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POULIN v. AQUABOGGAN WATERSLIDE12/28/1989
The plaintiffs, Mariette Poulin and her husband Jean-Paul Poulin, appeal from a judgment entered in the Superior Court (Androscoggin County, Brodrick, J.). A jury found no negligence on the part of the defendant, Aquaboggan Waterslide, for the back injury suffered by Mrs. Poulin as a result of using the defendant's waterslide in Saco. On appeal, plaintiffs argue inter alia that the Superior Court erred in refusing to instruct on the doctrine of res ipsa loquitur. We agree and we vacate the judgment.
The facts presented at trial may be summarized as follows: Mrs. Poulin visited the Aquaboggan Water Park with her family in August 1985. Mrs. Poulin took a ride on one of the waterslides located in the Park. She testified that she questioned attendants on the slide's safety, including its safety for her lower back, and was assured that the slide was safe.
Mrs. Poulin testified that while riding down the slide on a tobaggan sled, she "hit a bump" that caused the sled to leave the surface of the slide's trough. On landing, she experienced sharp pain in her lower back. She refused immediate treatment, but contacted her chiropractor upon return to her home in Lewiston, and visited him that same day. The chiropractor, Dr. Albert Daigle, diagnosed Mrs. Poulin's injury as a compression fracture of the vertebrae. Dr. Victor Parisien, an orthopedic surgeon who later treated Mrs. Poulin, attributed her chronic pain and extensive symptomatology to the waterslide injury. Aquaboggan's medical expert, Dr. Lawrence Leonard, also an orthopedic surgeon, gave contrary testimony as to the cause of Mrs. Poulin's physical problems.
Several days after the incident, Mrs. Poulin returned to the Park to identify the source of her injury and to take photographs. She testified that she observed people bouncing at the same point on the slide where she had and she noticed "kind of a gap" in the surface of the slide at that location. Both parties presented expert testimony as to the general safety of the slide and as to the gap that Mrs. Poulin said she observed. The Poulins' expert, a certified safety specialist, testified that the force of the toboggan sleds traveling down the slide caused a gap in the seam of the slide's trough. This gap created a bump that caused Mrs. Poulin's sled to leave the surface of the slide. He also testified that the manner in which patrons were instructed to ride the sleds placed them at greater risk of sustaining back injuries. His opinion was that Aquaboggan failed to meet industry standards for inspection and maintenance.
Aquaboggan's expert, a mechanical engineer, refuted the plaintiffs' evidence that a gap in the seam existed at the time of Mrs. Poulin's ride. His opinion was based, in part, on the fact that there was no evidence of fiberglass cracks or repairs that would have been apparent had there been a gap. He further testified that a gap of the size Mrs. Poulin said was present would have acted as a brake, causing the sled to tip over and preventing it from continuing down the slide.
At the conclusion of trial plaintiff requested an instruction on the doctrine of res ipsa loquitur. The Superior Court declined the request and instructed generally on negligence. The jury found that Aquaboggan was not negligent, and judgment was entered in its favor. The Poulins appealed to this Court.
Res ipsa loquitur is neither substantive law nor a theory of negligence. Rather, it is a form of circumstantial evidence that permits a jury to infer negligence and causation from the mere occurrence of an event. Restatement (Second) of Torts § 328D comment (b), at 157 (1965); W. Prosser & W. Keeton, The Law of Torts § 40, at 258 (5th ed. 1984).
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