GUILLEN et al v. SIX FLAGS GREAT ADVENTURE LLC. et al

Filing 26

OPINION fld. Signed by Judge Kevin McNulty on 12/29/15. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ADRIANNA GUILLEN, A MINOR
BY HER GUARDIAN AD LITEM
CONSUELO VARELA, and
CONSUELO VARELA,
INDIVIDUALLY,

Civ. No. 14-2091 (KM) (JBC)

OPINION

Plaintiffs,
V.

SIX FLAGS GREAT ADVENTURE,
LLC, and SIX FLAGS THEME
PARKS, INC., et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
The plaintiff, Adrianna Guillen’, injured her hand while preparing to ride
the Kingda Ka roller coaster at the Six Flags Great Adventure amusement and
theme park. The complaint alleges that the owners and operators of that theme
park, defendants Six Flags Great Adventure, LLC and Six Flags Theme Parks,
Inc. (collectively, “Six Flags”), were negligent in failing to provide for theme park
visitors’ safety and in failing to uphold their duty of care to those visitors. Now
before the court is Six Flags’ motion (1) to preclude Guillen’s proposed liability
expert from testifying and (2) for summary judgment. (ECF No. 21) For the
reasons expressed below, the motion will be denied.

Guillen was a minor at the time suit was commenced, but is no longer. Her
mother, Consuelo Varela, brought the action in Guillen’s name and in her own name
individually to recover medical costs and expenses. Varela was dismissed as a plaintiff
by stipulation and order on August 7, 2014, and all claims in her name were assigned
to her daughter. (ECF No. 14)
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BACKGROUND

I.

On August 27, 2012, Guillen visited the Six Flags Great Adventure
amusement and theme park in Jackson, New Jersey. When she boarded the
Kingda Ka roller coaster ride, she placed her hand on the shoulder of the seat
in front of her. When the passenger in that seat lowered the safety harness,
Guillen’s hand was caught and crushed.
Guillen filed a complaint in the Superior Court of New Jersey on
December 11, 2013. (ECF No. 1-1) Count 1 of the complaint alleges that Six
Flags was negligent in breaching its duty of care to visitors of the amusement
park. (Id., Count 1, ¶j 7—9) Count 2 asserts a cause of action for medical care
and expenses sustained as a result of Guillen’s injuries. (Id., Count 2,

¶ 4) Six

Flags removed the action on April 3, 2014, invoking this Court’s diversity
jurisdiction under 28 U.S.C.

§ 1332. (ECF No. 1)

Discovery commenced. Guillen retained Gary L. Montroy, H.H.S., as a
liability expert, and Montroy submitted an expert report on February 20, 2013.
(ECF No. 22-3, Ex. D) After conducting an on-site inspection of the ride, Mr.
Montroy submitted a modified report on October 9, 2014. (Id., Ex. E)
On December 17, 2014, Six Flags filed a motion to preclude Mr.
Montroy’s expert report and testimony, as well as a motion for summary
judgment. (ECF No. 21) Guillen opposed the motion on January 5, 2015, and
Six Flags filed a reply on January 7, 2015. (ECF Nos. 22, 23)
JURISDICTION

II.

The Court has diversity subject matter jurisdiction over this action
pursuant to 28 U.S.C.

§ 1332, as the dispute is between citizens of different

states and the amount in controversy exceeds $75,000.
III.

MOTION TO PRECLUDE PLAINTIFF’S EXPERT REPORT
a. Legal Standard
Federal Rule of Evidence 702 governs the admissibility of expert

testimony. The rule provides:

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A witness who is qualified as an expert by knowledge, skill, experience,
training or education may testify in the form of an opinion or otherwise
if:
a) the expert’s scientific, technical or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact
in issue;
b) the testimony is based on sufficient facts or data;
c) the testimony is the product of reliable principles and methods; and
d) the expert has reliably applied the principles and methods to the facts
of the case.
Fed. R. Evid. 702. The rule “embodies a trilogy of restrictions on expert
testimony: qualification, reliability and fit.” Schneider ex ret. Estate of Schneider
v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) (citing In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 741—43 (3d Cir. 1994) (citing Daubert v. Men-eli Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993)). The requirement that an expert
have specialized knowledge has been interpreted liberally. See Paoli, 35 F.3d at
741. Thus, “a broad range of knowledge, skills, and training qualify an expert.”
Id. An expert will not be excluded merely because the proposed expert does not
have the “most appropriate” degree or training. See id. A reliable opinion is
“based on ‘the methods and procedures of science’ rather than on ‘subjective
belief or unsupported speculation.”’ Id. at 742 (citing Daubert, 509 U.S. at 590).
An expert’s testimony will be deemed sufficiently reliable if there are “good
grounds” for the expert’s belief. Id. The opinion must also fit the issues of the
case, in that it is relevant and assists the trier of fact. See id. at 742—43.
b. Analysis
Six Flags objects to Mr. Montroy’s testimony on two grounds. First, Six
Flags contends that Mr. Montroy’s testimony should be struck because he does
not possess background qualifications in the amusement park industry.
Second, Six Flags argues that Mr. Montroy’s testimony is improperly based
solely on his personal belief.
As to the first point, an expert’s qualifications need not match perfectly
with the issues presented in a case. The expert must however, explain how his
experience leads to the conclusions contained in his report and how that

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experience is reliably applied to the facts. Here, Mr. Montroy was engaged to
“review the applicable regulations dealing with amusement rides promulgated
by the State of New Jersey which affect the accident.” (ECF No. 21-8, Ex. F at
p. 4) In his report, Mr. Montroy presents his qualifications as “more than 40
years of experience in the field of engineering, building code, property
maintenance code and fire code enforcement.” (ECF No. 21-8, Ex. F at p. 7) His
curriculum vitae sets forth extensive experience in construction and building
code compliance and inspection. (ECF No. 21-9) In his deposition, Mr. Montroy
explained that through his line of work, he has been associated with the
Department of Community Affairs and familiar with the Uniform Construction
Code, that he was aware that the department had regulations governing
inspection of amusement rides, and that he began his research by looking at
those regulations. (ECF No. 22-3 at 106:9—18, 108:8—10) Mr. Montroy
maintains that he reviewed all of the regulations relating to the operation and
maintenance of amusement rides in the Department of Community Affairs
regulations. (Id. at 110:2—10) Although Mr. Montroy lacks direct amusement
park expertise, I find that his experience in building and construction
inspection and code and regulation interpretation renders him sufficiently
qualified to provide an expert opinion on New Jersey regulations related to
amusement rides. I also find that his deposition testimony sufficiently explains
how his expertise led to the conclusions contained in his report.
Six Flags argues with some force that Mr. Montroy’s expertise is not
directly applicable; he has no particular expertise in amusement park rides,
and it appears that he made no comprehensive study of the potentially
applicable regulations. Such considerations, if accepted by a fact finder, might
well render such testimony unpersuasive. I find, however, that these
considerations go to the weight, not the admissibility, of this opinion testimony.
Six Flags’ second objection
based solely on personal opinion

—

—

that Mr. Montroy’s opinion is improperly
also is most properly considered as a matter

of weight, not admissibility. Having been retained to examine the regulations
on amusement rides, Mr. Montroy opined that the relevant regulation is the
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Carnival-Amusement Ride Safety Act, N.J.S.A. 5:3-3 1 et seq. and N.J.A.C.
5:14A-1.2. (ECF No. 21-8, Ex. F at p. 4) Based on his review of these
regulations, Mr. Montroy provided three conclusions:
(1) The regulations adopted by the State of New Jersey clearly make the
use of restraints the responsibility of the ride operator and the
assistant operator;
(2) The owner did not properly train the ride operator or the assistant
operator in the proper placement of the restraint bar which is what
caused the accident to occur and the damage to Ms. Guillen;
(3) No announcement was made to direct the riders when it is
appropriate to lower the bar insuring that the riders were safely
seated prior to lowering the restraining bar.
(Id. at p. 7) However, in his deposition, Mr. Montroy admitted that the first two
conclusions were irrelevant to the case in light of the fact that Guillen changed
her story from saying that a ride operator pulled the harness down to
contending that it was a fellow passenger in the seat in front of her who pulled
down the harness on her hand. (ECF No. 21-10, Ex. G, 117:2—10) Thus, Mr.
Montroy’s previous opinions (1) that use of restraints is the responsibility of the
ride operator and assistant operators and (2) that the owner did not properly
train ride operator and assistant operators in proper placement of the restraint,
became irrelevant to the facts of the case.
Mr. Montroy therefore acknowledges that the only opinion he is giving in
this case is number (3): that Six Flags should have warned patrons to wait
until everyone was seated before lowering the restraining bar. (Id. at 117:11—
22) Mr. Montroy’s belief is that “the ride should have been operated with a
notification for the patrons not to lower the bar until everyone was seated.” (Id.
at 117:17—19) True, Mr. Montroy stated that this was his “personal opinion.”
(Id. at 117:20—21) In context, however, it is clear that he based his opinion on
his experience with inspection codes and regulations and his independent
review of the accident site.

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Once again, it must be said that Six Flags has cogent arguments on its
side. Mr. Montroy testified that there was no manufacturer’s specification,
industry regulation, industry standard, or Department of Community Affairs
regulation that specifically mandated a notice to patrons to wait to lower the
bar until everyone was seated. (Id. at 125:3—14) The opinion, then, may be
characterized as merely one expert’s interpretation, and its foundations may be
attacked on cross-examination. But again, these are matters for the finder of
fact, not bars to admissibility.
I therefore deny the motion in limine, and will consider Mr. Montroy’s
opinion to be part of the record for purposes of summary judgment.
IV.

MOTION FOR SUMMARY JUDGMENT
a. Legal Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000).
In deciding a motion for summary judgment, a court must construe all facts
and inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The
moving party bears the burden of establishing that no genuine issue of
material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—23
(1986). “[W]ith respect to an issue on which the nonmoving party bears the
burden of proof

...

the burden on the moving party may be discharged by

‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that

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creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[U]nsupported allegations

...

and pleadings are insufficient

to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654,
657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138
(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact
if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).
If the nonmoving party has failed “to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial,

...

there can be ‘no genuine issue of

material fact,’ since a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.”
Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322—23).
b. Analysis
Six Flags, recognizing the standards for summary judgment summarized
above, does not attempt to gainsay every factual allegation of the plaintiff.
Rather, it presses a more focused challenge to plaintiff’s case as a matter of
law.
Guillen has sued Six Flags for negligence. Six Flags replies, however, that
Guillen’s claim is properly understood as one under the New Jersey Products
Liability Act (“NJPLA”), which may be brought only against the designer,
manufacturer or seller of a product. That being so, says Six Flags, it is an
inappropriate defendant, because it was not the designer, manufacturer or
seller of the Kingda Ka roller coaster ride. No one disputes the minor premise of
the argument: Six Flags did not design, manufacture, or sell the ride
equipment. It is the major premise of Six Flags’ argument
action under the Products Liability Act

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—

that is misplaced.

i.e., that this is an

Guillen alleges that Six Flags was the operator of the Six Flags Great
Adventure amusement and theme park and that as such, Six Flags owed a
duty of care to visitors of the park. The Kingda Ka roller coaster was one of the
amusement rides at the park and was staffed by Six Flags employees. The
established practice was that the riders, not the employees, would lower the
safety harness before each ride began. The central claim here (winnowed in the
course of discovery) is that Six Flags was negligent in failing to provide proper
instructions to the riders of the Kingda Ka roller coaster that they should wait
until all patrons were seated before lowering the safety harness. Guillen alleges
that, by failing to instruct riders to wait until all riders were seated before
lowering the harness, Six Flags breached its duty of care and proximately
caused the injuries to Guillen’s hand.
The claim is clearly one of negligence. The plaintiff is the master of her
complaint, and Guillen has brought this action as a claim of negligence against
Six Flags, as she was entitled to do. Should it turn out that the manufacturer,
rather than Six Flags, was at fault, then so be it, but Six Flags cannot turn this
action into something else for purposes of summary judgment. Six Flags is a
proper defendant to the actual claim brought by Guillen, as opposed to the one
it hypothesizes in its motion.
Six Flags cites cases such as Doerflein v. Six Flags Great Adventure, No.
A-0522-04T2, 2006 WL 392980, at *3 (N.J. Super. Ct. App. Div. Feb. 22, 2006).
Doerjlein, however, merely held that an amusement park (Six Flags, as it
happens) was excluded from the scope of the NJPLA because it did not
manufacture or sell the product. It did not hold that the plaintiff was barred
from suing the amusement park owner for the owner’s own negligence.
Six Flags’ heads-I-win, tails-you-lose position is that this must be an
NJPLA case, and that the NJPLA does not apply as a matter of law. That is very
close to a claim that there is no such thing as an action against an amusement
park based on injuries sustained on a ride. That simply is not so; there is such
a cause of action, and it ordinarily presents a jury question. See generally
Kahalili v. Roseclff Realty, Inc., 141 A.2d 301 (N.J. 1958).
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In discussing Six Flags’ remaining contentions, then, I treat the action as
one for negligence. Under New Jersey law, to prove negligence, a plaintiff must
establish: (1) that the defendant owed the plaintiff a duty of care; (2) that the
defendant breached that duty of care; and (3) that the defendant’s breach
proximately cased the plaintiff’s injury. See Endre v. Arnold, 692 A.2d 97, 100
(N.J. Super. Ct. App. Div. 1997).
Six Flags contends that it is entitled to summary judgment because
Guillen has failed to provide evidence of a duty of care on the part of Six Flags
and a breach of that duty. These arguments are, however, not very well
explained or supported. Six Flags appears to argue that there is no duty of care
or a breach of that duty because Guillen has not proven that any industry
standard mandates that all riders be seated before harnesses are closed. Six
Flags also argues that it was not reasonably on notice of the danger that in fact
materialized. It cites no particular evidence to the contrary, but contends that
the plaintiff has not met her burden of proof.
A breach of industry standards is one way of demonstrating negligence,
but it is not the only way. The standard of care is flexible and fact-dependent,
and negligence might be inferred from “all the circumstances,” including the
conduct of Six Flags and the physical layout of the ride. See Kahalili, 141 A.2d
at 307; see also id. at 305—06 (it was for the jury to decide whether the safety
bar of a roller coaster was an adequate safeguard and whether ejection from
the car was a risk reasonably foreseeable to the amusement park operator,
analogizing to a common carrier’s high duty of care). I find that it is a jury
question whether Six Flags was negligent in delegating to customers the job of
pulling down the safety harness, while failing to instruct them as to how to do
so safely. Notice, too, is a factual issue. The riders were pulling down a bar that
was capable of causing harm to someone in its path. It is a factual question

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whether the operator knew or should have known that permitting patrons to do
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so without safety instructions posed a danger.
I find that Six Flags has not met its burden of demonstrating that no
genuine issue of material fact exists. Accordingly, I deny Six Flags’ motion for
summary judgment.
V.

CONCLUSION
For the reasons set forth above, Six Flags’ motion to preclude Guillen’s

expert report and testimony is DENIED. Six Flags’ motion for summary
judgment is likewise DENIED. An appropriate order follows.
Dated: December 29, 2015

L
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HON. KEVIN MCNULTY, U)J.

Indeed, where a business chooses a self-service “mode of operation,” the
requirement of notice may be relaxed as to dangers created by the customers’ serving
themselves. Cf Craggan u. IKEA USA, 752 A.2d 819, 823—24 (N.J. Super. Ct. App. Div.
2000) (citing Wollerman u. Grand Union Stores, 221 A.2d 513, 514 (N.J. 1966)).
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