In a case we wrote about almost six years ago, Westchester County and the owner of the “Mind Scrambler” ride at Playland have agreed to settle the wrongful death case of the late Gabriela Garin, a 21 year old Playland employee who was killed on June 29, 2007. On the date of the accident, Ms. Garin was working as one of the operators of the Mind Scrambler ride, and purportedly stood up on the back of the seat without being buckled in when the ride began. Ms. Garin was thrown from the ride, and died shortly thereafter. Her family disputed the account of the fatal accident.
Several years earlier, a 7 year old girl was also killed on the Mind Scrambler ride. In all, there have been four fatal accidents at Rye Playland over the last 8 years, including the case of Jon-Kely Cassara, a 7 year old boy who died on the “Ye Olde Mill ride on August 3, 2005, when he got stuck under the boat in a dark tunnel and drowned. The County has added a second operator to observe riders prior to the Garin accident to improve safety of the ride, but it was reported at the time that there was a County rule that no employees were to be on the ride while on duty; it was also reported that she was on duty when the accident occurred. After the Garin accident, the Mind Scrambler was removed from the park.
Under the terms of the settlement, Ms. Garin’s estate will receive a total settlement of $700,000. The settlement proceeds will be paid by the County of Westchester, who will contribute $275,000, and the owner of the Mind Scrambler ride, S & L Amusement Corp., which will contribute $475,000 toward the settlement. Ms. Garin had a two year old daughter, had worked at Playland for 7 years and was a student at Westchester Community College.
It is very unusual for a case in Westchester County, unlike the Bronx with its huge caseload, to last six years before resolution by settlement or trial. It is possible that there were appeals that needed to be decided prior to the settlement, and also possible estate issues. The usual amount of time in a personal injury case in Westchester County from the date of an accident to the conclusion of litigation is approximately two years.
The Westchester County Board of Legislators must approve the settlement before it can proceed to completion. In his argument for approval of the settlement, Westchester County Attorney Robert Meehan stated: "At trial, the plaintiff will argue, and a jury may believe, that both the county and S & L share a portion of responsibility for plaintiff’s accident. Plaintiff will also argue that although the county neither owned or operated the Mind Scrambler, the county nevertheless made changes, including the addition of a second ride employee to observe ride operation, to improve safety and should have taken measures to ensure that S & L employees were properly using the newly installed safety features.” Interestingly, it has been my experience that the County usually adopts a more hard line approach in what are known as “assumption of risk” cases, in which the argument is made by the defendant that the plaintiff was engaged in a high risk activity, such as in this case standing up on the ride and not bucking her seat belt, and has therefore “assumed the risk” of injuries or death by engaging in the risky activity. There was a famous case called Maddox v. City of New York, et. al. in the 1980’s which highlights the occasionally very unfair result of the “assumption of risk” defense. Elliott Maddox, who was a centerfielder for New York Yankees in 1975 (and playing at Shea Stadium while Yankee Stadium was being renovated) suffered a very serious right knee injury on a wet and muddy outfield which ultimately led to three knee surgeries and the end of his career. Maddox had reported the conditions to both the grounds crew and the manager, but certainly wasn’t in a position to demand that he be removed for the game. However, the Court of Appeals, the highest Court in New York, felt otherwise, and declared that because Maddox knew of the risks of a wet and muddy field, and continued to play, he could not bring a claim for his career ending injuries against the City of New York, the owners of Shea Stadium and miscellaneous other defendants.