Emanuel Colon v. Mt Creek WaterparkEmanuel Colon v. Mt Creek Waterpark
Tara C. Fappiano, Esq., Havkins, Rosenfeld, Ritzert & Varriale, White Plains, NY, Carla Varriale, Esq., Havkins, Rosenfeld, Ritzert & Varriale, New York, NY, for Mountain Creek Waterpark.
Before: SLOVITER, VANASKIE, Circuit Judges, and POLLAK,* District Judge.
OPINION
SLOVITER, Circuit Judge.
I.
In July 2006, Appellant Emanuel Colon, who suffers from obesity and osteogenesis imperfecta,1 fractured his lower leg while trying to board the Colorado River Ride at Mountain Creek Waterpark in Vernon, New Jersey. Colon sued Mountain Creek Waterpark (“Mountain Creek“) in federal court on the basis of diversity for negligence. The case was referred to a Magistrate Judge by the consent of the parties pursuant to
On appeal Colon challenges eight rulings by the Magistrate Judge. The first seven challenges concern evidentiary rulings, while the last relates to the jury charge. We conclude that Appellant‘s challenges are without merit and will affirm the judgment of the District Court.
II.
We review the Magistrate Judge‘s application of the Federal Rules of Evidence for abuse of discretion. Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir.2005). Where the Magistrate Judge interprets, rather than merely applies, a Federal Rule of Evidence, our review is plenary. Id. We also exercise plenary review of the Magistrate Judge‘s interpretations of substantive state law. Id. Generally, this court reviews jury instructions for abuse of discretion, but we exercise plenary review when the question is whether the instructions misstate the law. Armstrong v. Burdette Tomlin Mem‘l Hosp., 438 F.3d 240, 245-46 (3d Cir.2006). Where Colon‘s arguments implicate questions of fact, we draw all reasonable inferences in favor of Mountain Creek, the party with the verdict. Forrest, 424 F.3d at 349.
III.
A. Admission of Colon‘s Conviction for Soliciting a Prostitute
Appellant was arrested a few months after the accident, on December 12, 2006, for soliciting a prostitute, and he was subsequently convicted. Prior to trial, the Magistrate Judge ruled that evidence of Colon‘s arrest and conviction were not admissible to establish Colon‘s character but advised that “the Court will allow the testimony to rebut or impeach direct testimony regarding Plaintiff‘s confinement to bed.” App. at 36. On direct examination at trial, Colon testified that for eight months after his accident his activities were restricted first by a cast and later by a special black boot. On cross he confirmed that during this time his activities were limited to medical appointments, walking out for air, and visiting his family, and that he did not make any social visits. The Magistrate Judge permitted Mountain Creek to ask Colon about his arrest and conviction to contradict this testimony. Colon argues that this decision was an abuse of discretion because the probative value of his conviction was substantially outweighed by the risk of unfair prejudice.
Courts of appeal have upheld the introduction of evidence of criminal convictions to impeach testimony by contradiction in a variety of circumstances. See United States v. Gilmore, 553 F.3d 266, 272-73 (3d Cir.2009) (collecting cases). In this case, the evidence of Colon‘s conviction was relevant to the extent of his injury and specifically relevant to contradict his testimony regarding the limitations of his activities in the months after his accident. Colon‘s denial that he engaged in anything beyond visiting his family, getting medical attention, and occasionally walking out for air opened the door to evidence of his conviction, with the result that any prejudice from its introduction is not “unfair” as required by Rule 403. See United States v. Rodriguez, 961 F.2d 1089, 1096 (3d Cir.1992) (declining to engage in Rule 403 balancing where party opened the door to the challenged evidence). As such, the Magistrate Judge did not abuse his discre
B. Evidence on the Lack of Prior Accidents
Colon next argues that the Magistrate Judge erred by permitting Mountain Creek to introduce evidence about the lack of prior accidents at the Colorado River Ride. We have held that the admissibility of evidence of an absence of prior accidents “turns upon the facts and circumstances of each particular case.” Forrest, 424 F.3d at 357. In this case, the absence of prior accidents was relevant to several defenses put forward by Mountain Creek, including the adequacy of its warning signs and Mountain Creek‘s lack of prior notice of a dangerous condition on the ride. Moreover, the lack of prior accidents was particularly probative in this case because the ride had been in operation for several years and Mountain Creek was required to maintain accident records under New Jersey law. While Colon argues that the jury might have been confused by this evidence and erroneously assumed that a lack of prior accidents necessarily meant that Mountain Creek was not negligent, there is no indication in the record that the probative value of this evidence was substantially outweighed by the negative factors listed in Rule 403. Significantly, Colon was permitted to cross-examine Mountain Creek‘s expert, Michael Oostman, on the limited significance of the lack of prior accidents. Thus, on the facts and circumstances of this case, the Magistrate Judge did not abuse his discretion in concluding that the probative value of the absence of prior accidents was not substantially outweighed by the risk of unfair prejudice or confusion.
C. Expert Testimony on Acceptance or Assumption of Risk
Colon also contends that the Magistrate Judge erred in permitting Mountain Creek‘s expert to testify about the inherent risks of the Colorado River Ride. Specifically, Colon contends that, contrary to New Jersey tort law, Mountain Creek was permitted to introduce evidence that Colon assumed the risk when he attempted to board the ride and that the probative value of this evidence was substantially outweighed by the risk of unfair prejudice and confusion under Federal Rule of Evidence 403. We reject this argument because the high probative value of the evidence with respect to Mountain Creek‘s comparative negligence defense was not substantially outweighed by any of the countervailing factors listed in Federal Rule of Evidence 403.
New Jersey courts have held that traditional assumption of the risk is not recognized in New Jersey, Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 92 (1959), but comparative negligence is recognized as a defense. Del Tufo v. Twp. of Old Bridge, 147 N.J. 90, 685 A.2d 1267, 1278-79 (1996);
Contrary to Appellant‘s arguments, Mountain Creek did not plead or argue assumption of the risk in the forbidden sense of a bar to liability. Rather, Mountain Creek argued that the Colorado River Ride carried with it certain risks of which a reasonably prudent person would have been informed by the warning signs outside the ride, and that Colon‘s decision, notwithstanding his physical infirmities, to attempt to board the ride without lifeguard
D. Exclusion of Video Evidence
Colon sought to introduce at trial a video, filmed after the date of the accident, depicting passengers boarding the Colorado River Ride. The Magistrate Judge barred this evidence on the ground that it was confusing and unnecessarily cumulative under Federal Rule of Evidence 403. The Magistrate Judge did not abuse his discretion in so ruling.
In offering the video evidence, Colon conceded that the personnel in the video were not the same as those present at the time of the accident and that the conditions at the ride had been altered between the time of the accident and the filming of the video. He also conceded that his own testimony and that of another witness would cover many of the circumstances depicted in the video. We agree with the Magistrate Judge that under these circumstances the very limited probative value of the video was substantially outweighed by the risk of juror confusion and needlessly cumulative evidence.
E. Evidence of Colon‘s Pre-Existing Medical Conditions
Colon argues that the Magistrate Judge erred by permitting Mountain Creek to introduce evidence of his obesity and osteogenesis imperfecta. Colon does not dispute that he was aware that he suffered from both conditions at the time of the accident, but contends that in admitting this evidence the Magistrate Judge ignored the “eggshell” rule of New Jersey tort law. Contrary to Colon‘s assertion, however, the “eggshell” rule of New Jersey tort law pertains to damages rather than liability, see Green v. Buck Brothers Co., 98 N.J.Super. 187, 236 A.2d 605, 608 (N.J.Super.Ct.App.Div.1967), aff‘d, 51 N.J. 6, 236 A.2d 885 (1967), and there is no indication that Mountain Creek argued that it was not liable for the damages incurred on account of Colon‘s obesity and osteogenesis imperfecta. Rather, Mountain Creek argued that Colon‘s decision to take the Colorado River Ride, despite warning signs indicating that the ride was not recommended for persons with obesity and other physically limiting conditions, showed that he was comparatively negligent. Colon does not point to any risk of unfair prejudice or confusion caused by the evidence. We see no abuse of discretion in admitting evidence of Colon‘s obesity and osteogenesis imperfecta.
F. The June 1, 2006 Inspection Report by the State of New Jersey
Colon contends that the Magistrate Judge erred by admitting into evidence the report of a June 1, 2006 inspection of the Colorado River Ride conducted by the New Jersey Department of Community Affairs. Colon argues that the report is not relevant and that, even if it is relevant, its probative value is substantially outweighed by the risk of the jury being misled into the belief that the inspection report “was almost per se evidence of a safe condition” and that, as such, it should have been barred under Federal Rule of Evidence 403. Appellant‘s Br. at 28. These arguments have no support in the record.
The state inspection report was relevant for a number of reasons, including, most importantly, showing that Mountain Creek displayed appropriate warning signs on the Colorado River Ride. The jury was aware that the report was prepared more than a
G. Testimony of Defendant‘s Expert, Michael Oostman
Appellant next argues that the Magistrate Judge erred by permitting the testimony of Mountain Creek‘s expert, Michael Oostman, which Appellant contends was mere “net opinion” unsupported by facts in the record. Specifically, Appellant argues that Oostman offered a number of opinions without citing a specific factual or legal reference for his opinion, relying instead on his general knowledge of industry custom and regulations.
This court has held that a trial court does not abuse its discretion in admitting expert testimony so long as “the record contains some factual basis” supporting the expert‘s opinions. Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 415 n. 3 (3d Cir.2002). In this case there was sufficient evidence in the record to support Oostman‘s opinions. As a general matter, testimony based on industry practices is admissible under Federal Rule of Evidence 702 and indeed is “common fare in civil litigation.” Levin v. Dalva Bros., 459 F.3d 68, 79 (1st Cir.2006). Moreover, Oostman‘s conclusions were supported by facts in the record, including the testimony of other witnesses and the June 1, 2006 report prepared by the New Jersey Department of Community Affairs. As such, we cannot conclude that the Magistrate Judge abused his discretion by permitting the testimony of Mountain Creek‘s expert.
H. Decision Not to Charge N.J. Admin. Code § 5:14A-9.13
Finally, Colon argues that the Magistrate Judge erred in declining to charge the jury on the following provision of the New Jersey Administrative Code:
An additional operator and a signal system shall be provided where the operator of the ride does not have a clear view of the point at which riders are loaded or unloaded. The additional operator shall be stationed so as to be able to observe all areas not visible to the operator of the ride.
IV.
For the foregoing reasons we will affirm the judgment of the District Court.