and to hold onto the sides of the bag.” Plaintiff also followed these instructions. At trial, plaintiff gave the following account of what transpired next:

“Just before I let go to go down the slide he said, ‘This lane has just been waxed.’ I didn’t think anything of it. I started sliding down and immediately when I went down the first slope I noticed that I was going much in excess of the speed I had been on the previous slides. As I proceeded down the slide I continued to build up speed. On the second slope when I went over it I was just, you know, kind of barely making contact with it. When I went down the slope, ... I didn’t make contact with the slope except right where it levels out, where it goes out straight. I just hit the very base of it, and then when I went off the last slope I cleared it completely and impacted in my lane at the bottom of the slide.”

The record shows plaintiff’s excessive speed resulted from the failure of defendant’s employee, stationed on one of the humps, to put water on plaintiff’s lane as he descended. The employee testified plaintiff “went past me fast before I could even squirt it” and that it was his intention to “squirt that lane” as plaintiff was coming down but that his “judgment at that time was not as quick because we were very busy and I was mostly very tired.”

The associated defenses of contributory negligence and assumption of risk differ in that an objective reasonable man test is brought to bear on the former while the standard primarily to be applied to the latter “is a subjective one, of what [819]

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Bluebook (online)
232 S.E.2d 803, 217 Va. 815, 1977 Va. LEXIS 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amusement-slides-corp-v-lehmann-va-1977.