Madison County Circuit Judge Dave Hylla has denied Grafton Zipline Adventures’ motion dismiss a suit filed by a woman allegedly injured at the facility’s “Barn Burner” run last October.
Hylla declared the defense motion moot in light of granting plaintiff’s motion to file a first amended complaint.
Plaintiff April Dodge originally filed suit Feb. 15, claiming she was injured when her foot struck a tree trunk at the base of a zip line run. She claims she suffered a broken right heel bone and had to undergo surgery to fix the fracture.
In an amended complaint filed May 3, Dodge added claims of willful and wanton conduct on the part of the company and its employee Michael Quinn saying they acted with reckless disregard for the safety of patrons.
Grafton Zipline and Quinn responded to the complaint last month saying the plaintiff’s claims are barred by an “exculpatory agreement she signed prior to engaging in the ziplining activity.”
Dodge, represented by Jamie L. Boock of Bossiter and Boock in St. Louis, argued against the defense motion to dismiss saying the exculpatory agreement is not enforceable as a matter of law.
“First, zipline courses are statutorily defined as common carriers and as a matter of Illinois public policy, common carriers cannot exempt themselves from liability for their own negligence,” Dodge’s response states.
“Second, the Illinois Legislature has indicated an intention to prohibit the use of exculpatory agreements in the operation of amusement rides by statutorily requiring all amusement ride operators to maintain liability insurance for the bodily injury or death of patrons.”
Dodge also states that Illinois case law holds that a party cannot enforce an exculpatory agreement that purports to waive liability for its own willful and wanton conduct.
According to the complaint, Dodge claims she was unable to brake her descent as she approached the course’s platform. She claims she attempted to brake as instructed by Quinn, but despite her best efforts, the system failed.
Dodge approached the landing platform at a high rate of speed and Quinn was unable to stop her, her suit says. She claims she has been permanently scarred and disfigured and has been caused to suffer fear, stress and anxiety.
She seeks a judgment of more than $50,000.
Jason D. Johnson of HeplerBroom in Edwardsville represents Grafton Zipline Adventures and Quinn.
In Hylla’s May 3 order, he indicated defendants must respond to the first amended complaint with 21 days.
Plaintiff would have 21 days to respond if defendants file a new motion to dismiss. And, defendants would have 14 days to file a reply in support of their motion to dismiss.
Madison County case number 13-L-238.