UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL E. MCCARTNEY;
MARGARET R. MCCARTNEY,
Plaintiffs-Appellants,

v.

WILD WORLD HOLDING,
INCORPORATED, Individually and
General Partner, a/k/a Recreational
Wild Life Park Associates, Limited
Partnership, d/b/a Wild World, d/b/a
Wild World Amusement Park,
Defendant-Appellee,

and
                                               No. 95-2167
TIERCO MARYLAND, INCORPORATED,
d/b/a Wild World, d/b/a Wild
World Amusement Park;
RECREATIONAL WILD LIFE PARK
ASSOCIATES, LIMITED PARTNERSHIP,
d/b/a Wild World, d/b/a Wild
World Amusement Park; WILD
WORLD HOLDING II, INCORPORATED,
d/b/a Wild World, d/b/a Wild
World Amusement Park; WILD
WORLD, INCORPORATED, d/b/a Wild
World, d/b/a Wild World
Amusement Park,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Jillyn K. Schulze, Magistrate Judge.
(CA-92-2610-PJM)
Argued: April 3, 1996

Decided: May 6, 1996

Before WILKINSON, Chief Judge, and NIEMEYER and
HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Alan Franklin Post, ALAN F. POST, CHARTERED,
Bethesda, Maryland, for Appellants. Howard Ashworth Wolf-Rodda,
NILES, BARTON & WILMER, Baltimore, Maryland, for Appellee.
ON BRIEF: Andrew Robertson, ALAN F. POST, CHARTERED,
Bethesda, Maryland, for Appellants. R. Wayne Pierce, NILES, BAR-
TON & WILMER, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The appellants/plaintiffs, Michael and Margaret McCartney (the
plaintiffs), appeal the denial of their motion for a new trial following
an adverse jury verdict in their tort action against an amusement park
to recover damages resulting from Michael McCartney's knee injury
while riding a water slide ride at the amusement park. We affirm.

I.

On May 29, 1989, the plaintiffs, husband and wife, took their four
children to Wild World Amusement Park (the Park) in Largo, Mary-

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land for a family outing. Sometime during the day, Michael McCart-
ney decided to ride a water slide ride at the Park known as the
Rainbow Zoom. The Rainbow Zoom consisted of four separate slides
that began at an elevated platform some thirty-five or forty feet above
a splash pool, at which each slide terminated. Michael McCartney
chose to ride down the most benign of the four slides.

Michael McCartney climbed the stairs leading to the top of the
Rainbow Zoom. He then sat facing forward in the slide and let the
slide carry him to the splash pool. Upon entering the splash pool,
Michael McCartney's feet dropped and landed on the rubber padding
at the bottom of the splash pool. His right foot stopped when it hit the
rubber padding and remained there while the rest of his body contin-
ued forward in the water, causing injury to his right knee.

The plaintiffs subsequently filed a civil action in Maryland state
court against the Park,* alleging that the Park's negligent operation
and maintenance of the water slide ride proximately caused Michael
McCartney's knee injury and the damages flowing from that injury,
such as medical expenses and loss of consortium. The Park removed
the case to federal court. After considerable discovery and other pre-
trial proceedings, the parties agreed to have the case tried by a jury
before a magistrate judge.

At trial, from the beginning to the end, the plaintiffs built their case
around the testimony of their expert witness, Robert Weiner (Weiner),
an aquatic amusement ride engineer. In their opening statement,
plaintiffs' counsel told the jury that their expert witness would testify
that, although the Rainbow Zoom had been designed as a safe ride,
it was not built or operated safely and this combination caused
Michael McCartney to injure his knee.

Weiner testified as promised. Initially, he testified that he had
reviewed the construction blueprints of the Rainbow Zoom, person-
ally inspected it, reviewed statements made by the plaintiffs and the
Park employees, and examined the medical evidence. He then testi-
_________________________________________________________________
*The plaintiffs also filed suit against several other entities, which were
all dismissed early in the litigation. These parties are not involved in this
appeal.

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fied about the general design of water slides of this type, including the
industry standard that requires a water slide ride to decelerate the
rider at the end of the ride with a "hydraulic jump." According to
Weiner, a hydraulic jump is created when the water traveling down
the slide meets a higher level of water in the splash pool. The hydrau-
lic jump, signified by white water, allows the rider to enter the splash
pool in a seated position, scoots him across the water, and then gradu-
ally allows him to sink to the bottom. Weiner illustrated his testimony
with diagrams.

Based on his first-hand observation of the Rainbow Zoom's con-
struction and the plaintiffs' testimony that on May 29, 1989, the water
level in the splash pool was below the lip of the end of the slide,
Weiner concluded that no hydraulic jump was present on that day.
This, Weiner testified, did not meet the standard of care in the indus-
try for operating a water slide and caused Michael McCartney's
injury.

In closing argument, plaintiffs' counsel developed a negligence
theory around Weiner's testimony: "The failure to have that white
water there constitutes negligence, and is the cause of his injury, and
on that basis ladies and gentlemen, I will ask and hope that when you
conclude your deliberations, you will bring in that you must find for
the plaintiff [sic] . . . ." (J.A. 423).

The Park's case consisted mostly of the testimony of former
employees that the Park had operated the splash pool at the proper
water level on the date of Michael McCartney's knee injury. Addi-
tionally, the state amusement ride inspector testified that an inspection
three days before Michael McCartney was injured revealed that the
Rainbow Zoom was constructed and being operated in conformity
with state regulations.

The jury returned a verdict in favor of the Park. The plaintiffs
moved for a new trial on the basis that the magistrate judge errone-
ously denied their request to give the jury a res ipsa loquitur instruc-
tion. The magistrate judge denied the motion in a Memorandum
Opinion and Order. The plaintiffs filed a timely notice of appeal.

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II.

The plaintiffs challenge the magistrate judge's denial of their
motion for a new trial based on the magistrate judge's failure to
instruct the jury on res ipsa loquitur. We review the denial of a
motion for a new trial for abuse of discretion. See In re Wildwood
Litigation, 52 F.3d 499, 502 (4th Cir. 1995).

Because this is a diversity case, Maryland law applies to decide
whether the magistrate judge committed error by refusing to instruct
the jury on res ipsa loquitur. See Travelers Ins. Co. v. Riggs, 671 F.2d
810, 815 (4th Cir. 1982). In Maryland, res ipsa loquitur "means that
in an appropriate case the jury will be permitted to infer negligence
on the part of a defendant from a showing of facts surrounding the
happening of the injury, unaided by expert testimony, even though
those facts do not show the mechanism of the injury or the precise
manner in which the defendant was negligent." Meda v. Brown, 569
A.2d 202, 205 (Md. 1990). Maryland law requires that three criteria
be met before a plaintiff is entitled to an instruction on res ipsa
loquitur:

          "1. A casualty of a sort which usually does not occur in
          the absence of negligence.

          2. Caused by an instrumentality within the defendant's
          exclusive control.

          3. Under circumstances indicating that the casualty did not
          result from the act or omission of the plaintiff."

Id. at 204 (quoting Chesapeake & Potomac Tel. Co. v. Hicks, 337
A.2d 744, 752 (Md. 1975)). If the jury could reasonably find that each
element of this tripartite test is met, then, except in one identified situ-
ation, the plaintiff is entitled to an instruction on res ipsa loquitur.

That one identified situation is when the plaintiff offers direct proof
of negligence. See Dover Elevator Co. v. Swann , 638 A.2d 762, 765
(Md. 1994). In Dover Elevator Co., the court explained that "[a]
plaintiff's reliance on res ipsa loquitur is generally necessitated . . .

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by the fact that direct evidence of negligence is either lacking or
solely in the hands of the defendant." Id. Because the doctrine is
intended to protect a plaintiff who lacks direct evidence of negli-
gence, a plaintiff's "`attempt to establish specific grounds of alleged
negligence precludes recourse to the doctrine of res ipsa loquitur.'"
Id. (quoting Smith v. Bernfeld, 174 A.2d 53, 57 (Md. 1961)).

Dover Elevator Co. itself serves as an example of when a plaintiff,
having undertaken to establish specific grounds of the defendant's
alleged negligence, will be considered to have foregone reliance on
res ipsa loquitur. The plaintiff in Dover Elevator Co. was injured by
a misleveled elevator. Id. at 764. At trial, the plaintiff offered expert
testimony from an elevator consultant and engineer who testified that
the defendant was negligent in maintaining and servicing the elevator,
and that its negligence proximately caused the plaintiff's injury. Id.
During his testimony, the expert rendered an opinion to a "reasonable
degree of engineering probability" as to the proper and reasonable
course of action that should have been taken by the defendant, but
was not, in repairing a particular malfunctioning part on the elevator.
Id. at 767. The court approved the trial court's refusal to instruct on
res ipsa loquitur, holding that the plaintiff's expert had given a com-
plete explanation of the specific causes of the misleveling. Id. at 766.
The court then stated that:

          even if we were to accept the premise that the plaintiff's
          expert witness did not seek to furnish a complete explana-
          tion of this elevator's misleveling, he drew his own infer-
          ences of negligence . . . from his on-site inspection and his
          examination of the records presented to [the plaintiff] during
          discovery. He then presented to the jury his expert opinion
          that the misleveling would not have occurred if Dover had
          exercised due care.

Id. at 773.

The doctrine of res ipsa loquitur is likewise not applicable here. As
the plaintiff in Dover Elevator Co., the plaintiffs in the instant case
attempted to give a complete explanation of the Park's negligence
through their expert witness, and therefore, they have foregone reli-
ance on res ipsa loquitur. Furthermore, even if we were to accept the

                     6
premise that Weiner did not seek to furnish a complete explanation
of the cause of Michael McCartney's knee injury, Weiner drew his
own inferences of negligence from his on-site inspection of the Rain-
bow Zoom and from his examination of its blue prints, the plaintiffs'
accounts of the water level on the day of injury, and the medical evi-
dence. He then presented the jury with his expert opinion that Michael
McCartney's knee injury would not have occurred had the Park exer-
cised due care.

This is not the type of case where direct evidence of negligence
was "either lacking or solely in the hands of the defendant." Dover
Elevator Co., 638 A.2d at 765. Because the doctrine is intended to
protect a plaintiff who lacks direct evidence of negligence, the plain-
tiffs' attempt to establish specific grounds of alleged negligence pre-
cluded their recourse to the doctrine of res ipsa loquitur. See id. In
light of this absolute bar to the plaintiffs' reliance on res ipsa
loquitur, we need not decide whether this case otherwise satisfied the
tripartite test.

In sum, we hold that the magistrate judge properly refused to
instruct the jury on res ipsa loquitur.

III.

The plaintiffs also seek reversal on two other bases. First, they con-
tend that the magistrate judge erroneously gave the jury a "mere hap-
pening" instruction. Second, they contend that the magistrate judge
erroneously allowed one of the Park's witnesses, Fred Beall, to testify
to a fact that the plaintiffs assert was inconsistent with an answer the
Park gave to an interrogatory during pretrial discovery. We have con-
sidered both of these assignments of error and find them to be without
merit. Accordingly, the judgment below is affirmed.

AFFIRMED

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