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Legal landscape could complicate disclosure of what happened at Verrückt

The science behind Schlitterbahn’s Verrückt

Schlitterbahn’s tallest water slide is guided by energy, acceleration and the laws of physics.
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Schlitterbahn’s tallest water slide is guided by energy, acceleration and the laws of physics.

With enough investigation — analyzing records, studying designs, perhaps running wired crash dummies down the ride — experts promise they can learn why a 10-year-old boy died on a water slide.

Whether such an analysis of Caleb Schwab’s death on Schlitterbahn’s towering Verrückt is ever revealed publicly remains far less certain.

Taking yet-to-be-filed lawsuits all the way to trial would be costly, so the most likely outcome figures to be settlements. Such deals typically come with agreements to keep any findings secret.

Settlements are also more probable because of limits the Kansas Legislature put on personal injury and wrongful death cases.

In personal injury cases, the limit for non-economic damages is $300,000. In wrongful death cases, it’s $250,000. Those rank among the lowest in the nation. And in Kansas, punitive damages are hard to obtain for personal injury, and unattainable for wrongful death cases.

Bob Langdon, a prominent Missouri plaintiffs attorney, said he prefers not to try cases in Kansas because the limits mean there’s little to recover for clients and their lawyers after thousands of dollars get spent on trial experts.

“I’m not interested in practicing over there,” Langdon said. “We practice cases all over the U.S. But not in places like that.”

Because Schlitterbahn is a Texas company, Texas law could govern part or all of legal proceedings associated with Caleb’s death. Texas in some instances doesn’t go as far as Kansas in limiting the dollar amounts of jury verdicts.

But if Kansas law applies, the limitations on damages could make a settlement likelier.

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And counterintuitively, the two women injured in a raft with Caleb when he was killed may recover more than the family who lost their son in the Aug. 7 incident.

A legal system geared more to resolution than truth-finding, combined with the state’s minimal regulation of ride safety, puts in doubt the prospect of a public unraveling of the accident’s mysteries.

Kansas City, Kan., police say their role focuses on determining whether Caleb’s death was a crime. If detectives conclude it was an accident, their work stops there — without determining its cause.

The Kansas Department of Labor regulates rides at fixed amusements parks such as Schlitterbahn. But state law dictates that its job ends after checking paper records showing whether the owners paid for yearly inspections from a qualified technician and trained employees to operate Verrückt.

“All we do is look at the records,” said Barbara Hersh, a department spokeswoman. “Did they do their yearly inspections? Did they do their training on the people who are operating it?

“It’s an audit. … Just checking paperwork.”

Cracking the case

Forensic experts who study and often testify in lawsuits over thrill ride accidents speak confidently about the ability to pinpoint what goes wrong.

“The vast majority of the time we’re able to figure out what happened,” said Jamie Williams, a biomedical engineer and accident analyst with Robson Forensic in Lancaster, Pa. “With a complete forensic analysis, we should know completely.”

She and two other forensic experts said in interviews that they would search for clues in the testing that took place in 2014 when the world’s tallest water slide first rose above the Kansas prairie.

The battery of tests run on the slide before it opened, they said, could begin to reveal any danger spots in its fundamental design or show whether the way it was run for two years might have contributed to Caleb’s death.

Those experts also said such cases often lead to new tests. In this case, that might involve running weighted rafts down the slide with accelerometers to better understand what could cause boats to become airborne or lose hold of their passengers.

In addition, the analysts would look for any video — one had tapped an ATM in a previous case for clues — witness statements and police reports. They would study the raft, looking especially at its hook-and-loop restraint belts and trying to determine its inflation levels at the time of the accident.

They would look over the slide, check its water flow rates, hunt for wear and tear, decipher its basic design.

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Williams also said Caleb’s autopsy and accompanying photos could better explain how he was killed, whether the Velcro-style restraint belt did or didn’t leave the sort of marks that would indicate it had held him in the raft.

“I would be looking to see how his body interacted with the harness on that ride,” she said.

Carl Finocchiaro, a principal at Spectrum Forensics LLC in Denver, said that “one of the big things that you always try to find out on an accident like this is whether you’re dealing with a problem with the device or the attraction or an operational error.

“You clearly had one or the other. You may have had both.”

David Collins of Team IX in suburban Los Angeles said that, like Williams and Finocchiaro, he has seen most cases settled before going to court. The documents and deposition testimony compiled before those settlements often remain under court seal to protect a company’s proprietary information or to avoid tainting a potential jury.

Still, Collins said, companies who rework a ride after an accident often reveal in their changes, or in deliberately public explanations, what needed fixing.

“There are times when the owner will say, ‘Oh, we’ll add this and reopen it and change the sign that says you have to be this or that to ride,’ ” he said. “It can come out.”

Although he has never worked for Schlitterbahn, Collins said the company enjoys a strong reputation for following industry safety standards.

Police probe

Kansas City, Kan., police say they’ve become involved in the Schlitterbahn case, as they would in any death, to determine if a crime occurred.

“Anything past that is not part of their investigation,” said department spokesman Cameron Morgan. “If they find there’s no crime attached to this incident, they would not go any further than that.”

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He said the department would ultimately release the first page of its incident report, maybe a press release, but nothing more.

“I don’t see a report coming out,” Morgan said. “Once the investigation’s concluded, we’ll put out a statement of the ultimate outcome of our findings, but I don’t think the details of our findings will be released.”

Yet Max Kautsch, a Lawrence lawyer who performs open records work for the Kansas Press Association, said existing state law allows for the release of fuller police records.

Kansas statutes do allow police to keep some records from public view. But they also allow a court-ordered release of the records if they’re “in the public interest,” don’t interfere with a criminal investigation or prosecution, don’t reveal the identity of a confidential source, don’t unveil confidential investigative techniques, wouldn’t put someone in danger or identify the victim of a sex crime.

Kautsch said revealing more about the Schlitterbahn accident would easily clear the public interest hurdle.

“This is the strongest case ever for the release of these documents,” he said. “How could there possibly, possibly be a justification not to release these records?”

Legal limits

Attorneys for Caleb’s family and for the two women who were injured while riding with Caleb appear headed for litigation.

In statements this week, both sets of attorneys signaled that they were pursuing independent investigations.

The Schwabs are represented by Michael Rader and Edward Robertson of Leawood law firm Bartimus, Frickleton, Robertson. Lynn Johnson and John Parisi with Kansas City firm Shamberg, Johnson & Bergman represent Hannah Barnes and Matraca Baetz, both of whom suffered facial injuries on the ride. Rader declined to comment for this article; Johnson could not be reached.

It’s too early to tell where any potential lawsuit would be filed and what law would apply. Because Schlitterbahn is based in Texas, it’s possible elements of Texas law would apply.

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Texas laws are somewhat friendlier to plaintiffs in these types of cases. For example, there are no caps on non-economic damages in Texas cases that do not involve medical malpractice.

If the lawsuits are governed strictly by Kansas law, the plaintiffs may face certain headwinds.

In Caleb Schwab’s case, the family may sue for wrongful death. Under that scenario, non-economic damages — intangible suffering like pain and anguish for the surviving members of the boy’s family — are limited to $250,000.

While Kansas does not limit economic damages for plaintiffs in wrongful death cases, they’re difficult to recover in cases where a child, who doesn’t earn a wage, has been killed.

Moreover, as a result of a 1993 Kansas Supreme Court’s interpretation of wrongful death laws, plaintiffs cannot attempt to recover punitive damages.

The Schwab family may also file a personal injury claim on behalf of Caleb. That would entitle the family to no more than $300,000 in additional non-economic damages, bringing recovery up to $550,000 if they prevail on both counts.

The family could also pursue punitive damages if their personal injury claims win at trial.

But personal injury claims survive only if a plaintiff can prove that the person who was killed had fear and apprehension of their own death. For example, if someone who was hit by a drunk driver suffers injuries for hours or days before they die, they could establish a personal injury case. If the death is instantaneous, the claim for personal injury fails.

That’s why the circumstances of Caleb’s death may complicate matters in any lawsuit filed under Kansas law. There are some possible legal methods to get around caps on non-economic damages. A 1985 Kansas Supreme Court case allowed children who lost a parent in a medical malpractice case to argue that the loss of the companionship and advice from their parent constituted economic damages. But these so-called Wentling damages, named after the plaintiff in that case, are applied sparingly.

In some ways, Barnes and Baetz stand to recover more in their cases if a jury finds their claims persuasive. As survivors, they could argue for economic damages — medical expenses associated with physical injuries, lost wages and aftereffects of witnessing Caleb’s traumatic death — as well as up to $300,000 in non-economic damages.

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They could also pursue punitive damages. But even punitive damages are difficult to attain and face caps under Kansas law.

Punitive damages depend on several factors. Did a defendant know serious harm could occur from its actions? Did it conceal its misconduct, and for how long? Did the defendant profit from its misconduct? How did it react when that misconduct was uncovered?

“The thing with punitive damages is the bar is set pretty high,” said Callie Denton, executive director for the Kansas Association for Justice.

“If the facts allow you to bring that claim, it’s a separate pleading and it’s a pretty difficult burden. It’s for the worst of the worst. It’s supposed to be punitive. It is not applied equally. Some people are shut out: If there was a very egregious circumstance when somebody died instantaneously, they would not be able to make a claim for those damages.”

The court would also consider the defendant’s financial condition and how much a financial hit would serve as a deterrent to others.

The American Association for Justice, a Washington D.C.-based nonprofit that lobbies on behalf of plaintiffs attorneys, reports that Kansas is among 13 states with limits on non-economic damages that don’t arise from medical malpractice.

New Jersey does not allow for non-economic damages. After New Jersey, Kansas has the lowest caps for such damages, according to Ben Somberg, press secretary for the American Association for Justice.

The Kansas Legislature passed caps on non-economic damages in 1988, when Republican Mike Hayden was governor. That made Kansas one of the earliest states to adopt these caps under tort reform.

Tort reform advocates say limiting damages on hard-to-define concepts such as emotional distress and anguish deters runaway verdicts and makes insurance rates more affordable. That, they contend, creates a friendlier environment for businesses.

In Kansas, jurors aren’t told that they have to limit non-economic damages. Jurors, if they find a plaintiff’s case persuasive, can return a verdict for whatever amount they believe is appropriate. But a judge then whittles it down to the capped amount for the verdict.

Various other state supreme courts have declared that such caps are unconstitutional. The Kansas Supreme Court, however, upheld the constitutionality of the caps in 2012. The Legislature in 2014 passed a measure that increased the caps for personal injury cases to the current $300,000, but left wrongful death caps alone.

While attorneys for the Schwab family and the two other women may employ several strategies to maneuver around the state’s caps, Tom Bender, a trial attorney for Kansas City firm Walters, Bender, Strohbehn & Vaughan, suggests there should be a simpler path in Kansas.

“The best answer,” he said, “is to change the statute so that families can get fair relief in the first instance.”

What has become clearer since the tragic death of 10-year-old Caleb Schwab is that from nearly the moment the Verruckt was proposed in Wyandotte County, its path to completion was all but assured with almost no outside officials casting a critica

Scott Canon: 816-234-4754, @ScottCanon

Steve Vockrodt: 816-234-4277, @st_vockrodt

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