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View Full Version : Family sues Disneyland after roller coaster accident -- SFGate/AP, 2006-01-09



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Andrew
01-09-2006, 09:40 PM
Family sues Disneyland after roller coaster accident (http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/01/09/state/n180936S34.DTL&feed=rss.news) -- SFGate/AP

Four members of a family involved in a 2004 roller coaster accident sued Disneyland, alleging the theme park failed to follow proper safety procedures on the Big Thunder Mountain Railroad ride.

The lawsuit was filed in Orange County Superior Court on Thursday. It says the Cope family of Telluride, Colo., was on the ride returning to the loading area when their train collided with another one being loaded with new passengers.

Gerald Cope, the father, suffered serious back injuries that have required surgery, the lawsuit says. The other family members — Cope's wife and two children — suffered soft tissue injuries and emotional distress in the July 8, 2004 incident, according to the claim.

pisces
01-10-2006, 09:44 AM
PREDICTIONS: They aren't going to get very far with this taking place in Orange County. Orange County is very pro-Disney. Will the jury pool be residents of Anaheim?

They'd be better off filing in LA County, or Ventura. But, all of California is pro-Disney, so they'll have a hard time no matter where they go.

The emotional distress part gets tossed. For emotional distress it would have to be intentional. Disney would have had to plan the whole thing in advance, and targeted, specifically, this family.

There's no emotional distress or pain and suffering, unless it was pre-planned and intentional.

So all the family is left with is the medical bills already incurred. Disney will argue that the family's insurance will, or should, cover future medical expenses.

That leaves current medical expenses/injuries not covered----which is all the family will get out of an actual trial, and that's not much for all that effort expended.

The family might as well settle for that amount. Anything else Disney throws 'em.....will go to the Attorneys anyway.

Why bother taking this to Court?

blackjackdelta
01-10-2006, 10:11 AM
First of all, I have empathy for the family and the problems resulting from the ride, but unfortunately I do not think they will not get much out of Disney if they go to trial. I agree with the above. It may help a little to get them to raise the settlement.

Jack

Osky
01-10-2006, 10:31 AM
I have to disagree with a previous post. The courts and the law in California are slanted towards the rights of individuals. Anyway, I think it is moot because there is very little chance of this case going to trial. I would bet good money that it will be settled before going to trial. Most of these cases are settled and never go to trial.

Osky
01-10-2006, 10:39 AM
For emotional distress it would have to be intentional. Disney would have had to plan the whole thing in advance, and targeted, specifically, this family.

There's no emotional distress or pain and suffering, unless it was pre-planned and intentional.

This is absolutely 100% untrue. One word: negligence.

Mr.Bear
01-10-2006, 10:54 AM
Ultimately we all have to take responsibility for our own actions and flinging ourselves around in boxes of metal and plastic called roller coasters isn't really the greatest idea man has come up with. I still LOVE THEM.
If it was me and there wasn't any long-term damage. I'd settle for medical cost, lifetime pass to all the Disneyland’s in the World and 5 years membership in Club 33. Oh and a Dinner date with Minnie.

blackjackdelta
01-10-2006, 11:12 AM
I agree it will never go to court..it will be settled. It is not worth it to Disney to persue matter. This country is not personal rights it is "suit happy." If it were not than the plaintiff would only look to recoup what they have lost..when you add an attorney to the mix who see's that big windfall.
Look at the current healthcare system...


Jack

Duchess mermaid
01-10-2006, 12:21 PM
Emotional Distress can be caused by the stress of having a family member having back surgery, Or by the stress of having a happy vacation ruined. They could also say that after the accident they are afraid of rollercoasters.

My sister and i were in an accident about ten years ago, with my nephew who was only about two at the time. After the accident for years he wouldn't step foot in a jeep cherokee because he thought it was going to crash. My sister didn't pursue this part in her settlement but she could have easily.

Emotional distress is not just intentional.

olddumbguy
01-10-2006, 01:51 PM
This is absolutely 100% untrue. One word: negligence.



Agreed.

I got rear-ended at a stoplight a few months back. Cops said she was at fault. I'm sure she didnt plan to hit me, but I do have neck and back pain and according to my attorney, I can expect to get some monetary compensation for my pain and suffering sometime down the road.

pisces
01-10-2006, 01:54 PM
If you can find a case where emotional distress damages have been given out ......without malice and intent

.....I'd like to hear it.

It hasn't happened yet. Those sorts of damages....."mental cruelty" just aren't handed out anymore unless you can prove intent----that they plotted and planned this, and focused on this one family.

But, the surgery itself----I'm pretty sure Disney, if not the Insurance Co.-----will end up covering, either under private settlement, or court order.

But, nothing more than that. IMHO IMHO

There's no more "mental cruelty" these days, at least not without intentional malice. IMHO IMHO IMHO

Andrew
01-10-2006, 01:58 PM
IMHO IMHO
[...]
IMHO IMHO IMHO
Do you know what "IMHO" actually means?

pisces
01-10-2006, 01:59 PM
This is absolutely 100% untrue. One word: negligence.

They have to prove that. There's a 4-part test---the 4 components of negligence.....one of which being intent.

IMHO ---It will never get to that because this case will settle--- IMHO

If the family plays their cards right, they could get a nice settlement which would cover their medical bills. Nothing more, though.

AcuraTL
01-10-2006, 02:22 PM
They have to prove that. There's a 4-part test---the 4 components of negligence.....one of which being intent.

IMHO ---It will never get to that because this case will settle--- IMHO

If the family plays their cards right, they could get a nice settlement which would cover their medical bills. Nothing more, though.

Have you actually been to a real court case similar to this? I have. Attorneys cannot say whether the plaintiffs have insurance or not. It doesn't matter if the medical bills had already been paid, Disney still owe them, plus pain and suffering if Disney was at fault for this accident. The plaintiffs can ask for loss wages, future loss wages (surgery plaintiff) and even loss of companionship from the spouse. The spouse could say since the surgery, the (surgery plaintiff) cannot make love to her like he once did. This are all valid arguments and will fly in the courtroom.

ILovePoker
01-10-2006, 03:05 PM
There is one quote in their that would make me throw the whole case out.

"emotional distress "

I mean, come on. Were you so tramatized that you just cannot function?

What I hate most about these idiots is that they should be thankful that no one was hurt, why do they need compensation when a family member could have been killed? All Disney should settle for is medical bills. Those losers don't deserve a single penny more.

CaptainHook15
01-10-2006, 03:12 PM
Big hearted of you poker.:rolleyes:

Bolivar
01-10-2006, 03:16 PM
And by the way, they won't get to keep anything they get for medical bills. They would have to pay their insurance company back for what the insurance company paid in claims.

DianeM
01-10-2006, 03:18 PM
I'm not sure how much tort law has changed in the last 25 years, but when I was a teenager I was in an automobile accident that ended up in litigation. My HMO independently sued the person who caused the accident for medical expenses. I was not able to sue for any medical expenses, since all were covered by my HMO. I don't think you can sue for expenses you didn't incur. In this case, if they were insured, their insurer may be able to seek compensation for the medical expenses, but not the family. The family can only sue for expenses they incurred, and, of course, any other compensation they can justify.


Have you actually been to a real court case similar to this? I have. Attorneys cannot say whether the plaintiffs have insurance or not. It doesn't matter if the medical bills had already been paid, Disney still owe them, plus pain and suffering if Disney was at fault for this accident. The plaintiffs can ask for loss wages, future loss wages (surgery plaintiff) and even loss of companionship from the spouse. The spouse could say since the surgery, the (surgery plaintiff) cannot make love to her like he once did. This are all valid arguments and will fly in the courtroom.

Osky
01-10-2006, 03:18 PM
I work for a law firm that specializes in two areas. Intellectual Property Law, and Corporate Law. We also have an attorney that practices Labor Law, but usually on the side of the employer, not the employee. It just so happens that a former client of one of the partners was a large corporation that runs a theme park. (Not Disney). It also happens that she represented the company in matters brought against the theme park. So, when I speak in this area, I know exactly what I am talking about.

1. Almost all of these cases settle before the trial starts.

2. In almost every case where injury occured, the person bringing the case against the company usually makes out with a large pay day, usually less than what they were suing for, but more than would be sufficient to cover just their medical bills.

3. Intent is almost never part of the issue. If one of these corporations intentionally set out to hurt an individual, they would be looking at criminal charges as well.

4. Intent is not a part of negligence. I would like to see your so-called four-part test. The four-part test they talk about in tort classes in law school for proving negligence, which comes from English Common Law, is as follows:

Duty - Does the Defendant owe the Plaintiff some type of duty?

In this case, does Disney owe the Plaintiff the duty of safety at Disneyland?

Breach of Duty - Did the defendant breach the duty?

In this case, did Disney provide adequate safety to the Plaintiff while the Plaintiff was at Disneyland?

Injury - Did the Plaintiff suffer any injuries which he/she is entitled to recover?

Pretty straightforward in this case.

Proximate Cause - Was the Defendant’s conduct in breaching the duty of care to the Plaintiff the proximate cause for the injury?

In this case, was it something Disney did or did not do in breaching the duty to provide safety to the Plaintiff the reason for the injury?

If you can answer yes to all of these points, then you have a very good case for negligence. Please note that you can be found guilty of negligence for not doing something that the court could find that you had a duty to do. It is even harder to prove intent when you are talking about not performing an action.

Injuries can include emotional distress, pain, suffering, and loss of consortium (what was alluded to in a previous post as loss of companionship).

vickieluvsmickey
01-10-2006, 03:23 PM
If it was me and there wasn't any long-term damage. I'd settle for medical cost, lifetime pass to all the Disneyland’s in the World and 5 years membership in Club 33. Oh and a Dinner date with Minnie.


That's just what I was thinking, Mr. Bear. Except my date would be with Mickey, of course! :)

pisces
01-10-2006, 03:42 PM
So, when I speak in this area, I know exactly what I am talking about.

Injuries can include emotional distress, pain, suffering, and loss of consortium (what was alluded to in a previous post as loss of companionship).

You can include anything you want on a court complaint, but chances are the mental cruelty/emotional distress stuff is going to get tossed out in the absence of intentional misconduct.

And, I know from where I speak, since I've been to law school and worked for a law firm in the 80s, that had Disney Studios for a client.

NEGLIGENCE:
The "intent" falls under the breach of duty part, and it's very rare. But, when you are looking at breach of duty, you are looking to see if there was any misconduct in that breach.

Was the breach of duty mere absentminded-ness?, mere inefficiency? Or, was it something more sinister.....misconduct....intentional misconduct---which, again, is very difficult to prove.

You have to look at breach of duty very carefully and examine what was the tone and tenor, what was the mood of the breach.....was it an innocent breach.....or was that breach grievous misconduct.

You most certainly wouldn't have a criminal case. In other words, I doubt the police would respond because you felt someone engaged in willful misconduct in operating a ride. What it would do, though, is bolster the "intentional infliction of emotional distress" component, and it is, in fact, what you'd need to even have "emotional distress" on a claim.

Also---you forgot the "damages" component of the (proximate cause) section of negligence. If you can't come up with some sort of money damages (most people can, though) ..... then the whole negligence action falls apart.

BOTTOM LINE: Negligence is tough to prove precisely because you have to satisfy all these various parts and sub-parts.

.....and then fend off all their "assumption of risk" defenses.

CONCLUSION: Disney wins again!

Tinkermommy
01-10-2006, 04:24 PM
Here's what today's Los Angeles Times (http://www.calendarlive.com/visitor/themeparks/cl-me-thunder10jan10,2,6182528.story) reported:


A Colorado family has sued the Walt Disney World Co. for injuries suffered in a 2004 accident on Disneyland's Big Thunder Mountain Railroad, their lawyer said Monday.

AcuraTL
01-10-2006, 04:28 PM
I'm not sure how much tort law has changed in the last 25 years, but when I was a teenager I was in an automobile accident that ended up in litigation. My HMO independently sued the person who caused the accident for medical expenses. I was not able to sue for any medical expenses, since all were covered by my HMO. I don't think you can sue for expenses you didn't incur. In this case, if they were insured, their insurer may be able to seek compensation for the medical expenses, but not the family. The family can only sue for expenses they incurred, and, of course, any other compensation they can justify.

Usually, the medical provider (i.e. HMO) would assert a lien towards the settlement of the plaintiff(s). This would be simply a letter to the plaintiff(s) or their attorneys. Or, the HMO can also file suit themself against the repsonsible party (Disney) and pursue their expenses. But other than that, the defense attorney for Disney cannot argue that since all the medical bills had been paid, the plaintiff(s) should get nothing.

90% of all cases like these where there is a big lien from a medical provider, the company that is representing the medical provider will usually settle for 33% to 66% of what the actual medical bills were paid. This is a standard practice especially when there is a personal injury attorney involved.

One way or the other, Disney will have to pay since all the plaintiffs suffered injuries as a result of a ride in Disneyland. It does not matter how much CA love Disney because both sides of attorneys have to agree on 12 jurors and they get to ask potential jurors lots of questions. I believe each side can only have 2 "strikes" to get rid of potential jurors that they know will hurt them.

And to Pisces, if you don't think Disney was negligent in this particular accident, then perhaps you think the plaintiffs were? Negligent isn't tough to prove in court, especially with 12 jurors. All the plaintiffs' attorney need to prove to the jurors is that his clients went on a Disney ride and something malfunctioned, causing injuries. That's all it needs.

pisces
01-10-2006, 04:43 PM
We know something malfunctioned, I think. The question is who had the duty?, and should they have known ahead of time that this was going to happen???

Consider the woman who spilled hot coffee on herself: Who's responsible for that? The fast food restaurant? The coffee machine manufacturer? The woman? The cup manufacturer? And, if so, should any of these people have known in advance that this might happen?

That hot coffee woman won big damages.....but they were nearly all reduced on appeal.

The fast food place was ordered to put warning signs up.

I think Disney took all the adequate care needed, with warning and such, and yet there are still numerous issues in this case...who manufactered the ride mechanics? Who is Disney's subcontractor?

The more issues and the more outside people who may be responsible---I can bring in....the better it looks for Disney. Anything that can lessen Disney's liability, so that a jury can keep finding more and more reasons to pin the responsibility on someone else.

And, I can pull a bunch of people out of a hat......non-Disney....who I think may have liability.

This is what happens in products liability/negligence cases. Disney, although a big company, is seen in a favorable light by many a jury. Many have fond memories of the place, and it won't be easy to find a jury pool that hates Disney.

Disney is one of the most respected companies. It won't be easy for this family to shake them down. I don't know what this family's resources are, but Disney has a bigger bankroll to fend off these types of lawsuits, and keep this lawsuit going forever with defense after defense. ---Much more so, than this family's lawyer which will run out of cash for legal maneuvers much sooner than Disney.

HTanner
01-10-2006, 04:48 PM
I need to clear something up, just because its bothering me. I don't mean to be rude and I am not trying to call anyone out or start a fight or anything. I just don't want people to be misled or confused about something I care a lot about.

I am an attorney and I just wanted to clarify a few things.

There is NO intent element in negligence. In fact, most cases of negligence are a person acting unintentionally reckless. Their actions breach a standard of care by which all citizens should act, whether intentional or not, and those actions caused harm. The party harmed should be compensated. The law seeks to try to reconcile the harm the person suffered by placing him or her back as close into the position they were in before the harm occurred - theoretically.

I think you are confusing punitive damages with emotional distress. Two VERY different categories. Punitive damages require malice or oppression, which is defined as actions conducted with knowledge of the consequences or extreme recklessness as to the consequences. Punitive damages, unlike other damages, are meant to punish the wrongdoer. Remember, other damages are meant to make the harmed party whole - to the extent that they are harmed.

Emotional distress does not have to happen on purpose. Damages that are recoverable without showing intent (i.e., NON punitive damages) are those that naturally flow from the type of event where harm incurred. So, for example, in the case of a child witnessing their parent killed or seriously injured, emotional distress is a natural damage flowing from that event and would be compensible - if the party proves that the defendant caused that harm by breaching a standard of care. A type of damage that would not be compensible would be if the child only learned of the accident by telephone later that day and was so in shock, they fainted, hitting their arm and breaking it. That is too far removed from the negligent conduct of the tortfeasor to be compensible.

I am way oversimplifying the discussion of negligence, but just wanted to clarify those few points.

I think the family will settle. 80-90% of cases do. However, Disney has tough lawyers who are not afraid to fight. In this case, though, it has been pretty widely publicized that Disney admitted they did not follow their own safety standards. It is very hard to defend a negligence action if you've admitted being negligent. My guess is that Disney will argue against the extent of claimed damages. Oh, and Disney and the family have probably already been in negotiations or at least discussions - about 20% of cases settle before a lawsuit is even filed.

Osky
01-10-2006, 04:59 PM
Thanks HTanner. What you just said is 100% inline with my experiences. Although, my experience is limited in these areas. I predominantly work in the intellectual property arena (read: patent prosecution.) I banged out my last post in haste (and while trying to recall tort law lectures) before running out the door.