About Me

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I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Friday, June 1, 2012

A Slippery Slope? Massachusetts Just It Made It Easier For New England Waterpark Operators To Lose A Lawsuit


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. 

So at the end of the day, what does this all mean? Well, in short, it means that Massachusetts just got a lot more plaintiff-friendly for water park (and probably amusement park) claims. While it is not especially difficult for a plaintiff to find an expert to say just about anything that needs to be said, it is expensive. For that reason, plaintiffs in jurisdictions that require expert testimony are more amenable to settlement to avoid the potentially high cost of an expert witness at trial. Massachusetts litigants, however, now have no similar concerns. After Cruz, Massachusetts plaintiffs can simply point to their injury and blame the park (and, no doubt, its teenage employees) without having to prove that the park’s conduct actually violated any kind of safety standard. Moreover, given that a substantial number of New England facilities advertise in and attract guests from the entire region, including Massachusetts, the ruling in Cruz should be concerning for owners and operators throughout the area. The Cruz decision may give a potential plaintiff a good reason to try to sue a facility, located in Connecticut or Maine, in a Massachusetts court – at which point, like Water Country found out, it would be subject to Massachusetts law on some things – like the necessity for expert testimony – that will make it much more difficult to prevail.

4 comments:

  1. Well, to play devil's advocate for a sec, why on earth should the "industry standard" be determinative? After all, if it is required to show that the park violated the industry standard, you have essentially made that an element of the claim.

    But I don't see what's wrong with Massachusetts having their own standard--they're not required to accept what the industry does. And, for something like negligence, it is customary too leave to a jury to decide what constitutes "reasonable care."

    Now, obviously, the industry standard is RELEVANT to that determination. No question. Therefore, the defense can present evidence to that effect, and argue that the park followed the industry standard, that standard is reasonable for this and that reason, and therefore plaintiff loses. But ultimately, the whole point of the jury system is to have the common sense of the jurors be the final arbiter.

    In short, your argument has as an unspoken premise that the industry standard of care is reasonable, and must be accepted as such. I challenge that premise, and without that premise, your conclusion that the plaintiff MUST present expert testimony to establish that the park violated that standard in order to prevail would collapse.

    Good post though, it lays out the issue well, I jsut don't have the problem that you do with the jury using their own standard of what constitutes reasonable care.

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  2. Ahhh...Vic ... I love a good debate! I will absolutely agree that Massachusetts is not required to accept what the industry does. In fact, they are relatively notorious for exactly that.

    However, putting that aside, I don't think I'm arguing that the jury would have be required to accept that a park that complied with industry standards is not negligent. I'm only saying that operation of a waterpark is so far outside the common experience of jurors that the Plaintiff should be required to present some expert testimony that a standard of care was breached - which is an element of the claim. If the Plaintiffs' evidence is presented it will undoubtedly be rebutted by the defense and then the jury can determine who is right. But the jury shouldn't be able to come up with the appropriate standard on their own, regardless of whether the defense puts on its own expert. The jury should not be able to choose between their own view and the defense's view.

    To me, its a matter of burden of proof. As you know, the plaintiff has the burden of proving his or her case - including the applicable standard of care. In a specialized field, that generally requires expert testimony. We don't let juries decide medical or legal malpractice cases without expert testimony (in most jurisdictions), why is the operation of complex machinery or facilities any different? Juries don't know squat about what is or is not appropriate for safe operation and it is unfair to the defense to impose liability without some evidence from the Plaintiff that the park did anything wrong. The injury itself is not enough. While the defense can put on their own expert, they shouldn't have to if the Plaintiff fails to establish a breach of the standard of care.

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  3. Now, I might be mistaken, as this is outside my practice area and thus I'm trying to bring up 11 year old memories from law school, but I thought that the standard for a negligence action is ordinary care. You mention med mal and I think it is different because medical malpractice is a specific claim with specific elements that are different from ordinary negligence. BUt I don't think anyone is suing a park for "park malpractice"--they are generally suing for negligent causation of injuries.

    Medical malpractice (and legal malpractice, etc . . .) have separate claims due to the fact that they are highly technical and highly regulated fields, to a greater degree than the amusement park industry. Therefore, under those circumstances, legal liability is tied to the legally mandated practice standards. Running a park, although I'm sure a regualted industry, is not the same thing. (I know of no legal requirements for advanced degrees, exam passage, etc . . . to run a waterpark, the way there are for lawyers and doctors, but please correct me if I'm wrong, as my only experience with amusement parks is spending money at them.)

    Now in practice, I can see lots of individual cases where a plaintiff would need to use an expert to prove that what the park did was careless and dangerous, and therefore the judge would toss the case on summary judgment without expert testimony (such as claims that, for example, too many people were put onto the roller coaster such that it exceeded safe weight toleraces---I don't see how you could make out the elements there without expert testimony).

    As the elements of a negligence action are that the defendant breached a duty of ordinary prudence or care, that is (at least in some circumstances) provable without experts. That's what ordinary care means--the care an ordinary person would use under those circumstances. To take the case you cite (which I have not read, I'm going by your summary), an ordinary person exercising reasonable prudence would know that if you send the second person down right after the first, the second could crash into the first and injure her. By contrast, an ordinary person exercising reasonable prudence would not know what dose of anaesthetic to use for an operation (to take a medial malpractice example). Or to take a silly example, if the ride operator drinks a whole bottle of tequila (that was provided by management) during his shift, and then the operator took off all his/her clothes and danced naked on the controls, an expert would not be necessary to determine that this falls below what an ordinary person exercising reasonable prudence would do.

    (in that case, however, if I were the judge, I would require expert testimony JUST BECAUSE IT WOULD BE FUNNY. "So, Mr. Expert, does drinking a whole bottle of tequila while operating a ride violate industry standards? What is the industry standard protocol vis a vis naked operators dancing on the controls? Would it matter if they were dancing to Abba, or the Village People?")

    Anywho, I have a bit of a bias against requiring experts for anything, as it implies that the jury cannot determine the issues itself. While that is true in many circumstaces, it just does not seem to be the case for ALL claims against an amusement park.

    Regarding your point about the burden of proof, it comes down to what is required to be proven. Obviously the plaintiff has all the burden. But if the standard is ordinary care, that will (often, but not always) be provable without expert testimony. We all, every day, operate dangerous machinery (like cars), deal with crowds, and provide for our own safety, and it is that knowledge that is relevant here. If the jury is not required to accept the industry standard as sufficient (which you concede), I don't see why the plaintiff should be required to prove a violation of it, as the plaintiff's case might well be that the park followed the industry standard but the industry standard ain't good enough.

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  4. We'll undoubtedly have to agree to disagree on this one - as is usually the case with lawyers :). But... just to address some of your points.

    1. The standard in any negligence claim, including med mal and legal malpractice, is ordinary care. The question though is: how do you determine what "ordinary care" is? Is it the ordinary care taken by "the reasonably prudent person" or the ordinary care taken by "the reasonably prudent person in the same industry or profession." With respect to your average run of the mill slip and fall or car accident case, the former is clearly the standard to apply since keeping a floor dry or operating a vehicle is within the purview of the average juror without any special assistance. However, for more specialized claims, like malpractice claims, courts have determined (rightly I think) that it is unfair to measure the defendant's conduct against a juror's personal experience since there are a lot of things jurors just don't know. The solution is to require the plaintiff to put on an expert to help the jury understand and define the standard of care. While conceivably the jury can listen to that testimony and reject it, such testimony (particularly when rebutted by the defense) frames the issue for the jury and, as a practical matter, gives the jury some parameters to apply. It narrows the universe of possibilities to something that both sides can deal with in the evidence.

    2. The regulated nature of the amusement park industry is actually a big part of the reason that other courts have required expert testimony. Operating an attraction or a facility with innumerable safety issues and extensive government regulation is a complicated task and courts like those in New Jersey (but not Massachusetts) have recognized that the complexity of the regulatory scheme requires expert testimony. While there may not be specialized degrees or exam passage required, there are plenty of other legal requirements in most states that facilities have to contend with - all of which the jury should be required to take into consideration and none of which will the average juror understand without help.

    3. I tend to agree that your example on the water slide might be a case where expert testimony was not required. As you noted, even in a med mal case, there is a certain line that, when crossed, the Plaintiff does not need an expert to prove negligence. For example, I don't think you would need an expert in a case where the evidence shows that a dentist cut off your toe while putting in filling. That would be so far and away obvious, an expert wouldn't be necessary. By the same token, if the evidence were that a slide attendant allowed two guests to go down one right after the other, injuring the first, that might be a case where an expert would not be required. However, I don't think that Cruz was that case (at least its not clearly that case). What about the situation where the park followed all its rules and standards for interval dispatches, but the second person still struck the first? I think that calls for a more nuanced look at the applicable standard and a jury is not equipped to make that specialized determination. As you can tell, I have a bit of bias against jurors (and plaintiff's lawyers) being permitted to impose altogether unheard of standards on defendants (but that is no doubt a product of my practice).

    4. We can agree on one thing: Your tequila example .... HILARIOUS! I laughed out loud at the picture in my head. And I agree, as long as its not one of my clients, that would be some pretty entertaining testimony. Thank you for giving me a vision that, regardless of how hard I try, I cannot forget.

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