Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
Bomtempo v. Six Flags Great Adventure LLC, N.J. Super. App. Div. (September 2016). In this case plaintiff alleged to have been injured at Six Flags Great Adventure Amusement Park. Plaintiff ‘s attorney failed to obtain an expert to provide an ‘expert’ opinion addressing the alleged negligence of the machine/ride including failure to “properly inspect and/or maintain the ‘premises,’ amusement rides and all components thereof.” and how that negligence caused plaintiff’s injuries. Instead, counsel for plaintiff decided to argue theories of res ipsa loquitur and common knowledge. In other words, the ride owners were negligence because of the evidence of plaintiff’s injuries alone.
After the discovery time window closed, defendant moved for summary judgment and plaintiff submitted affidavits-one by plaintiff and the other by her husband-asserting for the first time that after they finished the ride, the raft they were using had deflated. Declining to consider the affidavits, the trial court granted defendant’s motion, holding that plaintiff lacked the necessary expert testimony to establish defendant’s standard of care. The panel affirmed, substantially for the reasons set forth below, finding that expert testimony was required to establish the applicable standard of care and that plaintiff failed to establish a claim under the theory of res ipsa loquitur, as negligence was not plainly evident. The panel also found no abuse of discretion in the trial court’s refusal to consider the affidavits, which were untimely and insufficient to defeat summary judgment.
The important part of this decision is the court’s review of the times when and why an expert is generally needed and specifically in this case why the expert opinion was needed. An expert is required when the knowledge and information s/he boils down and tells the jury (the trier of fact) is beyond their collective common knowledge. That is essentially the expert’s job. Here either the attorney failed to appreciate that fact or he could not find an expert to provide the opinion he needed because there was really no negligence on behalf of Six Flags.
Nevertheless, the trial court acts as the gatekeeper and will not allow cases to presented to the jury which do not contain the appropriate level of proofs with competent credible facts and opinions addressing:
- duty or standard of care,
- breach of that standard of care,
- causation, and
- damages, in a personal injury setting.
As a result this case was dismissed and the appeals court agreed with retrial court’s dismissal.