The Appellate Division recently upheld a Law Division decision granting summary judgment for a theme park in New Jersey in which plaintiff chose not to support her allegations of various forms of negligence with an export report, but rather on theories of Res Ipsa Loquitur (Latin for “the thing speaks for itself’), and common knowledge. In Stella Bomtempo v. Six Flags Great Adventure LLC, plaintiff alleged that she sustained personal injuries as a result of riding one of the park’s new attractions at Hurricane Harbor, the “Tornado.” Plaintiff further alleged that defendant was negligent in failing to properly inspect and/or maintain the premises, amusement rides, and all components thereof.
The issue on appeal was whether summary judgment was properly granted in favor of defendant after the trial court held that plaintiff lacked the necessary expert testimony to establish defendant’s standard of care. The trial court also declined to consider plaintiff’s post-discovery affidavits (one by plaintiff and one by her husband) which asserted for the first time that upon finishing the ride, the raft they were using had deflated.
In negligence actions, plaintiffs are ordinarily not required to prove the applicable standard of care when the duty would be considered “common knowledge.” However, where common knowledge is insufficient to establish a defendant’s duty, plaintiffs must produce expert testimony regarding the appropriate standard of care and the defendant’s deviation from that standard. The Appellate Court found the record in the present case demonstrated that operation and maintenance of the attraction at issue was not common knowledge, but instead required a thorough comprehension of the attraction’s standard operating procedures, which were designed to comply with guidelines established by the American Society for Testing and Materials. As such, expert testimony was required to establish the applicable standard of care.
Plaintiff’s attempt to establish negligence under the theory of Res Ipsa Loquitur was also rejected by the Appellate Court. Res Ipsa Loquitur allows a jury to infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved. The Appellate Court opined that negligence in the present case was not plainly evident because plaintiff cannot point to any specific malfunction which caused her injuries. The Court held that Plaintiff’s allegation that the raft skimmed off the surface of the ride without any further evidence that such an event is not supposed to occur, does not bespeak of negligence.