Blinded by a Flying Cellphone on a Roller Coaster: Six Flags Ordered to Face Rider's Suit

The U.S. Court of Appeals for the Third Circuit reinstated a suit by a man rendered partially blind when another patron’s cellphone hit him in the eye on a roller coaster at a New Jersey amusement park.

The injured man’s suit was dismissed after his liability expert was deemed lacking competence, but the average person can understand a head injury caused by a flying cellphone without expert testimony, the appeals court said when it reinstated the suit against Six Flags Great Adventure in Jackson.

On July 5, 2014, Evan Huzinec was riding the El Toro roller coaster when he was struck in the head, face and right eye by a cellphone dropped by another rider, 14-year-old Mariana Volgado, who was part of a group visiting from Brazil.

After the incident, Volgado and a chaperone were ejected from the park for violating its ban on “loose objects” on rides.

Huzinec sued Six Flags, claiming it failed to instruct Volgado to secure her phone, failed to supervise her compliance before and during the ride, and failure to stop the ride when she unsecured her phone.

An expert testifying for Huzinec, Daniel Doyle, whose report cited a similar incident in 2013 and showed 10 YouTube videos in which riders on El Toro used their phones to film their rides, said Six Flags breached its standard of care.

But Chief U.S. Judge Freda Wolfson dismissed the case after finding Doyle not qualified to testify. He is an expert in ride maintenance, not park operations, and has no experience with monitoring patron compliance with safety rules, she said.

Wolfson cited Bomtempo v. Six Flags Great Adventure, an Appellate Division case from 2016 that said an expert was needed to help jurors understand a case where allegations of poor maintenance of a ride were raised in an injury suit, which, in turn, relied on Dare v. Freefall Adventures, a 2001 Appellate Division case holding that expert testimony is required to establish the standard of care for instructing and supervising skydivers.

But Judge Jane Roth of the Third Circuit, joined by Judges L. Felipe Restrepo and Julio Fuentes, said examination of those cases needlessly complicates the discussion.

“Unlike Dare, Huzinec’s injury did not stem from complexities and variables requiring an expert to help a jury understand the standard of care. Nor was his injury the result of El Toro’s design or the mechanical operations of the ride, as in Bomtempo,” Roth wrote. “Rather, Huzinec’s injury occurred when someone dropped a cell phone and it hit him on the head. We believe that the average person can understand the risk Six Flags created by permitting patrons to carry unsecured cell phones on a roller coaster. Thus, we conclude New Jersey law did not require Huzinec to produce an expert to identify the standard of care.”

The appeals court also said that the Wolfson erred in evaluating Huzinec’s proffer of the YouTube videos to show Six Flags was on notice about dangers related to its loose-articles policy. Wolfson said the YouTube videos did not help Huzinec because they are “not capable of being admissible at trial, at least not as [Huzinec] has presented them.”

Roth wrote that evidence must be authenticated, but the Third Circuit has written that district courts should “consider a wide range of evidence for the authentication of social media records.” Wolfson erred when she concluded that even “if sufficient information about the videos were discernable in the record, [Huzinec] has not offered a witness with personal knowledge to lay a foundation.”

“Huzinec relies on the YouTube videos not for their content but for their very existence. That the videos exist demonstrates that El Toro riders use unsecured recording devices (whether cell phones, GoPros, camcorders, or other electronic recording devices) while on El Toro,” Roth wrote.

“Even assuming the YouTube videos were somehow altered, their very existence put Six Flags on constructive notice that El Toro passengers were disregarding the loose articles policy. To that end, Huzinec did not need to identify a witness with personal knowledge of the content of the videos (such as the person who filmed the ride). Rather, he must identify a witness who can lay a foundation that the YouTube videos purport to show a point-of-view action shot of El Toro,” Roth wrote.

Patrick Grimes, a solo practitioner in Audubon who represented Huzinec, did not respond to requests for comment.

Heather Eichenbaum of Spector Gadon Rosen Vinci in Philadelphia, who argued for Six Flags, declined to comment. So did Christopher Gulla of Murphy Sanchez in Mount Laurel, whose firm now represents Six Flags in the case.