Six Flags America v. Gonzalez-Perdomo

Six Flags America, L.P. v. Stephanie Gonzalez-Perdomo, Case No. 1620, September Term 2019. Opinion filed on December 16, 2020, by Berger, J. NEGLIGENCE - DUTY OF POSSESSOR OF LAND - INVITEE - DUTY TO WARN OF OPEN AND OBVIOUS CONDITION In a slip-and-fall case involving an invitee who was injured after falling on a bridge at an amusement park, the evidence overwhelmingly established that the bridge was openly and obviously wet, but the dangerous condition caused by the wet surface was not so clearly open and obvious as to permit no reasonable factfinder to conclude otherwise and the defendant was not entitled to judgment as a matter of law. NEGLIGENCE - DUTY OF POSSESSOR OF LAND - INVITEE - DUTY TO WARN OF OPEN AND OBVIOUS CONDITION - JURY INSTRUCTION The trial court’s decision not to propound requested instructions regarding the open and obvious defense constituted reversible error when the requested instructions were accurate statements of law drawn from reported Maryland opinions, the requested instructions were applicable under the facts of the case, the instructions were not fairly covered in the instructions actually given, and the appellant demonstrated probable prejudice as a result of the trial court’s decision not to propound these instructions. NEGLIGENCE - DUTY OF POSSESSOR OF LAND - INVITEE - DUTY TO WARN OF OPEN AND OBVIOUS CONDITION - VERDICT SHEET The trial court’s decision to decline to include a question regarding the open and obvious doctrine on the verdict sheet was not an abuse of discretion.

The determination of whether the dangerous condition was open and obvious was relevant to the jury’s determination of whether Six Flags was negligent, but the trial court was not required as a matter of law to ask the jury to separately issue written findings as to a particular factual finding that would have influenced the jury’s finding as to a particular element of negligence. Circuit Court for Prince George’s County Case No. CAL-18-15218 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1620 September Term, 2019 ______________________________________ SIX FLAGS AMERICA, L.P. v. STEPHANIE GONZALEZ-PERDOMO ______________________________________ Berger, Arthur, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Berger, J. ______________________________________ Filed: December 16, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-12-16 16:28-05:00 Suzanne C. Johnson, Clerk This case is before us on appeal from a jury verdict in the Circuit Court for Prince George’s County awarding damages in a negligence action.

The negligence lawsuit was filed by Stephanie Gomez-Perdomo (the “appellee”) on behalf of her minor son, Daniel Gomez-Gonzalez, after he suffered a slip and fall injury on a pedestrian bridge at an amusement park operated by Six Flags America LP (“Six Flags”). Six Flags presents two issues for our consideration on appeal, which we have rephrased slightly as follows: I. Whether the circuit court erred by denying Six Flags’ motion for summary judgment and/or motions for judgment at trial.

II

Whether the circuit court erred and/or abused its discretion by declining to propound a jury instruction on the “open and obvious” condition defense and/or by declining to include a question regarding this defense on the verdict sheet. For the reasons explained herein, we shall hold that the circuit court did not abuse its discretion by denying Six Flags’ motions for summary judgment and/or for judgment at trial, nor did the court abuse its discretion by declining to issue a verdict sheet containing the question requested by Six Flags. We shall, however, hold that the circuit court abused its discretion by declining to propound two of Six Flags’ requested jury instructions. Accordingly, we shall reverse the judgment of the circuit court and remand for a new trial.

FACTS AND PROCEEDINGS On July 22, 2015, then-ten-year-old Daniel Gomez-Gonzalez (“Daniel”) visited a Six Flags amusement park (the “amusement park” or the “park”) in Upper Marlboro, Maryland. During his visit to the park, Daniel was injured after he fell while crossing a wet wooden pedestrian bridge near the Shipwreck Falls ride.1 On May 17, 2018, Daniel’s mother, Stephanie Gomez-Perdomo, filed a complaint in the Circuit Court for Prince George’s County alleging, inter alia, that Six Flags “allowed water from a water ride in the amusement park, which it knew or should have known would and did continuously splash and accumulate water on the floor of the walkway of a nearby wooden bridge, which was constantly wet and dangerously slippery when wet . . . which created a dangerous slipping/tripping hazard on the walkway of the wooden bridge.” Following discovery, Six Flags filed a motion for summary judgment on August 9, 2019. Six Flags asserted that the undisputed facts demonstrated that the wet and slippery condition of the bridge was “open and obvious,” and, therefore, Six Flags owed no duty to warn or cure the alleged dangerous condition. For this reason, Six Flags contended that the appellee’s claim failed as a matter of law.

The trial court denied Six Flags’ motion for summary judgment. At trial, the appellee first presented testimony from amusement park safety expert Kenneth Vondriska. Mr. Vondriska testified that, in connection with his involvement in this case, he visited the park and assessed the bridge where Daniel fell. He concluded, based upon the photographs that he had reviewed as well as his on-site inspection, that water was allowed to stay on the walkway and that “[d]uring the course of the operation [of the amusement park] there was water in and around the bridge that was not removed, 1 The cause of Daniel’s fall was disputed at trial.

Six Flags asserted that Daniel’s fall was due to a hip displacement caused by a preexisting hip condition, while the appellee’s position was that Daniel fell due to the slippery condition of the bridge. 2 or was not dissipated or there was nothing protecting the walkway.” Mr. Vondriska further testified that the signage provided at the bridge was “inadequate.” There was a sign at the entrance to the bridge warning visitors that the walkway was wet,2 but the sign was, in Mr. Vondriska’s characterization, “a smaller sign” that was located “about eight to nine feet above the walking surface.” Mr. Vondriska explained that he would have recommended that “two signs” be placed “more at eye level.” Mr. Vondriska further testified that there was no non-skid material placed on the bridge, although there was non-skid material installed on the nearby exit bridge from the Shipwreck Falls ride. Mr. Vondriska further testified that there was no yellow paint marking the transition from the asphalt to the wooden bridge surface. On cross-examination, Mr. Vondriska acknowledged that the standing water on the bridge was visible and that nothing was obscuring the water on the wooden bridge. The appellee presented additional testimony from Shirley Foster, the family friend who accompanied Daniel to the park on the day of the fall.

Ms. Foster explained that she was walking “a little bit in front” of Daniel when they walked onto the bridge, so she did not see him fall. After hearing Daniel “yelling and screaming,” she “turned back and realized that he was on the floor.” Ms. Foster testified that she was aware that the bridge was located in a “splash zone area” because of the splashing water from the Shipwreck Falls ride. Ms. Foster further testified that she was able to see the flooring of the bridge as she approached it and that she observed that the bridge was obviously wet. Ms. Foster 2 The sign said, “CAUTION WET FLOOR” in both English and Spanish. 3 “believe[d] [that the ride had] just splashed” before Daniel’s fall.

She further explained that there was water “splashing while [Daniel] was on the ground.” Daniel, who was fourteen years old by the time of trial, also testified. He testified that he and Ms. Foster walked toward the wooden bridge on the way to the Superman ride. Daniel testified that he did not see any warning sign in the area, nor did he know that the bridge would be wet, nor did he see any yellow paint on the ground leading up to the bridge. Daniel was not looking at the ground before he fell, but, after he fell, he felt that it was very wet around him.

Daniel was in pain after he fell, and Ms. Foster called for help. Eventually, Daniel was put in a wheelchair and taken to a room at the park. After his injury, Daniel was able to return to sports, but he explained that he was unable to move as quickly when moving in certain ways. Daniel testified that he did not have any continuing leg pain, but he did walk with a limp.

Excerpts of deposition testimony from Six Flags’ three corporate designees, Bradley Cole McClain, Troy Shortridge, and Spencer Lucas, were also played for the jury. All three corporate designees testified that the operation of the adjacent Shipwreck Falls ride caused water to repeatedly and continuously splash an abundance of water onto the wooden bridge. The corporate designees further testified that this condition is plainly visible to all visitors to the amusement park. After the plaintiff’s case was presented, Six Flags moved for judgment.

Six Flags argued, inter alia, that the appellee had not proved a prima facie case of negligence because the evidence unequivocally demonstrated that the wet condition of the bridge was open and 4 obvious, and, accordingly, Six Flags had no duty to warn or cure the condition. The circuit court denied the motion. During Six Flags’ case in chief, the jury heard testimony from Jasmine Taylor, the Director of Human Resources and Safety for the amusement park. At the time of Daniel’s fall, Ms. Taylor was employed as the Loss Prevention Supervisor for the Amusement Park.

Ms. Taylor testified that the bridge is “very wet” when the Shipwreck Falls ride is in operation. Ms. Taylor testified that there had been matting on the decking of the bridge in prior years, but the matting had been removed when the bridge was rebuilt some years back. It was Ms. Taylor’s understanding that the matting was removed because it presented a trip hazard. Ms. Taylor acknowledged on cross-examination that there was no non-slip coating put on the bridge after the matting was removed.

With respect to the caution sign posted at the bridge, Ms. Taylor explained that the sign was required to be mounted between eighty and 120 inches above the ground to comply with Americans with Disabilities Act Guidelines. She testified that the sign was three feet wide by eight inches tall and was located ninety-eight inches off the ground. Ms. Taylor further testified that a yellow stripe is painted on the ground to warn of a change in elevation and not to warn of a wet condition. Ms. Taylor testified that the total attendance at the amusement park over the past fourteen years was over fourteen million people and there had been no other reported slip and fall injury on the bridge at any time, nor had the park been party to any other lawsuit arising out of any incident on the bridge.

At the conclusion of the case, Six Flags renewed its motion for judgment. The trial court denied the motion. The court then turned to the issue of jury instructions. After 5 considering argument from the parties, the trial court declined to propound four of Six Flags’ requested instructions.

The four requested instructions concerned the open and obvious defense. The trial court’s instructions to the jury included the pattern jury instructions on negligence, proximate cause, invitee status, and premises liability. Six Flags also requested that the open and obvious defense issue be presented to the jury via a specific question on the verdict sheet. The trial court declined to use Six Flags’ proposed special verdict sheet.

Instead, the verdict sheet asked the jury to determine: (1) whether Six Flags was negligent; (2) whether Daniel was contributorily negligent; (3) whether Daniel assumed the risk; and (4) what damages, if any, to award. 3 The jury found that Six Flags was negligent and that Daniel was not contributorily negligent and had not assumed the risk. The jury awarded the appellee $45,000.00 in non-economic damages. Six Flags noted a timely appeal. Additional facts shall be discussed as necessitated by our consideration of the issues before us on appeal.

DISCUSSION I. The first issue before us on appeal is whether the circuit court erred by denying Six Flags’ motion for summary judgment and motions for judgment. For the reasons we shall explain, we shall hold that the circuit court did not err by denying Six Flags’ motion for summary judgment and motions for judgment. 3 The appellee sought only non-economic damages. 6 A. Standard of Review The entry of summary judgment is governed by Maryland Rule 2-501, which provides: The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. We review a trial court’s grant of a motion for summary judgment de novo, and we construe all “reasonable inferences that may be drawn from the undisputed facts against the moving party.” Mathews v. Cassidy Turley Md., Inc., 435 Md. 584, 598 (2013). With respect to a denial of a motion for summary judgment, however, the trial court’s ruling is more discretionary.

Estate of Castruccio v. Castruccio, 247 Md. App. 1, 60 (2020) (“[I]n Maryland, a trial court may exercise its discretionary power to deny a motion for summary judgment even if the moving party has met the technical requirements for summary judgment – i.e., even if the moving party has shown that there is no genuine dispute of material fact and that it is entitled to judgment as a matter of law.”); Dashiell v. Meeks, 396 Md. 149, 164 (2006) (“Although, ordinarily, when there is no dispute of material fact, a trial court does not have any discretionary power when granting summary judgment it does, nonetheless, exercise discretion when affirmatively denying a motion for summary judgment or denying summary judgment in favor of a full hearing on the merits.”). The denial of summary judgment “involves not only pure legal questions but also an exercise of discretion as to whether the decision should be postponed until it can be supported by a complete factual record.” Dashiell, supra, 396 Md. at 164 . Accordingly, “on appeal, the 7 standard of review for a denial of a motion for summary judgment is whether the trial judge abused his discretion and in the absence of such a showing, the decision of the trial judge will not be disturbed.” Id. at 165 . The same standard of review applies for a motion for judgment notwithstanding the verdict and a motion for judgment at the close of the evidence.

Univ. of Maryland Med. Sys. Corp. v. Gholston, 203 Md. App. 321, 329 (2012). For both motions, we consider “whether on the evidence presented a reasonable fact-finder could find the elements of the cause of action by a preponderance of the evidence.” Id.

We “assume the truth of all credible evidence on the issue and any inferences therefrom in the light most favorable to the [appellee], the nonmoving part[y].” Lowery v. Smithsburg Emergency Med. Serv., 173 Md. App. 662, 683 (2007). “Consequently, if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question, the case must be submitted to the jury for its consideration.” Id. (quoting Tate v. Bd. of Educ. of Prince George's County, 155 Md. App. 536, 545 (2004)). B. Six Flags Was Not Entitled to Judgment as a Matter of Law Six Flags asserts that it was entitled to judgment as a matter of law because the wet condition of the bridge was “open and obvious,” and, therefore, Six Flags owed no duty to warn of or cure the wet condition.

We are not persuaded. In order to recover damages in a negligence action, a plaintiff bears the burden of proving: “1) that the defendant was under a duty to protect the plaintiff from injury, 2) that the defendant breached that duty, 3) that the plaintiff suffered actual injury or loss, and 4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” 8 Marrick Homes LLC v. Rutkowski, 232 Md. App. 689, 698 (2017) (quoting Rowhouses, Inc. v. Smith, 446 Md. 611, 631 (2016)). “In Maryland, it is well-established premises liability law that the duty of care that is owed by the owner of property to one who enters on the property depends upon the entrant’s legal status.” Rehn v. Westfield Am., 153 Md. App. 586, 592 (2003) (quoting Rivas v. Oxon Hill Joint Venture, 130 Md. App. 101, 109 (2000)). In the instant case, there is no dispute that Daniel was an invitee at Six Flags and that Six Flags owed the duty to exercise ordinary care to keep the amusement park safe. Although a business owner must exercise ordinary care to keep property safe, Six Flags, as a business owner, was “not [the] insurer[] of [its] customers’ safety, and no presumption of negligence arises merely because an injury was sustained on [Six Flags’] premises.” Rehn, supra, 153 Md. App. at 593 (quoting Giant Food, Inc. v. Mitchell, 334 Md. 633, 636 (1994)).

Daniel, as an invitee, had “a duty to exercise due care for his . . . own safety.” Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md. App. 381, 389 (1997). “This includes the duty to look and see what is around the invitee.” Id. A property owner “has no duty to warn an invitee of an open, obvious, and present danger.” Id. (citing Casper v. Chas. F. Smith & Son, Inc., 316 Md. 573, 582 (1989)).

At issue in this appeal is whether the dangerous condition of the bridge was “open and obvious” as a matter of law. The parties agree that Six Flags owed a duty to exercise ordinary care in the operation of the amusement park but, to some extent, dispute whether the determination of whether the danger was open and obvious is a matter for the court’s determination or for the jury’s. Six Flags correctly identifies the issue of the existence of a duty as a matter of law for the court’s determination, citing Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 9 407, 414-15 (2005). The appellee agrees that the question of whether a duty exists is a legal question for the court’s determination but asserts that the question of whether a particular condition constitutes an open and obvious hazard excusing such a duty is a question of fact for the jury’s determination.

In its reply brief, Six Flags concedes that although the question of whether a condition is open and obvious is “often a question of fact,” it argues that it can “certainly become a question of law for the court when the material facts and reasonable inferences are not in general dispute.” We agree with the position articulated by Six Flags in its reply brief, but we frame it somewhat differently. We must determine whether there are disputed material facts precluding a finding that the dangerous condition was open and obvious as a matter of law and upon which a jury could have reasonably determined that the danger was not open and obvious and, accordingly, that Six Flags had a duty to warn of and/or cure the condition. Six Flags asserts that the evidence presented at trial clearly established that the wet condition of the bridge was open and obvious. Six Flags points to the testimony of Ms. Foster, who testified that nothing was obstructing the view as she and Daniel approached the bridge.

Six Flags further emphasizes that Daniel acknowledged that there was water on the bridge and that his back was wet after he fell. The appellee’s expert witness, Mr. Vondriska, testified that there was visible standing water on the bridge and that there was nothing obstructing the view of water on the wooden bridge. For these reasons, Six Flags contends that it was entitled to judgment as a matter of law because no reasonable jury could find that Six Flags had a duty to warn of or cure the open and obvious wet condition of the bridge. 10 Based upon our review of the record, we agree with the trial court that Six Flags was not entitled to judgment as a matter of law. To be sure, witnesses for both parties testified that the wet condition of the bridge was visible.

It does not necessarily follow, however, that the slippery condition of the bridge was obvious. It is reasonably conceivable that a visitor to the amusement park may have perceived the water on the wooden walkway without appreciating the danger created by the wet surface. The jury may have believed that a visitor could have concluded that the bridge was unlikely to be slippery despite the wet