Federal Jury Says Busch Not Liable in $5.3M Sexual Assault Case

By Sam Thrift Thursday, December 15, 2011

A federal jury decided last night that Busch Entertainment Corporation doesn’t owe a penny to three females who sued for $5.3 million, alleging the company failed to teach its employees proper conduct with guests. The verdict came after nearly three days of testimony at the Newport News federal courthouse and two hours of deliberation.

The suit stemmed from the April 2009 conviction of 25-year-old Sandeep Deepak Agarwal, a student from India who was working in the U.S. on a visa when the incident occurred. Agarwal was convicted in a York County Court of two felony counts of aggravated sexual battery on children under 13 and two misdemeanor counts of sexual battery. Agarwal groped four females – two women and two 11-year-old girls – while working on the Water Country ride Malibu Pipeline in August 2008. After 15 months in jail, he was deported back to India.

The plaintiffs - the girls, who are now 15, and a 31-year-old woman - brought the case in front of a federal court asking for compensation for the emotional damage and prolonged treatment needed because of the incident they claim could have been avoided. The suit demanded $5 million in damages and $350,000 in punitive damages on six counts: intentional infliction of emotional distress; negligent infliction of emotional distress; negligence; negligent supervision; battery; and liability for being a "common carrier" on the ride.

The plaintiffs tried to show the jury the extent of the plaintiffs’ injuries and the way the water park was liable for the damages. The three doctors who testified agreed that the victims did not suffer from the Diagnostic and Statistical Manual of Mental Disorders (DSM) definition of Post Traumatic Stress Disorder, but the two doctors for the plaintiffs testified that the victims did have most of the symptoms and were in need of counseling.

“The girls experienced the symptoms even though they were not diagnosed with PTSD,” Dr. William Brockman of the Rock Landing Psychologial Group said. “But the diagnoses in the DSM should be considered as a concept to categorize a issue to help with the treatment rather than the exact diagnoses.”

Busch Entertainment, represented by Willcox & Savage, argued that the victims had issues prior to the incident that made them candidates for counseling and that the sexual assault was not the sole or root cause for their current condition. They attempted to prove this by showing that Elrod visited Busch Gardens four days after the incident – which the defense argued she wouldn’t have done if she suffered an extreme emotional trauma– and the earliest any of the three victims began counseling was eight to nine months after the crime.

Busch Entertainment also spent a large portion of the trial presenting evidence the water park properly trains its employees. Agarwal began training for the Water Country position six days before the incident, during which his then-supervisor Patrick Angle conducted his orientation training. Angle told the court that communicating with Agarwal was not an issue and he was told on multiple occasions that there was to be no physical contact with guests unless they asked for help or were in an emergency situation.

“No one is suggesting that Busch trained their employees to sexually assault,” plaintiffs' attorney Christina James said during closing statements. “But what they did was place and hire people in trusting situations. The people you trust on top of the rides are part of that safety.”

Busch's attorneys said the company was only liable if the jury found that Agarwal was working in the scope of his employment and if the motive of the employee correlates with the corporation's motives.

“If his motives were to serve his employer he would have kept his hands to himself,” Defense Attorney David Bowen said.

After about two hours of deliberation, the jury unanimously voted in favor of the defense.