Day on Torts
As the holiday season draws to a close, thousands of people have visited Nashville, Tennessee to enjoy the festivities and decorations at Opryland hotel. The Court of Appeals recently affirmed summary judgment against a plaintiff in a negligence case involving the hotel’s holiday ice activity area.
In Hall v. Gaylord Entertainment Co., No. M2014-02221-COA-R3-CV (Tenn. Ct. App. Nov. 17, 2015), plaintiff had gone to the holiday-themed ice exhibit and activity area at Gaylord Opryland hotel with his girlfriend in 2010. This exhibit included four ice slides. While there, plaintiff watched his girlfriend go down slide 3, then climbed the stairs to go down the slide himself. When he stepped from the carpeted landing area to the slide, he slipped and tore his rotator cuff. According to plaintiff, he did not see the rules and warnings posted instructing users to hold the handrails when sitting on the slide because his view was obstructed by guests in front of him. He also testified that he did not see the handrails at the top of the slide, and that he did not see a Gaylord employee on the slide landing or receive any instructions from one.
Plaintiff sued both Gaylord Entertainment (the owner of the hotel) and International Special Attractions (ISA), a company who had worked with Gaylord to design and construct the exhibit, under several theories. Pursuant to the agreement between these two entities, Gaylord provided the initial designs to ISA; ISA evaluated the plans for feasibility and structural integrity; ISA constructed the exhibit; and Gaylord was responsible for staffing the exhibit and placing warnings and rules around the exhibit. After both defendants filed motions for summary judgment, plaintiff eventually conceded that ISA was entitled to summary judgment on his claims for negligent operation, negligent failure to warn, and negligent post-construction inspection. The only remaining claim against ISA was for negligent design.*
In his argument against summary judgment on this claim, plaintiff relied on his expert’s testimony that the slide at issue did not meet “applicable standards and state laws on amusement devices.” Plaintiff’s expert asserted that slide 3 was defective “because it did not comply with the design specification standards of the American Society of Testing Materials (ASTM),” citing two specific sections of this standard that were not followed. These two sections were part of a portion of the standards titled “Standard Consumer Safety Performance Specification for Playground Equipment for Public Use.” At the trial level, the parties spent a great deal of time arguing over whether slide 3 should be considered an “amusement device” under Tennessee law. ISA argued that the slide did not meet the height requirements to be an amusement device, and that therefore the standards relied on by plaintiff were inapplicable under Tennessee law. Plaintiff, on the other hand, asserted that the attraction as a whole was an amusement device and should be evaluated according to the ASTM standards cited.
Ultimately, the trial court ruled that “because slide 3 did not meet the definition of an amusement device, the ASTM standards [plaintiff’s expert] cited were not applicable to it.” The trial court held that “[o]ther than citing inapplicable standards, [plaintiff] has not demonstrated how ISA was negligent in designing the slide or handrails. Thus, a grant of summary judgment in favor of ISA is proper.” The Court of Appeals affirmed summary judgment, although it employed different reasoning than the trial court.
In its analysis, the Court of Appeals noted that plaintiff claimed that slide 3 was negligently designed because “it lacked a top horizontal hood or guardrail or horizontal handrails over its entrance,” and plaintiff supported this assertion with his expert’s testimony about ASTM standards. According to the Court, plaintiff “did not cite any other standards, rules, or regulations in support of his assertion that slide 3 was negligently designed.” Rather than get hung up on whether the slide or the exhibit met the definition of “amusement device,” though, the Court of Appeals found it unnecessary to “resolve this particular dispute because, regardless of whether ISA was required to comply with ASTM standards in designing Slide 3, the particular ASTM sections [plaintiff’s expert] relied on to demonstrate that ISA’s design violated a standard of care clearly do not apply.” The Court pointed out that the cited standards were contained in a section titled “Standard Consumer Safety Performance Specification for Playground Equipment for Public Use.” The Court held that this title “plainly indicates that it is applicable to playground equipment, not ice slides,” and that the cited sections were “limited to public playground equipment for children.”
The Court found plaintiff’s reliance on inapplicable standards insufficient to carry his burden. The Court pointed out that in a negligent design case, “the design does not have to be perfect or incapable of causing injury” and that the plaintiff must do more than simply show “than an alternative design would have averted the injury.” To succeed on a negligent design claim, “the plaintiff must present some evidence of the standard of care applicable to members of that profession so that the jury will have some understanding of whether the defendant’s design negligently deviated from it.” Because plaintiff had no evidence other than the inapplicable standards to support his negligent design claim, summary judgment was affirmed.
The Court of Appeals also affirmed the trial court’s denial of plaintiff’s motion to amend to add a claim for strict liability based on an ultrahazardous activity. Leave to amend may be properly denied when the amendment would be futile, and here the Court agreed with the trial court that the ice exhibit was clearly not in the same category as things that have been deemed ultrahazardous, such as blasting or storing explosives.
The lesson in this case is to make sure you, as a litigant, are citing and relying on the correct evidence for your case. Here, a plaintiff making a claim about a private pay, large scale ice attraction designed for all ages attempted to use standards specifically applicable to public children’s playgrounds. There may have been evidence that was both on point and supported his case, but this plaintiff’s reliance on the wrong standards has now eliminated his chance of recovering against this defendant.
*The trial court denied summary judgment to Gaylord, finding that “reasonable minds could conclude that Gaylord was negligent in failing to warn or instruct [plaintiff] prior to the fall.” Gaylord and plaintiff subsequently settled, and the claims against Gaylord were thus not at issue on appeal.