APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY. The Honorable A. Rex Gabbert, Judge.
Cedar Fair was represented by David R. Frye, Thomas H. Stahl and Chad E. Blomberg of Lathrop & Gage LLP in Kansas City.
Chavez was represented by Steven L. Hobson, H. William McIntosh and Meredith R. Peace of The McIntosh Law Firm PC in Kansas City.
PATRICIA BRECKENRIDGE, JUDGE. Russell, C.J., Fischer, Stith and Wilson, JJ., concur; Teitelman, J., dissents in separate opinion filed; Draper, J., concurs in opinion of Teitelman, J.
Patricia Breckenridge, Judge
Twelve-year-old Jessica Chavez sustained injuries on a ride at Oceans of Fun Water Park and filed a suit for negligence against Cedar Fair, LP, which owns and operates Oceans of Fun. Following a jury trial, judgment was entered in favor of Ms. Chavez. On appeal from that judgment, Cedar Fair claims the trial court erred in instructing the jury that its liability should be assessed using the highest degree of care standard for negligence, rather than the ordinary degree of care standard. Cedar Fair also claims the trial court erred when it refused to submit its proffered comparative fault instruction to the jury. This Court granted transfer after an OPINION of appeals. Mo. Const. art. V, sec. 10. Because the trial court erred in instructing the jury to assess Cedar Fair's negligence using the highest degree of care standard and should have, instead, submitted an instruction on ordinary care, the judgment is reversed and the cause remanded.
Factual and Procedural Background
In August 2000, twelve-year-old Jessica Chavez went to Oceans of Fun in Kansas City with relatives, including her aunt and her cousins. The first and only ride Ms. Chavez rode that day was the Hurricane Falls raft ride.
Hurricane Falls is a 680-foot-long water slide ride that has a 71-foot drop and twists and turns throughout. During the ride, four to five passengers are seated cross-legged in the bottom of a circular raft. The raft descends down an open fiberglass flume, propelled only by a water flow of 8,000 gallons per minute. There
are no mechanical aspects to the ride other than the conveyor that takes the empty rafts from the splash pool at the bottom of the slide back to the loading platform at the top of the slide. With the exception of the initial launch from the loading platform, ride attendants do not control the raft's descent. Rather, rafts descend variably based on the oscillation and rotation of the rafts, the contact the rafts make with the side or " splash" walls of the slide, and the contour of the layout of the ride.
The raft's only safety features are nylon webbing safety straps that run along portions of the top of the rafts. Passengers are not buckled in because of the risk of drowning if a raft were to capsize. Riders must be a minimum of 46 inches tall to ride on Hurricane Falls. Expectant mothers as well as guests with back, neck, muscular or skeletal issues are cautioned not to ride. Signage placed along the staircase leading up to the loading platform informs passengers to " hold on to straps at all times." Additional signage informs riders that the activity rating of Hurricane Falls is " [Diamond] 5 Aggressive,"  and lists the ride's restrictions and rules, including that riders must " hold onto the straps at all times." Ride attendants also verbally instruct passengers before the ride begins to " hold on to the straps at all times."
When their turn came to ride, Ms. Chavez, her aunt, and two cousins were seated as instructed by a ride attendant, with Ms. Chavez seated directly across from one of her cousins. As their raft rode up the splash wall on the final turn, Ms. Chavez's mouth and her cousin's head collided. Due to the impact, Ms. Chavez's braces were pushed up into her gums and her front tooth was knocked out. These injuries subsequently required extensive dental work, including the removal of two more front teeth and the use of dentures.
In 2005, Ms. Chavez filed a petition for damages claiming Cedar Fair failed to exercise the care required and was negligent in one or both of the following respects: (1) failing to provide friction devices reasonably sufficient to prevent a raft rider from colliding with another rider and (2) failing to adequately warn of the risk of harm from colliding with other raft riders. The case proceeded to trial in 2012.
At trial, conflicting testimony was given regarding how the collision happened and whether Ms. Chavez, or both or either of her cousins, voluntarily or involuntarily let go of the raft's safety strap. Both parties also presented expert testimony to address the adequacy of the ride's safety features and measures taken by Cedar Fair to ensure passenger safety. On her negligence claim, the trial court instructed the jury as follows: " [T]he term 'negligent' or 'negligence' as used in these instructions means the failure to use the highest degree of care. The phrase 'highest degree of care' means that degree of care that a very careful person would use under the same or similar circumstances." Cedar Fair objected to the instruction on the ground that it presented the incorrect standard of care, as ordinary care was the proper standard. The trial court overruled Cedar Fair's objection, and the highest degree of care instruction was submitted to the jury.
In addition to objecting to the submitted instruction regarding the standard of care, Cedar Fair also proffered an instruction requiring the jury to determine Ms. Chavez's percentage of fault, if any. Cedar
Fair argued there was sufficient evidence that Ms. Chavez voluntarily let go of the raft's safety strap despite repeated warnings to " hold onto the straps at all times," thereby negligently contributing to the cause of her injuries. The trial court refused to submit the comparative fault instruction to the jury because it found that strained inferences and conflicting testimony failed to sufficiently establish these facts.
The jury returned a verdict in favor of Ms. Chavez in the amount of $225,000, and the trial court entered judgment accordingly. Cedar Fair appeals. On appeal, Cedar Fair asserts the trial court erred in submitting a jury instruction that defined " negligence" as the failure to use the " highest degree of care." Instead, Cedar Fair argues that " ordinary care" is the proper negligence standard for operators of water slides and similar amusement activities. Cedar Fair also claims the trial court erred in refusing to submit its proffered comparative fault instruction to the jury. Cedar Fair argues that sufficient evidence exists that Ms. Chavez voluntarily and negligently let go of the raft's safety straps despite repeated warnings to hold on, warranting the submission of the comparative fault instruction.
Standard of Review
The appropriate standard of care is a question of law. Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 158 (Mo. banc 2000). Similarly, whether the jury was properly instructed is a question of law that is reviewed de novo. Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo. banc 2014). This Court will only vacate a judgment on the basis of an instructional error if that error " materially affected the merits of the action." Id. Accordingly, " the party challenging the instruction must show that the offending instruction ...