If you’re operating a water park in New England (or, most likely, any other amusement facility for that matter), a recent decision from the Massachusetts Appeals Court just made it easier for you to lose a law suit. Even when I try hard to set aside any "pro-industry" bias I may occasionally have and look at this from a purely objective legal viewpoint, I can only reach one conclusion: Massachusetts got this one wrong. The case’s potential impact on the New England amusement industry really cannot be overstated. So what is the issue? Read on to find out....
The issue is whether a plaintiff can win a negligence lawsuit against a water park without presenting expert testimony to the jury that the water park actually violated industry safety standards. While it is pretty much a given that no juror in an average amusement industry personal injury trial will have any experience operating attractions (even if such jurors were in the jury pool, they would almost certainly be excluded by the plaintiff’s lawyer), Massachusetts has now ruled that such expert testimony is not necessary and that the appropriate operation of a water park is something that the average juror can simply decide on their own.
The case is called Cruz v. Water Country, Inc.. Cruz arose from an injury that occurred on a water slide at Water Country in Portsmouth, New Hampshire. (yes, the park is in New Hampshire, but the ruling implicated Massachusetts law – I won’t bore you with an explanation as to how that works). The plaintiff, Brizeida Cruz, alleged that she was injured when she was hit by another rider as she was exiting the slide. She claimed that Water Country “negligently failed to monitor properly the customer flow on the slide, improperly allowed another customer to come down the slide before she exited, and failed to respond properly to her injuries.” The jury ultimately found in favor of Ms. Cruz, however Water Country moved to have the verdict overturned for a number of reasons, one of which was that Ms. Cruz “should have presented an expert on the applicable industry standard of care during trial.” However, both the trial court and the appellate court disagreed. Specifically, they found:
“The plaintiff did not need an expert on the industry standard of care to ... get her case to the jury. Her claim of negligence was based on the failure of the defendant ... to control the flow, the passage of patrons down a water slide. Her testimony that a large teenager came rapidly down the water slide, collided into her, and caused her personal injury squarely raised the issue of the negligence of the defendant’s staff in monitoring or controlling the way other patrons used the water slide in question. Once the plaintiff presented testimony about the number of staff in the area, their respective duties and responsibilities, as well as their response, or lack thereof, to the accident, the plaintiff needed no expert witness on the standard of care in operating a water park.”
This is a pretty remarkable ruling. How exactly does evidence about “the number of staff in the area” or “their respective duties and responsibilities” allow a jury to assess whether the slide was operating safely? Absent an expert to testify that the number of staff was or was not adequate or that the duties and responsibilities were or were not reasonable to maintain safety, the jury was left to determine that for themselves – a very dangerous proposition. Jurors may believe that a racing body slide, with five slides adjacent to one another, must have an attendant at the top and bottom of each individual slide, whereas the industry standard may not require as many for safe operation. A juror may not believe that a single guard in the splashdown pool is adequate to guarantee safety (not that anyone can ever GUARANTEE safety), regardless of what the industry standard requires. In short, jurors may well have very different views on what is “safe” for a water park operation – and that may or may not be consistent with the industry standard – the very standard with which operators are expected to comply on a daily basis.
The ruling also stands in stark contrast to another decision issued only a week later out of the New Jersey appellate courts – a ruling that reached the exact opposite outcome as in Cruz. In Velasquez v. Land of Make Believe, the plaintiff sued the water park when she was injured after another guest stepped on her foot while running to a bucket dumping water on a play area. Let me say that again – she was injured by another guest who stepped on her foot on a play area. Not a water slide. Not a raft ride. But in a play area - walking around with other guests. And in Velasquez, the New Jersey court found that the plaintiff could not prevail because “expert testimony was clearly required in this case” so that the jury could understand the “standards for the owner’s responsibility for park attractions, minimum criteria for the design, manufacture and construction of aquatic activity areas, and operation and staffing requirements.” The Court found that the jury simply could not be left to determine whether the park acted negligently, noting that “permitting plaintiffs to present their lay opinions as to whether defendants should have operated the park in a particular fashion would plainly invite juror speculation.” This is consistent with other decisions in Kentucky and Mississippi under very similar situations.
So let’s think about this for a second. In a case where a guest was injured exiting a water slide by another guest on the water slide, the court holds that jurors don’t need expert assistance in determining whether the operation was safe. But in another case, where a guest was injured essentially on a walkway by another guest stepping on the plaintiff’s foot, the court says that an expert is absolutely essential to determining safe water park operation. While I think an expert is needed in both instances, I could at least see a plausible way that these cases could have been reversed. After all, someone could get their foot stepped on just about anywhere – there’s arguably nothing overly unusual about this occurring at a water park. But an injury on a water slide? That’s pretty specific and far beyond the normal experience of most jurors.