Does an amusement park operator owe a duty of care against injury from a fall on a ride whose risk of falling is obvious and is the very feature of the attraction, such that a patron who voluntarily participates assumes that risk and cannot recover absent a showing of a defect or negligent operation?

Steeplechase Amusement Company operated an amusement park at Coney Island that included an attraction called "The Flopper," a moving belt on an inclined plane on which passengers sat or stood. Many riders could not keep their footing and were thrown backward or aside. The belt ran in a groove with padded walls four feet high on either side and padded flooring beyond the walls at the same angle as the belt. An electric motor powered it.

Plaintiff, a vigorous young man, visited the park with friends, watched other patrons fall on the ride, and then stepped onto the moving belt behind his future wife. He felt what he described as a sudden jerk and was thrown to the floor, fracturing his kneecap. His wife testified that she "took a chance" and that the party stood watching the sport before joining. Plaintiff alleged the belt stopped and started violently and suddenly, was operated at a fast and dangerous speed, and lacked a proper railing or guard. The defendant's evidence showed power was transmitted smoothly. Approximately 250,000 visitors used the ride annually, and no serious injuries had previously been shown. Plaintiff also testified he fell on wood rather than padding, which photographs and defense witnesses contradicted.

Plaintiff sued Steeplechase Amusement Company for personal injuries. The case was tried at Trial Term and submitted to the jury on the theory that the defendant's negligence consisted of a sharp and sudden jerk of the belt. Plaintiff obtained a judgment, which the Appellate Division affirmed. The defendant appealed to the New York Court of Appeals.

(Cardozo, J.)

Yes. A patron who voluntarily participates in an amusement whose risk of falling is obvious and inherent assumes that risk and cannot recover for injuries resulting from a fall, absent a showing of an unobvious defect or negligent operation.

The evidence did not support a finding that the belt was out of order. It was already moving when plaintiff stepped on it, and his characterization of a "jerk" was merely a description of the sensations of a tense and crowded moment, not proof of a mechanical aberration. The defendant's evidence showed power was transmitted smoothly and could not be transmitted otherwise.

Even if the jerk were established, it added little because the greatest risk, whether the movement was uniform or irregular, was a fall. That was the very hazard invited and foreseen. Volenti non fit injuria: one who takes part in such a sport accepts the dangers inherent in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust or a spectator at a ball game the chance of contact with the ball. Lumsden v. Thompson Scenic Ry. Co., 130 App. Div. 209. The name "Flopper," the sight of tumbling riders, and the plaintiff party's own admission that they took a chance showed the danger was obvious.

A different case would arise if the dangers were obscure or unobserved, so serious as to imply precautions must have been taken, or if accidents had been so numerous as to show the game too dangerous to continue. None was shown here; some quota of minor accidents among 250,000 annual visitors is expected, much like skaters falling at a rink. Plaintiff's testimony that he fell on unpadded wood, if true, might show an unobvious defect, but the case was not tried on that theory and the bill of particulars did not allege it. The judgments are reversed and a new trial granted.

Dissent (O'Brien, J.) Dissents on the authority of Tantillo v. Goldstein Brothers Amusement Co., 248 N.Y. 286, without giving separate reasoning. The majority cited Tantillo as a case where the dangers were obscure or unobserved and treated that situation as different from this one.