Volcanic Gardens Management Co. v. Beck

863 S.W.2d 780, 1993 Tex. App. LEXIS 2869, 1993 WL 418331
CourtCourt of Appeals of Texas
DecidedOctober 20, 1993
DocketNo. 08-93-00053-CV
StatusPublished

This text of 863 S.W.2d 780 (Volcanic Gardens Management Co. v. Beck) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Volcanic Gardens Management Co. v. Beck, 863 S.W.2d 780, 1993 Tex. App. LEXIS 2869, 1993 WL 418331 (Tex. Ct. App. 1993).

Opinion

OPINION

KOEHLER, Justice.

In a suit for personal injuries received on a waterpark ride, the jury found the plaintiff 35 percent negligent and the waterpark 65 percent negligent, resulting in a net judgment of $43,000 including prejudgment interest. In this appeal, waterpark contends in a single point of error that there was no evi[781]*781dence to support the jury’s finding of negligence on the part of waterpark and thus the trial court erred in failing to grant its motion for judgment non obstante veredicto. We affirm.

RELEVANT FACTS

During a visit to a water amusement park known as Wet ‘N’ Wild Water World, owned and operated by Appellant, Volcanic Gardens Management Co., Inc. (hereafter “water-park”), Patricia Yvonne Beck, Appellee (hereafter “Beck”), was injured while riding down a water slide with her five year old daughter in her arms when another patron described as a young boy, approximately twelve years old, riding down the same slide, came from behind and hit Beck in her back twice, and then fell on top of her as they entered the water at the bottom. Beck and possibly the boy had lost the inner tubes they were supposed to be riding sometime before the accident. Beck felt immediate pain in her back and suffered temporary paralysis from her waist down. At the hospital, she was diagnosed as having sustained multiple transverse fractures to her back. In the trial that followed, the jury found that Beck’s injuries were proximately caused 35 percent by her negligence and 65 percent by waterpark’s negligence. The waterpark unsuccessfully sought a judgment non obstante veredicto on the basis of “no evidence” to support the jury’s finding and this appeal ensued.

STANDARD OF CARE

This is a premises liability case involving a water amusement park to which the public is invited and pay an admission charge. Persons who enter the waterpark become invitees or patrons to whom the owner or operator of the waterpark, though not an insurer of their safety, owes a duty to exercise ordinary and reasonable care for their safety and protection. Marek v. Southern Enterprises, Inc., 128 Tex. 377, 99 S.W.2d 594, 596 (1936); Rice v. Amusement Enterprises, 461 S.W.2d 490, 491 (Tex.Civ.App. —San Antonio 1970, no writ); James O. Pearson, Jr., J.D., Annotations, Amusements — Assault by Another Patron, 75 A.L.R.3d 441, 454 (1977); Thomas R. Trenk-ner, J.D., Annotation, Swimming Pool — Lack of Proper Supervision, 87 A.L.R.3d 1032, 1135 (1978); and Thomas R. Trenkner, J.D., Annotation, Swimming Facility — Injury By Third Person, 90 A.L.R.3d 533, 550 (1979).

When an owner or operator has actual or constructive knowledge of any condition on the premises that poses an unreasonable risk of harm to the patrons, he has a duty to take whatever action is reasonably prudent under the circumstances to eliminate or reduce that risk. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983). The owner’s or operator’s negligent act or omission must have been the proximate cause of the patron’s injuries. Proximate cause consists of cause in fact and foreseeability. El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex.1987). It follows that the owner or operator is liable only for foreseeable injuries to his patrons; that is, those injuries which result from hazards or dangers that could be reasonably foreseen or anticipated; the injuries anticipated, however, need not be the particular injuries received but only of the same general character as the actual injuries. Williams v. Steves Industries, Inc., 699 S.W.2d 570, 575 (Tex.1985).1

THE ALLEGATIONS AND THE JURY FINDING

Beck alleged that her injuries were “a direct and proximate result of the Defendant’s negligent failure to protect the Plaintiff from the negligent and dangerous conduct of third parties, that Defendant allowed to occur.” She also alleged nine specific acts of negligence, most of which alleged in effect either a failure to properly supervise the other patron or a failure to warn her of the other patron’s behavior. The waterpark alleged contributory negligence and sole proximate cause. In response to a broad form [782]*782negligence submission, the jury found both parties to have been negligent in the previously stated percentages.

STANDARD OF REVIEW

When presented with a “no evidence” challenge, the appellate court should consider only the evidence and reasonable inferences drawn therefrom which, when viewed in their most favorable light, support the jury verdict or court finding. All evidence and inferences to the contrary are to be disregarded. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); Alm v. Aluminum Company of America, 717 S.W.2d 588, 593 (Tex.1986). If there is more than a scintilla of evidence to support the questioned finding, the no evidence point fails. Stafford, 726 S.W.2d at 16.

EVIDENTIARY ANALYSIS

Under the foregoing standard, we must now consider only the evidence and reasonable inferences therefrom which, when examined in their most favorable light, support the jury verdict on negligence. Beck testified that she and her daughters had never before the occurrence in question been to a waterpark and had never before been on a water slide, that she was told that she and her daughter would need inner tubes for the ride, but that no one gave any instructions on what to do or what would happen on the ride and no one instructed them on the spacing between persons or advised her not to go down the slide holding her younger daughter in her arms. She testified that the one attendant on duty at the slide said nothing at all to her, inferentially failing to warn her of the hazards connected with the ride, including the possibilities of losing her inner tube and being bumped from behind. She recalled that after starting down the slide with her daughter still in her arms, she lost her inner tube, that she was in a sitting position, feet facing forward, when she was hit from behind by a little boy sitting on the slide with legs crossed without a tube; that she felt immediate pain; that further down the slide, he hit her again; and that as they came off the slide into the water, he fell on top of her at which time, she had no feeling from her waist down. There is an inference that the boy came down the slide without an inner tube because Beck saw no tube pass by her.

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Related

Stafford v. Stafford
726 S.W.2d 14 (Texas Supreme Court, 1987)
El Chico Corp. v. Poole
732 S.W.2d 306 (Texas Supreme Court, 1987)
Farley v. MM Cattle Company
529 S.W.2d 751 (Texas Supreme Court, 1975)
Best v. Ryan Auto Group, Inc.
786 S.W.2d 670 (Texas Supreme Court, 1990)
Williams v. Steves Industries, Inc.
699 S.W.2d 570 (Texas Supreme Court, 1985)
Corbin v. Safeway Stores, Inc.
648 S.W.2d 292 (Texas Supreme Court, 1983)
Alm v. Aluminum Co. of America
717 S.W.2d 588 (Texas Supreme Court, 1986)
Marek v. Southern Enterprises Inc.
99 S.W.2d 594 (Texas Supreme Court, 1936)
Rice v. Amusement Enterprises
461 S.W.2d 490 (Court of Appeals of Texas, 1970)

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Bluebook (online)
863 S.W.2d 780, 1993 Tex. App. LEXIS 2869, 1993 WL 418331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/volcanic-gardens-management-co-v-beck-texapp-1993.