Adios Amoebas: Water Parks and Premises Liability

By Michael GrossmanAugust 14, 2017Reading Time: 5 minutes

If you run a business, you'd better know what it takes to make sure your customers have a safe and satisfactory experience there. There are genuine accidents--things nobody could possibly have seen coming--and then there are incidents that likely could have been avoided with appropriate levels of pre-emptive caution. For example: If you run a water park, the water you pump through it had better remain clear of bacteria and other infectious microscopic life. Otherwise, injury or death might strike your trusting patrons. One such incident occurred last year in North Carolina, and the family of the infected park visitor has filed a wrongful death suit.

Here's What We Know.

18-year-old Ohio woman Lauren Seitz visited a water park in North Carolina with her church group on June 8, 2016. The sprawling 1,300-acre U.S. National Whitewater Center boasts a variety of outdoor options including rock climbing, hiking, and of course whitewater kayaking and rafting.

While rafting on the park's lengthy waterways, Seitz's raft overturned, briefly but completely submerging her in the park waters. She resurfaced fine and continued with the trip, but days after returning home she began to suffer sinus congestion and headaches. The symptoms increased to the point that she required hospitalization. While under medical care, she was diagnosed with the Naeglweria fowleri amoeba.

Naeglweria fowleri is commonly found in warm freshwater rivers, lakes, and soil. An infection by the amoeba is quite rare (between 1962 and 2013 there were only 132 known cases), but if contracted it almost always proves fatal. It's contracted when water is inhaled, after which it infects the sinus cavity, then makes its way to the brain through the olfactory (nose) nerve. Once it reaches the brain, it begins primary amoebic meningoencephalitis (PAM). Essentially, it "eats" the brain, which swells to try and fight the infection. There's not a lot of room for swelling inside the skull, and the results tend to be fatal.

A day after her Naeglweria diagnosis, Lauren Seitz died of her infection. According to subsequent tests conducted at the park, its filtration and disinfection systems were inadequate to keep the water clean, creating a serious risk of infection for anyone who might be submerged including staff and visitors. The Seitz family is now suing Whitewater Center and Recreation Engineering and Planning of Boulder for "showing a conscious disregard for the safety of visitors." The suit alleges that the park failed to maintain appropriate water temperature, as well as maintaining chlorine levels only a tenth as strong as they needed to be to ensure guest safety. Given these lapses, the park should at least have warned visitors about possible dangers in the water, such as bacterial or amoebic infection. It did not do so.

There Is So Much Negligence Here.

The logistics of running an enormous activity complex and water park have to be very complicated. Surely in the midst of all those administrative headaches, though, certain things are understood to be paramount concerns:

  1. Keep the equipment intact. Maintenance of 1,300 acres of fun is serious business. There's a lot of ways people could get hurt, so those possibilities have to be reduced as much as possible. Rocks must be firmly attached to the climbing walls, boats should be leak- and hole-free, hiking trails should be well-marked and tended, and the zip lines can't sag or fray.
  2. Keep the environment clean. If your park's name includes the word "water," people will expect to splash around. Go full-bore on keeping your water as clean as possible. Chlorine stinging visitors' eyes is infinitely better than amoebae in their brains.

I know I'm oversimplifying. I'm definitely right, though, that these issues demand major attention at any public attraction. It's not asking too much that they keep equipment in safe operating condition and the environment free of infectious hazards. In fact, it's a legal requirement of operating most businesses that they minimize known risks to paying visitors.

It's possible that USNWC only learned the inadequacy of its systems due to this tragedy, because toward the end of 2016 it seems to have updated its water purification systems.

Is This Defensible?

Going virtually anywhere comes with a fractional degree of risk, but it's offset by the knowledge that the owners and operators of the destination will likely have done everything possible to make your stay enjoyable and safe. Restaurants cook food thoroughly so it doesn't poison hungry patrons, hockey games put walls between sports fans and flying pucks, and (most) water parks sanitize the bejeezus out of their rides and pools. It's not rocket science--barring some very specific instances that aren't discussed in polite company, people don't go places hoping to be injured. If unwilling parties are hurt, though, there's a few states in the Union that aren't really on their side, including the one that hosts the U.S. National Whitewater Center.

As it does in just three other states and D.C., civil law in North Carolina operates on the principle of pure contributory negligence. Under that model if a plaintiff is even one percent responsible for her injuries, she is barred from any recovery. Ignoring further details, USNWC might be able to defend itself by saying that Lauren Seitz fell in the water from her raft, thereby creating the circumstances that allowed the amoebic infection. Defense could allege that if Seitz had been more careful on the vessel, she wouldn't have been immersed.

That falls apart because plaintiffs' attorneys shouldn't have too hard a time convincing a jury that the water park entirely failed to maintain a reasonable level of safety for its attendees. In instances where willful or wanton negligence has occurred, defendants are no longer able to argue that plaintiffs' actions contributed to the accident.

Naeglweria fowleri is often found in warm water sources and seldom takes its fatal toll, so maybe it was considered a negligible risk and nobody saw fit to raise the chlorine levels. Here's the thing, though: You can't dump only a tenth of the needed chlorine into your water without knowing you're screwing something up. That's too wide a difference between what should happen and what does happen. Doing 10% of the preventative work says you either don't understand the scale of the problem or you don't care, which is absolutely willful negligence. That thinking probably won't fly once the term "brain-eating amoeba" is introduced.

We're Back Where We Started.

I opened with an admonition to park owners and operators that they'd better keep a tight rein on their attractions, and I'll close with the same. USNWC's commerce may continue at a fairly brisk clip; the American public's memory isn't particularly long, and people (myself included) love zip lines and kayaks. A death on their premises and a judgment against them in court could create an indelible blot on their record, though, and no matter how many people turn up, more probably would have without a preventable fatality on the books.

From a more human standpoint, no one should ever be comfortable running a facility where something like this could happen to a visitor. While I'm aware that the amoebae in question are in all kinds of warm bodies of water, the park was caught in an act of negligence by under-treating their rapids, and a teenager suffered the consequences of that negligence. In a move somewhere between reparative and tactless, the facility then announced measures to increase water safety...and all it took to motivate that change was a human life. Per the known facts, I genuinely hope the Seitz family receives justice for their loss.