Park Law
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Unfortunately, industry “experts” are popping up everywhere because plaintiffs’ attorneys are willing to pay them to say virtually anything, even where these is no basis in industry standard for the opinion. In these situations, your attorney may request that the court not allow the proposed expert to testify, though this request will certainly not always be granted.
such as photographs are exchanged between the parties and responded to. Depositions, which are in-person (or video-conferenced) questioning to further explore the claims and evidence, are conducted of each party and his/her/its witnesses. In the event of an amusement venue, people asked to testify in depositions can be any principal or employee of the company. Inspections of rides or areas at issue (such as a walkway in a fall-down case) can also typically be conducted upon request. Following discovery on the factual evidence, the parties often retain “expert witnesses” to support their argument. Such witnesses are hired individuals who hold themselves out as having a particular expertise in an area, such as amusement ride operations or amusement ride maintenance and, if they are accepted in the case as an “expert,” are allowed to give opinion testimony that is not typically allowed to be given by anyone other than a qualified expert. While in some venues experts are subject to strict requirements, there are certainly venues where it takes very little to be accepted the court, and therefore allowed to provide
Medical providers are the most common type of experts seen in virtually every case involving alleged personal injury. Other experts in the amusement industry can include those who have a particularly strong level of education or experience in the fields of ride maintenance, operations, or inspections. Generally, an expert must testify that your park violated, or failed to comply with, an applicable industry standard. Very generally stated, “industry standard” is the manner in which the majority of those in the amusement industry, following best practices, operate or maintain the ride or property. While it would be wonderful if those accepted as experts by the courts were always true experts in the industry, more often than not the expert offering an opinion in favour of the party suing a park has little to no actual
DECEMBER 2020
experience in the amusement industry. Others have no experience in the area in which they propose to give their opinion (operations) but may have worked in a park in an entirely unrelated capacity (maintenance) or may have simply started attending industry educational seminars and obtained a certification or two that they then tout as evidencing their “expertise.” Unfortunately, industry “experts” are popping up everywhere because plaintiffs’ attorneys are willing to pay them to say virtually anything, even where these is no basis in industry standard for the opinion. In these situations, your attorney may request that the court not allow the proposed expert to testify, though this request will certainly not always be granted. Lastly, the question is almost always asked by clients, “How do we get rid of this?” Lawsuits are inconvenient, time-consuming, sometimes result in negative publicity, and can be very stressful. The short-term answer is that lawsuits can always be settled for some amount of money – by paying the party suing your park to go away. When you have control over whether to settle a lawsuit or not, however, serious consideration should be given to the message you are sending if you make a practice of settling baseless lawsuits just to make them go away. Attorneys talk to one another and word spreads if your park is an “easy target” – if you pay quickly to make cases go away – and you are likely to also quickly find your park getting sued more frequently. Simply stated, people and attorneys are more likely to sue you if they believe they can get money from you easily. Similarly, however, word also spreads if you do not settle lawsuits easily or quickly but, rather, make those suing you put in significant work to try to prove his or her case. Thus, an investment of the time and commitment needed to defend baseless lawsuits often pays off in the long run because word spreads that you are not worth suing unless there is a truly meritorious case to be made against you, ultimately resulting in far fewer lawsuits being filed against your park.
Heather M. Eichenbaum is an executive committee member with Spector Gadon Rosen Vinci P.C., practicing in Pennsylvania, New Jersey, and New York. She concentrates her practice in the representation of amusement, sports, hospitality, and recreation venues. Legal counsel to, and a board member of, NAARSO, she is also a member of the NJAA, IAAPA, OABA, and IISF.
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