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Kahalili v. Rosecliff Realty Inc.

Decided: July 1, 1957.

COLLEEN CLARK KAHALILI, PLAINTIFF-RESPONDENT,
v.
ROSECLIFF REALTY, INC., DEFENDANT-APPELLANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

Plaintiff fell out of a roller coaster operated by the defendant at Palisades Amusement Park, April 23, 1954, sustaining severe bodily injuries. This is an appeal by the defendant from a judgment entered upon a jury verdict in plaintiff's favor. At a previous trial a verdict for the plaintiff had been set aside by the trial judge as against the weight of the evidence. The instant verdict withstood a motion for a new trial.

On the date mentioned the plaintiff, a young woman, in company of a male friend, arrived at the amusement park at about 4:00 P.M. After consuming a whisky highball at an open air bar and taking a ride on a ferris wheel, she and her friend went directly to the roller coaster. This device consists of a train of three cars, coupled together, and running

on tracks, which is first pulled by electric power to an elevation and then permitted by gravity to plunge down and around a series of dips and curves of varying degrees. It is common knowledge that a roller coaster is one of the more thrilling types of "rides" found in amusement parks and that its attraction lies in the exhilaration produced by the speed and suddenness of its movements.

On this particular device each car has three seats. These are three feet wide. A stationary "safety bar" of tubular stainless steel is bolted to the back of each seat, extending over the well of the seat behind, so that it crosses laterally over the hips of the occupant, and about one foot away from the abdomen of the average occupant. The passenger is not strapped in.

The coaster track is 2,600 feet in length, the curves banked to counteract centrifugal force. This apparatus, including the train, has been used continuously by defendant each season since 1944. There was no claim by the plaintiff of faulty construction of the device and there was expert proof on behalf of the defendant that it was "the safest type of construction * * * that is in operation today."

Plaintiff and her companion took one ride together. He was unwilling to take another, but she wanted to, so she stayed on the train, but changed her seat, so she testified, to another three or four seats toward the rear. Her account of the second ride was as follows. On the initial ascent she did not take hold of the bar, the rise being slow, but as the first plunge began she took hold of the bar, found it was loose ("it jiggled back and forth") and let go of the bar because she "didn't feel it would sustain [her] weight, and [she] was afraid of falling out." She then held onto both sides of the car, but she was "being pushed back and forth in the car" and "was growing quite tired." She then testified:

"Without leaving go of my grip, I turned around in my seat, but holding on, and held onto the back of my seat, and there were some young ladies riding in a car in back of me, and I tried to call to them to let them know of the difficulty that I was in, and they

made some gestures, but I couldn't hear what they were saying; and then suddenly I felt a different lurch, rather strong, and I went out of the car; and that's all I remember."

She further explained the "lurch" as: "It was a different lurch and a sudden lurch. It was a different lurch than the turns or the curves that you go around." She testified, with corroboration from defendant's witnesses, that at no time did she stand up in the car. On cross-examination she admitted that at the first trial she had testified that "I just felt a lurch and I went out."

Plaintiff had no supporting witnesses. Her companion on the day of the ride did not appear in her behalf. The trial court denied a motion for an involuntary dismissal at the end of the plaintiff's case.

Defendant produced as witnesses three teen-age girls who were the only other occupants of the coaster on the ride when plaintiff was injured. They were riding free, one of them being the daughter of a park employee. Their testimony was in substantial agreement, except that two of them said plaintiff went "over the bar" and out of the car, and the third that she "went out head first underneath the bar." The substance of the remainder of their testimony was that plaintiff did not change her seat between rides; that they warned her to hold onto the safety bar and she replied, "Maybe with one hand"; that as the ride began she shouted to her companion, "Wish me luck"; that there was nothing unusual or different about the ride, nor any sudden or unusual lurch; and that plaintiff was not holding the bar but was swaying from side to side in her seat before she fell out. They also testified that they tested the bar in the plaintiff's seat after the accident and found it was not loose. Each of the girls was an experienced roller coaster patron. How much experience on other roller coasters plaintiff previously had is unknown, but this was her first experience on defendant's coaster.

Defendant also offered proofs by its staff personnel to the effect that the cars, tracks and safety bars were inspected daily; that the safety bar ...


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