By Doyice Cotten
In a recent case (Steinberg v. Sahara Sam’s Oasis, LLC, 2014), the plaintiff was injured when he attempted the FlowRider. He sued alleging negligence and gross negligence on the part of the provider.
One of the issues was that the provider did not meet 2008 standards, but that was not necessary since the company was given a three year certification to operate the ride prior to the issuance of 2008 standards.
On April 4, 2010, plaintiff and his children visited the Sahara Sam’s Oasis Water Park. The events leading up to plaintiff’s fall and injury were all captured on video. The video shows plaintiff lining up with his children to board the ride. Because he had not executed the waiver, initially neither he nor his children are permitted to board the ride. Plaintiff returns to the entrance area where he receives papers, looks down towards the papers, and then signs the papers. After executing the papers, he receives the wristbands and then returns to the line. He watches several others use the ride, including his son who falls while riding the FlowRider in a standing position. When it is plaintiff’s turn, he briefly speaks to the person stationed at the top of the ride, then he walks to the lower portion and speaks to the person stationed at that location. Next, as plaintiff attempts to balance himself on the board, he wraps a rope attached to the ride around his right hand and leans in towards the attendant, who speaks to him. Plaintiff then unwraps the rope from around his right wrist. Once the attendant releases the board, plaintiff rides the FlowRider for several seconds before falling. As he is falling he releases the rope.
The provider was in compliance with the 2007 standards; however, Steinberg was not shown a video and 3 signs required in the 2008 standards were not posted.
When deposed, plaintiff, whom the court noted held a Ph.D , stated: 1) he received limited instruction on how to ride the FlowRider or how to protect himself if he fell; 2) he was only told to balance with his legs, and to hold the rope while on the board; 3) he was not shown an orientation video; 4) he knew he could fall but didn’t think he could be hurt; and 5) he said that he might not have participated (or at least asked more questions) if Sahara Sam’s had posted the signage recommended in the 2008 Manual.
Signage on Premises
The posted signage on the day of the incident included a bright red sign, warning patrons the FlowRider was an extreme water attraction. This sign stated in large capital letters
“WARNING!” “READ BELOW”
“SAHARA SAM’S IS STRESSING THE POTENTIAL FOR INJURY ON THIS ATTRACTION IN ADVANCE OF YOUR PARTICIPATION. ONCE YOU STEP FOOT ONTO THIS ATTRACTION YOU ARE IN CONTROL OF ALL MOTIONS. YOU HAVE BEEN WARNED AND HAVE THE OPTION TO NOT PARTICIPATE AND BE A SPECTATOR.”
Another sign, described the ride and how to use it in nineteen points. It read, in part:
- This is a very strenuous ride. The moving water is extremely turbulent.
- Bodyboarding or Flowboarding on this sheet wave is a body-active, participatory sport. As with all sports, care must be taken to avoid a mishap.
- Avoid jumping into or entering the ride at high speed; avoid weight on front foot. YOU WILL WIPE OUT!
- If you wipe out, do not hold your board. Release board immediately, cover your head, and keep limbs close to body and try to brace for impact with feet first.
Both of the warning signs were posted near the entrance of the ride.
There was another sign in prominent red and blue letters located at the entrance to the queue for the FlowRider warning that
“WAIVER MUST BE SIGNED TO RIDE ADDITIONAL WRISTBAND NEEDED
waivers located at fence entrance or admissions counter.”
Employees operating the ride were trained and certified by the Department of Community Affairs, Amusement Safety Ride Unit (“DCA”) . Training included operations as well as how to instruct clients. After the incident, the inspector found no operational or signage violations and authorized continued operation of the FlowRider.
Plaintiff acknowledged that his signature was on the waiver forms and that he read Question 6, above the signature block:”DO YOU AGREE TO ABIDE BY THE RULES OF SAFE CONDUCT” and checked the “Yes” line for that question. He then indicated
he did not read the waiver agreement. When asked whether he recalled signing waiver forms on ski trips he and his family had previously taken, he stated, “[t]hat may be what they’re called, but again, I I don’t read those as . . . I never have.” When asked why, he responded, “Well, for the most part, since I’ve been married, my wife if anything, does the reading[.]”
The waiver agreement contained the following pertinent language [bold added]:
Please read this document. It affects your legal rights against Sahara Sam’s if you are injured on the FlowRider. By signing this Waiver you acknowledge that it contains a complete release of any and all claims against Sahara Sam’s and that you have read the agreement and agree to its terms.
- INTRODUCTION TO THE FLOWRIDER, OUR DYNAMIC INDOOR SURFING MACHINE
The FlowRider is a dynamic and exciting water amusement ride which stimulates the experience of riding an ocean wave. The FlowRider is a body-active participatory sport where the rider “rides” a flowing sheet of water using a Bodyboard or a specially designed Flowboard. Riders should observe the ride and read all posted instructions and limitations to participate. Pregnant women and persons with a history of heart, back, neck, shoulder or joint problems should not ride the FlowRider.
- RISKS ASSOCIATED WITH USING THE FLOWRIDER
The FlowRider was designed by the manufacturer with the safety of the rider as a primary concern, but as an interactive participatory sport, there are risks associated with its usage. Although many before you have ridden the FlowRider without any problem whatsoever, injuries are possible because of the nature of the ride.
- You may unavoidably achieve body positions that result in personal injury during your participation and riding may result in the flow of water picking you up and pitching you head over heel into a subsurface that is covered by foam or matting. . . .
- You may sustain injury as a result of slipping on or striking surrounding ride elements, including the ride bottom, flow fence divider, support structures, ride vehicles, containment walls, entering or exit riders, ride attendants or other ride components. Since the attraction and ride vehicles may contain fiberglass, plastic, wood, or other potentially hardened substances, your contact with them may also cause injury.
In addition, the waiver informs that the rider is giving up legal rights by using the FlowRider, including that the rider releases Sahara Sam’s “from any and all claims . . . bodily injury [and] wrongful death . . . which may arise out of your participation in the FlowRider Ride.”
This is one of those cases where the “good guy” wins. Sahara Sam’s managed its risks – it posted the signs, trained its staff, and administered a good, unambiguous waiver. The plaintiff admitted that he did not even read the waiver and probably did not read the warning signs. The court pointed out that “… when a party enters into a signed, written contract, that party is presumed to have understood the terms of the agreement.”