Desai v. Silver Dollar City, Inc.

493 S.E.2d 540, 229 Ga. App. 160, 97 Fulton County D. Rep. 3861, 1997 Ga. App. LEXIS 1282

• Court: Court of Appeals of Georgia
• Decided: October 15, 1997
• Docket: A97A1963
• Status: Published

Opinions

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 judgment 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 the 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 SE2d 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 SE2d 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 SE2d 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 SE2d 432); Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 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 &c., Inc., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680). Because Mrs. Desai offered no explanation for the obvious contradictions between her deposition and her affidavit, the trial court was required to eliminate the favorable.portions of her contradictory testimony, then take all testimony as it then stood and construe it in favor of the party opposing the motion in determining whether summary judgment should be granted. Prophecy Corp. v. Charles Rossignol, Inc., supra at 28. Applying this rule and construing Mrs. Desai’s deposition testimony in favor of White Water leaves only the evidence that she wanted to get out of the raft first to help her mother, who remained seated in the raft at the time. Also remaining is Mrs. Desai’s testimony stating that her getting out of the raft was a routine thing for her and that she knew that other rafts would be coming down the slide behind her.

Additionally, assuming this Court had been permitted to credit the unexplained contradictory statements in Mrs. Desai’s affidavit, those statements would not help her case. Who created this problem? Not White Water. Instead, it was created solely by Mrs. Desai’s voluntary actions when both Mrs. Desai and her mother should have remained seated. The record shows clearly and palpably that this was a problem of their own creation. Further, the mother’s wish to get out of the raft was not the result of any act or omission of White Water. These actions of Mrs. Desai and her mother were the proximate cause of Mrs. Desai’s injury as a matter of law.

3. Considering this evidence, the only possible conclusion is that Mrs. Desai assumed the risk. “The defense of assumption of risk requires: (1) that the plaintiff had some actual knowledge of the danger, (2) that [she] understood and appreciated the risk therefrom, and (3) that [she] voluntarily exposed [herself] to such risk. Stated another way: The doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from [her] freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law [she] has assumed all risk of injury. In its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given [her] consent to relieve the defendant of an obligation of conduct toward [her], and to take [her] chances of injury from a known risk arising from what the defendant is to do or leave undone. In by far the greater number of cases, the consent to assume the risk has not been a matter of express agreement, but has been found to be implied from the conduct of the plaintiff under the circumstances. General Tel Co. v. Hiers, 179 Ga. App. 105, 106-107 (2) (345 SE2d 652).” (Citation and punctuation omitted.) Young v. Brandt, 225 Ga. App. 889, 891 (485 SE2d 519).

“In assessing whether a plaintiff had the requisite knowledge of the danger and appreciation of the risks, a subjective standard applies, that is, what the particular plaintiff knew, understood and appreciated. [Vaughn v. Pleasent, 266 Ga. 862, 864 (471 SE2d 866)]; Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (409 SE2d 524) (1991). A plaintiff lacking such subjective knowledge of the danger will not be taken to have assumed the risk even though his conduct may be deemed contributory negligence for his failure under an objective knowledge standard to discover the danger by exercising the ordinary care required of a reasonable man. Id. at 824.” Sutton v. Sumner, 224 Ga. App. 857, 859 (482 SE2d 486).

In this case, we find that the undisputed evidence shows that Mrs. Desai had actual knowledge of the danger because she was warned not to get out of the raft until instructed to do so, she knew that other rafts would be coming down the slide and she knew, because she was warned, that she might be injured if she left the raft. Although in many other instances, Mrs. Desai did not suffer the consequences of her action, in this instance the risk of injury she voluntarily assumed came to pass. In effect, even though she was warned do not do this or you might get hurt, Mrs. Desai tested the danger until she was hurt. It defies both logic and our law to permit a recovery under this evidence.

4. Further, although the dissent discusses many possible acts of negligence whether active or passive, e.g., failure to communicate between the top and bottom of the slide, lifeguards not immediately present, etc., the obvious fact remains that none of these acts would have resulted in Mrs. Desai’s injury if she had remained in the raft as she was instructed. It is not the individual acts of negligence to which one must consent, but the known risks arising from the chosen acts or omissions of the plaintiff. Mrs. Desai plainly and without dispute assumed the risk of her injury.

5. “Although assumption of the risk is ordinarily a jury question (Taylor v. Bloodworth, 198 Ga. App. 186, 187 (400 SE2d 691)), in plain, palpable, and indisputable cases resolution of the issue by a jury is not required. Moore v. Service Merchandise Co., 200 Ga. App. 463, 464 (408 SE2d 480).” Young v. Brandt, supra at 891. Accord Daves v. Shepherd Spinal Center, 219 Ga. App. 835 (466 SE2d 692). This is such a case.

6. As Mr. Desai’s cause of action is derivative of his wife’s claim, the trial court also properly granted summary judgment on his claim as well. Hall v. Garden Svcs., 174 Ga. App. 856, 858 (332 SE2d 3).

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

Andrews, C. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ, concur. Eldridge, J., dissents.