On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, L-411-97.
Before Judges King, Wecker and Winkelstein.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2002
Plaintiffs Maureen Schaefer and Jerry Schaefer, her husband,*fn1 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 ÄÄ a lack of prior accidents ÄÄ 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.
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 ÄÄ 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 ...