Nevins v Six Flags Entertainment Corp.

2024 NY Slip Op 31976(U)

June 6, 2024

Supreme Court, Kings County

Docket Number: Index No. 519062/2017

Judge: Wayne Saitta

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
At an lAS Term, Part 29 of the Supreme Court

of the State of New York, held in and for the

County of Kings, at the Courthouse, at Civic

Center, Brooklyn, New York, on the 6th day of

June 2024.

PRESENT:

HON. WAYNE SAITTA, Justice.

------------------------------------------------------------J(

LISA NEVINS

Plaintiff

-againstSIX FLAGS ENTERTAINMENT CORP. and.

SIX FLAGS OPERA nONS, INC.,

Defendants

______________________________________________________ ------J(

The following papers read on this motion:

Notice of Motion/Order to Show Cause/

Petition/Affidavits (Affirmations) and

Exhibits

Cross-motions Affidavits (Affirmations)

and Exhibits

Answering Affidavit (Affirmation)

Reply Affidavit (Affirmation)

Supplemental Affidavit (Affirmation)

Index No. 519062/2017

MSS

Order

NYSCEF Doc Nos

65-79

84-85

86

Plaintiff moves for a unified trial in this personal injury action arguing that the

injuries Plaintiff suffered are relevant to the question of liability, and that the injuries

offer proof as to how the incident occurred and whether due care was exercised.

Defendant 6pp'oses arguing that the injuries claimed are not relevant to the

question of liability.

. Plaintiff alleges she was injured while riding a roller coaster in which she was not

tightly restrained. Plaintiff alleges that Defendants' employees did not set the safety lap

bar on the ride so that it touched any part of her body, resulting in her upper body being

FILED: KINGS COUNTY CLERK 06/06/2024 03:36 PM INDEX NO. 519062/2017

NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 06/06/2024

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PRES ENT: 

HON. WAYNE SAITTA, Justice. 

At an IAS Term, Part 29 of the Supreme Court 

of the State of New York, held in and for the 

County of Kings, at the Courthouse, at Civic 

Center, Brooklyn, New York, on the 6th day of 

June 2024. 

------------------------------------------------------------X 

LISA NEVINS 

Plaintiff 

-againstSIX FLAGS ENTERTAINMENT CORP. and . 

SIX FLAGS OPERATIONS, INC., 

Defendants 

------------------------------------------------------- ----X 

The following papers read on this motion: 

Notice of Motion/Order to Show Cause/ 

Petition/ Affidavits (Affirmations) and 

Exhibits 

Cross-motions Affidavits (Affirmations) 

and Exhibits 

Answering Affidavit (Affirmation) 

Reply Affidavit (Affirmation) 

Supplemental Affidavit (Affirmation) 

Index No. 519062/2017 

MS5 

Order 

NYSCEF Doc Nos 

65-79 

84-85 

86 

Plaintiff moves for a unified trial in this personal injury action arguing that the 

injuries Plaintiff suffered are relevant to the question of liability, and that the injuries 

offer proof as to how the incident occurred ·and whether due care was exercised. 

Defendant opp.oses arguing that the injuries claimed are not relevant to the 

question of liability. 

· Plaintiff alleges she was injured while riding a roller coaster in which she was not 

tightly restrained. Plaintiff alleges that Defendants' employees did not set the safety lap 

bar on the ride so that it touched any part of her body, resulting in her upper body being 

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./

bounced around the car during the ride, while her head was significantly jolted forward

and back and from side to side .

. Plaintiff alleges that as a result of not being tightly restrained in the seat, .she

suffered concussive brain injury and traumatic injury to the cervical spine .

. \

Defendants argue that based on Plaintiffs pleadings, she has the burden of proving

that she hit her head or was at least jostl~d while riding the roller coaster as a result of the

manner that the lap bar was positioned.

The lap bar can be set in several different positions at varying distances from the

rider's body.

According to the deposition testimony of Frank Ward, a Maintenance Manager of

Defendants, the lap bar is set in two steps. First, the ride operator would push a button to

engage the bar mechanically. The button engages every lap bar on the train into the

position that is furthest away from the rider's body. Second, after the operator has

engaged the lap bars, the operator or attendant manually adjusts each rider's lap bar to a

position that is tightest against the rider's body in order to restrain the rider. Ward

testified that this is done to prevent injury.

Pursuant to 22NYCRR 202A2(a), "Judges are encouraged to order a bifurcated

trial of the issues of liability and damages in any action for personal injury where it

appears that bifurcation may assist in a clarification or simplification of issues and a fair

and ~ore expeditious resolution of the action".

An exception to this' rule is that unified trials should be held where the nature of

the injuries has an important bearing on the issue ofliability" (Bennetti v. New York CitY

Transit Authority, 22 NY2d 742 [1968]; Marisova v. Brewster, 2024 Slip Op 00414 [2d

Dept 2024]; Castro v. Malia LLC, 177AD3d 58 [2d Dept 2019]; Wright v. New York City

Tr. Auth.J. 142AD3d 1163 [2d Dept 2016]).

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./ 

bounced around the car during the ride, while her head was significantly jolted forward 

and back and from side to side. 

· Plaintiff alleges that as a result of not being tightly restrained in the seat, .she 

suffere_d concussive brain injury _and traumatic injury to the cervical spine . . \ 

Defendants argue that based on Plaintiffs pleadings, she has the burden of proving 

that she hit her head or was at least jostled while riding the roller coaster as a result of the 

manner that the lap bar was positioned. 

The lap bar can be set in several different positions at varying distances from the 

rider's body. 

According to the deposition testimony of Frank Ward, a Maintenance Manager of 

Defendants, the lap bar is set in two steps. First, the ride operator would push a button to 

engage the bar mechanically. The button engages every lap bar on the train into the 

position that is furthest away from the rider's body. Second, after the operator has 

engaged the lap bars, the operator or attendant manually adjusts each rider's lap bar to a 

position that is tightest against the rider's body in order to restrain the rider. Ward 

testified that this is done to prevent injury. 

Pursuant to 22NYCRR 202-42(a), "Judges are encouraged to order a bifurcated 

trial of the issues of liability and damages in any action for personal injury where it 

appears that bifurcation may assist in a clarification or simplification of issues and a fair 

and ~ore expeditious resolution of the action". 

An exception to this· rule is that unified trials should be held where the nature of 

the injuries has an important bearing on the issue ofliability" (Bennetti v. New York City 

Transit Authority, 22 NY2d 742 [1968]; Marisova v. Brewster, 2024 Slip Op 00414 [2d 

Dept 2024]; Castro v. Malia LLC, 177AD3d 58 [2d Dept 2019]; Wright v. New York City 

Tr. Auth ... 142 AD3d 1163 [2d Dept 2016]). 

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j 

However, the determination of whether to conduct a bifurcated trial rests within 

the discretion of the trial court and should not be overturned absent an improvident 

exercise of discretion· (Wright v. New York City Tr. Auth.,. 142 AD3d 1163 [2d Dept 

2016]; Patino v. County of Nassau, 124 AD3d 738 [2d Dept 2015]). 

The question on liability in this case turns on whether Defendants' employee failed 

to adjust the lap bar to a position that would have restrained Plaintiff during the ride. This 

issue is properly established by the testimony of lay witnesses who witnessed Plaintiff 

during or immediately after the ride. 

At the liability phase of the trial, Plaintiff is not required to prove that she was 

injured, but only that she_ was not restrained because the lap bar was not set tightly 

enough. 

Plaintiff argues that unification is necessary because of the nature of the incident 

which was not a typical accident. Plaintiff contends that the negligence occurred before 

the ride, when the lap bar was not properly adjusted, and that the injuries were sustained 

during the course of the ride. However, the question of whether Plaintiff was jolted during 

the ride because she was not restrained is distinct from the question of what injuries she 

· may have suffered because she was unrestrained. 

Plaintiff further argues that if the trial was bifurcated a question on a liability 

verdict sheet concerning proximate cause could not be "Was Defendants' negligence a 

proximate cause of the accident", because there was no accident. Rather, that the only 

proximate cause question could be "Was the Defendants' negligence a proximate cause of 

the Plaintiffs injuries?", and therefore evidence of the injuries is necessary. 

However, the second question on a liability phase of the trial would more properly 

be, "Was the negligence of Defendants a proximate cause of Plaintiff not being restrained 

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in her seat?". The jury would not need evidence of the Plaintiffs injuries to answer this

question.

WHEREFORE, it is ORDERED that Plaintiffs motion for a unified trial is denied.

ENTER:

JSC

HON. WAYNE SArnA

J.S.C.

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in her seat?". The jury would not need evidence of the Plaintiffs injuries to answer this 

question. 

WHEREFORE, it is ORDERED that Plaintiffs motion for a unified trial is denied. 

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ENTER: 

JSC 

HON. WAVNe sArrrA 

J.S.C. 

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