The opinion of the court was delivered by: Robert F. Kelly, District Judge.
Presently before this Court is the Motion of Defendant, Busch
Entertainment Corporation, d/b/a Sesame Place ("Busch"), for
Partial Summary Judgment with Respect to Count IV of Plaintiffs'
Complaint. Count IV of Plaintiffs' Complaint is for strict
liability under the Restatement (Second) of Torts, section
402A("section 402A"). For the reasons which follow, this Motion
On August 9, 1997, Plaintiffs Mark and Mary Kay Greenwood ("Mr.
and Mrs. Greenwood"), with their family, visited the Sesame Place
amusement park in Langhorne, Pennsylvania. Mr. and Mrs. Greenwood
paid an entrance admission fee to enter the park. At some point
in the day, the family went to the water slide area of the park
with the intention of going down Slippery Slopes, a water slide.
Mr. Greenwood sat down on the top of Slippery Slopes and used his
hands to push himself forward a bit in order to slide down the
water slide. At the end of the slide, Mr. Greenwood landed
feet-first in the three foot deep splash-down pool and his heels
hit the bottom of the pool. He sustained injury to both heels,
fracturing his left heel. As a result of his injuries, Mr.
Greenwood has had to undergo medical treatment and has
experienced pain and suffering and a loss of earnings.
On August 4, 1999, Mr. and Mrs. Greenwood filed a nine-count
Complaint in the Court of Common Pleas of Philadelphia County
claiming negligence, strict liability and loss of consortium.
Busch removed the case to this Court on August 27, 1999, and on
March 30, 2000, Busch filed this Motion for Partial Summary
Summary Judgment is proper "if there is no genuine issue of
material fact and the moving party is entitled to a judgment as a
matter of law." FED.R.CIV.P. 56(c); Anderson v. Liberty Lobby
Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Defendants, as the moving parties, have the initial burden of
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). Then, the nonmoving party should go beyond the pleadings
and present "specific facts showing that there is a genuine issue
for trial." FED.R.CIV.P. 56(c). If the court, in viewing all
reasonable inferences in favor of the nonmoving party, determines
that there is no genuine issue of material fact, then summary
judgment is proper. Celotex, 477 U.S. at 322, 106 S.Ct. 2548;
Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.
Busch moves for summary judgment on Count IV of Plaintiffs'
Complaint on the basis that it is not a seller of a product under
section 402A of the Restatement (Second) of Torts. Busch
acknowledges that there has been no decision by either the
Pennsylvania Supreme Court or the United States Court of Appeals
for the Third Circuit as to whether an amusement park that
charges admission can be subject to strict liability under
section 402A for injuries to patrons that occur while using one
of the rides at the park. It argues, however, that extending
strict liability to an amusement park is illogical and would be
the same as extending the doctrine to a bus or train operator
whose customer is injured while riding, boarding or exiting a bus
or train. (Def.'s Mem.Law in Supp. Mot. for Partial Summ. J. at
Section 402A provides, in pertinent part, that "[o]ne who sells
any product in a defective condition unreasonably dangerous to
the user or consumer . . . is subject to liability for physical
harm thereby caused to the ultimate user or consumer, . . . if
(a) the seller is engaged in the business of selling such a
product . . ." Restatement (Second) of Torts, § 402A.
Pennsylvania has adopted section 402A as the standard for strict
liability. See Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).
Strict liability has been extended, however, beyond the
requirement that there be a sale. Eves v. S.P. Parks, Inc., No.
Civ. A.87-7776, 1988 WL 109107, at *1 (E.D.Pa. Oct.17,
1988) (Gawthrop, J.). The Eves court recognized the Pennsylvania
Supreme Court's statement that, "although § 402A speaks only in
terms of sellers, it applies to all suppliers of chattels,
whether by sale, lease or bailment . . ." Id. (quoting
Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736,
738 (1977) (internal quotations omitted)).
Busch notes that the majority of the trial court decisions
which address the question of whether strict liability applies to
amusement parks, have rejected this proposition. In each case
which has discussed the issue, according to Busch, courts have
assumed that the sale of the admission ticket to the patron is
the sale of a product. Busch argues, however, that this Court
cannot assume that Mr. Greenwood's admission ticket is the sale
of a product because Mr. and Mrs. Greenwood must first establish
that, by charging admission to Mr. Greenwood, Busch has sold him
a ride down Slippery Slopes which can be construed as a sale of a
Plaintiffs respond by citing Rossetti v. Busch Entertainment
Corp., 87 F. Supp.2d 415 (E.D.Pa. 2000). In Rossetti, a case in
this district in which the plaintiff was injured on a Sesame
Place water slide, the court assumed that Busch was a seller and
examined the four factors set forth by the Pennsylvania Supreme
Court in Francioni to assist courts in determining if it was
appropriate to extend strict liability. Rossetti, 87 F. Supp.2d
at 419. After examining these factors, the court determined that
the record "[was] bare of any evidence that support[ed] the
extension of strict liability" because the Plaintiff, in
discovery, did not develop the record as to the four factors.
Id. at 421. Plaintiffs in the instant case borrow the argument
of the Rossetti plaintiff, stating that Busch "could be deemed
a `seller' or `supplier' under section 402A as interpreted by the
Pennsylvania courts." See Pls.' Mem. of Law in Opp'n to Def.'s
Mot. for Partial Summ. J. at unnumbered p. 4. Plaintiffs state
that "[a]lthough appellate courts have not addressed this issue,
Judge Robreno of this Honorable Court acknowledged in footnote 3
. . . in Rossetti that `several courts have concluded that an
amusement park could be a seller for section 402A purposes under
the appropriate circumstances, assuming a developed record.'"
Id. (citations omitted). In that footnote, the court stated
that "[p]laintiff bears the burden of proving that Busch is a
`seller'" and cited three cases in which courts concluded that an
amusement park operator could be a seller. Rossetti v. Busch
Entertainment Corp., 87 F. Supp.2d 415, 420 n. 3 (E.D.Pa.
2000) (citing Hipps v. Busch Entertainment Corp., No.
CIV.A.97-1907, 1997 WL 535181 (E.D.Pa. July 31, 1997) (motion to
dismiss denied as to strict liability because record
undeveloped); Coppersmith v. Herco, Inc., 29 Pa.D. & C.4th 73
(Pa.Com.Pl. 1996) (demurrer denied as to strict liability because
amusement park fell within broad definition of seller based on
four factors); and Eljizi v. Dorney Park Coaster Co.,
34 Pa. D. & C.4th 494 (Pa.Com.Pl. 1996) (partial summary judgment denied as
to strict liability because operation of amusement park involves
supply of products, not services)). Mr. and Mrs. Greenwood cite
these cases as support for their contention that Busch is a
seller and therefore strictly liable.
Mr. and Mrs. Greenwood do not, however, address additional case
law on the issue of whether an amusement park operator is subject
to strict liability. First, in Eves, a case decided in this
district, the court held that strict liability did not apply to
an amusement park operator. Eves, 1988 WL 109107, at *1. The
court opined that a customer's purchase of his ticket gave him,
at the very most, a license to enter the park and participate in
park activities. Id. Because there was no sale, lease or
bailment, the court held that there was no commercial transaction
sufficient to invoke section 402A. Id. In a second case from
this district, Dantzler v. S.P. Parks, Inc., No. Civ.A.87-4434,
1988 WL 131428 (E.D.Pa. Dec.6, 1988) (Van Antwerpen, J.), the
court held that the water slide upon which the plaintiff was
injured was not a product but was part of the amusement park's
real property, therefore it was outside the purview of section
402A. Dantzler, 1988 WL 131428, at *2.
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
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