A patron of an amusement ride was injured on the ride. The patron sued the owner/operator in negligence on two different theories. One theory pled that the owner/operator owed the patron the duty of ordinary care. The other theory pled that the owner/operator owed the duty of highest care because the ride was a ‘common carrier’ like a commuter train or an elevator. ‘Common carriers’ are such because the carrier offers entry to all who apply for passage and patrons have no discretion to exercise control over the course of the ride or their own safety. The defense attacked the ‘common carrier’ allegation. The ride did not accept all comers and that the patron had discretion, during the ride, to do things to control the course and safety of the ride.
The amusement park posts signage limiting entry to some but not all of the public, forbidding rowdyism or offensive speech, political or otherwise. The individual ride required patrons meet a height and weight requirement, discouraged those with back or neck medical treatments from taking the ride and the operators gave each patron instructions about where to sit and how to hang on. Once underway, the patron could direct the course of the ride by shifting weight alone or in concert with other patrons on the ride.
The court found that the ride was not a common carrier and that the owner/operator owed patrons only the duty of ordinary care. The ride was not open to the public at large and the patrons could choose to be a passive or an active participant of the course of the ride.