Opinion
11-P-971
03-19-2012
BRIZEIDA CRUZ v. WATER COUNTRY, INC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from a tort action brought in Superior Court by Brizeida Cruz against Water Country, Inc. (Water Country) for injuries she sustained while using Water Country's 'Tahiti Tree House' water slide. The matter was tried to a jury, which found for Cruz and awarded her $90,000. The trial judge denied Water Country's subsequent motion for judgment notwithstanding the verdict (JNOV) and in the alternative for a new trial.
In 2006, Cruz went to Water Country's facility in Portsmouth, New Hampshire. She had just ridden down the 'Tahiti Tree House' water slide and was about to stand up and exit, when another slide rider descended down the slide and crashed into Cruz, causing her extensive injuries. The essence of Cruz's case presented at trial was 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.
In pressing for a JNOV and a new trial, Water Country advanced essentially the same principal contentions that are advanced in this appeal, i.e., that Cruz's case was deficient because she (1) did not present expert testimony regarding the standard of care in the water slide or amusement industry; (2) did not produce a medical expert concerning causation for her injuries; and (3) failed to comply with the provisions of the New Hampshire medical records law in submitting her various medical bills and records. We affirm substantially for the well developed and articulated reasons of the trial judge in his memorandum of decision denying Water Country's posttrial motion for a JNOV and in the alternative a new trial. We quote the Superior Court judge's decision in pertinent part.
'Boiled down to essentials, the defendant's arguments are (1) that the plaintiff should have presented an expert on the applicable industry standard of care during the trial, (2) that the plaintiff had to present an expert witness on medical causation, and (3) that the plaintiff's medical records, if admissible under the procedural law of Massachusetts, did not comply with G. L. c. 233, 79G.
'It is my view that the plaintiff did not need an expert on the industry standard of care to survive a directed verdict and get her case to the jury. Her claim of negligence was based on the failure of the defendant, by and through its employees, 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 waterslide 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. A jury could assess the plaintiff's claim of negligence from all the testimony they heard about the operation of the water park on the day in question. Of particular importance to the plaintiff's claim of negligence, and her right to proceed to a jury verdict without an expert, is the deposition testimony of one of the defendant's employees that, in substance, after he saw the accident he blew his whistle to stop the loading and the loader did not hear him.
'With respect to the failure of the plaintiff to present an expert witness on medical causation, i.e. whether she is required by New Hampshire law to present an expert witness to state that to a reasonable degree of medical certainty the impact of the unknown teenager on the plaintiff caused her injuries, I do not read New Hampshire law to require such proof in the circumstances of this trial. The Supreme Court of New Hampshire has stated, in a manner similar to the appellate courts of Massachusetts, that 'Based on common experience, jurors may determine, without the aid of expert testimony, that her fall could cause such injuries.' The Supreme Court of New Hampshire goes on in this decision to point out 'The cause and effect of such injuries as the latter . . . may be so immediate, direct and natural to common experience that no expert testimony would be necessary.' (Citations omitted).
'In my opinion the plaintiff presented just such testimony that the jury could in its common experience determine that the impact of the unknown teenager directly into the plaintiff, after she completed her ride down the waterslide and was starting to exit from it, immediately caused the injuries described by her and revealed in her medical records.
'With regard to the admission of the plaintiff's medical records pursuant to M.G.L. c. 233, 79G, I felt that New Hampshire law did not have to be applied because this was a procedural and not a substantive issue. I further determined, after reviewing the medical records at issue and the certificates accompanying them as well as considering the flexibility that the Massachusetts appellate courts have shown in ruling on various technical challenges to admissibility under c. 233, 79G, that plaintiff's counsel had complied with the requirements of c. 233, 79G and so ruled during trial. I find no reason to reverse that decision. While it is true that I rejected one medical opinion letter regarding causation offered by the plaintiff's counsel for failure of pretrial disclosure, my rejection of that letter was not due to any c. 233, 79G, issue. Furthermore, its absence from the record is of no legal consequence, in my opinion, due to my reasoning stated above that New Hampshire law does not require an expert causation witness given the plaintiff's description of her accident and her immediate injuries.'
For these reasons quoted above, and based on our review of the record, we are not persuaded that there was any basis to set aside the judgment entered after the jury trial, and that the posttrial order denying the defendant's motion for a JNOV and in the alternative a new trial were correctly entered.
In addition to the three contentions discussed above, Water Country posits a series of other errors in the conduct of the trial, including, but not limited to, contentions that: (1) Cruz failed to authenticate properly -- by showing that the deponent was unavailable for trial -- the deposition testimony noted by the judge in the second paragraph of his decision quoted above; (2) the jury could not properly have found, on the evidence properly admitted, that neither Cruz nor the unidentified teenager who crashed into her was contributorily negligent; (3) and the judge improperly refused to allow Water Country to put into evidence Cruz's immigration status (Water Country claims that she is an illegal alien). Based on our review, none of the other claims advanced by Water Country, including those briefly summarized herein, provides any basis for setting aside the judgment.
Judgment affirmed.
Order denying motion for judgment notwithstanding the verdict and in the alternative for new trial affirmed.
By the Court (Berry, Kafker & Mills, JJ.),