Nevins v. Six Flags Entertainment Corp.

2024 NY Slip Op 31976(U)

Opinion

Nevins v Six Flags Entertainment Corp.

2024 NY Slip Op 31976(U)

June 6, 2024

Supreme Court, Kings County Docket Number: Index No. 519062/2017 Judge: Wayne Saitta

Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 06/06/2024 03:36 PM INDEX NO. 519062/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 06/06/2024

At an

an lAS Part 29 of Term, Part

IAS Term, of the Supreme e Court the Suprem Court

of the State of the State of

of New

New York,

York, held

held in

in and

and for

for the

the

County of Kings, County of Kings, at at the the Courtho use,

Courthouse, at

at Civic

Center, Center, Brooklyn, New York, Brooklyn, New the 6th on the

York, on day of 6th day of

June June 2024.

PRES ENT: PRESENT:

HON. HON. WAYNE SAITTA, Justice.

SAITTA, Justice.

------------------------------------------------------------X ------------------------------------------------------------J( NEVINS

LISA NEVINS

Plaintif f Plaintiff Index Index No.

No. 519062/2017

519062 /2017

-agains t- -against-

MS5 MSS

and. .

ENTER TAINM ENT CORP. and SIX FLAGS ENTERTAINMENT

nONS, INC.,

SIX FLAGS OPERA TIONS,

Order Order

Defenda nts ------J( Defendants

______________________________________________________

--------- --------- --------- --------- --------- --------- - ----X The followin The followingg papers read on papers read on this motion:

this motion:

NYSCEF Doc NYSCEF Nos

Doc Nos

Notice Notice of Motion /Order to of Motion/Order to Show Cause/ Show Cause/

Petition /Affidavits (Affirm Petition/Affidavits ations) and (Affirmations) and

Exhibits Exhibits 65-79 65-79

Cross-motions Cross-m otions Affidavits (Affirmations)

Affidavits (Affirmations)

and Exhibits and Exhibits Answering (Affirmation)

Affidavit (Affirmation)

Answering Affidavit 84-85 84-85

Reply (Affirmation)

Affidavitit (Affirmation)

Reply Affidav 86 Supplemental Supplem ental Affidavit (Affirmation)

Affidavit (Affirmation)

Plaintiff Plaintif f moves

moves for

for a unified

unified trial

trial in

in this persona l injury

this personal action arguing injury action the that the

arguing that

injuries Plaintiff injuries suffered are Plaintif f suffered relevan t to are relevant questionn of the questio to the liability, and of liability, and that injuries the injuries

that the

offer offer proof

proof as to

to how

how the

the incident occurre d ·and inciden t occurred and whether due care whethe r due exercise d.

was exercised.

care was

Defendant 6pp'oses arguing Defend ant opp.oses arguing that that the injuries claimed the injuries not relevant are not

claimed are the to the

relevan t to

question question of liability.

of liability. .· Plaintiff

Plaintif f alleges

alleges she

she was

was injured

injured while riding a roller while riding coaster in roller coaster which she in which not

was not

she was

tightly Defend ants' employ ees did not set the safety lap tightly restrained.

restrain ed. Plaintiff alleges that Plaintif f alleges that Defendants' employees did not set the safety lap

bar bar on

on the

the ride

ride so

so that

that it

it touched

touched any

any part

part of her body,

of her resultin g in body, resulting upper body her upper in her being

body being

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FILED: KINGS COUNTY CLERK 06/06/2024 03:36 PM INDEX NO. 519062/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 06/06/2024

./ ./

bounced bounced around

around the

the car

car during

during the

the ride,

ride, while her head

while her was significantly head was forward jolted forward

significantly jolted

and back and and from

back and side to side.

from side side .

·. Plaintiff alleges that Plaintiff alleges that as a result not being result of not restraine d in tightly restrained

being tightly seat, .she the seat, in the .she

suffered suffere_d concussive

concussive brain

brain injury _and traumatic injury and to the injury to

traumati c injury spine ..

cervical spine

the cervical . . \\

Defendants Defendants argue

argue that

that based

based on Plaintiff s pleadings, on Plaintiffs she has pleadings, she the burden has the proving of proving

burden of

that she hit that she hit her

her head

head or

or was

was at least

least jostl~d while riding jostled while the roller riding the result of coaster as aa result

roller coaster the of the

manner manner that the lap

that the bar was

lap bar positioned.

was positioned.

The The lap

lap bar

bar can

can be set in

be set several different in several positions at varying different positions distances from varying distances the from the

body.

rider's body. rider's

According According to

to the

the deposition testimony of depositio n testimony Ward, a Maintenance Frank Ward, of Frank of Manager of

Maintena nce Manager

Defendants,ts, the Defendan lap bar the lap set in two bar is set steps. First, two steps. First, the ride operator the ride operator would push aa button would push to

button to

engage the engage the bar

bar mechanically. button engages The button

mechanically. The every lap engages every bar on

lap bar on the train into the train the

into the

position position that

that is furthest

furthest away

away from the rider's

from the body. Second, rider's body. after the Second, after has operator has

the operator

engaged engaged the

the lap

lap bars,

bars, the

the operator or attendant operator or manually adjusts attendan t manually each rider's adjusts each lap bar rider's lap to aa

bar to

position position that

that is tightest the rider's against the

tightest against rider's body order to restrain body in order restrain the Ward rider. Ward

the rider.

testified testified that this is done that this done to prevent injury.

to prevent injury.

Pursuant Pursuant to

to 22NYCRR 202-42(a), "Judges 22NYCRR 202A2(a), "Judges are to order encourageded to

are encourag bifurcate d order a bifurcated

trial trial of

of the

the issues

issues of

of liability

liability and damages in

and damages any action in any for personal action for injury where personal injury it

where it

appears that appears that bifurcation may assist bifurcati on may in a clarification assist in or simplification clarification or of issues simplification of fair and aa fair

issues and

and ~ore and ~ore expeditio resolutio n of expeditiousus resolution the action".

of the action".

An exception to An exception to this'

this· rule

rule is that

that unified trials should unified trials be held should be where the

held where nature of

the nature of

the the injuries

injuries has

has an

an important

importan t bearing

bearing on the issue

on the ofliability" (Bennett issue ofliability" York City New York

(Bennetti i v. New CitY

Transit Authority, Transit Authorit y, 22 NY2d NY2d 742 [1968]; Marisova 742 [1968]; 2024 Slip Brewster , 2024

Marisova v. Brewster, Slip Op 004 14 [2d 00414 [2d

Dept 2024]; Dept 2024]; Castro

Castro v. Malia 177AD3d 58 [2d Malia LLC, 177AD3d [2d Dept 2019]; Wright Dept 2019]; New York Wright v. New City

York City

Tr. Auth.J. AD3d 1163 [2d 142AD3d

Auth ... 142 Dept 2016]).

[2d Dept 2016]).

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FILED: KINGS COUNTY CLERK 06/06/2024 03:36 PM INDEX NO. 519062/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 06/06/2024

j

However, the determina tion of whether to conduct a bifurcated trial rests within

the discretion of the trial court and should not be overturned absent an improvide nt

exercise of discretion· (Wright v. New York City Tr. Auth.,. 142 AD3d 1163 [2d Dept

2016]; Patino v. County of Nassau, 124 AD3d 738 [2d Dept 2015]).

The question on liability in this case turns on whether Defendant s' employee failed

to adjust the lap bar to a position that would have restrained Plaintiff during the ride. This

issue is properly established by the testimony of lay witnesses who witnessed Plaintiff

during or immediate ly after the ride.

At the liability phase of the trial, Plaintiff is not required to prove that she was

injured, but only that she_ was not restrained because the lap bar was not set tightly

enough.

Plaintiff argues that unification is necessary because of the nature of the incident

which was not a typical accident. Plaintiff contends that the negligence occurred before

the ride, when the lap bar was not properly adjusted, and that the injuries were sustained

during the course of the ride. However, the question of whether Plaintiff was jolted during

the ride because she was not restrained is distinct from the question of what injuries she

· may have suffered because she was unrestrain ed.

Plaintiff further argues that if the trial was bifurcated a question on a liability

verdict sheet concerning proximate cause could not be "Was Defendant s' negligence a

proximate cause of the accident", because there was no accident. Rather, that the only

proximate cause question could be "Was the Defendants' negligence a proximate cause of

the Plaintiffs injuries?", and therefore evidence of the injuries is necessary.

However, the second question on a liability phase of the trial would more properly

be, "Was the negligence of Defendants a proximate cause of Plaintiff not being restrained

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FILED: KINGS COUNTY CLERK 06/06/2024 03:36 PM INDEX NO. 519062/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 06/06/2024

in her

her seat?".

seat?". The jury would

The jury would not

not need

need evidence

evidence of

of the

the Plaintiffs

Plaintiffs injuries

injuries to answer

answer this

this

question. question.

WHEREFORE, it WHEREFORE, it is ORDERED

ORDERED that

that Plaintiffs

Plaintiffs motion

motion for

for a unified

unified trial

trial is denied.

denied.

ENTER: ENTER:

JSC

WAYNE sArrrA

HON. WAVNe HON. SArnA

J.S.C. J.S.C.

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