Woman injured by Top Thrill Dragster sues Cedar Point

https://www.13abc.com/2023/07/12/live-woman-hit-by-cedar-point-roller-coaster-fragment-sues-cedar-fair/

I’d say she has a pretty good case.

Here's a better write up from WEWS/Cleveland.

Now, question, is the track that was installed yesterday the original TTD with modifications, or is it new?

The lawsuit claims CP destroyed and/or modified the track of the return side no longer making suitable for evidence. I don’t think the park was intentionally trying to do this.

I suspect it's the original track with new brake hardware, and I imagine there was some level of non-destructive testing performed on it, since it has been removed anyway. The launch track photos we've seen appear to have new mounting hardware of some kind inside the box on just one side.

Jeff:

Here's a better write up from WEWS/Cleveland.

That's a decent summary/regurgitation if you don't feel like reading the actual text of the suit as posted on Scribd.

Not that it's that important but I can't help but shake my head at these media sources (and people in general) who confuse/change the details of what happened. E.g. it flew off from the launch so clearly the launch was the problem, or that particular article which states "...an L-shaped bracket about the size of a man’s hand dislodged from a train at the top of the 420-foot-tall ride and struck the 44-year-old Michigan woman in the head while she waited in line for the ride." From my understanding of the account of events (I wasn't there) it flew off on the lower track where the brake run started. Minor unimportant gripe but they make it sound like it fell from the top of the ride. (which doesn't even make sense anyway with where that would line up...)

I wouldn’t be so sure they will settle outside of court if they are seeking trial by jury. It seems like the plaintiff wants all evidence to be presented to the courts, and for them to sue right after the new track has appeared on sight and posted on social media by the park after their argument of modified track, they may think they have a case. Either way, I am also willing to bet Cedar Fair has reached out to her and the family regarding already regarding her well-being and possibly covering medical costs. If not, that’s messed up.

She will be a very sympathetic plaintiff to a jury. Makes total sense she would want a jury trial (vast majority of plaintiffs in negligence cases do). But at some point, expect she would be willing to settle. So I think its less a matter of getting all the fact out than it is getting to the right number.

Jury trials can be unpredictable though. So there are risks involved.

But Cedar Fair wants to settle the case too. They really don't want it to go to a jury trial or even a bench trial.

In the end, the park's insurance carrier will have a significant say in whether it settles before trial or not. In a past life I was on the City Council of a small town and we had a case where a third party contractor was injured on City property and sued the city for negligence. Nevermind the fact that the plaintiff chose not to utilize required safety equipment and precautions for the job they were doing. Despite the fact that the City Council felt we had a very good case and that we could prevail on the merits of the case, the insurance carrier insisted on settling out of court. Since the insurance company was covering the payout, they essentially had the final say.

That being said, insurance companies can be assholes... and through no fault of Cedar Fair's, the insurance companies for one or more of the defendants may have been trying to lowball prior settlement offers. I still think this will settle, but the plaintiff's counsel knows that filing suit will probably lead towards a more appropriate settlement.

Probably doubtful, but I wonder if the park is self-insured.

Cedar Fair still includes a Self-Insurance Reserve on its balance sheet. About $27.8 million as of December 31, 2022.

Annual report also indicates that they have liability insurance. They did not significantly increase the self-insurance reserve last year (was $24.6 million as of December 31, 2021 and was $22.3 million as of December 31, 2020). So, they must expect a significant portion of TTD accident liability to be covered by third-party insurance.

Just to jog everyone's memory, the pertinent facts of the failure as we know them--

On the day of the incident all of the trains were inspected and cycled during morning testing. One train was removed from service, and the others operated through the day. At one point, the flag plate came flying off of the train as it passed through the brake run on the return track, striking the plaintiff in the back of the head. The State investigation found that the flag plates on all of the trains were similarly damaged, and the lack of damage found during the morning inspection and the damage to the plate on the out of service train suggests that the plates were striking something on the track, and had been doing so for the entire day. The State found that there were disused brake brackets and other hardware on the return track, and may have determined what the flag plates were striking, ultimately resulting in the loss of the flag plate on the incident train.

I mention all of this not just to jog our memories, but to note that the plaintiff's attorney is alleging the willful destruction of evidence by not preserving the return track and trains. In my personal opinion (and presumably also in the opinion of FUN's counsel) not only did the plaintiff have nearly two years in which to demand any discovery of the damaged track section, but the necessary evidence has been preserved not in its original form, but in the form of the exhaustive and thoroughly documented State report and presumably any additional photographs, measurements, or other forms of documentation taken by the park and by the State and possibly other parties as well.

I am not an attorney. But I don't really think it is reasonable to expect an operating business which has been cleared of any wrongdoing by the Authority Having Jurisdiction to maintain incident-related equipment in pristine post-incident condition for two years after an incident when it is not subject to any pending litigation.

One more thing. A news report I saw last night claimed that the plaintiff was "allegedly struck and injured by the part that came off of one of the ride vehicles". Er, is the injury and mechanism thereof not considered an established fact at this point?

--Dave Althoff, Jr.

Maybe not proven in court yet?