Munoz v. Six Flags St. Louis, LLC

670 S.W.3d 239

Carly MUNOZ, Appellant,

v.SIX FLAGS ST. LOUIS, LLC d/b/a Six Flags St. Louis and John/Jane Doe, Respondents.

No. ED 111118

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: June 20, 2023

John G. Simon, Erica B. Slater, Megan A. Crowe, 800 Market Street, Suite 1700, St. Louis, MO 63101, For Appellant.

Timothy B. Niedbalski, Timothy R. Tevlin, 600 Washington Avenue, 15^th Floor, St. Louis, MO 63101, Timothy C. Sansone, Co-Counsel, 120 S. Central Avenue, Suite 1600, Clayton, MO 63105, For Respondents.

OPINION SUMMARY

SHERRI B. SULLIVAN, J.

Introduction

Carly Munoz (Munoz) appeals from the grant of summary judgment in favor of Six Flags St. Louis, LLC d/b/a Six Flags St. Louis and John/Jane Doe (collectively Six Flags) on Munoz's negligence claim. The trial court granted Six Flags’ motion for summary judgment based on assumption of the risk due to the nature of the event, i. e., actors scaring guests during the park's annual Fright Fest. Munoz appeals the trial court's ruling, alleging she was denied her right to trial by jury where there are factual disputes regarding the cause of the injuries she sustained during the event. We affirm.

Factual and Procedural Background

On October 19, 2019, Munoz attended Six Flags’ Fright Fest with her cousin. Before attending Fright Fest, the Six Flags’ annual Halloween-themed event, Munoz understood characters in the park would try to scare her. She knew and appreciated she would get surprised, startled, scared, and frightened and also understood people could have different and unpredictable reactions whenever they got surprised, frightened, startled, or scared.

On the day of her injury, Munoz arrived at the park with her cousin around 8:00 p.m. and her injury occurred around 11 p.m. In that three-hour period before her injury, Munoz had seen and encountered characters in the park who tried to scare and startle her. On at least 10 different occasions, she also saw characters interact with other guests and she saw guests scream and sometimes run after they encountered the characters. Everything Munoz witnessed in the hours before her injury was what she expected to occur at Fright Fest. She never expressed feeling uncomfortable, unsafe, or in danger, and in fact was having fun and did not want to leave.

Munoz recalled she was injured while she was walking toward the Mr. Freeze ride when a clown jumped out in front of her "out of nowhere" and started "chasing" after 10-15 other guests in that area, and then everyone in that area started to run. However, when asked to explain specifically what occurred, Munoz testified the clown was actually only six feet away from her when it popped out and moved toward her when she turned and ran away. Munoz confirmed she never actually looked back to see if the clown was "chasing" her. Munoz believed it was about 10 seconds after she started running that she tripped on a curb and injured herself. Similarly, Munoz's cousin testified she did not perceive the clown to be interacting with them. Munoz's cousin believed the clown to be "fast walking" or running toward another group of people near them. Munoz's cousin did not know if the clown actually made any movements or actions toward them before they started running. Munoz's cousin, like Munoz, never looked back to see if the clown was "chasing" them before Munoz's injury.

On August 27, 2020, Munoz filed her lawsuit against Six Flags¹ in which she alleged defendant Doe (a still-unidentified individual), "dressed as a frightening clown[,] appeared and purposefully scared a crowd of approximately fifteen to twenty people." She further alleged Six Flags or its employee Doe "failed to conduct actor activities in a safe manner," including failing to "cease chasing guests once a group of guests began stampeding," failing to warn of or maintain a safe premises free of "dangerous stampedes of people," and failing to direct or train actors in a manner that kept guests safe.

On August 15, 2022, Six Flags filed its motion for summary judgment, arguing an implied primary assumption of the risk barred Munoz's alleged negligence claims against Six Flags. Specifically, Six Flags argued it could not be held liable because Munoz's injury arose out of the very acts and occurrences she knew about, expected, and personally witnessed while at Fright Fest before her injury. Therefore, the risk of being injured by running away after being frightened was inherent in Munoz's decision to attend and remain at the event.

On October 12, 2022, the trial court granted Six Flags’ motion finding 1) there was no evidence the scare actor actually chased Munoz, and 2) the scare actor's actual movements were immaterial because Munoz was injured by actions she knew about and expected when she attended Fright Fest. The trial court found "characters at Fright Fest are expected to take action to frighten patrons, and [Munoz] testified that is what she expected." The trial court further found the summary judgment record was not sufficient to establish the scare actor was negligent; rather, the record showed Munoz voluntarily exposed herself to the inherent risks she knew before attending the event, which included risks related to her own actions or reactions, and those of other guests, associated with running. This appeal follows.²

Standard of Review

Our review of summary judgment is essentially de novo. Reddick v. Spring Lake Est. Homeowner's Ass'n, 648 S.W.3d 765, 773 (Mo. App. E.D. 2022). We will affirm the trial court's grant of summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. ; ITT Comm. Fin. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993) ; Rule 74.04(c)(6).

A material fact is one from which the right to judgment flows. Green v. Fotoohighiam, 606 S.W.3d 113, 115 (Mo. banc 2020). A defending party may establish a right to judgment by showing "(1) facts negating any one of the non-movant's elements; (2) that the non-movant, after an adequate period of discovery, has not been able and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the non-movant's elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense." Ferbet v. Hidden Valley Golf and Ski, Inc., 618 S.W.3d 596, 603 (Mo. App. E.D. 2020). To establish a genuine issue of material fact, the non-moving party must show "the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." Almat Builders and Remodeling, Inc. v. Midwest Lodging, LLC, 615 S.W.3d 70, 78 (Mo. App. E.D. 2020) (describing a genuine issue as one that is "real" and not merely "argumentative, imaginary or frivolous."). "Conclusory allegations are not sufficient to raise a question of fact in summary judgment proceedings. Additionally, mere speculation does not create a genuine issue of material fact; rather, the record must demonstrate factual questions that would permit a reasonable jury to return a verdict for the non-moving party." Day Advertising, Inc. v. Hasty, 606 S.W.3d 122, 134 (Mo. App. W.D. 2020) (citing Midwest Coal, LLC ex rel. Stanton v. Cabanas, 378 S.W.3d 367, 374 (Mo. App. E.D. 2012) ). In reviewing the grant of summary judgment, we view the record in the light most favorable to the non-moving party and give the non-moving party the benefit of all reasonable inferences. McNearney v. LTF Club Operations Co., Inc., 486 S.W.3d 396, 399 (Mo. App. E.D. 2016).

Discussion

In her sole point on appeal, Munoz argues the trial court erred in granting summary judgment in Six Flags’ favor, claiming there was sufficient evidence to create a genuine dispute as to whether Munoz impliedly assumed the risk of participating in the themed event where guests are frightened because the court failed to consider the interactions of Munoz with the scare actor, which were not inherent to the activity. Alternatively, Munoz contends even if she assumed the risk of falling and injuring herself by attending the event, Six Flags increased or altered that risk when the scare actor chased after the group surrounding Munoz. We disagree on both grounds.

The implied primary assumption of the risk doctrine states "if a person voluntarily consents to accept the danger of a known and appreciated risk, that person may not sue another for failing to protect him from it." Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo. banc 2014). The participant "is deemed to have assumed the risk of injury from the inherent risks of an activity that are known and understood." Ferbet, 618 S.W.3d at 606. "When the risk arises from the circumstances (e.g., from a condition on the defendant's property or the inherent nature of the defendant's activity), ‘implied primary assumption of the risk’ completely bars recovery by a plaintiff who knowingly and voluntarily encounters that risk." Coomer, 437 S.W.3d at 192 (citing Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 711-12 (Mo. banc 1990) ). The defendant is not liable "for injuries stemming from such inherent risks because no duty is owed as to those risks." Ferbet, 618 S.W.3d at 606 (quoting Coomer, 437 S.W.3d at 197 ). However, the defendant "still owes a duty of reasonable care not to alter or increase such inherent risks." Id. (quoting Coomer, 437 S.W.3d at 197-98 ). Inherent risks are "structural or involved in the constitution or essential character" of the activity in question; they are something "belonging by nature or settled habit." Coomer, 437 S.W.3d at 202. A "particular risk cannot be ‘structural’ or ‘involved in the constitution or essential character of something’ one day but not the next." Id. at 201. "Once a risk is determined to be ‘inherent’ in something, it will remain so until there is a fundamental change in that...