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Nilson v. Hershey Entertainment and Resorts Co.

August 24, 2009

TYLER NILSON, A MINOR, BY KENNETH NILSON AND KELLY NILSON, HIS GUARDIANS AND PARENTS, PLAINTIFFS
v.
HERSHEY ENTERTAINMENT AND RESORTS COMPANY AND GREAT COASTERS INTERNATIONAL, INC., DEFENDANTS



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

JUDGE SYLVIA H. RAMBO

MEMORANDUM

This is a personal injury action brought by Plaintiffs based on their allegation that Tyler Nilson, a minor, lost hearing in his left ear as a result of riding the Wildcat roller coaster at Hersheypark-an amusement park wholly owned by Defendant Hershey Entertainment and Resorts Company ("HE&R")-on or about August 1, 2003. Before the court are Defendants' Joint Motion for Summary Judgment, (Doc. 62), and Defendant HE&R's separate motion for partial summary judgment, (Doc. 63). Both motions have been fully briefed, and are ripe for disposition. For the reasons that follow, the court will grant Defendants' joint motion for summary judgment, and deny, as moot, Defendant HE&R's separate motion for summary judgment.

I. Background

A. Facts

1. The Parties

The following facts are undisputed except where noted, and are viewed in the light most favorable to Plaintiff.*fn1 Plaintiff Tyler Nilson ("Tyler") is a minor who, at the time of the events relevant to this case, was 11 years old. Defendant HE&R is the operator of the Wildcat roller coaster and the Hersheypark amusement park. Defendant Great Coasters International, Inc. ("Great Coasters") is the manufacturer of the Wildcat.

2. Hersheypark Visit

On August 1, 2003, Tyler visited Hersheypark with a friend, Bryan Romeike, Bryan's mother, brother, and a friend of Bryan's brother. While at Hersheypark, Tyler rode several rides, including the Lightning Racer, another roller coaster. Tyler rode the Lightning Racer two times. At first he did not want to ride the Lightning Racer due to his fear of heights, but facing peer pressure he "gave in" and rode it because his friends "kept asking and bugging [him] about it." (Doc. 77-3, Tyler Nilson Dep. at 59:21-23.) As he boarded the Lightening Racer, Tyler read the posted signs located at the entrance.

Prior to leaving Hersheypark, Tyler rode on the Wildcat as his last ride for the day. Throughout the day, the other children went on various other roller coasters, but Tyler declined to go on any roller coaster other than the Lightning Racer and the Wildcat. Initially, Tyler did not want to ride the Wildcat because he was scared of heights, and because "it just looked like it was less safe," (Doc. 77-3, Tyler Nilson Dep. 77:25), and he did not want to "fall out" of the ride. (Id. at 78:10.) Ultimately, Tyler was convinced by his friends to ride the Wildcat because it was "the last one of the day," (Id. at 76:19), and because he did not "want to look like a little wimp not going on it." (Id. at 80:7-8.) Before riding the Wildcat, Tyler understood that a roller coaster is "something that goes at high speed as they lift hill [sic] and drops you." (Id. at 74:3-4.) While waiting in line for the Wildcat, Tyler read the signs stating that riders should not ride the Wildcat if they suffer from certain health issues and advising riders of "certain speed changes" that occur during the ride. (Id. at 81:19 -82.)

Tyler rode the Wildcat and sat with his feet flat on the floor of the car and his back against the seat of the car. He remained in this position throughout the duration of the ride. The Wildcat did not mechanically malfunction during the ride: the safety restraint stayed in place during the entire ride; no part of the ride came loose or struck Tyler; and the ride came to a slow, gradual stop at the end. (Doc. 77-3, Tyler Nilson Dep. 90.-101.) Tyler's head did not make contact with any object during his ride on the Wildcat. (Id. at 100-101.) While on the ride, and ascending the first hill, Tyler heard a loud clicking sound that he described as someone screaming in his ear. (Id. at 92-93.) After reaching its peak, the ride descended quickly, shaking as it rounded several curves, causing the riders to shake as well. In his deposition, Tyler described the shaking as "violent . . . like [he] was getting whipped back and forth by the ride." (Doc. 77-3, Tyler Nilson Dep. at 99:8-12.) Tyler testified at his deposition that he would not have ridden the Wildcat if there had been a sign advising him that the ride had "violent shaking." (Id. at 121.)

After Tyler exited the ride, he almost immediately realized that he suffered a head ache, although the head ache was not localized in one part of his head. (Id. at 104-106.) About a minute or two after he got off the Wildcat, Tyler experienced a ringing in his left ear, but at that point he could still hear. (Id. at 106.) The ringing in Tyler's left ear lasted "a couple of hours." (Id. at 107:13.) Tyler mentioned his headache and the ringing in his left ear to his friend immediately, and to his friend's mother about 1 hour after going on the Wildcat. The group slept that night in a hotel room, and the ringing in Tyler's ear lasted until he went to sleep. When he awoke the next morning he did not have a headache or ringing in his left ear, but he could not hear from that ear. Tyler has not been able to hear from his left ear since before going to bed the night after he rode the Wildcat.

3. Medical Experts

On August 5, 2003, Tyler went to his family doctor because the hearing in his left ear had not returned, the office notes from that visit do not include any mention of Hersheypark, roller coasters, the Wildcat, or any other suspected cause of the hearing loss. (Doc. 65-7, Defs.' Ex. E at 1.) The first mention of the roller coaster in any medical records appears in the office notes from Tyler's visit to Dr. Steven Handler on November 17, 2003-more than three months after Tyler's trip to Hersheypark. (Id. at 6.) The tests performed at this visit indicated that Tyler suffered from normal hearing in his right ear, but had nearly complete hearing loss in his left ear. A CT scan was performed on December 2, 2003 and was normal. No follow-up occurred until November 2, 2004, when Tyler was taken to Philadelphia to see Dr. Thomas O. Wilcox, M.D. for a second opinion.

Dr. Wilcox, an otolaryngologist, confirmed that Tyler has almost complete hearing loss in his left ear, and recommended that Tyler have an MRI scan of his brain. The MRI scan came back normal. Dr. Wilcox did not see Tyler again until December 27, 2006, at that visit, Dr. Wilcox noted that Tyler's hearing had not improved. After this litigation commenced, on March 21, 2007, Dr. Wilcox wrote a letter to the attorneys for Plaintiff offering his medical opinion as to the cause of Tyler's hearing loss. Dr. Wilcox opined:

It is my impression to a reasonable degree of medical certainty that Tyler Nilson sustained a left sensorineural hearing loss due to cochlear trauma from the roller coaster ride. I believe that the temporal onset of symptoms, including tinnitus and hearing loss within one-half hour after exiting the ride supports this conclusion. Although there are no published cases of roller coaster induced hearing loss, there are several publications about roller coaster induced injuries . . . . It is my impression that intracranial pressure changes due to head trauma during the roller coaster ride were transmitted to the cochlea resulting in intracochlear membrane damage. The intracochlear membrane damage resulted in the severe-to-profound left sensorineural hearing loss and tinnitus. (Doc. 77-2, Pls.' Ex. A at 2.)

The parties vigorously dispute whether Tyler suffered any membrane damage. Although Dr. Wilcox's March 21, 2007 letter mentions that there was membrane damage, Defendants point to Dr. Wilcox's office notes from Tyler's original visit with Dr. Wilcox in November 2004. The notes read, in relevant part:

"I do suspect that Tyler sustained some inner ear membrane damage because of the head trauma from the roller coaster ride. This resulted in the hearing loss." (Doc. 79-2 at 16.) According to Defendants, those notes indicate that it is "nothing more than a suspicion rather than a demonstrable fact" that Tyler suffered from inner ear membrane damage. (Doc. 79 at 9.) Defendants also point out that none of the diagnostic tests (CT scan or MRI) revealed any inner ear damage. Finally Defendants point to the report of their medical expert, Dr. Robert Sataloff. After examining Tyler, Dr. Sataloff opined:

In my opinion to a reasonable degree of medical certainty, Tyler Nilson's hearing loss was not causally related to his roller coaster ride. He sustained no head trauma or whiplash injury associated with the ride, and he experienced no dizziness at the time of his alleged hearing loss. . . . [T]he absence of acute dizziness suggests that his hearing loss was not caused by an inner ear membrane break or fistula. (Doc. 79-2, Defs.' Ex. D at 28.) Dr. Sataloff opined that he could not determine the cause of Tyler's hearing loss without more testing, but the fact that Tyler's hearing loss "occurred after a roller coaster ride does not mean that it occurred because of the roller coaster ride." (Id.)

4. Warning Signs

The parties do not dispute that the following signs were displayed at various points to the riders entering the Wildcat, and that Tyler saw these signs before riding:

THROUGHOUT THE RIDE RIDERS WILL EXPERIENCE SPEED CHANGES and UNEXPECTED FORCES.

STRICT ADHERENCE TO THE RULES and INSTRUCTIONS IS REQUIRED TO ENHANCE YOUR ENJOYMENT OF THE RIDE and TO AVOID INJURY.

PLEASE REMAIN SEATED and KEEP ARMS and LEGS INSIDE THE RIDE VEHICLE AT ALL TIMES.

SIT UPRIGHT AND HOLD ON TO THE GRAB BAR

FOR YOUR SAFETY Please Keep ALL Parts ...


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