INSTRUCTIONS TO JURY FLAWED IN THEME-PARK CASE APPEALS COURT SAYS EVIDENCE SHOULD HAVE BEEN WEIGHED.

Byline: Patricia Farrell Aidem and Amy Raisin Darvish Staff Writers

Evidence that African-Americans were more likely to be ejected from Magic Mountain for cutting in line should have been weighed equally with other testimony in a discrimination suit against the theme park, a state appellate court ruled.

In a ruling Wednesday, the state Court of Appeal ruled a lower court judge erred in instructing the jury it was not required to consider data that showed Magic Mountain discriminated against blacks in enforcing its line-cutting policy.

The overturned ruling represents just a portion of the original civil judgment in the 1998 case.

In that case, jurors ruled in favor of plaintiff Danny Everett, who is black, in his lawsuit claiming battery, assault, false imprisonment, malicious prosecution and intentional infliction of emotional distress by Magic Mountain security. But they did not find he was a victim of discrimination.

Everett was awarded $60,000, including $10,000 in punitive damages.

But he appealed, claiming Los Angeles Superior Court Howard J. Schwab's jury instructions were prejudicial. While the Court of Appeal agreed, justices did not rule that the damages Magic Mountain were ordered to pay were subject to change.

Attorneys for the Six Flags California theme park did not return a call seeking comment.

At issue was testimony by witness J. David Foxman, who interviewed Magic Mountain employees, studied attendance records and reviewed 5,000 interview cards prepared whenever there was an incident at the park.

He found that in 1998, African-Americans removed from the park for cutting in line represented 55.7 percent of the total number of park patrons so punished, while African-Americans accounted for just 7.3 percent of park guests overall. The numbers were similar for 1997.

Both sides agree that the findings were ``very unlikely to have occurred as a result of statistical chance,'' according to the appellate court ruling.

Also testifying was David Paland, who worked as a security guard at Magic Mountain for several months in 1999. Paland told the court that classroom training for his job included lessons that ``African-Americans are more unstable, more emotional, more loud, pretty much easy to get irate.'' He said he was trained to confront blacks who had violated the policy against cutting in line only after they got on the ride, raising the chance of irritability.

It was Sept. 26, 1998, when Everett visited Magic Mountain with his wife, sister-in-law, a niece and two of her friends. After spending the day at the park, they decided to ride the Colossus roller coaster one last time before leaving. Everett and his sister-in-law entered the line while the others went to another ride. Fifteen minutes later the other three joined the pair, cutting in line at the handicap entrance, according to court papers.

A ride operator approached them and told them they were not allowed to cut in line. They denied they had and were allowed to proceed. Then at the ride platform, security officers pulled Everett's wife out of the line, then waited till Everett entered the roller coaster before removing him for questioning, according to the court record.

The party was ordered from the park - with some force, according to the record. When Everett yanked his arm from a guard's grasp he hit the guard in the face. Everett was arrested, charged with battery and subsequently acquitted.

Patricia Farrell Aidem, [phone]

pat.aidem(at)dailynews.com