Tourist injured riding Triple Twist Waterslide at Great Wolf Lodge: Is GM liable?

Tourist injured riding Triple Twist Waterslide at Great Wolf Lodge: Is GM liable?

In this week’s article, we examine the case of Culbertson v. Great Wolf Lodge of Kansas City, LLC, 2016 WL 6822656 (D. Kan. 2016) in which “Plaintiff Scott Culbertson was injured on the Tripe Twist waterslide at the Great Wolf Lodge resort located in Kansas City on April 20, 2014. As plaintiff…and his cousin were sliding down the Triple Twist, the raft they were riding on flew out from under them and plaintiff…hit his head on the surface of the Triple Twist. Plaintiffs allege that the Triple Twist has special lighting effects that are harmful to people who are sensitive to light and its manufactured conditions are not reasonably safe for customers of defendants’ business. Plaintiffs claim that as a direct and proximate result of defendants’ negligence, plaintiff…struck his head resulting in severe and permanent injuries both physical and mental in nature…Plaintiffs present claims for negligence, premises liability, res ipsa loquitur, strict products liability and loss of consortium against defendants”. Case remanded to state court and claims against General Manager Matt Lawrence dismissed.

Terror Targets Update

London, England

In Bilefsky, U.K. Police Arrest 3 More Over Parsons Green Attack, nytimes (9/20/2017) it was noted that “Three people have been arrested in a 24-hour period in Wales in connection with the terrorist attack at a London Tube station that briefly sowed panic on the city’s transport system last week…bringing the number of people in custody to five…The Islamic State militant group said after the attack that a ‘detachment’ of its fighters had been behind it”.

In Plain-clothes SAS troops deployed on London Underground with ‘shoot to kill’ orders, travelwirenews (9/18/2017) it was noted that “Armed SAS troops are being deployed on the London Underground with orders to ‘shoot to kill’ terrorists following the Parsons Green attack according to reports”.

Paris, France

In Jihadists eye ‘train derailments & food poisoning in Europe’-French Media, travelwirenews (9/17/2017) it was noted that “French police have issued a confidential note based on an analysis of jihadist propaganda’ warning of possible lone-wolf attacks causing trains to derail and even food poisoning, Le Parisien newspaper reports, citing the document…The document, which focuses on aspects of ‘jihadist propaganda’ over the past three months, warns that terrorists are instructed to make explosives ‘as shown in tutorials’, conceal their radicalization, calling on ‘lone wolves’ to cause ‘train derailments, forest fires or food poisoning’ in Europe”.

Myanmar

In Taub, Myanmar Follows Global Pattern in How Ethnic Cleansing Begins, nytimes (9/19/2017) it was noted that “The Rohingya crisis in Myanmar, which the United Nations high commissioner for human rights has called a ‘textbook example of ethnic cleansing’ highlights a problem that the world has not yet figured out how to solve-and that can contribute, in extremes, to the world’s worst atrocities. National self-determination, the idea that a nation should have the right to freely choose its political status, is a central tenet of the international system….Self-determination means not only defining what a nation is, but also who belongs in that nation and who is an outsider…such definitions can provide an impetus for mass violence and even genocide against those deemed to be outsiders”.

Are Mexican Beaches Safe?

In Glusac, After New Travel Warning, Questions About Safety in Mexico, nytimes(9/29/2017) it was noted that “On Aug. 22, the U.S. Department of State issued an updated travel warning on Mexico, advising caution in several popular beach destinations, including Cancun, the Riviera Maya and Los Cabos, for the first time. The warning notes that murder, kidnaping, carjacking and robbery have been on the rise as rival gangs battle over territory. Recent shootings in Los Cabos, Cancun and Playa del Carmen indicate those conflicts have surfaced in popular beach destinations, although the statement notes that tourists have not been targets”.

Earthquake In Mexico City

In Watkins & White, Mexico City Was Built on an Ancient Lake Bed. That Makes Earthquakes Much Worse, nytimes (9/22/2017) it was noted that “The earthquake that on Tuesday killed at least 135 people in Mexico City and toppled dozens of buildings there was all the more destructive because of the city’s unusual position atop an ancient lake bed…much of the city stands on layers of sand and clay-up to 100 yards deep-that used to be under the lake. These soft, water-laden sediments make the city uniquely vulnerable to earthquakes and other problems”.

Nine Elephants Electrocuted

In Hauser, Nine Elephants in Botswana Are Electrocuted by Power Line, nytimes (9/21/2-17) it was noted that “Nine elephants were electrocuted near a village in eastern Botswana this week after they came into contact with a fallen power line near a water source, officials said”.

Tourist Crushed In Yosemite

In Haag & Stevens, Second Yosemite Rockfall in Two Days Injures One at El Capitan, nytimes (9/28/2017) it was noted that “A chunk of rock broke off the face of El Capitan in Yosemite National Park on Thursday afternoon, injuring one person a day after a massive slab feel from the towering monolith and killed a tourist, park officials said. The rockfall…is on the eastern edge near a popular trek for rock climbers known as the Waterfall Route”.

Airline Bag Fees Too High

In Lowy, Watchdog: Airfares for many travelers rise due to bag fees, richmond (9/21/2017) it was noted that “Travelers who check at least one bag when flying domestically are paying more over all than they did before airlines began unbundling fares in 2008 and charging separately for checked bags…A report by the Government Accounting Office said airline officials told GAO investigators that base air fares are now lower than before airlines began separately charging passengers for checked bags, reservation changes, priority boarding and other services. But the GAO’s review of studies that have examined the effect of bag fees on ticket prices shows that charging separately for bags reduced fares by less than the new bag fee itself””.

Stampede On Indian Bridge

In Stampede on Crowded Indian Pedestrian Bridge Leaves 22 Dead, Associated Press, nytimes (9/29/2017) it was noted that “A stampede broke out on a crowded pedestrian bridge connecting two railway stations in Mumbai during the Friday morning rush, killing at least 22 people and injuring 32 others…Police were investigating what caused the stampede on the bridge which led some commuters to leap over the railing. Others were crushed or fell underfoot and were trampled”.

Dutch Tourists Robbed In South Africa

In South Africa: Seasoned Detectives to Look Into Robbery of Dutch Tourists, travelwirenews (9/27/2017) it was noted that “Thirty-six Dutch tourists were traveling from OR Tambo International Airport on Sunday evening when they were stopped by a South African Police Service (SAPS) marked vehicle with one man dressed in a police uniform and five others in civilian clothes, The tourists were robbed of their personal possessions and two of them were reportedly injured and had to be treated by paramedics”.

Hungry Greek Wolves

In British hiker missing in Greece was likely devoured by wolves, says coroner, travelwirenews (9/28/2017) it was noted that “A missing British hiker whose fleshless remains are believed to have been found on hills near a Greek village was killed by wolves, according to a Greek coroner (who noted that) the aggressiveness with which the woman was torn apart was such that her thigh bones had been cracked open by bites, while a large part of remains are yet to found”.

Hot Lava, Anyone?

In Mass evacuation ordered as lava & toxic gas threatens to overwhelm island, travelwirenews (9/28/2017) it was noted that nearly 11,000 people are being evacuated from Vanuatu’s Ambae Island, days after a volcano in the South Pacific nation began spewing rock and poisonous gas…Now the government of Vanuatu has called for the entire population of Ambae to be moved to evacuation centers on the nearby islands of Maewo, Pentecost and Santo”.

Flesh-Eating Bacteria In Texas

In Astor, ‘Flesh-Eating Bacteria’ From Harvey’s Floodwaters Kill a Woman, nytimes (9/28/2017) it was noted that “From the moment the waters began rising in Texas last month, disease was on health officials’ minds. Floodwaters, after all, are filthy…On Tuesday…the Harris County medical examiner’s office announced that the death of a 77-year old woman 11 days earlier had been caused by necrotating fasciitis: a gruesome and often deadly infection commonly known as flesh-eating bacteria”.

Fancy Carp, Anyone?

In Buyer pays B1.5 million for a fancy carp, travelwienews (9/28/2017) it was noted that “A local businessman caused a stir when he paid 1.5 million baht for a rare 1.15-metre-long golden fancy carp, thought to be the largest of its kind in the (Thailand)…The golden fancy carp, known among afficionados as ‘karashi koi’ is about five years old”.

Family Vacations Worldwide

In The Voyages Issue: How Do Families Around the World Spend Their Vacations?, nytimes (9/21/2017). Photo essays from around the world of local people vacationing in Estonia, Japan, China, Ukraine, Guinea, Italy, Iran and Columbia.

Save The Maori Language

In Graham, In New Zealand, a Translated ‘Moana’ Bolsters an Indigenous Language, nytimes (9/19/2017) it was noted that “About 125,000 of New Zealand’s 4.7 million people speak the Maori language, or ‘te reo Maori’ as it is widely rendered here. There are concerns that numbers are declining, putting it at risk of dying out. But with one in three Maori people in New Zealand younger than 15, experts said the chance for youth to see a widely popular movie in their own words could turn the language’s fortunes around after more official efforts failed”.

Hotels Rake In Fees

In Rosenbloom, Hotels Rake in Record Fees, and Travelers Foot the Bill, nytimes (9/29/2017) it was noted that “Hotels in the United States are predicted to rake in a record $2.7 billion this year is fees and surcharges, up from $2.45 billion two years ago, according to new research from Bjorn Hanson…The increase is the result of more occupied rooms, more fee categories and higher fees…Travelers are facing more than the usual resort fees. They’re encountering fees and surcharges even for basic amenities, some of which were once free, including holding luggage, early departures or merely having a room with a safe”.

German Retirees Got Rights Too

In Eddy, German Court Fines 3 for Failing to Help Ailing Retiree in Bank, nytimes (9/19/2017) it was noted that “As a neatly dressed elderly man lay unconscious in the foyer of a bank in western Germany, four people stepped over or around him to make their way to cash machines. Help came only after a fifth person called an ambulance…On Monday, a district court in Essen convicted three people of failing to help the man, an 83-year old retiree…who died in a hospital a week after the events”.

US Virgin Islands Says Thank You

In US Virgin Islands thank cruise and airline partners for Hurricane Irma relief, travelwirenews (9/17/2017) it was noted that “The Government of the US Virgin Islands is extending its gratitude to its cruise and airline partners for transporting visitors and residents out of the district of St Thomas and St John following the passage of Hurricane Irma”.

A Ride-Sharing Casualty

In Hu, Taxi Medallions, Once a Safe Investment, Now Drag Owners Into Debt, nytimes (9/10/2017) it was noted that “Owning a yellow cab has left Issa Isac in deep debt and facing a precarious future. It was not supposed to turn out this way when Mr. Isac slid behind the wheel in 2005. Soon he was earning $200 a night driving. Three years later, he borrowed $335,000 to buy a New York City taxi medallion, which gave him the right to operate his own cab. But now Mr. Isac earns half of what he did when he started, as riders have defected to Uber and other competitors. He stopped making the $2,700-a-month loan payment on his medallion in February because he was broke. Last month, it was sold to help pay his debts”.

Ride-Hailing In The Chips

In Isaac & Benner, Funding Talks at Uber and Lyft Complicate Ride-Hailing Allegiances, nytimes (9/15/2017) it was noted that “The only thing changing faster than who is winning the race in the cutthroat world of ride hailing are the shifting behind-the-scenes allegiances between those companies and investors. At the moment, Uber, the ride-hailing behemoth, is nearing a deal to receive billions of dollars in funding from Softbank, the Japanese conglomerate, according to three people with knowledge of the matter…SoftBank is one of the largest investors in Didi Chuxing, one of Uber’s largest former foes. Didi also happens to be a major investor in Lyft, Uber’s biggest American rival. And, according to three people familiar with the discussions, Lyft has held recent talks to raise funding from Alphabet, whose venture capital arm also happens to be a major shareholder in Uber. The tangled state of affairs has made for strange bedfellows, and has helped to forge occasional alliances between companies. But it has also put companies in difficult positions when they have to decide which investors to accept money from-and what strings may be attached”.

Amtrak Wants Your Business

In Bachman, Amtrak wants to remind you how bad flying is, Bloomberg, msn (9/16/2017) it was noted that “Richard Anderson knows exactly why so many people hate air travel. And as a former chief executive of Delta Air Lines Inc., he appears ready to exploit each of those pain points in his new role-as president and co-CEO of Amtrak. The railroad has launched a new advertising campaign focused heavily on why so many airlines have been despised by so many for so very long. From free Wi-Fi to the absence of middle seats to the two bags you may check for free, Amtrak is pitching itself as a more comfortable, civilized travel alternative to an airline-albeit not as fast, but you can’t have everything”.

One-Two Punch Hits Virgin Islands

In Peters, In the Virgin Islands, Hurricane Maria Drowned What Irma Didn’t Destroy, nytimes (9/27/2017) it was noted that “The one-two punch of Hurricane Irma and Hurricane Maria 14 days later was especially cruel. In many places across the three major islands of this American territory, the second storm drowned what the first couldn’t destroy, ravaging what was once one of the Caribbean’s most idyllic landscapes”.

Chinese Tourists In Finland

In Helsinki signs agreement with Tencent to provide intelligent tourism services to Chinese tourists, travelwirenews (9/20/2017) it was noted that “Tencent, Helsinki and World Tourism Cities Federation (WTCF) have signed a tripartite cooperation agreement, according to which Helsinki will serve as an intelligent tourism model for China bound tourism…Helsinki has become increasingly popular among Chinese tourists in recent years. The number of registered overnight stays by Chinese travelers in Helsinki has more than doubled in the past five years, reaching almost 90,000 in 2016″.

Travel Law Case Of The Week

The procedural posture of the Culbertson case was that it was removed from state court to federal court in Kansas City. As noted by the Court “For proper removal of a civil action to federal court, none of the parties in interest properly joined and served as defendants can be a citizen of the state in which the action is brought, here Kansas…Defendant Lawrence is a resident of Kansas and the action was brought in Kansas. Removal is not allowed under 28 U.S.C. 1441(b)(2). However, defendant Great Wolf Lodge claims the defendant Lawrence was fraudulently joined and his presence in this case can be disregarded. Fraudulently joined parties should be ignored for the purposes of assessing whether removal is permitted”. The issue then becomes whether plaintiffs have stated a proper claim against defendant Lawrence who was the General Manager of the Great Wolf Lodge. The issue is relevant to an understanding of the potential liability
of employees of hotels or lodges against which the personal injury claims of guests may be filed.

Establishing Premises Liability

“In order to establish liability for negligence against Defendant Lawrence, plaintiffs must show: (1) he owed a duty to plaintiffs; (2) the duty was breached; (3) the breach was the proximate cause of the plaintiffs’ injuries and (4) plaintiffs sustained damages…In a claim of premises liability, an owner or operator of a place of business that is open to the public owes a duty to visitors to use reasonable care, under all of the circumstances, in keeping the business place safe. The owner or operator of the business must warn visitors of any dangerous condition that the owner or operator knows about or should known about if the owner or operator had exercised reasonable care in tending to the business…The issue then, is whether defendant Lawrence owed a duty of care to plaintiffs”.

Plaintiffs Position

“In support of their motion to remand, plaintiffs referenced portions of defendant Lawrence’s deposition testimony (from another case)…In his deposition, defendant Lawrence testified that he was the general manager of the Great Wolf Lodge hotel at the Kansas City location. He explained that the director of aquatics reported to him and was responsible for the operation of the waterpark. Defendant Lawrence agreed that his role as general manager was to oversee that all of the people beneath him were performing the functions that they were employed to do in their assigned areas. He explained that the directors of aquatics and maintenance would handle all issues with respect to operation of the waterslides. Defendant Lawrence believed that his position as general manager allowed him to stop or limit operation of a slide until a problem concerning safety was corrected”.

Defendants’ Position

“In its response, defendant Great Wolf Lodge claims that plaintiffs failed to show the existence of a duty between defendant Lawrence and plaintiffs such that a ‘special relationship’ exists…Defendant claims that ‘[t]he Director of Aquatics, who is responsible for the waterpark operations, does not report to Defendant Lawrence and thus does not impose a duty upon Defendant Lawrence as General Manager”. The Court noted, however, that “While defendant Lawrence might not have been in charge of the day-to-day operations of the waterpark, he was ultimately responsible as the director of aquatics reported to him”.

Innkeeper’s Duty

“Plaintiffs appear to be using defendant Lawrence’s position as the general manager of the Great Wolf Lodge to establish a duty. Kansas law recognizes a ‘special relationship’ between an innkeeper and its guests (citing Gardin v. Emporia Hotels, Inc., 61 P. 3d 732, 736 (Kan. App. 2003)). ‘The Restatement (Second) of Tort 314A(2) states that an innkeeper is under a duty to take reasonable action to protect its guests from unreasonable risk of physical harm and give them first aid’”.

Not Apply To General Manager

“However, an ‘innkeeper’ is the owner or management company running the hotel as opposed to an individual manager in his personal capacity (citing Nicholas v. Wyndham Int’l, Inc.., 2007 WL 4201032 (D.V.I. 2007)(stating that the hotel manager, in his individual capacity, did not owe the duty imposed by section 314A to the Plaintiffs because he was not an innkeeper). The party that is traditionally liable as an innkeeper is the owner or management company running the hotel (citing Fabend v. Rosewood Hotels & Resorts, LLC, 381 F. 3d 152 (3d Cir. 2004)). Plaintiffs do not cite any case in which the manager of a hotel was found liable as an innkeeper under section 314A. Lawrence was not the owner of the Great Wolf Lodge in Kansas City and does not owe an innkeeper’s duty of care to plaintiffs”.

Not In Control Of Premises

“Defendant claims that defendant Lawrence cannot be liable under premises liability or res ipsa loquitur because he never had control of the property…or any control over the operations and/or maintenance of the waterpark…Ownership, occupation or possession plus control generally must be shown as a basis fr liability on the part of an owner or occupier of premises for injuries resulting from the condition of the premises…(The) Plaintiffs have not cited any authority suggesting that a general manager, without title or legal right to possess the premises, personally owes invitees or customers of his employer a duty of care…Under Kansas law, there must be ownership, occupancy or possession of the property plus control to generate the duty of care for potential harms on the property”.

Conclusion

“Defendant Great Wolf Lodge has met its burden to show that plaintiff could not establish a cause of action against defendant Lawrence in state court and that defendant Lawrence’s joinder is therefore improper. Defendant Lawrence owed no duty to plaintiffs and consequently cannot be liable for plaintiffs’ injuries. Defendant is also correct that defendant Lawrence cannot be liable under the doctrine of res ipsa loquitur because he did not have exclusive control over the waterpark and Triple Twist”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

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