Stolting v. Jolly Roger Amusement Park, Inc. , 37 F. App'x 80 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BETH STOLTING; ROHAN CASSELLS, 
Plaintiff-Appellants,
v.
JOLLY ROGER AMUSEMENT PARK,  No. 01-2141
INCORPORATED, d/b/a Splash
Mountain Water Park; BAY SHORE
DEVELOPMENT CORPORATION,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-00-299-MJG)
Argued: February 28, 2002
Decided: June 17, 2002
Before WILKINS, LUTTIG, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Bruce Seth Goodman, ALPERT, BUTLER, SANDERS
& NORTON, P.C., West Orange, New Jersey, for Appellants. Kath-
leen M. Bustraan, LORD & WHIP, P.A., Baltimore, Maryland, for
Appellees. ON BRIEF: William D. Sanders, ALPERT, BUTLER,
SANDERS & NORTON, P.C., West Orange, New Jersey, for Appel-
2 STOLTING v. JOLLY ROGER AMUSEMENT PARK
lants. J. Paul Mullen, LORD & WHIP, P.A., Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Beth Stolting brought this negligence action against Jolly
Roger Amusement Park, Inc. d/b/a Splash Mountain Park, and Bay-
shore Development Corporation of Maryland (collectively referred to
as "Jolly Roger"), a water park, for injuries she sustained in an acci-
dent on a water slide. Jolly Roger filed a motion in limine to exclude
Stolting’s only expert witness and then moved for summary judg-
ment. The district court granted the motion to exclude the expert and
granted Jolly Roger’s motion for summary judgment. Finding no
error, we affirm the decision of the district court.
I.
On June 2, 1999, Beth Stolting and her fiance, now husband Rohan
Cassells, were patrons at Splash Mountain Park. Upon entering the
park, Stolting read the disclaimer at the entrance, which stated, "[t]he
attractions contained within the Splash Mountain Water park are of
a participatory nature and, as such, carry with them an inherent risk
of injury. All guests agree, as a condition of admission, to use these
facilities at their own risk."
After spending approximately one half hour riding on one or two
slides, Stolting decided to ride on the Cannonball Slide ("Cannonball").1
The Cannonball consists of two fiberglass slides that are side by side
1
The slide is also known as the "Shotgun."
STOLTING v. JOLLY ROGER AMUSEMENT PARK 3
—each is approximately 42 inches in diameter, 10 to 12 feet in height,
and 50 feet in length.
Stolting was not instructed on how to position herself on the slide,
but she claims to have observed and imitated the actions and body
style of others who had gone down the slide previously. Stolting rode
down the slide, feet first, with her knees bent at approximately a
forty-degree angle. Upon entering the catch pool, Stolting’s feet hit
the floor of the pool, although she is uncertain if her legs were still
bent at a forty-degree angle. She immediately realized that she had
injured herself. She felt pain in her feet, legs, and back and later dis-
covered that she had fractured three vertebrae.
Stolting filed a negligence action in the United States District Court
for the District of New Jersey. Jurisdiction was based on diversity of
citizenship.2 See 28 U.S.C. § 1332. The New Jersey district court
granted Jolly Roger’s motion to transfer the matter to the United
States District Court for the District of Maryland pursuant to 28
U.S.C. § 1631 and 28 U.S.C. § 1406(a). Jolly Roger then filed a
motion in limine to exclude the testimony of Stolting’s expert, John
H. Hanst, and also moved for summary judgment. The district court
granted the motion to exclude the expert and granted summary judg-
ment in favor of Jolly Roger. Stolting appeals.
II.
While we review de novo an award of summary judgment, Stone-
henge Engineering Corp. v. Employers Ins. of Wausau, 201 F.3d 296,
302 (4th Cir. 2000), we review the district court’s ruling on admissi-
bility of expert testimony for abuse of discretion. Cooper v. Smith &
Nephew, Inc., 259 F.3d 194, 200 (4th Cir. 2001). "The trial judge
must have considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony is reli-
able." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).
2
Stolting is a New Jersey resident. Jolly Roger is a Maryland corpora-
tion with its principal place of business in Maryland.
4 STOLTING v. JOLLY ROGER AMUSEMENT PARK
III.
A.
Stolting contends that the district court erred in excluding Hanst’s
proposed expert testimony regarding Jolly Roger’s duty to warn
patrons of the specific dangerousness of the Cannonball, and the need
to instruct patrons to tuck their knees when descending the slide and
entering the catch pool. Fed. R. Evid. 702 sets forth the legal standard
for expert testimony:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.
The trial court has the gate-keeping function to ensure that any and
all scientific testimony is not only relevant, but reliable. Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588 (1993). "The
proponent of the testimony must establish its admissibility by a pre-
ponderance of proof." Cooper, 259 F.3d at 199. Stolting did not meet
that burden here because her expert did not conduct an adequate tech-
nical, scientific investigation or analysis of the accident.
Stolting asserts that Hanst’s experience as a recreation maintenance
supervisor and his investigation of the Cannonball are sufficient for
the court to admit his proffer as an expert. Hanst’s qualification to
render an expert opinion in this case was, at best, dubious.3 And his
3
Hanst graduated from Bloomfield Technical School, a combination
high school and technical school that offers specialized courses in air-
craft and aviation mechanics. He is a licensed private investigator, and
he investigates recreational hazards. He formerly worked as the recre-
ation maintenance supervisor for Essex County, New Jersey. In that posi-
STOLTING v. JOLLY ROGER AMUSEMENT PARK 5
investigation entailed just three visits to the park. On September 1,
2000, he observed and videotaped water park patrons riding down the
Cannonball. He also slid down the Cannonball approximately six
times. The next day, Hanst met with Stolting and asked her to observe
him slide down the Cannonball and to inform him as to how she pro-
ceeded down the slide and into the catch pool. He went down the slide
between six and twelve times in different body positions. Each time,
his feet contacted the bottom of the entry pool without sustaining an
injury, and none of the patrons whom he observed riding the slide
were injured from the impact of hitting the bottom of the entry pool.
On December 1, 2000, Hanst visited the park with an engineer to
view the slide and entry pool again.
Thereafter, Hanst concluded that Jolly Roger should have posted a
sign that read, "Please draw your knees up and cup your hands under
them in a full tuck and hit the water in a cannonball position." J.A.
252. Hanst also concluded that Jolly Roger breached its duty to warn
Stolting "that injury would result if the slider did not assume the so-
called cannonball position upon entry." J.A. 81. He stated that his
conclusions and suggestion for a sign were based upon his experi-
ence.
Hanst, however, did not set forth facts and scientific principles or
methods to support his conclusion that a specific warning was neces-
sary or that the suggested body position was warranted. His testimony
was nothing more than ipse dixit — bare conclusions without reliable
support. Thus, the district court did not abuse its discretion in exclud-
ing Hanst’s testimony as an expert.
B.
We need only briefly address whether the district court properly
granted summary judgment for Jolly Roger. Stolting asserts that Jolly
tion, he was responsible for construction and maintenance of all of the
recreational facilities operated by Essex County. Hanst is a certified
Aquatics Facilities Operator and a Certified Pool Operator. He is also a
member of the World Water Park Association, which is a professional
organization of water park operators. However, he has no experience as
a designer or builder of water slides.
6 STOLTING v. JOLLY ROGER AMUSEMENT PARK
Roger acted negligently by (1) failing to post a sign warning of the
dangerousness of the slide and (2) failing to give specific instructions
on how patrons should position their bodies when riding the slide. As
we have found that the district court did not err in excluding the testi-
mony of Hanst, Stolting did not have any expert testimony to support
her allegations of negligence. However, Stolting contends that Jolly
Roger’s negligence was supported by the testimony of other non-
expert witnesses. But even if we were to assume that the district court
erred in excluding Hanst’s testimony, and even if we assume Jolly
Roger breached a duty to warn or instruct and that breach caused
Stolting’s injuries, Stolting cannot prevail because she assumed the
risk of injury.
The district court properly found that Stolting assumed the risk of
injury. Under Maryland law, assumption of the risk is a complete bar
to recovery. ADM Partnership v. Martin, 348 Md. 84, 91, 702 A.2d
730, 734 (1997). To establish assumption of the risk, the defendant
must show that the plaintiff: (1) had knowledge of the risk of the dan-
ger; (2) appreciated that risk; and (3) voluntarily confronted the risk
of danger. Id. The district court acknowledged that this is usually a
question for the jury, but when it is clear that by using an objective
test, "a person of normal intelligence in the position of the plaintiff
must have understood the danger, the issue is for the court." Schroyer
v. McNeal, 323 Md. 275, 283-84, 592 A.2d 1119, 1123 (1991). At the
time of injury, the evidence established that Stolting was a college
educated adult who had ridden water slides "hundreds of times." She
had a six-foot water slide at her home and had ridden a water slide
similar to the Cannonball before. She also admitted to reading the dis-
claimer before entering the park. Under these facts, a similarly situ-
ated person would have reasonably known of the risk of danger.
The district court properly found that Stolting’s age, education, and
experience on water slides established that she was also able to appre-
ciate the risk; that she voluntarily confronted the risk of danger by
reading the disclaimer, watching other patrons slide down the Can-
nonball, relying on her prior experiences with water slides, and choos-
ing to ride the slide of her own free will; and that a reasonable person
with Stolting’s experience clearly would have comprehended the risk
of riding the Cannonball. Therefore, Stolting’s assumption of the risk
bars any recovery.
STOLTING v. JOLLY ROGER AMUSEMENT PARK 7
IV.
Having considered the record, the briefs, the applicable law, and
having had the benefit of oral argument, we see no reason to overturn
the district court’s ruling. Therefore, we affirm.
AFFIRMED