Foti v. Bonkers 19, Inc., et al, Norfolk Superior Court C.A. No.: 96-02188
Type of Action: Negligence & Product Liability—Defective Amusement Ride
Injuries: Partial scalping (extensive temporoparietal and occipital scalp avulsion) with associated hair loss and disfigurement; Posttraumatic Stress Disorder; Generalized Anxiety Disorder.
Result: $7,559,143.00 Settlement
Date of Settlement: July 2, 1998
Case Summary: The minor plaintiff, an eight year old child, sustained serious injuries and disfigurement while a passenger on a “Mini-Himalaya” amusement ride. Her hair was grabbed by the ride’s motor through a gap between the back seat of the car she was riding in and the motor cover. As a result, her hair and scalp were violently ripped from her head. Her mother who was present, but not a passenger on the ride, watched in horror. The child’s father rushed to the hospital where he saw his eight year old daughter covered in blood and pieces of her scalp on the hospital bed.
The minor plaintiff suffered an 18 cm X 13 cm scarred bald spot and required extensive painful cosmetic surgery. Initially, an emergency skin graft was performed and she wore a complete head bandage for the next six months. A scalp expander was then inserted under the undamaged portion of her scalp. A series of eleven painful saline injections to expand her scalp followed. The amount of saline injected during any one visit was limited by the child’s pain tolerance. The scalp expansion grossly disfigured the left side of her head and she was taunted by children at school. She eventually required two additional operations (one due to a resulting infection). Although her treatment ultimately obtained a good (though not perfect) cosmetic result, this may not last and she may require future surgery.
This accident also had a devastating psychological effect on the minor plaintiff. She has been diagnosed with a Generalized Anxiety Disorder and Post Traumatic Stress Disorder. This has had a significant effect on her personality and affected her play and interaction with her playmates. She continues to receive treatment for these conditions. Her parents also brought claims for their own emotional distress.
Plaintiffs brought negligence claims against the operator of the ride, Bonkers 19, Inc. (which ran an indoor amusement parlor) and claims for negligence, breach of warranty of merchantability, and violation of Ch. 93A against Zamperla, Inc., a distributor of amusement rides, who sold (but did not manufacture) the Mini-Himalaya ride which injured the minor plaintiff. The defendants impled four additional parties: a finance lessor of the ride; the traveling carnival which sold the ride to Zamperla, Inc.; an electrician who worked on the ride; and a state licensed inspector who inspected the ride. The company which designed and manufactured the Mini-Himalaya was no longer in business.
Had the case tried, plaintiffs would have introduced evidence that Bonkers 19, Inc. had not complied with industry standards by failing to have the Mini-Himalaya inspected on a daily and weekly basis by a competent ride inspector. Plaintiffs were prepared to offer expert testimony that such inspections, required by industry standards, custom, and practice, would have revealed the gap between the back seat and motor cover and that the Mini-Himalaya should not have been operated with such a gap present. An internal memo drafted by the defendant amusement park admitted that this gap could have been corrected with thirteen cents worth of weather stripping.
Plaintiffs were also prepared to offer evidence that the Mini-Himalaya was sold by Zamperla, Inc. with a motor cover which could not be mounted flush against the back seat, and hence was in an unreasonably dangerous and defective condition. Further discovery and investigation revealed that a subsequent manufacturer of the ride discovered this design defect and corrected it by re-designing the motor cover to mount flush. This re-designed motor cover cost $85.00. It was anticipated that Zamperla, Inc. would argue that the gap was created by someone acting on behalf of Bonkers 19, Inc. and that it should not be held liable as it sold the ride used “as is”. Plaintiffs intended to counter this by offering evidence that other Mini-Himalayas were sold to other amusement operators with the same type of gaps present and arguing that Zamperla, Inc. had a duty to inspect the used Mini-Himalaya prior to selling it. Plaintiffs also intended to refer to Massachusetts law which holds sellers of used good in these circumstances liable for breach of warranty of merchantability.
After three sessions before a mediator, plaintiffs settled with Bonkers 19, Inc. and two third party defendants for a total of $985,000. The case continued as to Zamperla, Inc. and two third party defendants until approximately five weeks prior to the scheduled trial date, when a settlement was reached for an additional $700,000. A significant portion of the $1,685,000 settlement was structured with a guaranteed minimum pay-out of $7,559,143.00 for the minor plaintiff.
The child’s parents hope this case will call attention to the need for greater state regulation of indoor amusement ride operators.