Decisions of Interest

David McCosker v. Hershey Entertainment & Resort

Supreme Court, Suffolk County, Index No. 27393/05

Plaintiff, a patron at Hershey Park, claimed he was caused to slip and fall on a puddle of water as he exited the water slide. Plaintiff was barefoot, had just stepped off the water ride, and testified that he knew the ground around the slide would be wet. Plaintiff, a New York resident, brought the action in New York.

We moved for summary judgment on the grounds that Pennsylvania law is applicable as the defendant was domiciled in Pennsylvania, the incident occurred in Pennsylvania, and the plaintiff voluntarily entered onto defendant's premises in Pennsylvania. Under the rule of lex loci delecti, when a defendant's conduct occurs in its domicile state and that state would not impose liability, the defendant should not be exposed to liability under the law of the plaintiff's domicile state. We further argued that plaintiff assumed the risk inherent in the activity in which he participated and that the defendant owed no duty to plaintiff to warn or protect him from risks inherent in participating in amusement park activities.

The court granted our motion and dismissed the complaint. The court found that Pennsylvania law should apply, as set forth above. The court also ruled that defendant did not owe plaintiff a duty to warn him of a wet surface surrounding a water slide. The injury arose from a risk that was “common, frequent and expected”. There was no showing by plaintiff that there had been a failure by defendant to exercise reasonable care in the management of its facility.