342-268034-13

CAUSE NO. 342-26803413

FILED TARRANT COUNTY 3/5/2014 5:09:19 PM THOMAS A. WILDER DISTRICT CLERK

AMADO ESPARZA, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE ESTATE OF ROSY ESPARZA; ANTONIO ESPARZA; ANTONIO ESPARZA JR; ARNOLDO ESPARZA; ARACELY ESPARZA SEGOVIA; INDIVIDUALLY AND AS A/N/F OF ABRAHAM SEGOVIA; AND RONAL SEGOVIA, Plaintiffs

VS. SIX FLAGS ENTERTAINMENT CORPORATION; SIX FLAGS THEME PARKS, INC; TEXAS FLAGS, LTD; GERSTLAUER AMUSEMENT RIDES, GMBH, Defendants

IN THE DISTRICT COURT OF

TARRANT COUNTY, TEXAS

342ND JUDICIAL DISTRICT

DEFENDANT/CROSS-DEFENDANT GERSTLAUERS ORIGINAL ANSWER AND SPECIAL EXCEPTIONS TO SIX FLAGS CROSS ACTION Defendant/Cross-Defendant Gerstlauer Amusement Rides, GMBH (Gerstlauer) files this Original Answer and Special Exceptions to the Cross-Action by Defendants Six Flags Entertainment Corporation, Six Flags Theme Parks, Inc., Texas Flags, Ltd., and Six Flags Over Texas, Inc. (the Six Flags Defendants or Six Flags) and in support thereof shows: I. GENERAL DENIAL 1. Gerstlauer asserts a general denial pursuant to Rule 92 of the TEXAS RULES
OF

CIVIL PROCEDURE, and reserves the right to amend its pleadings before trial of this cause on the merits, and to present specific denials and special exceptions to Six Flags Original Cross Action, as well as affirmative defenses, and other pleas and defenses as authorized by law.

US_ACTIVE-116544069.2-AMHOLGUI

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II. AFFIRMATIVE DEFENSES A. Six Flags Caused the Accident 1.

FILED TARRANT COUNTY 3/5/2014 5:09:19 PM THOMAS A. WILDER DISTRICT CLERK

The Six Flags Defendants have pointed a finger, but all fingers point right back to

them: (1) Six Flags failed to exercise reasonable care in their hiring, training, and supervision of the ride operators, supervisors and other personnel on duty on the date of the accident; (2) the Operator in question failed to properly perform the push-pull test in violation of ride instructions and rules and improperly permitted the ride to depart the station with the lap bar in an incorrect position; (3) Six Flags personnel also violated several written policies by not activating the Emergency Stop button at their fingertips when a Six Flags employee observed that Ms. Esparzas lap bar was too high as the train left the station; (4) Six Flags failed to exercise reasonable care regarding the inspection, maintenance, and operation of the Texas Giant at the relevant times; (5) Six Flags failed to use the test seat provided to them by Gerstlauer upon delivery more than 2 years prior to the accident which had a red light indicating that a passengers size was inappropriate for the restraint system. Six Flags only began using this system after the accident; (6) Six Flags failed to comply with 2.4 (Airtime) contained in the Typical Ride Manufacturer Verbiage provided by Gerstlauer to Six Flags; (7) the trains were delivered to Six Flags over two (2) years before the accident and Gerstlauer had no control over the operation and maintenance of the trains for two (2) years before the accident; (8) Six Flags failed to post and broadcast adequate warnings and instructions in Spanish; (9) Six Flags was heavily and integrally involved in the design, specification, testing, and installation of the trains; (10) the Six Flags Defendants are themselves designers of the trains and reviewed, inspected and approved of the trains design before installing and placing the trains into service.

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2.

Gerstlauers participation in the design and manufacture of the

FILED TARRANT COUNTY 3/5/2014 5:09:19 PM THOMAS A. WILDER trains was not DISTRICT CLERK

defective or unsafe in any manner. Gerstlauers production and delivery of the trains adhered to Six Flags specifications and design requirements, and the trains were placed into service only after Six Flags had exhaustively reviewed, tested and approved the trains and their design. 3. This accident was caused solely by the failure of Six Flags own personnel to

follow the ride and safety instructions and rules issued both by Gerstlauer and by Six Flags and for failing to stop the train before it left the station when Six Flags personnel observed that Ms. Esparzas restraint bar had not been pushed all the way down. Consequently: (1) Six Flags operation of the trains at the time of the accident was negligent; (2) Six Flags has unclean hands; and (3) the accident was avoidable by Six Flags at several levels including at the time the Six Flags operator failed to push the restraint bar all the way down as required by Gerstlauers Rules and Instructions and moments later when the Six Flags Supervisor observed that the restraint bar was too high on Ms. Esparza and did not push the emergency stop button on the control panel. B. Six Flags Insisted on No Seat Belts 4. Six Flags has stated publicly that the ride is safe after the addition of incremental

and overlapping safety measures that included redesigned restraint-bar pads and new seat belts.1 However, Six Flags expressly designed and specified in writing that there be no seat belts on the trains for the Texas Giant. In other words, Six Flags ordered Gerstlauer not to put seat belts on the trains. Six Flags cannot now claim that Gerstlauers design contributions were defective when, in reality, the trains were designed according to Six Flags specifications.

Six Flags Blames Roller Coaster Company for Fatal Texas Giant Accident, Dallas Morning News, 2/17/2014.

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C. Six Flags is Estopped from Denying it was Negligent 5.

FILED TARRANT COUNTY 3/5/2014 5:09:19 PM THOMAS A. WILDER DISTRICT CLERK

Six Flags has expressly adopted the factual allegations in Plaintiffs Amended

Petition in its pleadings.2 Plaintiffs have alleged in their Amended Petition that Six Flags failed to meet the standard of care with regard to the inspection, maintenance, and operation of the rise. Six Flags adoption of these claims is a judicial admission by Six Flags that Six Flags itself was the wrong-doer. Because Six Flags has unclean hands and its Cross-Action is groundless and brought in bad faith, Six Flags Cross action against Gerstlauer is barred as a matter of law. D. Six Flags Cross Action is Legally and Factually Deficient 6. Six Flags reliance on TEX. CIV. PRAC. & REM. CODE 82.002 is incorrect as a

matter of law. The Six Flags defendants are not sellers under 82.001, and even if they were sellers Six Flags wrongdoing would bar any recovery from Gerstlauer in this matter. 7. As detailed in Gerstlauers Cross-Claim against Six Flags, if Six Flags were a

seller then Six Flags would be liable to Gerstlauer for indemnity and contribution. III. SPECIAL EXCEPTIONS TO SIX FLAGS CROSS-ACTION 8. Gerstlauer specially excepts to Six Flags Original Cross-Action as follows: (1)

Six Flags factual allegations are vague and ambiguous. Six Flags has failed to specify how the trains were supposedly defective or supposedly unreasonably dangerous in design, manufacture, distribution or promotion. (2) Six Flags legal allegations are vague and ambiguous. Six Flags cites Chapter 82 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE but does not specify any specific provisions authorizing the relief requested. (3) Assuming Six Flags relies on 82.002, this section provides that (a) [a] manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the sellers
2

Plaintiffs Amended Petition is adopted by reference for the specifics of these allegations as against CrossDefendant and Cross-Plaintiffs. See Defendants Original Cross-Action filed February 14, 2014, page 2.

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negligence []. Id. But this is clearly not applicable because the Six Flags

FILED TARRANT COUNTY 3/5/2014 5:09:19 PM THOMAS A. WILDER Defendants are not DISTRICT CLERK

sellers of Gerstlauers trains. See e.g., Sells v. Six Flags Over Tex., Inc. 1997 U.S. Dist. LEXIS 23747 (N.D. Tex. 1997) (amusement park not a seller for purposes of strict liability); Siciliano v. Capitol City Shows, Inc., 475 A.2d 10 (N.H. 1984) (amusement ride is a service, not a product); Allen v. Nicole, Inc., 412 A.2d 824 (N.J. Super. Ct. Law Div. 1980) (amusement ride operator is more a consumer of equipment than a seller). Second, even if Six Flags were sellers their claim would fail because Six Flags negligencenot Gerstlauers trainswas the cause of the accident. See Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 255 (Tex. 2006) (noting that Chapter 82 indemnity claimant must be innocent of wrongdoing). IV. PRAYER For these reasons, Cross-Defendant Gerstlauer GMBH prays that Cross-Plaintiffs Six Flags Entertainment Corporation, Six Flags Theme Parks, Inc. and Texas Flags, Ltd. take nothing by their Original Cross-Action against Gerstlauer, that Six Flags Original Cross-Action be dismissed with prejudice, and that Gerstlauers Special Exceptions be granted in all respects and for such further relief to which it may justly be entitled.

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Respectfully submitted REED SMITH LLP

FILED TARRANT COUNTY 3/5/2014 5:09:19 PM THOMAS A. WILDER DISTRICT CLERK

By: /s/ Kenneth E. Broughton Kenneth E. Broughton State Bar No. 03087250 Arnd N. von Waldow PA Bar No. 56628 Francisco Rivero State Bar No. 24046725 Michael H. Bernick State Bar No. 24078227 811 Main Street, Suite 1700 Houston, Texas 77002-6110 Telephone: 713.469.3819 Telecopier: 713.469.3899

David Keltner State Bar No. 11249500 KELLY HART & HALLMAN Wells Fargo Tower 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Telephone: 817.332.2500 Telecopier: 817.878.9760

ATTORNEYS FOR DEFENDANT /CROSS-DEFENDANT GERSTLAUER AMUSEMENT RIDES GMBH

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CERTIFICATE OF SERVICE

FILED TARRANT COUNTY 3/5/2014 5:09:19 PM THOMAS A. WILDER DISTRICT CLERK

In accordance with the TEXAS RULES OF CIVIL PROCEDURE, I hereby certify that a true and correct copy of the foregoing instrument was served on the following counsel of record on this 5th day of March, 2014: Bryan T. Pope Paul W. Tipton Carlos Lopez VINCENT LOPEZ SERAFINO JENEVEIN, P.C. Thanksgiving Tower 1601 Elm Street, Suite 1400 Dallas, Texas 75201 Frank L. Branson Quentin Brogdon Eugene A. Chip Brooker, Jr. THE LAW OFFICES OF FRANK L. BRANSON, P.C. Highland Park Place 4514 Cole Avenue, Suite 1800 Dallas, Texas 75205-4185

/s/ Kenneth E. Broughton Kenneth E. Broughton

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