Gerstlauer Amusement Rides filing against Six Flags
-
Upload
jeffmosier -
Category
Documents
-
view
26.157 -
download
1
description
Transcript of Gerstlauer Amusement Rides filing against Six Flags
-
US_ACTIVE-116544069.2-AMHOLGUI
CAUSE NO. 342-26803413
AMADO ESPARZA, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE ESTATE OF ROSY ESPARZA; ANTONIO ESPARZA; ANTONIO ESPARZA JR; ARNOLDO ESPARZA; ARACELY ESPARZA SEGOVIA; INDIVIDUALLY AND AS A/N/F OF ABRAHAM SEGOVIA; AND RONAL SEGOVIA,
Plaintiffs
IN THE DISTRICT COURT OF
VS.
TARRANT COUNTY, TEXAS
SIX FLAGS ENTERTAINMENT CORPORATION; SIX FLAGS THEME PARKS, INC; TEXAS FLAGS, LTD; GERSTLAUER AMUSEMENT RIDES, GMBH,
Defendants
342ND JUDICIAL DISTRICT
DEFENDANT/CROSS-DEFENDANT GERSTLAUERS ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO SIX FLAGS CROSS ACTION
Defendant/Cross-Defendant Gerstlauer Amusement Rides, GMBH (Gerstlauer) files
this Original Answer and Special Exceptions to the Cross-Action by Defendants Six Flags
Entertainment Corporation, Six Flags Theme Parks, Inc., Texas Flags, Ltd., and Six Flags Over
Texas, Inc. (the Six Flags Defendants or Six Flags) and in support thereof shows:
I. GENERAL DENIAL
1. Gerstlauer asserts a general denial pursuant to Rule 92 of the TEXAS RULES OF
CIVIL PROCEDURE, and reserves the right to amend its pleadings before trial of this cause on the
merits, and to present specific denials and special exceptions to Six Flags Original Cross Action,
as well as affirmative defenses, and other pleas and defenses as authorized by law.
342-268034-13 FILEDTARRANT COUNTY
3/5/2014 5:09:19 PMTHOMAS A. WILDER
DISTRICT CLERK
-
- 2 -
II. AFFIRMATIVE DEFENSES
A. Six Flags Caused the Accident
1. The Six Flags Defendants have pointed a finger, but all fingers point right back to
them: (1) Six Flags failed to exercise reasonable care in their hiring, training, and supervision of
the ride operators, supervisors and other personnel on duty on the date of the accident; (2) the
Operator in question failed to properly perform the push-pull test in violation of ride
instructions and rules and improperly permitted the ride to depart the station with the lap bar in
an incorrect position; (3) Six Flags personnel also violated several written policies by not
activating the Emergency Stop button at their fingertips when a Six Flags employee observed
that Ms. Esparzas lap bar was too high as the train left the station; (4) Six Flags failed to
exercise reasonable care regarding the inspection, maintenance, and operation of the Texas Giant
at the relevant times; (5) Six Flags failed to use the test seat provided to them by Gerstlauer
upon delivery more than 2 years prior to the accident which had a red light indicating that a
passengers size was inappropriate for the restraint system. Six Flags only began using this
system after the accident; (6) Six Flags failed to comply with 2.4 (Airtime) contained in the
Typical Ride Manufacturer Verbiage provided by Gerstlauer to Six Flags; (7) the trains were
delivered to Six Flags over two (2) years before the accident and Gerstlauer had no control over
the operation and maintenance of the trains for two (2) years before the accident; (8) Six Flags
failed to post and broadcast adequate warnings and instructions in Spanish; (9) Six Flags was
heavily and integrally involved in the design, specification, testing, and installation of the trains;
(10) the Six Flags Defendants are themselves designers of the trains and reviewed, inspected and
approved of the trains design before installing and placing the trains into service.
342-268034-13 FILEDTARRANT COUNTY
3/5/2014 5:09:19 PMTHOMAS A. WILDER
DISTRICT CLERK
-
- 3 -
2. Gerstlauers participation in the design and manufacture of the trains was not
defective or unsafe in any manner. Gerstlauers production and delivery of the trains adhered to
Six Flags specifications and design requirements, and the trains were placed into service only
after Six Flags had exhaustively reviewed, tested and approved the trains and their design.
3. This accident was caused solely by the failure of Six Flags own personnel to
follow the ride and safety instructions and rules issued both by Gerstlauer and by Six Flags and
for failing to stop the train before it left the station when Six Flags personnel observed that Ms.
Esparzas restraint bar had not been pushed all the way down. Consequently: (1) Six Flags
operation of the trains at the time of the accident was negligent; (2) Six Flags has unclean hands;
and (3) the accident was avoidable by Six Flags at several levels including at the time the Six
Flags operator failed to push the restraint bar all the way down as required by Gerstlauers Rules
and Instructions and moments later when the Six Flags Supervisor observed that the restraint bar
was too high on Ms. Esparza and did not push the emergency stop button on the control panel.
B. Six Flags Insisted on No Seat Belts
4. Six Flags has stated publicly that the ride is safe after the addition of incremental
and overlapping safety measures that included redesigned restraint-bar pads and new seat
belts.1 However, Six Flags expressly designed and specified in writing that there be no seat
belts on the trains for the Texas Giant. In other words, Six Flags ordered Gerstlauer not to put
seat belts on the trains. Six Flags cannot now claim that Gerstlauers design contributions were
defective when, in reality, the trains were designed according to Six Flags specifications.
1 Six Flags Blames Roller Coaster Company for Fatal Texas Giant Accident, Dallas Morning News, 2/17/2014.
342-268034-13 FILEDTARRANT COUNTY
3/5/2014 5:09:19 PMTHOMAS A. WILDER
DISTRICT CLERK
-
- 4 -
C. Six Flags is Estopped from Denying it was Negligent
5. Six Flags has expressly adopted the factual allegations in Plaintiffs Amended
Petition in its pleadings.2 Plaintiffs have alleged in their Amended Petition that Six Flags failed
to meet the standard of care with regard to the inspection, maintenance, and operation of the rise.
Six Flags adoption of these claims is a judicial admission by Six Flags that Six Flags itself was
the wrong-doer. Because Six Flags has unclean hands and its Cross-Action is groundless and
brought in bad faith, Six Flags Cross action against Gerstlauer is barred as a matter of law.
D. Six Flags Cross Action is Legally and Factually Deficient
6. Six Flags reliance on TEX. CIV. PRAC. & REM. CODE 82.002 is incorrect as a
matter of law. The Six Flags defendants are not sellers under 82.001, and even if they were
sellers Six Flags wrongdoing would bar any recovery from Gerstlauer in this matter.
7. As detailed in Gerstlauers Cross-Claim against Six Flags, if Six Flags were a
seller then Six Flags would be liable to Gerstlauer for indemnity and contribution.
III. SPECIAL EXCEPTIONS TO SIX FLAGS CROSS-ACTION
8. Gerstlauer specially excepts to Six Flags Original Cross-Action as follows: (1)
Six Flags factual allegations are vague and ambiguous. Six Flags has failed to specify how the
trains were supposedly defective or supposedly unreasonably dangerous in design, manufacture,
distribution or promotion. (2) Six Flags legal allegations are vague and ambiguous. Six Flags
cites Chapter 82 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE but does not specify any
specific provisions authorizing the relief requested. (3) Assuming Six Flags relies on 82.002,
this section provides that (a) [a] manufacturer shall indemnify and hold harmless a seller
against loss arising out of a products liability action, except for any loss caused by the sellers 2 Plaintiffs Amended Petition is adopted by reference for the specifics of these allegations as against Cross-Defendant and Cross-Plaintiffs. See Defendants Original Cross-Action filed February 14, 2014, page 2.
342-268034-13 FILEDTARRANT COUNTY
3/5/2014 5:09:19 PMTHOMAS A. WILDER
DISTRICT CLERK
-
- 5 -
negligence []. Id. But this is clearly not applicable because the Six Flags Defendants are not
sellers of Gerstlauers trains. See e.g., Sells v. Six Flags Over Tex., Inc. 1997 U.S. Dist. LEXIS
23747 (N.D. Tex. 1997) (amusement park not a seller for purposes of strict liability); Siciliano v.
Capitol City Shows, Inc., 475 A.2d 10 (N.H. 1984) (amusement ride is a service, not a product);
Allen v. Nicole, Inc., 412 A.2d 824 (N.J. Super. Ct. Law Div. 1980) (amusement ride operator is
more a consumer of equipment than a seller). Second, even if Six Flags were sellers their claim
would fail because Six Flags negligencenot Gerstlauers trainswas the cause of the
accident. See Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 255 (Tex. 2006)
(noting that Chapter 82 indemnity claimant must be innocent of wrongdoing).
IV. PRAYER
For these reasons, Cross-Defendant Gerstlauer GMBH prays that Cross-Plaintiffs Six
Flags Entertainment Corporation, Six Flags Theme Parks, Inc. and Texas Flags, Ltd. take
nothing by their Original Cross-Action against Gerstlauer, that Six Flags Original Cross-Action
be dismissed with prejudice, and that Gerstlauers Special Exceptions be granted in all respects
and for such further relief to which it may justly be entitled.
342-268034-13 FILEDTARRANT COUNTY
3/5/2014 5:09:19 PMTHOMAS A. WILDER
DISTRICT CLERK
-
- 6 -
Respectfully submitted
REED SMITH LLP
By: /s/ Kenneth E. Broughton Kenneth E. Broughton State Bar No. 03087250 Arnd N. von Waldow PA Bar No. 56628 Francisco Rivero State Bar No. 24046725 Michael H. Bernick State Bar No. 24078227 811 Main Street, Suite 1700 Houston, Texas 77002-6110 Telephone: 713.469.3819 Telecopier: 713.469.3899
David Keltner State Bar No. 11249500 KELLY HART & HALLMAN Wells Fargo Tower 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Telephone: 817.332.2500 Telecopier: 817.878.9760
ATTORNEYS FOR DEFENDANT /CROSS-DEFENDANT GERSTLAUER AMUSEMENT RIDES GMBH
342-268034-13 FILEDTARRANT COUNTY
3/5/2014 5:09:19 PMTHOMAS A. WILDER
DISTRICT CLERK
-
- 7 -
CERTIFICATE OF SERVICE
In accordance with the TEXAS RULES OF CIVIL PROCEDURE, I hereby certify that a true and correct copy of the foregoing instrument was served on the following counsel of record on this 5th day of March, 2014: Bryan T. Pope Paul W. Tipton Carlos Lopez VINCENT LOPEZ SERAFINO JENEVEIN, P.C. Thanksgiving Tower 1601 Elm Street, Suite 1400 Dallas, Texas 75201
Frank L. Branson Quentin Brogdon Eugene A. Chip Brooker, Jr. THE LAW OFFICES OF FRANK L. BRANSON, P.C. Highland Park Place 4514 Cole Avenue, Suite 1800 Dallas, Texas 75205-4185
/s/ Kenneth E. Broughton Kenneth E. Broughton
342-268034-13 FILEDTARRANT COUNTY
3/5/2014 5:09:19 PMTHOMAS A. WILDER
DISTRICT CLERK