NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 21-1950 ________________

EVAN HUZINEC, Appellant

v.

SIX FLAGS GREAT ADVENTURE, LLC; SIX FLAGS ENTERTAINMENT CORPORATION; SIX FLAGS THEME PARKS, INC.; JOHN DOE (A-Z); XYZ ENTITY (A-Z)

SIX FLAGS GREAT ADVENTURE, LLC, Third Party Plaintiff

v.

FOR FUN TOURS; CELEBRATION TOURS AND TRAVEL, INC.; WILKER GOMES; JULIANO MIRANDA; MARIANA VOLGADO, Third Party Defendants

SIX FLAGS ENTERTAINMENT CORPORATION; SIX FLAGS THEME PARKS, INC., Third Party Plaintiffs

v.

FOR FUN TOURS; WILKER GOMES; JULIANO MIRANDA; MARIANA VOLGADO, Third Party Defendants ________________

Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3-16-cv-02754) District Judge: Honorable Freda L. Wolfson ________________ Argued on March 30, 2022

Before: RESTREPO, ROTH and FUENTES, Circuit Judges

(Opinion filed: February 1, 2023)

Patrick J. Grimes (ARGUED) 600 South White Horse Pike Audubon, NJ 08106

Michael F.J. Romano Romano, Garubo & Argentieri 52 Newton Avenue Woodbury, NJ 08096

Counsel for Appellant

Heather M. Eichenbaum (ARGUED) Spector, Gadon, Rosen & Vinci 1635 Market Street 17th Floor Philadelphia, PA 19103

Christopher A. Gulla Murphy Sanchez 309 Fellowship Road Suite 200 Mount Laurel, NJ 08054

Counsel for Appellees

________________

OPINION * ________________ ROTH, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 Evan Huzinec suffered serious injuries while riding El Toro, a roller coaster at Six

Flags’ New Jersey amusement park. During the ride, a fourteen-year-old fellow patron

dropped her cell phone, which hit Huzinec on the head. Huzinec alleged that Six Flags 1

acted negligently in its failure to enforce its loose objects policy by instructing the other

patron, while she was queuing for El Toro, to secure her cell phone, in its failure to

supervise her compliance before and during the ride, and in its failure to stop the ride once

she unsecured her cell phone. Huzinec also alleged Six Flags’ loose objects policy itself

was unreasonable because of the foreseeable risk that patrons might unsecure their phones

during the ride.

The District Court granted summary judgment to Six Flags, finding Huzinec’s

expert not competent to testify as to the standard of care. However, we agree with Huzinec

that New Jersey law does not require expert testimony to prove the standard of care under

these circumstances. Thus, we will vacate the District Court’s grant of summary judgment

and remand this case for a jury trial.

I. 2

1 Appellees explain they are three discrete entities: (1) Six Flags Great Adventure, LLC – the amusement park’s owner-operator; (2) Six Flags Entertainment Corporation – a publicly traded holding company that conducts no business; and (3) Six Flags Theme Parks, Inc. – the sole member of Six Flags Great Adventure. Because the District Court did not distinguish between the entities, we refer collectively to the three as “Six Flags.” On remand, the District Court should evaluate Six Flags’ arguments that Six Flags Entertainment Corporation and Six Flags Theme Parks should be dismissed from this action. 2 The District Court had subject-matter jurisdiction under

(a)(1). We have jurisdiction under

. We conduct a plenary review of a district court’s grant of summary judgment. Hall v. Millersville Univ.,

(3d Cir. 2022). 3 To prove negligence under New Jersey law, a plaintiff must establish that (1) the

defendant owed the plaintiff a duty of care, (2) the defendant breached that duty of care,

and (3) the defendant’s breach proximately caused the plaintiff’s injury. 3 Generally,

plaintiffs need not establish the applicable standard of care. 4 “It is sufficient for plaintiff

to show what the defendant did and what the circumstances were. The applicable standard

of conduct is then supplied by the jury which is competent to determine what precautions

a reasonably prudent man in the position of the defendant would have taken.” 5 This is

particularly true when “hazards are relatively commonplace and ordinary and do not

require the explanation of experts in order for their danger to be understood by average

persons.” 6 By contrast, “expert testimony is required when ‘a subject is so esoteric that

jurors of common judgment and experience cannot form a valid conclusion.’” 7

The District Court acknowledged this New Jersey negligence framework, but it

erred by concluding that Huzinec needed an expert to establish the standard of care. The

District Court found that “developing safety policies for theme park patrons is not a

common issue within the ken of a jury.” 8 In support, the District Court pointed to two

unpublished per curiam opinions of the New Jersey Superior Court which required an

expert witness to establish the standard of care in setting policies for theme park patrons.

3 See Coleman v. Martinez,

, 642 (N.J. 2021). 4 Davis v. Brickman Landscaping, Ltd.,

(N.J. 2014) (citing Sanzari v. Rosenfeld,

(N.J. 1961)). 5 Sanzari,

. 6 Hopkins v. Fox & Lazo Realtors,

(N.J. 1993). 7

(quoting Wyatt by Caldwell v. Wyatt,

(N.J. Super. Ct. App. Div. 1987)). 8 Appx. 17. 4 First, the District Court relied on Velasquez v. Land of Make Believe. 9 There, the

Superior Court determined the plaintiff needed expert testimony to help jurors understand

the “comprehensive regulatory scheme” that the New Jersey Carnival-Amusement Rides

Safety Act (CARSA) imposed on a water park’s operators, as it bore on the plaintiff’s

allegations that overcrowding led to her being stepped on an injured by another patron. 10

CARSA regulated the operation and staffing of an aquatic activity area, and, absent an

expert, “there would be no proof that defendants’ staffing level at the time of the incident,

or the manner in which the attraction was operated, violated the regulatory requirements.” 11

Next, the District Court cited Bomtempo v. Six Flags Great Adventure LLC. 12 In

Bomtempo, the Superior Court determined that a plaintiff needed an expert to establish the

standard of care where she was injured on a waterpark ride after the raft she was riding on

slammed into the base of the ride, causing her a spinal fracture. 13 It reasoned that the record

reflected “that operation and maintenance of the attraction at issue require[d] a thorough

comprehension of the attraction’s standard operating procedures,” and those procedures

required “ride attendants to learn and understand an extensive body of particularized

terminology regarding aquatic safety.” 14 The court in Bomtempo found the plaintiff’s

claims were similar to those in Dare v. Freefall Adventures, Inc. 15 In Dare, the Superior

9 No. A-0273-11T3,

(N.J. Super. Ct. App. Div. Mar. 26, 2012). 10

at *1–2. 11

12 No. A-3341-14T1,

(N.J. Super. Ct. App. Div. Sept. 12, 2016). 13

. 14

. 15

(N.J. Super. Ct. App. Div. 2002), cert. denied

(N.J. 2002). 5 Court required an expert to establish the standard of care in a skydiving accident because

of the “knowledge and conduct peculiar to the activity, including an understanding of wind

direction and velocity, proper diver spacing, control of descent, and avoidance of ground

hazards.” 16 These “complexities and variables involved in applying pertinent skydiving

guidelines” required expert testimony. 17

Applying that analysis here unnecessarily complicates the issue. 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. 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.

II.

The District Court also incorrectly evaluated two pieces of evidence Huzinec

adduced to show Six Flags was on notice about the danger of its loose-articles policy: (1)

a 2013 incident report documenting a Six Flags patron’s injury where the patron suffered

“lacerations to the forehead” from a cell phone falling and hitting him; and (2) ten YouTube

clips that Six Flags patrons purportedly filmed while riding El Toro. First, the District

Court concluded Huzinec’s claims that the duty of care was breached failed because “he

16

. 17

6 does not provide any substantive information about the prior injury, aside from the bare-

bones, one-sentence incident report itself, on the basis of which a jury could reasonably

infer that the injury occurred under similar facts, conditions, or circumstances.” 18 Second,

the District Court concluded 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.” 19

We first address the District Court’s hearsay concern. “Under Federal Rule of

Evidence 801(c), ‘hearsay’ is any statement that a declarant makes outside of court and

that is offered to prove the truth of the matter asserted in the statement. Statements offered

for non-hearsay purposes are not hearsay.” 20 A statement offered to prove notice is not

offered to prove “the truth of the matter asserted” and therefore is not hearsay. 21 So both

the 2013 incident report and the YouTube videos are not hearsay.

Next, we address the District Court’s authentication concern. “To satisfy the

requirement under Rule 901(a) of the Federal Rules of Evidence that all evidence be

authenticated or identified prior to admission, the proponent of the evidence must offer

‘evidence sufficient to support a finding that the item is what the proponent claims it is.’” 22

18 Appx. 22. Without deciding, the District Court also opined that, without this information, “it is unclear whether the 2013 report is even admissible under Fed. R. Evid. 401.”

. 19 Appx. 24. 20 United States v. Lacerda,

(3d Cir. 2020) (citing United States v. Price,

(3d Cir. 2006)). 21 See, e.g., Parham v. Johnson,

(3d Cir. 1997) (“Parham could have argued that he did not offer the warning label on the bottle for the ‘truth of the matter asserted,’ but instead to show that Dr. Johnson had notice of the warning label. Consequently, the warning label would not be hearsay.”). 22 United States v. Browne,

(3d Cir. 2016). 7 Federal Rule of Evidence 901(b) sets forth a non-exhaustive list of methods of

authentication including the “appearance, contents, substance, internal patterns, or other

distinctive characteristics of the item, taken together with all the circumstances.” 23 We

have explained that district courts should “consider a wide range of evidence for the

authentication of social media records.” 24 The District Court is incorrect in its conclusion

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.” 25

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. 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. Huzinec himself may be such a

witness; so, too, would a Six Flags employee who is familiar with El Toro and the

surrounding rides.

III.

23 FED. R. EVID. 901(b)(4). 24 Browne,

. 25 Appx. 22 (emphasis added). 8 For these reasons, we will vacate the District Court’s grant of summary judgment

to Six Flags and remand this case to the District Court for trial.

9