Busch Gardens in Tampa, Fla.
ST. PETERSBURG, Fla. - A boy who was injured after bouncing off a circus trampoline at Busch Gardens isn’t entitled to $5.3 million in damages because he wasn’t supposed to be there in the first place, a Florida appeals court ruled.
A trial judge erred by finding the 12-year-old was a “business invitee” to the Howl-O-Scream event at the theme park, the Second District Court of Appeal ruled Sept. 9. His status switched to uninvited guest or trespasser when he entered an empty theater, climbed onto the stage and jumped on the trampoline, the court found in reversing the trial verdict as well as $375,000 in fees awarded to his lawyers.
Asmaa Abougamal sued Busch Gardens Tampa Bay a few months after her son A.M. suffered permanent abdominal injuries from his fall from the trampoline during the Halloween event in 2022. A.M. and a friend entered a theater where there had been a Cirque X-Scream performance earlier through an unlocked door around midnight. Over the friend’s warnings, A.M. jumped on the trampoline and after several bounces fell off, landing on his face on the floor.
The boys exited the theater and A.M. told his mother he had slipped on the stairs. Busch Gardens employees recorded the incident without being told A.M. had actually fallen off the trampoline. During the trial, a lawyer for the plaintiffs got a Busch Gardens employee to acknowledge A.M. wasn’t trespassing when he entered the theater, but later mischaracterized that testimony to suggest A.M. never trespassed.
The difference is important: Under the common law of tort, property owners owe a higher duty of care to invited guests than trespassers. The jury was instructed that A.M. was an invitee and handed down a verdict of $8.2 million, reduced to $5.3 million after subtracting 35% responsibility attributed to A.M. and his mother. The plaintiff’s lawyers were awarded fees because Busch Gardens rejected a settlement offer before trial.
Busch Gardens moved for a directed verdict because A.M. had trespassed and the theme park had more than 20 illuminated signs warning visitors to not to touch the props or engage in “horseplay.” The company said there were no prior instances of visitors jumping on the trampoline. Asked during the trial if she knew the rules, Abougamal said: "Of course. I read the rules and I always advise my son to follow the rules."
Hillsborough County Judge Melissa M. Polo rejected Busch Gardens’ request, saying “The only undisputed evidence is that he bought a ticket to the amusement park, entered for purposes connected with the property owner.”
That was a double error, Judge Anthony K. Black wrote. Not only was Busch Gardens entitled to a verdict in its favor, but by ruling the way she did, Judge Polo effectively entered a directed verdict for the plaintiffs on the central question of A.M.’s status as a visitor. Busch Gardens could only be found liable if it caused “willful or wanton harm” to a trespasser.
“No reasonable person would believe that the ticket to Howl-O-Scream constituted an invitation onto the elevated performance stage and professional trampoline, nor should A.M.'s actions have been reasonably anticipated,” the court ruled.
The plaintiffs were represented by Morgan & Morgan, while Busch Gardens was represented by Rumberger, Kirk & Caldwell.
