Moreover, courts in other jurisdictions which have adopted
section 402A have held it does not apply to amusement park
operators. Sells v. Six Flags Over Texas, Inc., No.
Civ.A.3:96-CV-1574-D, 1997 WL 527320, at *1 (N.D.Tex. Aug.14,
1997). For example, courts in Texas, Connecticut and Louisiana
have concluded that patrons injured on amusement park rides could
not recover on a theory of strict liability because the park
operators were not engaged in the business of selling or
manufacturing. See Sells, 1997 WL 527320, at *2-3 (citing
Bobryk v. Lincoln Amusements, Inc., No. Civ.A.CV9505470845,
1996 WL 24566, at *4-5 (Conn. Sup.er.Ct. Jan.5, 1996) (carnival
ride operator not strictly liable for injuries to minor plaintiff
because no bailment); Siciliano v. Capitol City Shows, Inc.,
124 N.H. 719, 475 A.2d 19 (1984) (strict liability not applicable
because amusement park provided service, not product); and
Rivere v. Thunderbird, Inc., 353 So.2d 346, 347 (La.Ct.App.
1977), cert. denied, 354 So.2d 1380 (La. 1978) (amusement park
operator not strictly liable under facts of case to patron
injured from head-first slide into three foot deep manmade
Those courts which have found defendant amusement park
operators strictly liable "outside the context of a sale" have
done so "only when the transaction possesses the attributes of a
sale, such as in the case of a lease or a bailment." Sells,
1997 WL 527320, at *2 (citing Gray v. Snow King Resort, Inc.,
889 F. Supp. 1473, 1477 (D.Wyo. 1995) (strict liability applicable
because bailment occurred when amusement park patron operated
"Alpine Sled"); Golt v. Sports Complex, Inc., 644 A.2d 989, 991
(Del.Super.Ct. 1994) (strict liability applicable because
bailment occurred when amusement park patron allowed to drive
go-cart); and Rourke v. Garza, 530 S.W.2d 794, 799 (Tex. 1975)
(strict liability applicable because lease occurred where rental
of defective scaffold)). "A lease . . . occurs when use and
possession pass, but not title. . . . Similarly, a bailment . . .
occurs when possession or title is delivered under an express or
implied agreement that the property will be redelivered to the
original possessor when the purpose of the bailment is
accomplished." Eves, 1988 WL 109107, at *1 (quoting Whitmer v.
Bell Tel. Co. of Pa., 361 Pa. Super. 282, 522 A.2d 584, 588
(1987) (citations omitted)). However, in the instant case, there
was no relinquishment of control or possession of Slippery Slopes
to Mr. Greenwood. Here, Mr. Greenwood had no title to the
Slippery Slopes water slide, nor did he have the exclusive right
to possess it. Because there are no attributes of a sale, lease
or bailment in this case, strict liability is not applicable.
In addition, the language in the comments and notes to the
Restatement (Third) of Torts, Chapter 4, section 20, "Definition
of `One Who Sells or Otherwise Distributes'" provides further
support for this finding. The notes to comment d of section 20 of
the Restatement (Third) of Torts, "Sales-Service Combinations,"
state that "[i]f the product is not used up or consumed, the
transaction is usually not treated as a sale of a product, but
rather as a service." Restatement (Third) of Torts: Prods. Liab.
§ 20 Reporters' Note, cmt. d at 291 (citing Coleman v.
Charlesworth, 240 Ill. App.3d 662, 181 Ill. Dec. 391,
608 N.E.2d 464 (1992) (sightseeing balloon ride is a service); Siciliano
(amusement ride is a service, not a product); Allen v. Nicole,
Inc., 172 N.J. Super. 442, 412 A.2d 824 (Law Div. 1980) (amusement
ride "pony cart" operator is more a provider of a service than a
seller)). In addition, the notes to section 20, comment f, "Other
Means of Commercial Distribution: Product Bailments," state that
"[a]musement ride operators, . . . are considered to provide a
service, not a product, and thus are not held strictly liable."
Restatement (Third) of Torts: Prods. Liab. § 20, Reporters' Note,
cmt. f at 291 (citing Siciliano and Allen).
As stated above, the Pennsylvania Supreme Court set forth a
four factor test for imposing strict liability in determining
whether a supplier of products, whose status as a supplier was
already determined, is to be held liable for damages caused by
defects in the products supplied. Francioni, 372 A.2d at
739-740. The factors include:
(1) whether the defendant is the only member of the
marketing chain available to the injured plaintiff
for redress; (2) whether the imposition of strict
liability would serve as an incentive to safety; (3)
whether the defendant is in a better position than
the consumer to prevent circulation of defective
products; and (4) whether the defendant can
distribute the cost of compensating for injuries
resulting from defects by charging for it in the
Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367,
562 A.2d 279, 282 (1989) (citing Francioni, 372 A.2d at 739). A
precondition of the application of these four factors is a
finding by this Court that Busch is a seller.
In the instant case, Mr. and Mrs. Greenwood do not offer
evidence that Busch is a seller. Instead, they argue that a
balancing of the policy considerations behind the imposition of
strict liability weighs in favor of imposing strict liability on
Busch, and urge this Court to undergo a Francioni analysis.
Because this Court has found that Busch is not a seller, however,
such analysis is unnecessary.*fn1
Plaintiffs have not proven that strict liability should attach
to Busch. Thus, Busch's partial motion for summary judgment is
granted and Count IV of Plaintiffs' Complaint is dismissed.
An Order follows.
AND NOW, this 18th day of May, 2000, upon consideration of the
Motion of Defendant, Busch Entertainment Corporation, d/b/a
Sesame Place, for Partial Summary Judgment with Respect to Count
IV of Plaintiffs' Complaint, and Plaintiffs' Response thereto, it
is hereby ORDERED that Defendants' Motion is GRANTED and Count IV
of Plaintiffs' Complaint is dismissed.