### 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

1 of 4 PRES ENT: HON. WAYNE SAITTA, Justice. At an IAS Term, Part 29 ofthe 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 ofMotion/Order to Show Cause/ Petition/ Affidavits (Affirmations) and Exhibits Cross-motions Affidavits (Affirmations) and Exhibits Answering Affidavit (Affirmation) ReplyAffidavit (Affirmation) SupplementalAffidavit (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 proofas to howthe incident occurred·and whether due care was exercised. Defendant opp.oses arguing that the injuries claimed are not relevant to the question ofliability.

· 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 ofherbody, resulting in her upper bodybeing


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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]). 2 

### 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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bounced around the car during the ride, while her head was significantlyjoltedforward 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 injuryto the cervical spine
.

. \ Defendants arguethatbasedon Plaintiffspleadings, shehastheburden ofproving that she hit herhead orwas at leastjostledwhile riding the roller coaster as a result ofthe
mannerthat 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 ofFrankWard, a Maintenance Manager of Defendants, thelap baris set in two steps. First, the ride operatorwould 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 lapbarto 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 ofissues and a fair and ~ore expeditious resolution ofthe action". An exception to this· rule is that unified trials should be held where the nature of the injuries has an importantbearing on the issue ofliability" (Bennetti v. New York City TransitAuthority, 22 NY2d 742 [1968]; Marisova v. Brewster, 2024 Slip Op 00414 [2d Dept 2024]; Castro v. Malia LLC, 177AD3d58 [2d Dept 2019]; Wright v. New York City Tr. Auth
... 142 AD3d 1163 [2d Dept 2016]). 2 

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### 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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However, the determination ofwhether 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 onliability in this case turns on whether Defendants' employee failed to adjust thelapbarto a positionthatwould have restrained Plaintiffduringthe ride. This issue is properly established by the testimony of lay witnesses who witnessed Plaintiff during orimmediately 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 ofthe nature ofthe incident which was not a typical accident. Plaintiff contends that the negligence occurred before the ride, when the lap barwas not properly adjusted, and thatthe injuries were sustained during thecourse ofthe ride. However, the question ofwhether Plaintiffwasjoltedduring the ride because she was not restrained is distinct from the question ofwhat injuries she

·mayhave sufferedbecause 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 couldbe "Wasthe Defendants' negligence a proximate cause of the Plaintiffs injuries?", and therefore evidence ofthe injuries is necessary. However, the second question on a liability phase ofthe trial would more properly be, "Was the negligence ofDefendants a proximate cause ofPlaintiffnot being restrained
3 

### [* 3]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:



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# HON. WAYNE 

# SArnA J.S.C.

4 

### FILED: KINGS COUNTY CLERK 06/06/2024 03:36 PM INDEX NO. 519062/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 06/06/2024

4 of 4 in her seat?". The jury would not need evidence ofthe Plaintiffs injuries to answer this question. WHEREFORE, it is ORDERED that Plaintiffs motion for a unified trial is denied.

4 ENTER:



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# HON.WAVNe 

# sArrrA J.S.C.



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