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
1 of 4 [* 1] 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]). 2
2 of 4 [* 2] 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]).
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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
1 of 4 [* 1] 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]). 2
2 of 4 [* 2] 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
3 4 3 of [* 3] 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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