WEST (CINDY) VS. KKI, LLC D/B/A SIX FLAGS KENTUCKY KINGDOMAnnotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 03-CI-006061
KKI, LLC, D/B/A SIX FLAGS
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; KELLER, JUDGE; HENRY,1 SENIOR
HENRY, SENIOR JUDGE: Cindy West appeals from an order of the Jefferson
Circuit Court granting summary judgment to defendant KKI, LLC d/b/a Six Flags
Kentucky Kingdom (Kentucky Kingdom), in a lawsuit alleging that the appellant
was injured while riding the amusement park’s stand-up roller coaster ride, the
Chang. We affirm.
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
FACTUAL AND PROCEDURAL BACKGROUND
On the weekend of July 12, 2002, West traveled from her home in
Washington, Pennsylvania, to Louisville, Kentucky, to meet her friend, Greg
Morris, a resident of Columbia, Tennessee. They spent the day Saturday, July 13,
2002, at the Kentucky Kingdom Amusement Park. Between 11:00 a.m. and 11:30
a.m., the two rode the Chang, a stand-up roller coaster ride.
In her deposition, West testified that during the ride she suffered sideto-side head banging against the safety harness holding her in place; was jostled
about; and felt her neck crack. She described the ride as “one of the most intense
experiences she has ever had.” She testified that after the ride she was initially
unable to walk or talk, and “just felt terrible.” In his sworn affidavit filed into the
record testimony, Morris substantially corroborated West’s testimony concerning
her diminished physical capacity following the ride.
Immediately following the ride, West sought medical attention at the
Park’s first-aid station. There apparently is no record, however, of her visit to the
Despite her late morning injury, West and Morris remained at the park
until its 10:00 p.m. closing time because one of the reasons for their trip to the park
was to attend a music event which did not begin until that evening.
The next morning, West still suffered from the effects of the previous
day. Following her return to Pennsylvania, West continued to suffer from
symptoms, including headaches and dizziness. In the course of discovery, West
stated that as a result of the ride, “she received injuries to her head, brain, neck and
upper back, suffered and continues to suffer from chronic severe migraine
headaches and muscle spasms of the neck and upper back.” She sought medical
attention from, among others, Dr. Craig D. Fox and Dr. Bruce Cotugno, a
neurologist. Dr. Cotugno diagnosed West as having suffered a mild central
vestibular lesion. Both physicians have presented deposition testimony and
affidavits attributing West’s condition to the July 13, 2002, ride on the Chang;
however, a crucial underpinning of these opinions is West’s anecdotal account of
the ride. They have no personal knowledge of the events of July 13, 2002, nor do
they purport to have expertise in the area of amusement park ride safety.
Based upon her belief that her ride on the Chang caused her medical
condition, on July 11, 2003, West filed a lawsuit against Kentucky Kingdom in
Jefferson Circuit Court. West alleged causes of action sounding in negligence.
More specifically, her Complaint alleged negligence under the following theories:
8. The stand up roller coaster ride, which Plaintiff
believes is commonly known as the CHANG constituted,
at all times mentioned herein, a dangerous
instrumentality, defectively designed and constructed,
under the sole control of the Defendant; Defendant knew,
or should have known, the inherent dangerousness of the
instrumentality; Defendant operated the above mentioned
ride in a careless, negligent and reckless manner in that it
failed to exercise the proper degree of care owed to
Plaintiff as a result of which Plaintiff incurred the
aforementioned injuries while riding the roller coaster.
9. At all times mentioned above the stand up roller
coaster, owned, operated, and maintained by the
Defendant was negligently and imperfectly constructed
and was inadequate, defective and unsafe and as a direct
and proximate result of the imperfection, defects,
inadequacy and unsafeness of Defendant’s roller coaster
and of the carelessness and negligence of the Defendant,
its agents and servants, in the design, operation and
construction of the roller coaster, Plaintiff suffered the
injuries described above.
10. At all times mentioned herein, the stand up roller
coaster, owned, operated, and maintained by Defendant,
was defectively designed and constructed and
unreasonably dangerous for its intended or expected use
and Defendant owed a duty to warn Plaintiff of its
unreasonable dangerousness and as a result of
Defendant’s negligence set forth hereinabove and its
failure to warn of the unreasonable dangerousness of its
roller coaster, Plaintiff suffered the injuries described
Kentucky Kingdom responded, denying liability. Following
the completion of discovery, on February 28, 2007, Kentucky Kingdom filed a
motion for summary judgment.
As further described below, on June 21, 2007, the trial court entered
an order awarding summary judgment to Kentucky Kingdom upon all theories for
recovery. This appeal followed.
STANDARD OF REVIEW: SUMMARY JUDGMENT
The standard of review on appeal when a trial court grants a motion
for summary judgment is “whether the trial court correctly found that there were
no genuine issues as to any material fact and that the moving party was entitled to
judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.
1996); Kentucky Rules of Civil Procedure (CR) 56.03. “The trial court must view
the evidence in the light most favorable to the nonmoving party, and summary
judgment should be granted only if it appears impossible that the nonmoving party
will be able to produce evidence at trial warranting a judgment in his favor.”
Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App. 2001), citing Steelvest v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480-82 (Ky. 1991).
“The moving party bears the initial burden of showing that no genuine
issue of material fact exists, and then the burden shifts to the party opposing
summary judgment to present ‘at least some affirmative evidence showing that
there is a genuine issue of material fact for trial.’” Lewis, 56 S.W.3d at 436, citing
Steelvest, 807 S.W.2d at 482. The trial court “must examine the evidence, not to
decide any issue of fact, but to discover if a real issue exists.” Steelvest, 807
S.W.2d at 480. The Kentucky Supreme Court has held that the word “impossible,”
as set forth in the standard for summary judgment, is meant to be “used in a
practical sense, not in an absolute sense.” Lewis, 56 S.W.3d at 436. “Because
summary judgment involves only legal questions and the existence of any disputed
material issues of fact, an appellate court need not defer to the trial court's decision
and will review the issue de novo.” Lewis at 436.
Notwithstanding the foregoing, however, central to the trial court’s
summary judgment decision was its determination that the testimony of West’s
expert witness upon safety issues concerning the Chang is inadmissible under the
standards contained in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny. As further
discussed below, we review the trial court’s ruling upon this evidentiary issue
under the abuse-of-discretion standard.
We begin by noting that West’s theories of recovery as stated in her
Complaint, as set out above, are not a model of clarity. However, as we construe
the Complaint, in Paragraph 8 she states causes of action based upon: (1) products
liability/defective design, and (2) ordinary negligence in Kentucky Kingdom’s
operation of the ride; in Paragraph 9 she states a cause of action based upon
products liability/manufacturing defect; and in Paragraph 10 she (1) again alleges
causes of action based upon defective design and manufacturing defects, and (2)
alleges a cause of action based upon failure to warn, grounded either in premises
liability or products liability (the Complaint does not specify).
In its Opinion and Order granting summary judgment, the trial court
stated as follows:
A study of the pleadings reveals absolutely no evidence
that [Kentucky Kingdom] negligently operated or
maintained the Chang. Ms. West’s purported expert,
William H. Avery III, clearly states his opinion as to
[Kentucky Kingdom’s] negligence in this case as
follows: (a) [Kentucky Kingdom] knew or should have
known that intense head banging occurred on the Chang;
(b) that the ride requirements as posted should include
the instruction that the rider has to keep his or her head
flat against the headrest (which he found impossible to do
at some of the most intense head banging parts of the
ride); (c) that the ride’s warning did not inform riders that
head banging was possible and could cause injury. These
opinions do not implicate [Kentucky Kingdom’s]
operation, maintenance or construction of the Chang.
Considered in a light most favorable to the Plaintiff, Mr.
Avery’s opinions, at best, support a negligent failure to
warn claim. To the extent Ms. West’s Complaint alleges
otherwise, the Court shall grant summary judgment in
favor of [Kentucky Kingdom].
We agree with the trial court’s conclusions, and would add to its
discussion that there is a complete lack of competent evidence contained in the
record supporting either a design or manufacturing defect in relation to the Chang.
Further, in her brief, West does not defend her claims based upon ordinary
negligence in the operation of the ride (e.g., operator-caused stopping or jerking on
this particular ride) or upon her manufacturing and design defects theories. Indeed,
the foregoing theories appear to us to have been abandoned upon appeal,2 and West
appears to acquiesce in the trial court’s determination that her only viable cause of
action is upon a failure-to-warn theory.
We thus confine our review to her failure-to-warn claim. As further
discussed below, the trial court ultimately granted summary judgment in favor of
Kentucky Kingdom upon West’s failure-to-warn theory because of its
determination that the opinion testimony of her expert witness, William H. Avery,
in support of this cause of action does not meet the requirements for admissibility
under Daubert v. Merrell Dow Pharmaceuticals, Inc., supra; Kumho Tire
Company v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999);
and Goodyear Tire and Rubber Company v. Thompson, 11 S.W.3d 575 (Ky. 2000).
We accordingly do not further address these theories. Milby v. Mears, 580 S.W.2d 724, 727
(Ky.App. 1979) (Errors not raised on appeal are waived).
The exclusion of Avery’s expert testimony, the trial court concluded, was fatal to
her failure-to-warn claim.
Before us, West contends that the trial court misapplied Kentucky
Kingdom’s duties to West; that the trial court misapplied the law of product defect
in Kentucky; and that the trial court misapplied the principles of Daubert and its
progeny to the proffered testimony of West’s experts. We consider these
arguments under a slightly different organizational structure than as presented by
West in her brief.
FAILURE TO WARN
As previously noted, in her Complaint West alleged that Kentucky
Kingdom failed to warn patrons of the unreasonable dangerousness of the Chang.
While she did not more specifically identify the basis for this theory in her
Complaint, in her brief she has supported the cause of action under both premises
liability and products liability theories. We accordingly set forth below the
requirements to support a failure-to-warn cause of action under each of these
West contends that the trial court misapplied Kentucky Kingdom’s
duties to West under her claim for recovery under premises liability principles.
She alleges that the trial court applied the principles of simple negligence rather
than the duties set out in Olfice, Inc., v. Wilkey, 173 S.W.3d 226, 227 (Ky. 2005)
which, she argues, define Kentucky Kingdom’s duties as the duties to: (1)
undertake reasonable inspection of the Chang; (2) take reasonable precautions to
protect its patrons from foreseeable danger; and (3) warn its patrons if it has actual
knowledge of the danger.
In its June 21, 2007, order the trial court stated the relevant negligence
law as follows:
Proprietors of amusement parks have no duty to insure its
[sic] guests’ safety, but must exercise that degree of skill
and care ordinarily expected of reasonable and prudent
operators of amusement parks under similar
circumstances. Sidebottom v. Aubrey, Ky., 101 S.W.2d
212 (1937). Actionable negligence consists of a duty, a
breach of that duty and consequent injury. The absence
of any of these three elements is fatal to a negligence
claim. Sparks v. Re/Max Allstar Realty, Inc., 55 S.W.3d
343, 349 (Ky.App. 2000).
A negligence action requires proof of: (1) a duty on the part of the
defendant; (2) a breach of that duty; (3) a consequent injury, which consists of
actual injury or harm; and (4) legal causation linking the defendant's breach with
the plaintiff's injury. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89 (Ky.
2003). Duty presents a question of law. “If no duty is owed by the defendant to the
plaintiff, there can be no breach thereof, and therefore no actionable negligence.”
Ashcraft v. Peoples Liberty Bank & Trust Co., Inc., 724 S.W.2d 228, 229 (Ky.App.
1986). “Breach and injury  are questions of fact for the jury to decide.”
Pathways at 89.
While general negligence law requires the existence of a duty,
premises liability law supplies the nature and scope of that duty. Lewis v. B & R
Corporation, 56 S.W.3d 432 (Ky.App. 2001). Thus, the duty Kentucky Kingdom
owed to West is dependent upon the status West occupied upon the occasion of her
visit - invitee, licensee, tenant, or trespasser.
A person is an invitee if: “(1) he enters by invitation, express or
implied, (2) his entry is connected with the owner's business or with an activity the
owner conducts or permits to be conducted on his land and (3) there is mutuality of
benefit or benefit to the owner.” Johnson v. Lone Star Steakhouse & Saloon of
Kentucky, Inc., 997 S.W.2d 490, 491-492 (Ky.App. 1999) (quoting Black’s Law
Dictionary, 827 (6th ed. 1990)). Clearly West was an invitee during her visit to
Kentucky Kingdom on July 13, 2002.
“[A] premises owner has a duty to conduct his activities in such a way
as not to expose others to what in the circumstances would be an unreasonable risk
of harm.” Baker v. McIntosh, 132 S.W.3d 230, 232 (Ky.App. 2004), citing Perry v.
Williamson, 824 S.W.2d 869 (Ky. 1992). Under common-law premises liability
principles, the duty owed by the premises owner to an invitee is a general duty to
exercise ordinary care to keep the premises in a reasonably safe condition and to
warn invitees of dangers that are latent, unknown, or not obvious. Lewis v. B & R
Corporation, 56 S.W.3d at 438. The owner's duty to invitees is to discover the
existence of dangerous conditions on the premises and either correct them or warn
of them. Lone Star Steakhouse, 997 S.W.2d at 492.
While the trial court did not fully set forth the relevant premises
liability law, we believe it ultimately applied a proper standard. As relevant to this
case, the crucial element of premises liability law is that the premises owner has
the duty to “warn invitees of dangers that are latent, unknown, or not obvious.”
The trial court properly considered the case as a failure-to-warn action. Thus we
disagree with West that the trial court applied an improper premises liability
standard in reaching its decision to award summary judgment to Kentucky
Kingdom. In any event, in our review of the trial court’s summary judgment
determination, we will consider the more expansive premises liability principles
referred to above.
Similarly, West contends that the trial court misapplied the law of
products liability in its summary judgment determination. More specifically, she
alleges that the trial court’s reliance on Sidebottom v. Aubrey, 267 Ky. 45, 101
S.W.2d 212 (1937), is misplaced. In West’s view the proper standard is set out in
Edwards, et. al. v. Hop Sin, Inc., 140 S.W.3d 13, 15 (Ky.App. 2003), which, she
says, holds that “[Kentucky Kingdom] can be held liable if the finder of fact is
satisfied that [Kentucky Kingdom] either knew or should have known that absent a
proper warning, the Chang poses risk of harm to some patrons and failed in its duty
to properly warn of that risk.”
The trial court’s June 21, 2007, order did not state Kentucky
Kingdom’s duties under premises liability and products liability separately; rather,
it stated the amusement park’s duties generally as discussed above.
Products liability causes of action are most frequently directed against
the manufacturer of the product rather than a down-the-line business entity.
Nevertheless, causes of action against such entities are appropriate under certain
circumstances. See Kentucky Revised Statutes (KRS) 411.340; Franke v. Ford
Motor Co., 398 F.Supp.2d 833 (W.D.Ky. 2005); T & M Jewelry, Inc. v. Hicks ex
rel. Hicks, 189 S.W.3d 526 (Ky. 2006).
This is an atypical products liability claim against a down-the-line
entity in that there was no sale of a consumer product to an end user; rather, it may
more accurately be stated that Kentucky Kingdom provided a service to West
which incidentally employed a “product” – i.e., the Chang.
Nevertheless, as West has raised the theory of recovery, we will review West’s
products liability/failure-to-warn claim applying down-the-line business entity
We note that the "middleman" provisions of the Kentucky Product
Liability Act contained in KRS 411.340 provide as follows:
In any product liability action, if the manufacturer is
identified and subject to the jurisdiction of the court, a
wholesaler, distributor, or retailer who distributes or sells
a product, upon his showing by a preponderance of the
evidence that said product was sold by him in its original
manufactured condition or package, or in the same
condition such product was in when received by said
wholesaler, distributor or retailer, shall not be liable to
the plaintiff for damages arising solely from the
distribution or sale of such product, unless such
wholesaler, distributor or retailer, breached an express
warranty or knew or should have known at the time of
distribution or sale of such product that the product was
in a defective condition, unreasonably dangerous to the
user or consumer.
While it appears that Kentucky Kingdom was involved in the
assembly of the Chang, the record contains no evidence that it was not assembled
in accordance with the manufacturer’s specifications. Nevertheless, the
"middleman" provisions of the Kentucky Product Liability Act were designed to
protect only those distributors, wholesalers, or retailers, who have no independent
responsibility for the design or manufacture of a product, see Franke v. Ford
Motor Co., 398 F.Supp.2d at 841, whereas Kentucky Kingdom did have a
responsibility in assembling the Chang. Moreover, notwithstanding the
"middleman" provisions of the Kentucky Product Liability Act, a wholesaler,
distributor or retailer may be liable if it: (1) breaches an express warranty, or (2)
knew or should have known at the time of distribution that the product was in a
defective condition, unreasonably dangerous to the user.
As relevant to the issues before us, the following is a general
summary of the applicable Kentucky products liability law. “[A] warning must be
fair and adequate, to the end that the [product] user, by the exercise of reasonable
care on his own part, shall have a fair and adequate notice of the possible
consequences of use or even misuse.” Post v. American Cleaning Equip. Corp.,
437 S.W.2d 516, 520 (Ky.App. 1968) (citing 76 A.L.R.2d 9, 37, 1961 WL 13170
(1961)).” King v. Ford Motor Co., 209 F.3d 886, 895 (6th.Cir. 2000). “ Kentucky
law imposes a general duty on manufacturers and suppliers to warn of dangers
known to them but not known to persons whose use of the product can reasonably
be anticipated.” Watters v. TSR, Inc., 904 F.2d 378, 381 (6th Cir. 1990). Suppliers
of a product may have a duty to warn arising out of general negligence principles if
the supplier: “(a) knows or has reason to know that the [product] is or is likely to
be dangerous for the use for which it is supplied, and (b) has no reason to believe
that those for whose use the [product] is supplied will realize its dangerous
condition . . . .” C & S Fuel, Inc. v. Clark Equipment Co., 552 F.Supp. 340, 347,
(E.D.Ky. 1982), quoting Restatement, Second, Torts §388.
Again, we believe that the trial court properly reviewed Kentucky
Kingdom’s summary judgment motion to determine the existence of a genuine
issue of material fact about whether or not the amusement park breached its duty to
warn West of any dangers which were not obvious to riders of the Chang, but of
which Kentucky Kingdom knew, or reasonably should have known. We further
believe that this is a proper application of Kentucky’s products liability “duty-towarn” standard. In any event, we apply the product liability “failure-to-warn”
principles set out above in our review of the trial court’s award of summary
DAUBERT AND PROGENY
In Arguments I.C. and I.D. West argues that the trial court misapplied
the principles set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny in evaluating the
testimony of her expert witnesses.
Rather than recap in detail the trial court’s citations to Daubert and its
progeny, we simply note that we disagree with West’s criticisms of the trial court’s
approach to the Daubert aspect of the case. Instead, we set out below the now
well-established applicable Daubert principles.
Kentucky Rules of Evidence (KRE) 702 states:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise . . . .
Federal Rules of Evidence 702 is identical to the Kentucky Rule. In
Daubert, the Supreme Court interpreted Rule 702 in the context of the
admissibility of scientific expert testimony. The Court stated:
“Faced with a proffer of expert scientific testimony . . .
the trial judge must determine at the outset, pursuant to
Rule 104(a), whether the expert is proposing to testify to
(1) scientific knowledge that (2) will assist the trier of
fact to understand or determine a fact in issue. This
entails a preliminary assessment of whether the reasoning
or methodology underlying the testimony is scientifically
valid and of whether that reasoning or methodology3
properly can be applied to the facts in issue.”
Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796 (footnotes omitted).
The Daubert decision established a procedure whereby the trial court
would act as a gatekeeper by ensuring that scientific testimony would be admitted
This “gatekeeping” role of the trial court has been described as having the objective of
banishing “junk science” evidence from the courtroom. Elsayed Mukhtar v. Cal. State Univ.,
299 F.3d 1053, 1063 (9th Cir.2002); Ragland v. Commonwealth, 191 S.W.3d 569, 575 (Ky.
only if it is both relevant and reliable. It stated that Rule 702 “assign[s] to the trial
judge the task of ensuring that an expert's testimony both rests on a reliable
foundation and is relevant to the task at hand.” Id. at 597, 113 S.Ct. at 2799.
The Daubert decision included a list of factors the trial court may
consider in reaching its determination:
-Whether a “theory or technique ... can be (and has been)
-Whether it “has been subjected to peer review and
-Whether, in respect to a particular technique, there is a
high “known or potential rate of error” and whether there
are “standards controlling the technique's operation;” and
-Whether the theory or technique enjoys “general
acceptance” . . . within a “relevant scientific
See Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786 at 2796-97.
In Mitchell v. Commonwealth, 908 S.W.2d 100, 101-02 (Ky. 1995)
(overruled in part on other grounds by Fugate v. Commonwealth, 993 S.W.2d 931,
937 (Ky. 1999)), the Kentucky Supreme Court adopted the Daubert standards and
procedures for screening the admissibility of scientific testimony, which, again,
assigns to the trial court the role of “gatekeeper.”
In Kumho Tire Company v. Carmichael, 526 U.S. 137, 119 S.Ct.
1167, 143 L.Ed.2d 238 (1999), the Supreme Court of the United States extended
the Daubert process to all expert testimony relying upon technical or other
specialized knowledge. Our Supreme Court adopted Kumho Tire in Goodyear
Tire and Rubber Company v. Thompson, 11 S.W.3d 575 (Ky. 2000).
The trial court’s Daubert ruling is reviewed using an abuse-ofdiscretion standard. Goodyear Tire at 577-78. Moreover, “[t]he trial court must
have the same kind of latitude in deciding how to test an expert's reliability . . . as it
enjoys when it decides whether or not that expert's relevant testimony is reliable.”
Kumho Tire, 526 U.S. at 152, 119 S.Ct at 1176 (emphasis in original). “The test
for abuse of discretion is whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire &
Rubber Co. v. Thompson at 581.
In Argument I.E.2., West contends that the trial court erroneously
applied Daubert to the testimony of her amusement park safety expert, William
Avery. With the standards and principles set out in the preceding sections of this
opinion in mind, we now turn to this argument.
In its June 21, 2007, order the trial court determined that Avery
qualified as an expert witness. The record discloses that Avery has worked in
amusement park safety for approximately thirty years, serving as Safety Manager
at Busch Gardens, Corporate Safety Specialist at Anheuser-Busch Companies,
Director of Risk Management at SeaWorld Parks, Inc., and as Vice President of
Safety, Security, Rides and Maintenance at Boardwalk and Baseball, Inc. before he
opened his own consulting business in 1990. He has inspected amusement rides
and devices, written policy and loss control surveys at entertainment locations,
published articles on amusement park safety and made public and private
appearances on amusement park safety. The trial court has broad discretion in
qualifying a witness as an expert. Kentucky Kingdom does not challenge Avery’s
qualifications as an expert on amusement park safety, and thus we accept for
purposes of our review that Avery is an expert in the area of amusement park ride
As previously noted, however, the trial court, acting pursuant to its
gatekeeping function, determined that Avery’s proffered expert testimony was
inadmissible under the standards established in Daubert and its progeny. In its
June 21, 2007, order the trial court explained its reasoning as follows:
Considered in a light most favorable to the Plaintiff, Mr.
Avery’s opinions, at best, support a negligent failure to
warn claim. . . .
Whether [Kentucky Kingdom] was negligent in failing to
warn its guests as to the potential for head injuries in
riding the Chang is clearly a matter that requires expert
testimony. See KRE 702[.] . . .
In reaching his opinion, Mr. Avery testified that he
reviewed the [Kentucky Kingdom] ride standard
operating procedures and a 1996 standard maintenance
manual for roller coasters at [Kentucky Kingdom].
Though he did not rely on them in reaching his opinion,
he also reviewed the ASTM standards on reasonable ride
and devices. He also reviewed Ms. West’s testimony
about her experience on the ride. He has been involved
or testified in some thirty roller coaster cases as a
Plaintiff witness and has never appeared as a defense
witness. He testified that he was involved in a “stand-
up” roller coaster case in which a person was ejected
from the ride; that case settled.
Mr. Avery visited the park and rode the Chang one time.
He testified to observing the ride for a period of time,
then taking photographs and video of the ride in motion.
He did not speak to any park employees about the ride,
nor did he follow up on anything he observed that day.
He states that his opinion is based on his experience
riding thousands of roller coaster rides in his life giving
him an understanding of body motion and effect in
similar rides. When asked whether [Kentucky Kingdom]
could operate the ride any differently that it does, he
answered, “Well, no, you cannot vary from what the
manufacturer’s recommendation are [sic] . . . But when
you have operational knowledge [that the ride produces
intense head-banging], you can warn the general riding
public of what they may or may not experience. At least
let them make an informed decision of whether they want
to expose themselves to that kind of intensity.” Avery
Depo. at 52. Mr. Avery conceded that he did not know
with what force a given rider’s head would hit the padded
harness on the Chang during the ride, but he concluded
that the hit could result in an injury: “The rides I’ve been
on and knowing the ride history on a lot of the other rides
– I don’t have the ride history on this particular ride – it
was never produced – to understand what they may or
may not have documented. But from – from the level
and intensity of what I was experiencing, I believe that it
has the potential to result in injury to a certain percentage
of the population under the right conditions.” Avery
Depo. at 48. He also conceded that he had no studies and
knew of no studies that quantified the amount of force it
took to cause Ms. West’s injuries; he stated that his
opinion was based on a “you-know-it-when-you-see-it
type of thing,” and “understand it and understand that –
that – that body motion can result in – in trauma at some
The Court has considered the proffered testimony and
finds it inadequate under any reading of Daubert,
Kumho, or Goodyear to withstand [Kentucky
Kingdom’s] motion for summary judgment. It is
undisputed that Mr. Avery’s ride on the Chang and his
resultant theory of liability was [sic] not subjected to
testing, peer review or publication. There is no error rate
or control technique involved in this case, nor does Ms.
West provide evidence that formulating an opinion on the
sufficiency of a ride’s warning by going on a single roller
coaster ride enjoys general acceptance within the relevant
scientific or technical community.
The lack of Daubert factors is not always fatal, as was
seen in the Ratliff case, supra. There, the Supreme Court
held that the doctor’s own experience, coupled with
published reports concerning cigarette burns, was enough
to allow her opinion into evidence. Here, Mr. Avery’s
own experience, which is extensive, is supported by no
published studies or reports of any kind. Moreover, his
investigation into the Chang leaves much to be desired:
he took no measurements, made no height comparisons
and provided no studies or literature concerning stand-up
coaster versus sit-down coaster head injures. He has no
information about how much force is required to inflict a
head injury; he merely states that bodies in motion
striking an object can lead to injuries. Simply put, Ms.
West has nothing other than Mr. Avery’s word that the
Chang is dangerous and required a stronger warning.
The Court is inclined to agree with [Kentucky Kingdom]
that his testimony can be characterized as “ipse dixit,”
i.e., the opinion is based solely on the assertion of the
expert himself. The “reliability” factor is simply not met
in this matter, and the Court must therefore grant
Summary Judgment as to Ms. West’s remaining failure to
We again note that we review the trial court’s foregoing determination
using an abuse-of-discretion standard. As demonstrated by the trial court’s
detailed and well-reasoned explanation of its rationale for concluding Avery’s
testimony is not reliable, its determination was not an abuse of discretion.
Further, a review of Avery’s deposition testimony discloses that his
conclusions regarding the Chang and its safety are based upon little more than his
exclusively subjective opinion after having observed the ride in operation and
having ridden it but once. Moreover, Avery admitted that he has never formally
analyzed, documented, and researched roller coaster rides; but, rather, he premises
his opinion in this case merely upon having ridden them on numerous occasions.
With respect to this particular ride, Avery was unable to state the acceleration rate,
speed, or g-forces generated during the ride. Nor did he do any calculations or
produce any other documentation in support of his conclusion that Kentucky
Kingdom’s warning was inadequate. And, as noted by the trial court, he admitted
that his opinion was substantially based upon an “I-know-it-when-I-see-it”
Goodyear Tire well illustrates the broad discretion granted to the trial
court in exercising its gatekeeping duties in determining whether specializedknowledge testimony is admissible. In Goodyear Tire, the plaintiff was injured
changing a multipiece tire rim manufactured by Goodyear when the tire exploded.
In support of his theory that Goodyear had negligently designed the rim, the
plaintiff retained Dr. O.J. Hahn. Dr. Hahn held a B.S. degree in engineering
physics, an M.S. in nuclear engineering, an M.A. in mechanical engineering, and a
Ph.D. in mechanical engineering from Princeton University. Since 1973 he had
taught engineering at the University of Kentucky and since 1984 had been a
professor of mechanical engineering at UK. Among the courses he has taught at
UK were engineering safety and engineering experimentation. He was a member
of the Society of Automotive Engineers, American Society for Quality Control,
American Nuclear Society, American Society of Mechanical Engineers, American
Chemical Society, and Kentucky Health Physics Society. He had authored or
coauthored many published articles in various areas of engineering and was a
member of several honorary societies for engineers. His research specialization
was in safety of mechanical systems. He had testified as an expert witness on
multipiece rims in over one hundred cases in forty-nine states and had studied such
rims for over twenty-six years.
Dr. Hahn provided an opinion in the case that the rim was negligently
designed and pointed to alternative rim designs as proposed in a 1938 patent, a
1953 patent, and the technology used in the wheel assemblies of B-52 aircraft. In
excluding Dr. Hahn's testimony concerning Goodyear's alleged negligent design,
the trial court stated in pertinent part:
[T]he court finds the proffered expert lacking.... The
problem I have with the testimony that is proffered by the
plaintiffs [sic] can Dr. Hahn's theory or technology be
tested? Apparently it can. Has it been subject to peer
review and publication? It has not. Further, Dr. Hahn
offered no proof of any widespread acceptance of his
theory or technology. An inference or assertion in a
design case it seems to this court must be derived by
some kind of scientific methodology. Engineering is not
an art. It is a science. It involves principles of physics.
It involves high mathematics. It involves scientific
testing methodology. None of that was offered with
respect to the inquiry today regarding either the expert or
his theory and technology in this case.
Goodyear Tire, 11 S.W.3d at 581.
The Supreme Court concluded that upon application of the abuse-ofdiscretion standard, “it is clear that the trial judge did not abuse her discretion in
excluding Dr. Hahn's testimony.” Id.
Upon comparing Dr. Hahn’s qualifications and analysis in forming his
opinions in Goodyear with those of Mr. Avery in the present case, we can only
conclude that if it was not an abuse of the trial court’s discretion to exclude Dr.
Hahn’s testimony in Goodyear, it clearly was not an abuse of discretion to exclude
Mr. Avery’s testimony in this case.
Upon the exclusion of Avery’s expert testimony, Kentucky Kingdom
is entitled to summary judgment on West’s failure-to-warn claim. Absent expert
testimony, a jury would have no basis for determining that the warning given by
the appellee was inadequate.
In Arguments I.E.1. and I.E.2., West argues that the trial court
erroneously applied Daubert to the opinion stated in the affidavit of Dr. George
Nichols. Dr. Nichols is a former Chief Medical Examiner for the Commonwealth
and is an expert in the area of biomechanics. In his March 26, 2007, affidavit, in
relevant part, Nichols stated as follows:
3. I personally observed the “CHANG” ride at Kentucky
Kingdom. It is also my opinion that the head banging
described by Mr. Avery in his report and my observation
of the ride caused the injuries to Ms. West described in
Dr. Cotugno’s medical report and in my opinion letter
dated August 11, 2005.
4. It is also my opinion from my experience in
biomechanics as Kentucky’s Chief Medical Examiner
that the head banging and stresses described by Mr.
Avery and from my observation of the “CHANG” ride
can cause head injury to patrons riding the “CHANG”
such as those injuries received by Ms. West which poses
an unreasonable risk of harm to patrons while riding the
The trial court did not specifically address Dr. Nichols’ affidavit in its
June 21, 2007, order. However, we note that a crucial underpinning to his opinion
is Avery’s opinion which, as previously discussed, has been properly excluded by
the trial court under Daubert. Moreover, it is clear that Dr. Nichols’ area of
expertise is not broad enough to encompass amusement park safety; as such the
formation of the opinion expressed above – which is based upon the inadmissible
testimony of Avery and the affiant’s mere observation of the ride – is not sufficient
to defeat summary judgment.
Moreover, as the other medical testimony which attributes West’s
injury to the ride is based merely upon her anecdotal representations of her ride
experience – and not the personal knowledge of the physicians – we believe this
testimony, too, is inadequate to defeat summary judgment. Further, Kentucky
Kingdom is not strictly liable as an insurer of the safety of its invitees, Sidebottom
v. Aubrey, 101 S.W.2d at 213, and the medical testimony does not establish that
Kentucky Kingdom breached any duty owed to West upon her failure-to-warn
To summarize, the trial court properly granted summary judgment
upon West’s theories of ordinary negligence in the operation of the Chang,
products liability/design defect, and products liability/manufacturing defect based
upon a complete lack of evidentiary support.
After dismissal of the foregoing, the trial court properly concluded
that the only surviving claim with any evidentiary support at all was the failure-towarn claim. As discussed herein, the trial court did not abuse its discretion in
excluding the testimony of West’s amusement park safety expert, William Avery,
pursuant to Daubert. And upon exclusion of that testimony, West has not shown
there to be a genuine issue of material fact on her failure-to-warn claim as there is
no evidence that Kentucky Kingdom breached its duty to warn West of unknown
dangers under either a premises liability or a products liability theory.
For the foregoing reasons the judgment of the Jefferson Circuit Court
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John K. Carter
John E. Hanley
Lee S. Archer