May 14, 2010
Who is at fault for a bum go-cart ride?
By ANDREW BERGH
Special to the Journal

Aren't amusement parks supposed to amuse? That's not always true, as shown by a recent case from South Carolina called Burnett v. Family Kingdom, Inc.

While vacationing in the Palmetto State with another couple, Doug and Tracy Burnett decided to visit Family Kingdom, which bills itself as “Myrtle Beach's only seaside amusement park.” (No surprise there, as 2000 census figures put the town's population at under 23,000.)

After buying two tickets, Doug Burnett and his brother-in-law, Clyde Adams, got in line for the go-cart attraction. They were soon joined by three young men who were “acting boisterously” and making comments about how they intended to bump or collide with other go-carts during the upcoming ride. Burnett, who had two prior back surgeries, cautioned the young men to not collide with him.

After taking tickets, the ride operators belted in all the riders, gave them instructions, and warned them not to bump or collide with the other go-carts or otherwise drive recklessly.

As an extra safety precaution, the operators could deactivate the ride by pressing an “All Stop” button that would stop all of the go-carts. According to the amusement park's manager, the operators were required to halt the ride after giving a second warning not to bump, or if a collision caused a go-cart to turn around.

So did the three young men heed the operators' warnings?

Anything but.

During the first turn of the initial lap, one of them hit the brother-in-law's go-cart, causing it to spin around 180 degrees. Then, for the next few laps, they repeatedly bumped or collided with the other go-carts. Although Burnett, Adams and the women in their party continually asked the operators for assistance, they instead responded by encouraging the three young men and cheering them on.

Not so amused, Burnett drove his go-cart off the track and into the pit area.

But that only made him a sitting duck, as one of the belligerents hit Burnett from behind with enough force to lift his go-cart off the ground. For good measure, another member of the trio collided with him too. It was only after all these events happened that one of the operators finally hit the kill switch to deactivate the go-carts.

Burnett later sued Family Kingdom for negligence in Horry County Circuit Court, seeking damages for the aggravation of his preexisting back injury. But at the subsequent trial, the amusement park successfully moved for a directed verdict. The suit should be dismissed, said the trial court, because the plaintiff had failed to prove that the defendant owed a duty of care.

In the ensuing appeal, the key issue was whether the trial court had goofed by taking Burnett's case away from the jury.

At the outset, the appeals court agreed that the existence of a legal duty of care is a “crucial element” of a negligence claim. Unless the defendant owes such duty to the plaintiff, said the court, there is “no actionable negligence.”

The court also acknowledged that under the common law (i.e., court-made law), a person usually owes no duty to protect somebody else from harm inflicted by a third party. (Though court records are unclear, Family Kingdom presumably invoked this rule to argue that it owed Burnett no duty to protect him from the other go-cart riders.)

But at this point, the court hung its hat on the South Carolina Amusement Rides Safety Code.

The purpose of this statute, said the court, is to prevent injuries to visitors (and employees) at amusement parks and fairs. Moreover, Burnett belonged to the “class of persons” this law seeks to protect. So under these circumstances, said the court, Family Kingdom owed a statutorily imposed duty of care to Burnett that allowed him to seek damages for his injuries.

In sum, Burnett will again have his day in court, which means the amusement park isn't quite yet off the hook.

So was Burnett's harrowing go-cart ride just an isolated experience?

Good question.

What I do know, however, is that if I ever get to Family Kingdom, I sure won't go near the bumper cars.