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Park was wrong to allow aquatic shoes on waterslide: patron

Amount:

$995,200

Type:

Verdict-Plaintiff

State:

Pennsylvania

Venue:

Philadelphia County

Court:

Philadelphia County Court of Common Pleas

Injury Type(s):

ankle-fracture (fracture, bimalleolar);
ankle-dislocation; other-plate; other-lesion; other-physical therapy; other-pins/rods/screws; other-comminuted fracture; surgeries/treatment-open reduction; surgeries/treatment-internal fixation

Case Type:

Premises Liability – Failure to Warn; Worker/Workplace Negligence – Negligent Training; Premises Liability – Amusement Park/Place of Entertainment

Case Name:

Onix Agosto Jr. v. SeaWorld Parks & Entertainment Inc. d/b/a Sesame Place and SeaWorld Parks & Entertainment LLC d/b/a Sesame Place,
No. 121004153

Date:

June 25, 2014

Parties

Plaintiff(s):

Onix Agosto Jr. (Male, 21 Years)

Plaintiff Attorney(s):

Robert T. Szostak;
Reiff & Bily;
Philadelphia,
PA,
for
Onix Agosto Jr. ■ Raymond M. Bily Jr.;
Reiff & Bily;
Philadelphia,
PA,
for
Onix Agosto Jr.

Plaintiff Expert(s):

William Avery;

Inspection/Safety Testing;
Orlando,
FL called by
Robert T. Szostak, Raymond M. Bily Jr. ■ Marinilda Rodriguez;
D.P.M.;
Podiatry Surgery;
Allentown,
PA called by
Robert T. Szostak, Raymond M. Bily Jr.

Defendant(s):

SeaWorld Parks & Entertainment LLC, 

SeaWorld Parks & Entertainment Inc.

Defense Attorney(s):

Laurianne Falcone;
Marshall Dennehey Warner Coleman & Goggin, P.C.;
Philadelphia,
PA,
for
SeaWorld Parks & Entertainment LLC, SeaWorld Parks & Entertainment Inc.

Defendant Expert(s):

John Hunsucker;
Inspection/Safety Testing;
Dickinson,
TX called by
Laurianne Falcone ■ William Martin;
Podiatry;
Philadelphia,
PA called by
Laurianne Falcone

Facts:

On May 30, 2011, plaintiff Onix Agosto Jr., 21, was visiting Sesame Place amusement park with his fiancĂ©, child, and family. The park, located in the borough of Langhorne, in Bucks County, contains multiple rides for children and adults, including waterslides. Agosto, wearing rubber aquatic shoes, slid down the Bert and Ernie serpentine waterslide. After traveling approximately 24 feet, he entered a right turn and the rubber tread of his left shoe caught on the outside wall of the slide, which resulted in an instant, severe twisting dislocation and fracture to his ankle, as his momentum continued down the slide. Agosto sued Sesame Place owner SeaWorld Parks & Entertainment LLC on claims of negligence. (SeaWorld Parks & Entertainment Inc. was an original named party but stipulated out of the case at the beginning of trial.) Agosto’s counsel maintained that the amusement park permitted the use of rubber aquatic shoes — there were no warnings or signage on its premises that prohibited wearing them — and, in fact, Sea World encouraged the use of the footwear on the Sesame Place Web site and by selling them at the park. This directly contradicted, according to Agosto’s counsel, the American Red Cross Lifeguarding Training Manual used by Sea World as employee-training materials. The manual states, regarding injury prevention and facility safety, that a common rule for waterslides includes "No aqua socks or aqua shoes," according to Agosto’s counsel. An expert in safety for amusement parks explained that footwear like a rubber aquatic shoe is properly banned from parks containing waterslides since it dramatically alters the dynamics of a waterslide, which are intended to enable a non-disrupted travel route to the bottom. Because rubber shoes can act like a brake, they introduce an increased risk of injury in violation of ASTM (American Society for Testing and Materials) standards on amusement rides and devices and operation of waterslide systems. The expert faulted Sesame Place for allowing rubber aquatic shoes on its slide, and criticized the ride’s dispatcher/operator for not enforcing the slide’s dispatch procedure. The expert concluded that the amusement park’s failure to do so violated the park’s standard operating procedures. According to Agosto’s counsel, the park’s director of safety testified that the kind of shoes Agosto was wearing offered no protection on the slide. The dispatcher, who gave no instructions to Agosto on how to begin sliding, reported that Agosto "forcefully pushed himself forward" but that she "thought everything was fine" therefore, according to the defense, Agosto was comparatively negligent for the accident. Sesame Place’s amusement park safety expert testified that there is no uniform standard as to allowance of aquatic footwear for amusement parks, since parks throughout the country either permit or prohibit its use. He also testified that water shoes should be prevented on serpentine body waterslides because they can cause injury in the catch pool, due to traction on the bottom of the shoes and the bottom of the pool. Agosto’s counsel argued that if rubber aquatic shoes are prevented at the bottom, they must be prevented at all times while in the slide from top to bottom.

Injury:

Agosto was taken by ambulance to a hospital, where he was admitted and diagnosed with a left major dislocation and comminuted bimalleolar fracture. The next day, he underwent open reduction internal fixation using a plate and multiple long and short screws. On June 1, Agosto was discharged and moved into his mother’s home, where he lived on the first floor and initially relied on the use of a wheelchair and then crutches. Agosto underwent extensive rehabilitation, being treated with over 130 physical-therapy sessions. In February 2012, Agosto underwent another operation to remove three of the surgical screws, and the following February he had a third surgery to treat the osteochondral injury by removal of the osteochondrial lesion. One of Agosto’s surgeons opined that he probably will need an ankle fusion and/or replacement. Agosto sought to recover damages for his claim of future medical costs. Agosto, who walks with an impaired gait, said that his life was put on pause due to his injury and has not been the same since. He is unable to squat, run, walk long distances, play sports, or keep up with his young child. His counsel maintained that Agosto, who was unemployed, can work but would do so with pain, physical limitations, and dysfunction. He did not present a claim for loss of earnings or earning capacity. Agosto sought to recover unspecified amounts in noneconomic damages for past and future pain and suffering, humiliation, embarrassment, mental anguish, and loss of enjoyment of life for the balance of his life expectancy, projected to be an additional 53 years. The defense’s expert in podiatry opined that with bracing and possible tendon steroid injections, Agosto could make a 95-perecent recovery. The expert criticized Agosto’s surgeons, maintaining that they performed unnecessary procedures. The expert concluded that Agosto’s problems were of a biomechanical muscle-tendon imbalance, and not the ankle deformity and limitations of hardware and internal destruction of the joint and related structures.

Result:

The jury found Agosto was 32 percent liable and Sesame Place 68 percent liable. Agosto was determined to receive $995,200 in compensatory damages, which the court molded to $676,736.

Actual Award:

$676,739.40

Trial Information:

Judge:

Leon W. Tucker

Demand:

$950,000

Trial Length:

3
 days

Trial Deliberations:

3
 hours

Editor’s Comment:

This report is based on information that was provided by plaintiff’s counsel. Defense counsel declined to contribute and instead provided an email address to the vice president of communications at SeaWorld Parks & Entertainment LLC. The SeaWorld contact did not respond to the reporter’s email.