SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-708-00T2
MAUREEN SCHAEFER and
JERRY SCHAEFER,
Plaintiffs-Appellants,
v.
CEDAR FAIR, L.P., incorrectly
named as DORNEY PARK &
WILDWATER KINGDOM,
Defendant-Respondent.
Submitted January 30, 2002 _ Decided
February 27, 2002
Before Judges King, Wecker and Winkelstein.
On appeal from Superior Court of New Jersey,
Law Division, Hunterdon County, L-411-97.
Levinson Axelrod, attorneys for appellants
(John J. Schwarz, on the brief).
Post & Schell, attorneys for respondent (Jay
A. Gebauer, on the brief).
The opinion of the court was delivered by
WINKELSTEIN, J.A.D.
Plaintiffs Maureen Schaefer and Jerry Schaefer, her husband,See footnote 11
appeal a judgment of no cause for action entered after a jury
verdict in favor of defendant. Schaefer was injured while riding
on a water slide in Dorney Park and Wildwater Kingdom in Allentown,
Pennsylvania.
Plaintiffs seek a reversal of the judgment and a new trial.
The issues presented are (1) whether the trial judge committed
reversible error by admitting evidence of the absence of other
accidents on the water slide, and (2) whether the jury's verdict
was against the weight of the evidence. In Wymbs v. Tp. of Wayne,
163 N.J. 523 (2000), the Court permitted, under certain conditions,
evidence of prior accidents as substantive evidence of a dangerous
condition. This case addresses whether the trial judge may permit,
after evidence of prior accidents has been admitted, evidence of
safety history .. a lack of prior accidents .. to exculpate a
defendant from liability. We conclude that once evidence of prior
accidents is admitted to prove a dangerous condition, it is within
the discretion of the trial judge to allow evidence of no prior
accidents to refute the allegations. Here, the trial judge
properly exercised his discretion to allow evidence of the water
slide's safety history. We find no reversible error and affirm.
I
On July 14, 1997, plaintiffs filed a two-count complaint in
the Superior Court, Law Division, Hunterdon County. The complaint
sought damages from defendant Dorney Park & Wildwater Kingdom for
injuries Schaefer sustained on Monday, August 28, 1995, while using
the park's Lightning Falls water slide. Plaintiff Jerry Schaefer
sought damages for loss of consortium. The pleadings were
subsequently amended to reflect that Cedar Fair, L.P., was the
proper name of the defendant-owner of the park.
On June 9, 2000 plaintiffs filed a notice of motion for
rulings on their objections to certain videotaped testimony of J.C.
Hunsucker, defendant's liability expert. On the day trial
commenced, July 10, 2000, Judge Bernhard heard argument and ruled
on plaintiffs' objections. Most relevant to the appeal, the judge
overruled plaintiffs' objections concerning Hunsucker's reference
to the lack of prior accidents on the water slide and permitted
testimony that Schaefer's accident was the only one of its kind to
occur on the water slide on which she was injured. At the end of
a five-day trial the jury found defendant was not negligent. The
court entered an order of judgment dismissing plaintiffs' claims
with prejudice. Plaintiffs' motion for a new trial was denied.
The following testimony was produced at trial. Schaefer and her family were patrons of Dorney Park & Wildwater Kingdom when she decided to ride the Lightning Falls water slide. Schaefer testified that as she emerged from the chute, or flume, into the splash pool which lay beneath the slide, her left foot struck the bottom of the pool. She testified: "[I]mmediately my left foot turned underneath me and smashed on the hard surface of the .. of the bottom of the pool . . . . I heard the crack instantly. Within a second I heard my foot crack underneath me, and [I] instantly [experienced] severe, severe pain." Schaefer sustained fractures of three bones in her left foot and ankle, and required surgery to repair the fractures. Her treating orthopedic surgeon testified that Schaefer's injuries are permanent and the "scarring associated with the surgery, the swelling and widening of the foot and pain will continue."
Schaefer, her husband, their brother-in-law, and the Schaefers' adult daughter Kelly, all testified that the water level in the splash pool was low on the day of Schaefer's accident. The witnesses explained to the jury that the water in the splash pool came up to approximately mid-thigh level when they stood in the pool. A tape measure used at trial showed a distance of thirty- three to thirty-eight inches from the floor to the point on their bodies where they recalled the depth of the water. The Schaefers testified that rather than skimming along the water, they "dropped" into the splash pool upon exiting the chute. Jerry Schaefer estimated the drop between the end of the chute and the water in the splash pool was "probably a foot and a half to two feet, maybe a little more." Schaefer's estimate that the water level in the splash pool was too low was based on a "feeling" she got when she dropped, not on a visual observation, as she never looked back at the chute after she entered the splash pool. Schaefer and her husband also testified that on the day of the accident the water from the splash pool was not flowing over the steps of the splash pool into the adjoining Lazy River.
Without objection, plaintiffs presented two witnesses who had previously been injured on the Lightning Falls water slide. Eugene Musselman testified the water level in Lightning Falls' splash pool was twelve to eighteen inches below the level of the chute when he used the water slide on June 25, 1994. He said he "dropped" as he exited the chute. He said when he hit the water in the splash pool he did a "backflip" off of the inner tube and his right foot hit the bottom of the splash pool, cutting his right toe. He testified: "I came down the water chute and when I hit the water I flipped backwards and something rough on the bottom [] of the pool[, and] cut my - right toe." His testimony concerning the distance between the bottom of the chute and the water level of the splash pool was challenged on cross-examination. When questioned by defense counsel at trial about why he testified at his deposition that it was a two-foot drop, not a twelve to eighteen inch drop as he stated at trial, Musselman replied, "[i]t was my . . . guesstimate." He also testified that while he reported to the park first aid station where he was treated for his injury, he did not mention that the splash pool water level was low.
Becky Zierold testified that in July 1995, while riding down Lightning Falls, the tube slipped out from underneath her while she was still in the chute; she hit the back of her head on the chute, and then, upon exiting the chute, she "just dropped." She also reported her injury to park personnel at the first aid station, as was reflected in the first aid log kept by the park. She recalled a one-foot gap between the end of the chute and the water in the splash pool on the day of her accident. Aside from the happening of the accidents themselves, no explanation was provided for either the Musselman or Zierold incidents.
William Poznak, P.E., a licensed engineer, testified for plaintiffs. He stated that the water slide was not being operated properly because the "differential between the chute and the water level was too much." His opinion was based in part on the industry standards contained in the U.S. Department of Health and Human Services Suggested Health and Safety Guidelines for Recreational Water Slide Flumes, which provides that flumes [chutes] should terminate either below the water surface or "no more than 2 inches above the water surface." Poznak opined that defendant had violated this standard on the day of Schaefer's injury by allowing the water level to be "approximately eighteen to twenty-four inches below the chute." Poznak also testified that on the day of the incident, the water level at Lightning Falls violated Dorney Park's own safety manual which provides: "The proper level of water in the splash pool should be maintained at the same level as the mouth of the exit flume. . . . This item is extremely important and should be constantly monitored." Poznak also referred to another section of the manual which provides:
On all . . . waterslides, . . . the water must be maintained at the same level as the mouth of the exit flume. This water level should be monitored very closely, particularly during peak hours, as the water level will decrease due to rider carry out and evaporation.
FAILURE TO MONITOR THE WATER LEVEL FACTOR MAY PRESENT A HAZARD TO GUESTS ENTERING A POOL THAT IS TOO SHALLOW. IT ALSO PRESENTS A DROPPING ACTION WHICH DIRECTS THE RIDER'S FEET TO THE BOTTOM CAUSING INJURY RATHER THAN A SKIMMING ACTION ACROSS THE POOL AS DESIGNED.
Poznak explained this is precisely what happened to Schaefer and is what this portion of the safety manual was designed to prevent.
The defense witnesses described how the ride operated, and contradicted plaintiffs' witnesses' testimony that the water level in the splash pool was one to two feet below the bottom of the chute when Schaefer was injured. According to the testimony of Joseph Minninger, the Dorney Park Director of Operations, the Lightning Falls water slide was placed in operation in 1989. Three separate chutes flow from a tower into the splash pool. The splash pool itself is forty-five feet long, fifty feet wide and four feet deep; it contains approximately 60,000 gallons of water. The chute in which the user travels down is a "standard" forty-eight inch tube which exits into the pool. Water is pumped in and riders sitting on inner tubes are discharged, from a tower, approximately fifty feet above the water, along a stream of water down the chute into the splash pool. When the riders leave the chute and enter the splash pool, while still sitting in the inner tubes, they are supposed to skim across the pool without their feet touching the bottom of the pool. Signs are placed on the ride instructing patrons how to sit in the inner tube and ride the chute into the splash pool.
Over plaintiffs' counsel's objection, Minninger testified that since Lightning Falls opened in 1989, 200,000 patrons rode Lightning Falls per year, and no one was injured by dropping into the splash pool because the water level was too low as claimed by Schaefer. His information was based on records that had been kept in the park since the ride opened. Minninger explained that the splash pool was designed with three sides that are eighteen inches above the water level and one side that is two to three inches below the water level. This design causes the water to flow constantly over the steps on the low side of the pool into the adjoining Lazy River. While water is flowing over the steps, the water in the splash pool remains forty-eight inches deep; and when the water depth is forty-eight inches, the surface of the water is level with the bottom of the slides. Minninger conceded that the park had no written documentation confirming the water level, nor did he have any specific recollection of the water level on the date of Schaefer's accident. However, Minninger was at work on the day of the incident, and it was his habit to check to see if the water was flowing over the back of the steps; he was confident the ride was working properly on the day of Schaefer's accident. Minninger testified that when water is flowing down the slides (which it was at the time of Schaefer's accident), he has never seen the water level in the Lightning Falls' splash pool below the bottom of the slides, nor has he ever seen the water in the splash pool not flowing over the steps into the Lazy River.
Not only did Minninger inspect the water level in the splash pool on a daily basis, but so did maintenance personnel, lifeguards and the lifeguards' supervisors. Lifeguards at Dorney Park were trained to monitor water flow and to notify their supervisors of any noticeable change. Two lifeguards and a roaming supervisor were assigned to the splash pool area.
Finally, Minninger described a videotape which was shown to the jury. He explained that, as depicted on the videotape, other than the five minutes it takes for the empty splash pool to initially fill with water, it is mechanically impossible for the slide to operate in the manner depicted by plaintiffs' witnesses, because the ride will not continue to operate when the water level in the pool is eighteen to twenty-four inches below the mouth of the chutes, or without water flowing over the back of the steps into the Lazy River.
Hunsucker's videotaped deposition was shown to the jury. He described how "the steps at the end of the catch pool serve as a natural dam to contain water in the catch pool." The water flows over the steps into the Lazy River from where it is recirculated. The water that ultimately exits over the steps "is the main source of water return" for the slide. He explained why it would not be possible for the ride to operate continuously without the water flowing over the back of the steps into the Lazy River. If the water were to stop flowing into the Lazy River, not only would the pumps "suck the river dry," but the water would have nowhere to go. With 6,000 gallons of water per minute flowing into the pool, it was not possible for the slide to operate with the water level eighteen to twenty-four inches below the end of the chute as plaintiffs' witnesses testified, because if the water level is this low, it would not flow over the steps and be recycled to the top of the ride; at this point, the ride would cease to work.
Hunsucker also testified that Schaefer's accident was the only one of its kind to occur on this particular water slide. In response to a question on cross-examination asking him if he was ever provided materials that gave a compilation of reported incidents of injury on the Lightning Slide, he responded "[t]he incident rate was one." He reached this conclusion based on information he received that "this was the only incident of this type that they had on this flume."
Edwin Walters, the park's maintenance foreman, also had no specific recollection of the water level on the date of the accident. However, the maintenance log, which is kept in the normal course of business at Dorney Park, indicated he was the individual who performed the inspection on Lightning Falls on the date of Schaefer's accident. Had the operation of Lightning Falls been abnormal that day, it would have been noted in the log. The August 28, 1995 log did not indicate anything unusual with the ride prior to its opening that day, nor were any repairs done to the Lightning Falls slide during the course of the day. Based on this information, Walters concluded that the splash pool was "full of water" at the time of his morning inspection on the day of the accident.
Walters corroborated Hunsucker's and Minninger's testimony that it is mechanically impossible to operate the ride with a water level eighteen to twenty-four inches below the slide or when the water is not flowing over the steps. He testified that when all three slides were operating in the Lightning Falls water slide, as they were on the day in question, more than 6,000 gallons of water per minute flow into the splash pool; when the water flows down the slides, it has nowhere to go but over the back of the steps.
We first address the evidence issue. Plaintiffs argue the jury verdict was tainted by the improper admission of evidence regarding the absence of other accidents on the water slide. Plaintiffs allege the introduction of the evidence was unduly prejudicial and warrants a new trial. Defendant's position is that since plaintiffs attempted to establish defendant's negligence by use of prior accident testimony, the trial judge did not abuse his discretion by permitting defendant to present evidence of the lack of prior accidents.
Musselman testified that he was injured on the Lightning Falls on June 1994. He said: "I came down the water chute and when I hit the water I flipped backwards and something rough on the bottom . . . of the pool[, and] cut my - right toe." He testified he followed the instruction that the park gave him to ride the tube, was sitting in the center of the tube, and became "disengaged" from the tube after he entered the water at the bottom of the chute. He said when he hit the water "I fell straight down." His description of his accident was similar to Schaefer's explanation of how she was injured.
Zierold testified that she was a regular attendee at the park, and on July 3 or 4, 1995, she was injured on the Lightning Falls ride. When asked by plaintiff's counsel to describe how the accident occurred, she answered:
A: I was going down the ride in the tube and the tube came underneath me and it slipped out, so and then I seemed to go by myself and then when I landed, I was -
Q: And, then you continued down the [chute]
and into the splash pool?
A: Yes.
Q: When you entered the splash pool was there
a skimming sensation or did you feel a
dropping sensation?
A: I just dropped.
Although she fell out of the inner tube while still in the chute,
Zierold testified, as did Schaefer, that when she left the chute
she did not skim across the top of the splash pool, but rather
"just dropped." It was not clear whether she "dropped" because she
was not sitting in the inner tube when she struck the water in the
splash pool or for some other reason.
Hunsucker made his comment about the lack of prior accidents
during cross-examination. When asked by plaintiffs' counsel if he
had been provided with incident or accident reports for other
people who were injured, he replied that "[t]he only information I
have [is that] this was the only incident of this type that they
had on this flume." Also, over plaintiff's objection, Minninger
testified that from the opening of Lightning Falls in 1989, of the
200,000 patrons who rode Lightning Falls each year, no injury of
"similar-type" to plaintiff's had ever been incurred on that ride.
Generally, in a negligence action, the absence of other
accidents to show the safety of a condition is not admissible.
Rogove v. Stavola Constr. Co., Inc.,
331 N.J. Super. 212, 215
(App. Div.), certif. denied,
165 N.J. 602 (2000); Ertle v. Starkey,
292 N.J. Super. 1, 9 (App. Div. 1996); Muscato v. Saint Mary's
Catholic Church,
109 N.J. Super. 508, 510 (App. Div. 1970);
Karmazin v. Pennsylvania R.R. Co.,
82 N.J. Super. 123, 129 (App.
Div. 1964). In Wymbs, Justice Coleman had occasion to review why
the admission of prior accident evidence has been rejected in the
past. He stated:
[The] persuasive force [of prior accident
evidence offered to establish dangerousness]
depends upon similarity in the circumstances
of different injuries, of which it is hard to
be certain. Substantial identity in the
alleged defective condition is only the first
essential. The person who was injured at the
time to which the offered evidence relates may
have been defective in eyesight, feeble or
careless . . . . Moreover, though the same
defective condition may have been present at
both times, the actual causes of the two
injuries may have been different. Unless a
comparison of the circumstances and causes of
the two injuries is made, the injury to
another is without significance. But if such
a comparison is undertaken, the minds of the
jurors must be diverted from the injury on
trial into a detailed and possibly protracted
inquiry as to injuries received by others at
various times . . . . As to [those other
injuries] the opposing party will often be ill
prepared to present evidence. There is danger
that a jury may disregard the real differences
in the circumstances of the two incidents, and
find upon mere superficial similarity that a
dangerous condition existed.
[Wymbs, 163 N.J. at 533-34 (quoting Kromhout
v. Commonwealth,
500 N.E.2d 789, 793 (Mass.
1986)) (internal quotations and citation
omitted).]
Although recognizing these "legitimate concerns," the Court
also recognized that the rule barring admission of prior accident
evidence is not absolute. The Court concluded that prior accidents
could be used to prove the existence of a dangerous condition (on
public property) "if the following threshold standard is satisfied:
(1) the same or substantial similarity of circumstances between the
prior accident and the one involved in the case on trial, and (2)
the absence of other causes of the accident." Id. at 536. Justice
Coleman pointed out that New Jersey, as well as many other
jurisdictions, have not adopted a per se rule which precludes the
use of prior accidents "as substantive evidence of a dangerous
condition." Id. at 534. "The rationale for not adopting a per se
rule of preclusion is that that practice conflicts with the modern
rules of evidence, which emphasize a trial court's discretionary
determination of relevancy." Ibid. (citing N.J.R.E. 401-403; Green
v. New Jersey Mfrs. Ins. Co.,
160 N.J. 480, 492 (1999)). Justice
Coleman concluded that there was "no sound reason to unduly limit
a trial court's discretion in deciding whether evidence of prior
accidents is admissible as substantive evidence of a dangerous
condition in a case such as this one." Id. at 535. He agreed with
"a majority of other jurisdictions" that the trial court should
have the discretion, "on a case-by-case basis," to determine "the
relevancy of prior accidents to the case at hand." Ibid.
In arriving at its decision, the Court relied, in part, on
DiDomenico v. Pennsylvania-Reading Seashore Lines,
36 N.J. 455
(1962). DiDomenico was an action for personal injuries and
property damage which arose out of a railroad grade-crossing
collision between plaintiff's automobile and defendant's freight
train. The plaintiff sought to introduce evidence of two accidents
which occurred at the crossing, one prior to, and one subsequent
to, the date of the accident at issue. The Court stated:
Safety history may be admissible for some
purposes but before it can have any probative
value it is incumbent upon the party who
offers the evidence to show the other
occurrences took place under the same or
substantially the same conditions as the
accident in question.
[Id. at 464-65.]
A number of other jurisdictions are in accord. Kromhout, 500
N.E.
2d at 793 (where there is substantial identity of circumstance
and the "danger of unfairness, confusion or undue expenditure of
time in the trial of collateral issues seems small, the admission
of such evidence" lies within the judge's discretion) (citation
omitted); Kaeo v. Davis,
719 P.2d 387, 393 (Haw. 1986) (finding
that evidence of prior accidents may be "highly probative" in a
negligence action) (citing Simon v. Town of Kennebunkport,
417 A.2d 982, 985 (Me. 1980)); Elsworth v. Beech Aircraft Corp.,
691 P.2d 630, 639 (Cal. 1984) (holding that evidence of prior accidents is
admissible to show a defective condition or the cause of an
accident, so long as circumstances are similar and not too remote)
(citation omitted); Johnson v. State,
636 P.2d 47 (Alaska 1981)
(noting that evidence of prior and subsequent accidents under
similar conditions is admissible to help prove a defective or
dangerous condition, causation or notice); Schaffner v. Chicago and
North Western Transp. Co.,
515 N.E.2d 298, 309 (Ill. App. Ct. 1987)
(holding evidence of prior accidents admissible to help prove
negligence provided circumstances are similar), aff'd,
541 N.E.2d 643 (1989); see also McCormick on Evidence, § 200 at 703-07
(Strong, 5th ed. 1995) (stating that evidence of other accidents
may be admissible to show the existence of a defect, causation, the
risk that defendant's conduct created, and notice of the defect).
In each of these cases the issue was the admissibility of
prior accidents. Here, evidence of prior accidents was admitted
without objection. We must decide whether defendant should have
been permitted to rebut the prior accident evidence by
demonstrating that hundreds of thousands of park patrons rode
Lightning Falls without sustaining an injury similar to Schaefer's.
Shortly after Wymbs was published, we decided Rogove, where
the trial judge permitted defense counsel to comment on plaintiff's
expert's testimony that he never received the reports he requested
concerning prior accidents at the location where plaintiff was
injured.
331 N.J. Super. 212. In summation, defense counsel
argued, based on the expert's testimony, that there was no evidence
of prior accidents in the area of plaintiff's accident. In
reversing the verdict of no cause for action, we first acknowledged
that "[i]t has long been the law in this State that the incidents
or absence of other accidents is not admissible in a negligence
action to show the dangerousness or the safety of the condition
being impugned." Id. at 215. We recognized that these principles
were modified in Wymbs, but pointed out the qualitative difference
"between showing a dangerous condition from prior accidents and
showing the absence of a dangerous condition from the lack of prior
accidents." Id. at 216. The distinction is quite simply that
proving a negative by the lack of accidents is "more complex" than
proving the happening of an accident. Ibid. We did not reach the
substantive question of the admissibility of the lack of prior
accidents, however, because the record in Rogove did not contain
evidence that there had been no prior accidents at the location of
plaintiff's accident, but only that plaintiff's expert had asked
for accident reports spanning a ten-year period but had not
received them. Ibid. We concluded that the "absence of a response
to that request did not mean such reports were nonexistent and
certainly did not show a lack of accidents over a ten-year period."
Ibid.
Although our research has not uncovered a case in New Jersey
where evidence of accident free safety history has been permitted
to refute evidence of prior accidents, that a positive safety
history may be admissible under certain conditions has been
recognized in standard treatises. See McCormick On Evidence § 200
at 708 (where a plaintiff has presented evidence of prior accidents
to the jury, "it would seem perverse to tell a jury that one or two
persons beside the plaintiff tripped on defendant's stairwell while
withholding from them the further information that another thousand
persons descended the same stairs without incident."); see also 2
Wigmore On Evidence § 444 at 532 (Chadbourn rev. 1979) (leaving the
decision whether this type of evidence is admissible to the trial
judge).
Other jurisdictions permit the introduction of safety history.
In Schaffner, the issue was whether a bicycle design was
defectively dangerous, causing the front wheel of the bicycle to
disengage, tossing the rider onto the pavement.
515 N.E.2d 298.
The plaintiff was permitted to introduce evidence of prior similar
incidents. The trial court then permitted evidence that many
persons other than the injured party had used the same type of
bicycle without incident. The intermediate appellate court of
Illinois affirmed, concluding that when other accidents are
admissible to demonstrate the existence of a particular defect or
condition, "then the absence of accidents during a period of
similar exposure and experience, would generally be receivable to
show the nonexistence of these facts." Id. at 309 (citation
omitted). The court said: "It would have been totally inconsistent
to permit plaintiffs to introduce evidence of similar prior
accidents, and then prohibit Schwinn from introducing rebuttal
evidence of the number of similar bicycles sold and the absence of
reported problems with the . . . mechanism." Ibid.; see Salvi v.
Montgomery Ward & Co., Inc.,
489 N.E.2d 394, 400 (Ill. App. Ct.
1986) (holding that evidence tending to show the absence of prior
accidents may be admissible upon proper foundation) (citations
omitted); Jones v. Pak-Mor Mfg. Co.,
700 P.2d 819, 822, 826-27
(Ariz.) (holding that no rule of evidence mandates rejection of
safety history evidence; that a per se rule of inadmissibility is
"manifestly incompatible with modern principles of evidence")
(citing Simon, 417 A.
2d at 985), cert. denied,
474 U.S. 948,
106 S. Ct. 314,
88 L. Ed.2d 295 (1985); Stark v. Allis-Chalmers and
Northwest Roads, Inc.,
467 P.2d 854 (Wash. Ct. App.) (allowing
evidence that no prior accidents similar to plaintiff's involving
any of more than 10,000 tractors had occurred), review denied,
78 Wash.2d 993 (1970). See also Jay M. Zitter, Annotation,
Admissibility of Evidence of Absence of Other Accidents or Injuries
at Place Where Injury or Damage Occurred,
10 A.L.R.5th 371 (1993)
(listing a compendium of cases addressing the issue). The common
thread that runs through all of the cases and treatises is that the
party offering proof of no prior accidents must demonstrate a
substantial similarity between the circumstances surrounding the
accident at issue and the prior safety history evidence.
Applying these principles to the case before us, we find no
abuse of discretion by the trial court in permitting the safety
history of the Lightning Falls ride for exculpatory purposes.
Plaintiffs' witnesses, Musselman and Zierold, each testified about
their prior accidents involving the Lightning Falls ride. This
evidence was offered to demonstrate that the Lightning Falls ride
was dangerous. Once the jury heard this evidence, the ride's
safety history became relevant. The evidence showed that signs are
posted to demonstrate how the ride should be used. Unlike in
Rogove, the record does contain evidence that no injury similar to
Schaefer's occurred since the ride opened in 1989. Approximately
3,000 people ride down the Lightning Falls slides each weekday and
8,000 use the slides on weekends. During a typical year,
approximately 200,000 people use the slides. Despite these
substantial numbers, park records demonstrate that no injuries
similar to Schaefer's have been reported. The safety experience in
this case is so extensive as to satisfy the similarity requirement.
See McCormick on Evidence, § 200 at 709 ("[w]hen the experience
sought to be proved is so extensive as to be sure to include an
adequate number of similar situations, the similarity requirement
should be considered satisfied."). Here, the similarity of use of
the water slide by Schaefer and the slide's use experience since it
opened in 1989 has been amply demonstrated.
Our Rules of Evidence do not prohibit other accident, or a
lack of other accident, evidence. N.J.R.E. 401 defines relevant
evidence as evidence "having a tendency in reason to prove or
disprove any fact of consequence to the determination of the
action." The test of relevancy is "its probative value with
respect to the points in issue." Biunno, Current N.J. Rules of
Evidence, comment 1 to N.J.R.E. 401 (2001). N.J.R.E. 402 provides
that unless otherwise prohibited, "all relevant evidence is
admissible." Our Rules of Evidence also give the trial judge broad
discretion to exclude otherwise relevant evidence, if "its
probative value is substantially outweighed by the risk of (a)
undue prejudice, confusion of issues, or misleading the jury or (b)
undue delay, waste of time, or needless presentation of cumulative
evidence." N.J.R.E. 403. Thus, under an N.J.R.E. 403 analysis,
where the admission of evidence of the lack of prior accidents
becomes an issue, whether to admit the contested evidence requires
the trial judge to balance the probative value of the proffered
evidence against its potential prejudice. This is an exercise that
trial judges perform every day in other contexts. The evidence
rules give the trial judge discretion to examine the similarity of
the circumstances between the accident at issue and the conditions
which existed over the period of time within which no accidents
occurred, as well as the reliability of defendant's history of a
lack of prior accidents. The trial judge may also exercise his or
her discretion to exclude evidence of safety history when
circumstances so warrant under N.J.R.E. 403, or provide the jury
with an appropriate limiting instruction when indicated.
Here, the trial judge allowed the evidence of no prior
accidents in response to plaintiffs' witnesses' testimony seeking
to prove a dangerous condition through evidence of prior accidents;
the judge did not abuse his discretion. See Benevenga v.
Digregorio,
325 N.J. Super. 27, 32 (App. Div. 1999) ("Traditional
rules of appellate review require substantial deference to a trial
court's evidentiary rulings.") (citation omitted), certif. denied,
163 N.J. 79 (2000).
IV
We find no merit to plaintiffs' contention that the verdict
was against the weight of the evidence. We start with the
proposition that neither the trial court, nor this court, may
substitute its judgment for that of the jury simply because we may
have reached another conclusion. Borngesser v. Jersey Shore Med.
Ctr.,
340 N.J. Super. 369, 377 (App. Div. 2001); Dombroski v. City
of Atlantic City,
308 N.J. Super. 459, 467 (App. Div. 1998) (citing
Dolson v. Anastasia,
55 N.J. 2, 6 (1969)). The question is whether
there was sufficient credible evidence that "reasonable minds might
accept [] it as adequate to support" the jury's conclusion that
defendant was not negligent. Dolson, 55 N.J. at 6.
Hunsucker, defendant's engineering liability expert,
Minninger, the Park's director of operations, and Walters, the
Park's maintenance foreman, all essentially testified that after
the initial start-up procedure, it was not possible for Lightning
Falls to operate when the water level in the splash pool was not
full and the water was not flowing over the back of the steps into
the Lazy River. The videotape corroborated their testimony. There
was evidence that more than 6,000 gallons of water per minute flow
down the water slides and has nowhere to go but over the back of
the steps. Despite plaintiffs' witnesses' testimony to the
contrary, defendants' witnesses presented sufficient evidence for
the jury to conclude that it was impossible for the water level in
the splash pool to drop eighteen to twenty-four inches below the
mouth of the chutes and not flow over the back of the steps. Water
was flowing down the slide when Schaefer rode down the chute and
entered the splash pool. The jury had sufficient evidence before
it to find that the ride could not operate in the manner suggested
by plaintiffs if the water level in the splash pool was below the
bottom of the chute. We find no basis to disturb the jury verdict.
Affirmed.
WECKER, J.A.D., concurring
I concur in the result, and agree that consistent with Wymbs
v. Tp. of Wayne,
163 N.J. 523 (2000), and the rationale set forth
in McCormick on Evidence, § 200 (5th ed. 1999), the admissibility
of evidence of prior accidents requires case by case analysis and
falls within the discretion of the trial judge based upon N.J.R.E.
401 and 403. I write separately out of concern lest our decision
in this case be read too broadly.
Evidence of prior accidents can be admitted, as Justice
Coleman explained in Wymbs, for various purposes, conditioned upon
the proper foundation. In Wymbs, a Tort Claims Act "dangerous
condition" case governed by N.J.S.A. 59:4-2, the Court ruled that
the plaintiffs' proffered evidence of prior accidents on a sharp
curve in a roadway was properly limited to the element of notice
and disallowed as substantive proof of a dangerous condition. 163
N.J. at 537. Such prior accident evidence proffered by a plaintiff
does not, however, necessarily open the door to defense evidence of
an absence of prior accidents. That question depends upon the
purpose for which the prior accident evidence is allowed, as well
as the similarity of conditions. For example, if a jury is
permitted to consider prior incidents as evidence of a design
defect in a products liability case, then statistical evidence
demonstrating the number of users or frequency of use by comparison
with a small number of accidents may properly be admitted for the
jury's consideration. Cf. Ryan v. KDI Sylvan Pools, Inc.,
121 N.J. 276, 289-90 (1990) (defense expert's testimony regarding incidence
of spinal cord injuries involving diving boards that conformed to
industry standards was relevant to risk-utility analysis, and its
exclusion was reversible error.) In Ryan, the plaintiff had not
offered any evidence of prior accidents.
On the other hand, where evidence of prior accidents is
admitted for a limited purpose, such as notice of a dangerous
condition, it would generally be improper to allow evidence of a
lack of accidents. Similarly, where evidence of similar prior
accidents is offered to counter a defense of impossibility, as
appears to have been the purpose of plaintiff's prior accident
evidence in this case, evidence of an absence of other accidents
likely would not bear sufficient relevance to justify its potential
prejudice.
My colleagues find that plaintiff's proffered evidence of two
prior incidents opened the door to defendant's evidence of a lack
of similar accidents or incidents. The record in this case does
not show that the jury was instructed to limit its use of the
testimony of witnesses Musselman and Zierold. The essence of the
testimony of each was that on a separate, prior occasion, that
witness also experienced a drop coming off the slide and noticed
that the water level in the splash pool was significantly lower
than the end of the slide chute. Had the jury been instructed as
to the limited use of those witnesses' testimony _ that is, that it
was available only to refute defendant's expert's testimony that it
would have been impossible for the slide to operate if the water
level in the splash pool had been as low as plaintiff alleged _ I
would find defendant's evidence of non-accidents to have been
inadmissible. But plaintiff did not limit her proffer, defendant
neither objected to the evidence nor sought a limiting instruction,
and the judge had no obligation to limit the use of that testimony.
Thus I cannot say that allowing defendant's evidence of the slide's
prior safety record as substantive evidence on plaintiff's claim
was an abuse of the discretion normally accorded a trial judge's
evidentiary ruling. E.g., Green v. N.J. Mfrs. Ins.,
160 N.J. 480,
492 (1999).
There was ample evidence offered by both parties respecting
the operation of the water slide and the likelihood that plaintiff
was injured in the manner she claimed, as a result of a reduced
water level in the pool. Defendant offered unobjectionable
evidence of its inspection routine and its employees' conduct on
the day of the accident. Moreover, plaintiff offered no evidence
that the lowered water level she experienced had been present long
enough or frequently enough for defendant, in the exercise of due
care, to have discovered it. The jury was free to accept or reject
any of the evidence, and under all the circumstances, I cannot
conclude that the admission of defendant's non-accident history
significantly prejudiced plaintiff's case. I therefore concur.
Footnote: 1 1All references to Schaefer shall be to Maureen Schaefer.