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ROSSETTI v. BUSCH ENTERTAINMENT CORP.

February 16, 2000

SUSAN ROSSETTI PLAINTIFF,
V.
BUSCH ENTERTAINMENT CORPORATION D/B/A SESAME PLACE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.

MEMORANDUM

Plaintiff Susan Rossetti seeks to recover damages for injuries she allegedly sustained while riding on an attraction at an amusement park. Defendant Busch Entertainment Corporation d/b/a Sesame Place ("Busch"), the amusement park owner, seeks partial summary judgment on plaintiffs breach of warranty (count II) and strict liability (count III) claims. Because plaintiffs purchase of an admission ticket to ride attractions at an amusement park is not a "good" with respect to plaintiffs breach of warranty claim and because plaintiff has failed to offer any evidence to justify affixing strict liability to Busch in this case, Busch's motion will be granted.

I. FACTS

The following material facts are not in dispute or have been construed in the light most favorable to plaintiff, and all reasonable inferences have been drawn in plaintiffs favor. Plaintiff, accompanied by friends and family, went to Sesame Place, an amusement park, which is owned and operated by Busch. Like all park patrons, plaintiff paid an admission fee to enter the park. While at the park, plaintiff went for a ride on what is known as the "Sky Splash" attraction. The "Sky Splash" consists of a water slide on which small groups of park patrons descend in over-sized rafts. At one point, the raft rose and came down hard, jolting plaintiff. As a result of that "jolt," plaintiff suffered serious injury to her back.

Plaintiff subsequently brought this action against Busch and Waterworld Products, a manufacturer and designer of the ride, setting forth claims of negligence (count I), breach of warranty (count II), and strict liability (count III). Because defendant Waterworld has yet to enter an appearance in this action, judgment against it on liability only was entered in plaintiffs favor. See Order filed November 30, 1999.

II. LEGAL STANDARD

Summary judgment is appropriate if the moving party can "show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-movant. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court must accept the nonmovants version of the facts as true and resolve conflicts in the non-movant's favor. See Big Apple BMW, Inc. v. BMW of N. Amer., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2348, 91 L.Ed.2d 265 (1986). Once the movant has done so, however, the nonmoving party cannot simply rest on its pleadings. See Fed.R.Civ.P. 56(e). Rather, the non-movant must then "make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or by depositions and admissions on file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); see also Anderson to Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Indeed, to defeat "a properly supported summary judgment motion, the party opposing it must present sufficient evidence for a reasonable jury to find in its favor." Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995.

III. DISCUSSION

A. Count II — Breach of Warranty

In count II of her complaint, plaintiff claims that Busch breached its warranty of merchantability or fitness for use because "Sky Splash" was "not as warranted, nor free from defects, but to the contrary was in a dangerous and defective condition unreasonably dangerous to prospective users or consumers. . . ." Compl. ¶ 20. Plaintiffs breach of warranty claims falls under the auspices of the Uniform Commercial Code ("UCC"). The UCC, unless otherwise specified, "applies to transactions in goods." 13 Pa. Cons.Stat. Ann. § 2102. "Goods" are defined as:

[A]ll things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities and things in action. `Goods' also includes the unborn young of animals an(f growing crops and other identified things attached to realty as described in section 2107 (relating to goods to be severed from realty; recording).

See 13 Pa. Cons.Stat. Ann. § 2105(a). "Goods to be severed from realty" include, among other things, contracts for the sale of minerals, structures to be removed from realty, and timber. See 13 Pa. Cons.Stat. Ann. § 2107(a)-(b).

In the instant case, plaintiff is essentially contending that Busch, by selling art admission ticket to her, which allowed her to ride on the park's attractions, was selling her a "good." To constitute a transaction of goods, however, "`the subject matter of the transaction — the putative good — must be tangible and movable.'" Dantzler v. S.P. Parks, Inc., No. CIV.A. 87-4434, 1988 WL 131428, at *5 (E.D. ...


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