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Where a child injured in an amusement park water slide accident brought a negligence action against the park operator, judgment for the plaintiff is reversed and remanded because the trial court erred by instructing the jury that the defendant owed the highest degree of care to the girl and application of the ordinary duty of care was supported by the fact that the defendant was not a common carrier and the ride was not inherently dangerous.
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Dissenting opinion by Teitelman, J.: “I respectfully dissent from the holding that the trial court erred in instructing the jury that Cedar Fair’s liability should be assessed using the highest degree of care standard for negligence. While Ms. Chavez freely chose to ride the Hurricane Falls water slide, it is also true that Cedar Fair invites its customers to ride the 680-foot-long slide and that the slide is under Cedar Fair’s complete control as the owner and operator of the slide. Given Cedar Fair’s complete control and Ms. Chavez’s complete lack of control, Cedar Fair should be held to the highest standard of care.”
Judgment is reversed and remanded.
Chavez v. Cedar Fair, LP (MLW No. 67133/Case No. SC93658 – 22 pages) (Supreme Court of Missouri, Breckenridge, J.; Russell, C.J., Fischer, Stith and Wilson, JJ., concur; Teitelman, J., dissents in separate opinion filed; Draper, J., concurs in opinion of Teitelman, J.) Appealed from circuit court, Clay County, Gabbert, J. (David R. Frye, Thomas H. Stahl and Chad E. Blomberg, Kansas City, Missouri, for appellant) (Steven L. Hobson, H. William McIntosh and Meredith R. Peace, Kansas City, Missouri, for respondent).
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