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Amusement Park Doctrine and How It Applies to Landlords in Tennessee

The “amusement park doctrine” was developed by the Tennessee Supreme Court in 1945 in Gentry v. Taylor, 185 S.W.2d 521 (Tenn. 1945). In Gentry, the Tennessee Supreme Court announced the rule that the liability of the owner or lessor of an amusement park is limited to circumstances in which a least one of the following factual elements exists: (1) An interest more or less direct and substantial in the presence of the visitor, as, for instance, a participation in the profits of the operation; (2) An exercise of, or retention of, the right to exercise supervision and control of the operation; (3) A holding out to the public of a representation of ownership interest or control tending to induce patronage; (4) An operation of instrumentality or device, although by a lessee, so inherently dangerous in construction or operation as to charge the owner-lessor with responsibility for continuing supervision and exercise of ordinary care, in application of the nondelegable duty doctrine. Gentry, 185 S.W.2d at 222-23.

A good illustration of the “amusement park doctrine” – as developed by Gentry – is Lyons v. Wagers, 404 S.W.2d 270 (Tenn. Ct. App. 1966). In the Lyons case, the plaintiff was injured when she fell from the amusement park ride called the “Merry Mixer” located at “Funland” in Oak Ridge, Tennessee. Lyons, 404 S.W.2d at 272-73. Among the defendants sued was Oak Ridge Properties, Inc, who was the lessor of the premises on which the lessee operated “Funland” and upon which the “Merry Mixer” was located. Id. On appeal, the lessor of the property argued that it could not be held liable for the injuries because it was merely the lessor of the property. Citing Hartman and Gentry, the Court of Appeals held that Oak Ridge Properties could be held liable because it retained control over the leased premises and the activity thereon and participated in the profits.

Specifically, the court based its opinion on the fact that, in the lease between lessor and lessee, the lessor: (1) retained “the veto power over the type of rides to be operated in ‘Funland’,” which if defective or operated improperly would be “patently dangerous” to patrons; (2) retained the right to “go on the premises to examine the equipment and to make any necessary repairs or changes deemed necessary”; (3) participated in profits through its entitlement to “20% of gross sales in excess of $500.00 per month”; and, (4) its requirement that lessee “cooperate in the promotion of the shopping center in its operation and advertising of ‘Funland’.” Id. at 273, 275.

Although a review of Tennessee case law has not yielded any more recent cases that have expressly applied the “amusement park doctrine” as to a lessor’s liability, it is presumptively still controlling law in Tennessee. Moreover, many other jurisdictions have applied similar doctrines. See, e.g. McCordic v. Crawford, 142 P.2d 7 (Cal. 1943) (lessor of property who authorized lessor to operate amusement rides is liable for injuries to third parties where lessor received a portion of the gross receipts and profited directly from lessor’s business); Davis v. Atlanta, 66 S.W.2d 188 (Ga. 1951) (city, lessor, was liable for injuries to third parties resulting from lessor’s use of property for amusement purposes where lessor “did not absolutely part with control of the premises” so it must inspect the premises to ascertain whether the premises was safe for the uses for which they were intended); Frear v. Manchester Traction, Light & P. Co., 139 A. 86 (N.H. 1927) (lessor of property was liable because lessor advertised and invited plaintiff to the premises and, therefore, was under a duty to exercise due care to see that a ferris wheel was safe); Engstrom v. Huntley, 345 A.2d 461 (Pa. 1942) (owner of property upon which amusement park was operated was charged with duty to exercise a reasonably careful supervision over actions of lessor since lessor invited the public to become patrons of the amusement park); Goettee v. Carlyle, 22 S.E.2d 854 (Ga. App. 1942) (owners/lessors of land were not liable to plaintiff because proof showed that they merely leased it to the operator of a motor scooter track, and were “mere landlords” to the lessors who constructed the track and landlords had no notice of the track being defectively made or being in disrepair); Kuhn v. Carlin, 76 A.2d 345 (Md. 1950) (lessor of land upon which “loop-the-loop” ride was operated was not liable because lessor did not participate in profits and only received rent from the land); Classen v. Izquierdo, 520 N.Y.S.2d 99 (Sup. 1987) (boxing facility: the proprietor of a facility where a fatal boxing match occurred was not vicariously liable for negligence of referee in permitting match to or of ringside physicians because the proprietor did not participate in the selection of the referee or ringside physicians and did not provide them with training, instruction, or supervision); Kreil v. County of Niagra, 8 A.D.3d 1001 (N.Y. App. 4th Div. 2004) (hammer throwing competition: county department of parks and recreation owed no duty to supervise a hammer throwing competition at a county park, and thus could not be held liable for injuries to spectator).

Based on the foregoing, there is significant authority in Tennessee and elsewhere that would suggest the lessor of commercial property is not liable to third parties for injuries occurring where the lessor does not participate in receiving profits, does not retain the right to inspect and/or repair equipment, does not advertise and invite patrons directly to the lessee's establishment, and where the amusement devices are not so inherently dangerous so as to impute a nondelegable duty upon the lessor of the property.