Summary
finding punitive damages unavailable under Illinois law where defendant did not have knowledge of any "obvious" danger
Summary of this case from In re Testosterone Replacement Therapy Prods. Liab. Litig.Opinion
No. 98 C 2621.
November 22, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiffs are sixteen persons left suspended in the air for as long as two hours due to a roller coaster malfunction at Six Flags Great America. They filed this two-count complaint seeking actual damages and punitive damages. Defendant Six Flags Theme Parks, Inc. now seeks summary judgment on the request for punitive damages. Because there are no genuine disputes of material fact and Defendant's conduct does not rise to the level of culpability required to sustain punitive damages under Illinois law, the motion is granted.
FACTS
The facts relevant to this motion are largely undisputed. On April 18, 1998, Wesley Proffer visited Six Flags Great America and rode the Demon roller coaster with his two children, Charles and Velvet. Proffer Aff. ¶ 1, Ex. 1 to Plaintiffs' Reply. Defendant had not yet opened the park to the general public, and the park's only visitors were employees of U.S. Steel and their family members. During the Plaintiffs' ride on the Demon, the ride stopped upside-down in its second loop and hung suspended approximately 60 to 75 feet above the ground, trapping its occupants. Proffer Aff. ¶ 4. The Proffers remained in the Demon for 30 to 40 minutes before the Gurnee Fire Department evacuated them. Cuilla Dep., at 84.
The Demon stalled in the second loop after the wheel assembly of one of its trains broke off. Schwabe Dep., at 45. The guide wheel to the train was later found in the grass toward the end of the ride, indicating that the wheel had fallen off before the train returned to the station from its previous run. Id. The guide wheel fell off either because the wheel was missing its cotter pin, a fact that Six Flags employees failed to discover despite testing and inspection before the ride opened for guests, or because the cotter pin came out of the guide wheel during operation. Falos Dep., at 61.
Plaintiffs assert that the entire guide wheel assembly fell off the Demon before it began its last run. Plaintiff's Reply at 4-5. They rely on the depositions of Barry Hitchins and Dan Schwabe. In fact, however, Hitchins and Schwabe testified that only the three-inch guide wheel had fallen off the train before it came into the station. See Hitchins Dep., at 78-79; Schwabe Dep., at 45. In addition, Hitchins did not testify from personal knowledge, but from what he learned after the accident took place.
The Defendants have presented uncontested evidence concerning the safety procedures in place in April 1998. According to Martin Bozer, Six Flags Director of Operations, state and corporate inspectors inspected the Demon during the week of April 6, 1998. Bozer Dep., at 28-31. Park employees made several daily inspections of the Demon, including an inspection before opening in the morning. Id. at 33-34. Before the Demon could begin its daily operations, the Operations Supervisor was required to examine a checklist to make sure all inspections were complete. Id. at 38. The checklist included required examinations by the Ride Lead, the Electrician, and the Mechanic. Id. at 34-35. Six Flags procedures required the Ride Lead for the Demon to perform two daily visual inspections of the ride, checking the fiberglass structure, wheel covers, hitch bars, safety cables, seat padding, and harnesses. Id. at 92-99. The Electrician was required to inspect the sensors, wiring, and other elements of the Demon's electrical system. Anderson Dep., at 16, 22. The Mechanic would examine the wheels and undercarriage of the cars and test the wheels for missing pins. Hill Dep., at 5-8.
According to Bozer, the Operations Supervisor did review the inspection sheet before opening the ride to visitors on April 18, 1998. Bozer Dep., at 38. Glen Hill, the Demon Mechanic, testified at deposition that he checked the Demon's wheels on the morning of April 18, 1998. Hill Dep., at 24. He did not remember whether the guide wheel had its cotter pin when he made his inspection, however, id., and Bozer explained that the Ride Lead would not uncover a problem with the guide wheel during the visual inspection because the wheel is underneath the train. Bozer Dep., at 95.
In the event of a problem with a ride, Six Flags employees were authorized to "run out" the line or shut the ride down immediately. Six Flags Great America Ride Manual, Ex. 8 to Plaintiffs' Designation of Evidence. "Running out" the line means keeping the ride open to guests already in line while closing the ride to new guests. Id. According to Barry Hitchins, employees were also authorized to start the ride without passengers or to board the ride with passengers in order to investigate a potential problem. Hitchins Dep., at 57, 67. The Six Flags Ride Manual directs that in the event of "unusual noises or vibrations," a ride must be shut down. Six Flags Great America Ride Manual, Ex. 8 to Plaintiffs' Designation of Evidence.
On April 18, 1998, before the Demon entered the station, observers some distance away heard a screeching noise and saw a stream of smoke coming from the Demon. Brown Dep., at 13-20. One of the observers, Jeremy Hadad, called the Demon ride operators and told them there was a problem with the ride. Jeremy Hadad Witness Statement of 4/18/98, Ex. 7 to Plaintiff's Designation of Evidence. As he spoke to the operator, the train left the station and started up the incline before beginning its run. Id. Until the Demon descended the hill after its initial ascent, it could have been stopped and evacuated. Hitchins Dep., at 75. It is not clear from the record, however, whether the ride operators received the call from Hadad in time to stop the train. It is also unclear how long the train took to reach the top of the hill, but it appears that 20 to 27 seconds elapsed from the time the phone rang at the Demon station to the time the train stalled in the second loop. Hitchins Dep., at 75.
Demon ride operator Barry Hitchins was one of the passengers on the ride when it stalled. When the previous set of passengers disembarked the Demon, one of them had told Hitchins that the ride seemed "bumpy." Hitchins Dep., at 59. Hitchins then boarded another load of passengers and got on the ride himself, apparently to investigate the rider's complaint and "make sure that it was nothing out of the ordinary." Id. In a statement made immediately after the incident, Betty Anderson, another ride operator, said that after the Demon returned to the station, Hitchins asked her what to do in the event of an unusual noise or vibration. Betty Anderson Witness Statement of 4/18/98, Ex. 8 to Plaintiff's Designation of Evidence. Hitchins testified that he had heard a rumbling noise when the train entered the station, but that he thought the noise had come from another ride. Hitchins Dep., at 58-60. He also stated that he did not connect the rumbling noise he heard to the passenger's complaint of a bumpy ride before boarding the Demon. Id. at 60. Finally, Hitchins testified that Anderson told him she had not heard an unusual noise. Id. at 59-60.
Several Six Flags officials have testified to the efforts Six Flags made to evacuate the Demon after it stalled. Vincent Cuilla, who was responsible for evacuating the passengers, testified that the Demon had never stalled upside-down in a loop before. Cuilla Dep., at 10. Cuilla considered using a crane to pull the Demon out of its position in the loop, but decided against this option because the train carrying the Plaintiffs was missing an axle. Id. at 12. According to Mechanical Lead Dan Schwabe, park employees chose to secure the train to the track so that it would not shift or fall out of the loop as the passengers were unloaded. Schwabe Dep., at 56. After they made this decision, park employees called the Gurnee Fire Department to request help in evacuating the passengers. Cuilla Dep., at 16. Thirty to forty minutes elapsed before the Fire Department rescued the first passengers, apparently including the Proffers. Id. at 84; Proffer Aff. ¶ 6, Ex. 1 to Plaintiffs' Designation of Evidence. The train was not fully evacuated for two hours. Cuilla Dep., at 80.
Standard of Review
Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Flores v. Preferred Tech. Group, 182 F.3d 512, 514 (7th Cir. 1999). In determining the existence of material facts, the court must examine the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. Flores, 182 F.3d at 514. An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Carter v. American Oil Co., 139 F.3d 1158, 1161 (7th Cir. 1998).
DISCUSSION
Punitive damages are not awarded as compensation, but serve instead to punish wrongdoing and deter other misconduct. They are awarded only when the defendant's conduct is outrageous, either because of the defendant's evil motive or reckless indifference to the rights of others. Stojkovich v. Monadnock Building, 281 Ill. App.3d 733, 743, 666 N.E.2d 704, 712 (1st Dist. 1996). Plaintiffs argue that the Defendant's acts and omissions, taken together, "demonstrate a pattern of utter disregard for the safety of Demon passengers." Plaintiff's Reply at 6. Plaintiffs urge, first, that Six Flags failed adequately to inspect the Demon ride before opening it to the public. Id. Second, they claim that Six Flags employees "fail[ed] to respond to widely observed noises and smoke." Id. at 6-7. Third, according to Plaintiffs, Six Flags "ma[de] riders participate in a test run for safety purposes." Id. at 7. Finally, Plaintiffs allege that by inspecting the track, Demon ride operators could easily have discovered that the guide wheel was missing before the accident occurred. Id. In addition, they maintain that Six Flags' emergency procedures were inadequate — that after the Demon stalled "Six Flags was helpless to remedy [the] situation it had created." Id. at 5.
Defendant Six Flags insists that its conduct was, at worst, merely negligent. Defendant's Reply at 5. Defendant cites several cases in which Illinois courts have refused to impose punitive damages on defendants whose conduct, in Defendant's opinion, was far more blameworthy than that of the Demon operators here. In particular, Defendant points to Loitz v. Remington Arms Co., 138 Ill.2d 404, 563 N.E.2d 397 (Ill. 1990) and Stojkovich v. Monadnock Building, 281 Ill. App.3d 733, 666 N.E.2d 704 (1st Dist. 1996) as cases in which more blameworthy conduct did not rise to the level of punitive damages.
Illinois courts do not favor punitive damages. Loitz, 138 Ill. App.2d at 414 (refusing to award punitive damages where defendant gun manufacturer knew of at least 94 prior accidents caused by allegedly defective firearm). They will impose punitive damages when "torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others." Kelsay v. Motorola, Inc., 74 Ill.2d 172, 186, 384 N.E.2d 353 (Ill. 1978). When, as here, the plaintiff alleges that the defendant engaged in "willful and wanton misconduct," Illinois courts will award punitive damages only if the defendant's conduct was outrageous or "similar to that usually found in crime." Loitz, 138 Ill. 2d at 415, 563 N.E.2d at 402, quoting Restatement (Second) of Torts § 908, comment b, at 464-65 (1979). Ordinary negligence is insufficient to support a punitived damages claim. Id. As these cases indicate, the focus of the punitive damages inquiry is on the defendant's conduct, not on the harm to the plaintiff. See Loitz, 138 Ill. 2d at 416, 563 N.E.2d at 402 ("Because punitive damages serve a penal purpose and are awarded not as compensation, but for reasons of retribution and deterrence, the amount of such an award is determined by more than just a consideration of the nature and extent of the claimant's loss.").
Plaintiffs here have failed to demonstrate that there is a genuine factual dispute on the question of punitive damages. The facts involved here, viewed in a light most favorable to Plaintiffs, can be summarized as follows: Several Six Flags employees at some distance from the Demon noticed smoke and a screeching noise as the Demon pulled into the station. Barry Hitchins, who was working at the Demon ride, also heard a noise. When the passengers disembarked, one of them told Hitchins that the ride was bumpy. Hitchins then asked another employee, Betty Anderson, if she heard an unusual noise and what one should do in the event of an unusual noise or vibration. Anderson apparently had not heard anything. Contrary to Six Flags safety procedures, Hitchins did not close the Demon, and the Demon operators did not inspect the track where the lost guide wheel later turned up. Instead, Hitchins boarded the Demon himself with a new load of passengers in an effort to investigate the noise. As the Demon left the station, observers called the ride operators to tell them what they saw. During the phone conversation, the Demon left the station and climbed the initial incline. The ride operators did not stop the Demon before it descended the hill, and approximately 20 to 27 seconds later the Demon stalled in its second loop. Once the Demon stalled, Six Flags required the assistance of the Gurnee Fire Department to rescue the passengers.
For several reasons, these facts do not support a conclusion that Six Flags' conduct was outrageous. First, Plaintiffs have offered no evidence that the Demon operators knowingly disregarded a problem that required the immediate shutdown of the ride. Nor have Plaintiffs presented a basis for the inference that the Demon operators were in the same position as nearby employees to observe problems with the ride, or that the operators did in fact receive warning in time to stop the Demon. Without such a basis, the court cannot conclude that Six Flags employees should have inspected the track for the missing guide wheel; the employees were unaware that the wheel was missing. Finally, Plaintiffs present no evidence to support their claim that Six Flags used Plaintiffs as human "guinea pigs" to test the safety of the Demon. Plaintiffs' Reply at 7.
Plaintiffs presumably make the latter claim in an effort to paint the Defendant's behavior as "outrageous" or quasi-criminal. They appear to base the allegation on two facts: that on April 18, 1998, Six Flags was only open to employees of U.S. Steel, and that Barry Hitchins loaded a new group of passengers on the Demon even after he heard an unusual sound from the ride and decided to investigate. They have not shown, however, that Six Flags' safety procedures, which included "running out" the line when a problem developed, were generally inappropriate or ineffective, nor do they present evidence that the Demon operators knew the ride had a problem that required immediate shutdown. Moreover, they offer no support for the notion that Six Flags was somehow less ready to receive visitors on April 18, 1998, than it would be when it opened to the general public later in the season. Defendant was absolutely correct in commenting on this contention, "Not only are those not the facts, these statement themselves go far beyond fair interpretive comment on the facts." Defendant's Reply at 5.
Plaintiffs cite only one case in which an Illinois court affirmed a punitive damages award, and it is of little assistance here. In Proctor v. Davis, 291 Ill. App.3d 265, 682 N.E.2d 1203 (1st Dist. 1997), the court affirmed after remittitur an award of punitive damages against a pharmaceutical company that had supplied a drug for a procedure unapproved by the FDA. Although the company had knowledge of the potential dangers of the unapproved use, it encouraged use of the drug without warning of its risks. Plaintiffs argue that Six Flags, like the defendant in Proctor, engaged in "a course of action which shows an utter indifference to or conscious disregard for the safety of others." Plaintiff's Reply at 7, citing Proctor, 291 Ill. App. 3 d at 286, 682 N.E.2d at 1216.
Proctor v. Davis is distinguishable on its facts. As Six Flags points out, in Proctor the pharmaceutical company promoted the use of a drug when it knew the drug had not been approved for that use, and after becoming aware of the drug's adverse effects, failed to warn users of the risks. By contrast, here there is no evidence that Demon ride operators ignored obvious dangers. Indeed, it is not even dear that the Demon's operators were aware of its mechanical problems. The central piece of evidence supporting Plaintiffs' claim that the ride operators were aware of the problems was the fact that Barry Hitchins decided to ride the Demon after he heard a suspicious rumbling noise. This fact may support the claim that Hitchins was aware of some danger and that his decision violated Six Flags procedures, but it does not militate in favor of punitive damages. To the contrary, it suggests that Six Flags employees did not ignore a potential hazard. Likewise, other employees' efforts to alert Demon operators to problems with the ride are inconsistent with Plaintiffs' argument that Defendant exhibited "utter indifference to or conscious disregard for the safety of others."
Although Plaintiffs attempt to distinguish it, Stojkovich v. Monadnock Building, 281 Ill. App.3d 733, 666 N.E.2d 704 (1st Dist. 1996) is particularly instructive. In Stojkovich, a court affirmed a jury verdict for plaintiff on a count of negligence but refused to award punitive damages when the plaintiff was injured while, attempting to escape a stalled elevator. The defendant in Stojkovich held a contract to maintain a bank of elevators. It failed to take the elevator out of service even though the elevator stopped unexpectedly an "inordinately high number" of times in the year leading up to the plaintiff's accident. 281 Ill. App.3d at 744, 666 N.E.2d at 712. Moreover, after the accident it was discovered that the accident was caused by a defective part installed by the defendant. Nevertheless, at trial "there was no evidence presented . . . which could support the conclusion that [Defendant] failed to respond to service calls, failed to attempt to repair the subject elevator when called upon to do so, or placed the elevator back in service knowing that its microprocessor was defective and remained unrepaired." Id. at 745, 666 N.E.2d at 713.
Plaintiffs contend that the facts of Stojkovich are dissimilar to their case because in Stojkovich, the defendants did not exercise day-to-day control over the elevators as Six Flags did over the Demon. Plaintiffs' Reply at 6. In fact, however, just as Six Flags is responsible for the day-to-day operation of its rides, the defendant in Stojkovich was responsible for the operation of the elevators it contracted to maintain. In addition, Plaintiffs fail to draw a connection between Six Flags' control over its rides and its culpability for the purposes of punitive damages. As the Stojkovich court noted,
Willful and wanton misconduct is a hybrid between acts considered to be negligent and intentional acts. In one case, the conduct may be only degrees more than ordinary negligence; while in another, it may be only degrees less than intentional wrongdoing. . . . [I]t is only when the conduct in issue approaches the degree of moral blame attached to intentional wrongdoing that an award of punitive damages is appropriate.Stojkovich, 281 Ill. App.3d at 744, 644 N.E.2d at 712. As Stojkovich reflects, the relevant inquiry is the degree to which Six Flags has deviated from its duty of care in the direction of intentional wrongdoing. Six Flags presented extensive and uncontested evidence of its safety procedures. Plaintiffs have not contended that these procedures are inadequate in themselves. Viewed in a light most favorable to Plaintiffs, the evidence suggests that Demon ride operators perceived a potential problem with the Demon and chose to investigate by riding with another load of passengers. This decision, though in retrospect the wrong one and possibly a violation of Six Flags procedures, was not the sort of morally reprehensible conduct punitive damages are intended to punish.
Plaintiffs' final contention, that Six Flags' emergency procedures were inadequate, is similarly unsupported by the evidence they proffer. Plaintiffs challenge the wisdom of Defendant's decision to secure the stalled train to the track instead of attempting to use a crane to pull the train out of the loop. In light of the fact that Defendant chose for safety reasons not to use the emergency procedures at its disposal, however, Defendant's inability to evacuate a trainload of passengers who hung suspended 60 to 75 feet above the ground was not grounds for an award of punitive damages. Far from showing Defendant's "utter indifference" or "conscious disregard" of passenger safety, the evidence indicates that during the evacuation Defendant's first concern was safety.
CONCLUSION
Because Defendant's conduct does not rise to the level of culpability required to sustain an award of punitive damages under Illinois law, this court grants summary judgment (Doc. No. 51-1) in favor of Defendant on Count II of the complaint.