By Michael Roberts
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Benagh's lawsuit claims that Elitch's is liable for her injuries because the park offered a ride "that was dangerous in its design and operation" and it failed to warn patrons that others had been injured on the ride in the past. The suit asserts that Benagh's injuries were caused by the ride's plastic headrest and an ill-fitting shoulder harness and asks for damages due to negligence. Elitch's is being asked to cover Benagh's lost earnings and medical expenses as well as damages for her physical and emotional suffering and loss of memory and cognitive abilities. Under Colorado law, damages for negligence are capped at $366,000.
Elitch spokeswoman Goodell says she can't comment on Benagh's lawsuit because it's still in litigation, but in the court documents, Elitch's argues that because Benagh has never claimed that the ride malfunctioned, or was incorrectly operated or maintained, the park should not be held negligent. The manufacturer of the ride, Vekoma International, would be responsible for any design flaws, argues a brief submitted by Elitch's attorney Jack Robinson. There are thirty Mind Erasers around the world, including seven owned by Premier, according to court documents.
The park also notes that Benagh had the opportunity to observe the ride while waiting in line for 45 minutes. "Plaintiff personally observed the general nature and operation of the Mind Eraser ride, including: the relative speed of the ride; that the ride would turn her upside down on a number of occasions; that she would be spinning around; and that her legs were going to be free."
Elitch's faults Benagh for "her admitted failure to hold on during the course of the ride and her failure to keep her head firmly against the back of the seat."
In asking the court to dismiss the case, Elitch's says that Benagh "was exposed to the same conditions, the same forces, and the same restraint system as tens of thousands of other patrons who experienced no ill effects from the operation of the Mind Eraser." The park also notes that signs at the entrance to the ride warn patrons not to ride if they have back and neck problems, high blood pressure, a heart condition, or are pregnant. Benagh says she did not have any of these conditions.
Benagh insists that she is not simply out to make a buck. She hopes to receive permission from her doctor to return to work soon and notes that Colorado's limits on liability awards will prevent her from reaping a windfall even if she prevails in court. Her most severe symptoms have now passed, but she wants Elitch's to pay for her physical and mental ordeal during the past two years. At one time, Benagh says she was seeing five different doctors, including a neurologist, a physical therapist and an osteopath. "It's not like I'm asking for more than I lost," she says. "It's taken me fifteen months to get physically stabilized. It's taken two years from me and my kids."
She has also been startled to discover that the amusement-park industry receives little government oversight. "What scares me is that this could happen to other people and even to kids," says Benagh. "I know a lot of people are getting hurt on that ride. If I could change anything, I would have the state take a more active role to make sure they're operating at the highest level."
The safety of amusement rides has become an issue in other parts of the country, usually following fatal accidents.
In March, a young woman was killed and ten people were injured at the Six Flags Over Texas amusement park in Dallas when a raft ride overturned. Six Flags employees told bystanders to wait for paramedics before trying to get the victims out of the water, and some patrons criticized the park for botching the rescue effort. The collapse of a slide in 1997 at Waterworld USA in Concord, California, led to the death of a high school girl and injured 32 of her classmates. The accident has resulted in a flurry of lawsuits against the park--which is also owned by Premier.
After a Texas girl was killed and two others seriously injured last year when they were ejected from a carnival ride known as the Himalaya, the CPSC issued a national alert to amusement ride operators and conducted an investigation. The agency found that several other people around the country had been injured on the ride because of a faulty safety bar. (Just last week, a New York girl was killed and eight others injured when a Himalaya ride malfunctioned at Coney Island.) The CPSC said it would work with the manufacturer to alert operators about potential problems; however, the commission has no authority to actually inspect rides or oversee maintenance. Decisions about how to regulate amusement parks and carnivals are left up to the states.
Colorado only mandates state inspections for traveling carnival rides. Amusement parks are simply required to maintain at least $1 million in liability insurance coverage. The insurance companies have to report all claims filed by patrons against amusement parks to the state labor department. Those records show 47 liability claims were filed against Elitch Gardens in 1998, and 54 claims in 1997. The claims covered everything from slips on sidewalks to a cervical spine injury. (A smaller number of claims were filed against Lakeside Amusement Park, probably because that park attracts fewer patrons.)