Court: Appellate Division of the Supreme Court of the State of New York; March 2, 1997; New York; State Appellate Court
The defendant appeals from two orders of the Supreme Court, Nassau County, regarding a personal injury case involving the plaintiff, Barton Loewenthal, who was injured while riding a go-cart at an amusement park. The first order, dated September 18, 1995, denied the defendant's motion for summary judgment to dismiss the complaint. The second order, dated April 23, 1996, upheld the initial ruling upon reargument. The appellate court dismissed the appeal from the September order as it was superseded by the April order, and reversed the April order, granting the defendant's motion for summary judgment and dismissing the complaint with costs awarded to the defendant.
Barton Loewenthal's injuries occurred when his eight-year-old daughter, driving the go-cart, attempted a sharp turn, causing the vehicle to veer off course and collide with a pit barrier wall. The court found that the plaintiff assumed the inherent risks of riding the go-cart, which included potential collisions. The defendant successfully demonstrated that the accident was caused by the plaintiff's actions rather than any defect in the go-cart track.
In response, the plaintiffs attempted to argue that dangerous conditions existed beyond the inherent risks, presenting an expert affidavit. However, the expert lacked relevant experience with amusement park rides and based opinions on limited information and conversations with the plaintiffs' attorney, rather than direct evidence or site inspection. The court noted there was no proof that the track design failed to meet industry standards or that the defendant had knowledge of any hazardous conditions. Thus, the court concluded that the defendant was entitled to summary judgment, resulting in the dismissal of the complaint.
