The lawyer for the family of the woman who died after falling from the Texas Giant last year says Six Flags Over Texas had a test seat in its possession for several years before the fatal accident, but it wasn't until after Rosa Esparza’s death that the park put a test seat in place.
"It was presented as though that's a new idea by Six Flags," said Frank Branson, the Esparza family attorney, who is suing both Six Flags Over Texas and Gerstlauer, the German manufacturer of the ride.
Esparza plunged more than 70 feet to her death last July after falling from the Texas Giant. The ride then closed until September 2013 when it was re-opened with added safety measures including seatbelts and re-designed restraint-bar pads. At that time the company also announced it was "providing a coaster seat at the ride entrance so guests can test their fit prior to entering the ride line."
But Branson says Gerstlauer actually delivered a test seat to Six Flags in late 2010.
"We recently found out that it was not only not being used, it was being stored," he said. "They made a conscious decision not to use that safety device to provide Ms. Esparza safety."
But in a statement to NBC 5 Investigates Consumer Unit today Six Flags spokeswoman Sharon Parker said the test seats "are about line speed and guest service" rather than a safety feature.
"Even where we have demo seats, we do not force each person to sit in them, although they may cause some number of people to not stand in line. Riders are evaluated at the ride itself, each and every time," Parker said.
Six Flags said ride operators are there to ensure safety by evaluating riders. The company has repeatedly said safety is its highest priority.
Kenneth Broughton, Gerstlauer's attorney, confirmed a test seat was delivered in 2010.
"I don't know if Mrs. Esparza would have failed the test seat test or not. I just don't know that," Broughton said.
And he questioned why Six Flags wouldn't use one until after the fatality.
"It was a surprise," Broughton said. "Again you assume if you order something and it's available for use that it would be used."
Esparza's lawyer blames both Six Flags and Gerstlauer for the accident. Six Flags and Gerstlauer are now embroiled in their own legal battles denying liability for the accident and blaming each other.
After a hearing today in Tarrant County court, the head of Gerstlauer will have to come to the United States for a deposition next month.
The trial is set for early next year.