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Dressler v. Busch Entertainment Corp

May 11, 1998

OLGA DRESSLER, APPELLANT
v.
BUSCH ENTERTAINMENT CORPORATION, D/B/A SESAME PLACE; SESAME PLACE, A FICTITIOUS NAME REGISTERED BY BUSCH ENTERTAINMENT CORPORATION D/B/A/ SESAME PLACE; SESAME PLACE; BUSCH ENTERTAINMENT CORPORATION, A DIVISION OF ANHEUSER BUSCH, T/A SESAME PLACE; BUSCH ENTERTAINMENT CORPORATION; CTW PARKS, INC.; ANHEUSER-BUSCH, INCORPORATED, APPELLEES



Before: Becker, Scirica, and McKee, Circuit Judges

The opinion of the court was delivered by: McKee, Circuit Judge.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(Civil No. 95-cv-05274)

Argued: September 22, 1997

Filed May 11, 1998

OPINION OF THE COURT

Olga Dressler appeals from the judgment of the district court in favor of defendant, Busch Entertainment Corp. Dressler sued Busch for injuries to her back that she maintains she sustained during a fall at an amusement theme park owned by Busch. She alleges that the trial court erred in instructing the jury, and in limiting her expert witness' testimony. For the reasons that follow, we agree that the trial court's jury instructions were erroneous, and will reverse the judgment and order of the district court and remand for a new trial.*fn1

I.

On August 25, 1993, Olga Dressler and her son, Jason, visited Sesame Place, an amusement park in Langhorne, Pennsylvania that is owned by Busch Entertainment Corporation. Dressler purportedly injured her back as she fell going down a step leading into a shallow pool that was part of an attraction known as the "Rubber Ducky Rapids." Thereafter, she underwent lumbar disc surgery in an effort to correct her back injury, and alleviate her pain. Dressler is a registered nurse, and claims that she is now unable to perform the duties of her profession because of back pain.

Dressler filed suit in the United States District Court for the Eastern District of Pennsylvania on August 17, 1995 to recover damages for the injury that she claims resulted from the fall. The matter was thereafter referred to a magistrate Judge for trial. See 28 U.S.C. § 636(c).

Dressler maintained that she slipped and fell because she did not see a downward sloping step which was under water and painted blue -- the same color as the rest of the pool. At trial, Dressler testified that when she slipped and fell, her "left leg flew up," App. at 97, her back made "a very loud cracking noise" and she "could hear people gasping" at the sight of her. App. at 93-94. Mary Bellantoni, Dressler's friend, was the only eyewitness to the accident. She corroborated Dressler's testimony regarding a fall and further testified that Dressler was "in shock" and "crying hysterically" afterwards. App. at 307.

Dressler and Busch both presented expert testimony regarding the condition and design of the attraction, including the steps where Dressler fell. At the close of the evidence, Dressler requested that the trial court give the following jury instruction based upon a belief that the defense expert's testimony regarding the painting of the step was contradictory and contained willful falsifications:

If you decide that a witness has deliberately falsified his testimony on a significatn [sic] point, you should take this into consideration in deciding whether or not to believe the rest of his testimony; and you may refuse to believe the rest of his testimony, but you are not required to do so.

App. at 35. See Pennsylvania Bar Institute, Pennsylvania Suggested Standard Jury Instructions (Civ.) 5.05 (1981). The trial court refused to give the requested instruction, and instead used different language to explain how to assess ...


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