In this case arising from alleged contaminants at a water park, Plaintiffs sued (among others) the park’s franchisor, Leisure Systems, Inc.
Eleven children contracted a dangerous strain of the E. coli bacterium in 2021. Plaintiffs said they contracted it in two pools at the Jellystone Park Yogi on the Lake (Jellystone) camping resort in Pelahatchie, Mississippi. The park holds a franchise agreement with LSI, and the main issue is whether LSI owed Plaintiffs a duty to make the pools reasonably safe.
LSI “holds an exclusive license from Hanna-Barbera Productions, Inc., to use the name, character, symbol, design, likeness and visual representation of Yogi Bear and other trademarks and service marks . . . in connection with the construction, operation and franchising of campgrounds and resorts.” As part of this franchise agreement, LSI sets general conditions on Jellystone’s operation. But the agreement specifies that the franchisor and franchisee are independent contractors and not each other’s agents, partners, employees, etc.
Although LSI set many quality-assurance standards in its 800-plus page Brand Standards Manual, it prescribed no details for pool chlorination and assumed no control over the pools’ day-to-day operations and maintenance. And that is precisely where Plaintiffs find fault. They say LSI knew about proper pool maintenance but shut its eyes to whether the franchisee was keeping the water safe. This, they say, breached the duty of care a franchisor owes invitees, at least according to Plaintiffs’ expert, Barbara Kloberdanz.
LSI said Kloberdanz lacks any qualifications related to the duties imposed on franchisors and that her opinions about industry standards are unreliable.
Aquatics Expert Witness
Barbara Kloberdanz has an extensive background in the field of aquatics, beginning in 1985. She started her career as a lifeguard and swim instructor and transitioned into operations and facility management in 1989. Since then, she has been involved in all aspects of aquatics facility management and design, contributing to several award-winning aquatic facilities. In 2018, she received the Aquatic Professional of the Year award from the Colorado Parks and Recreation Association and was recognized as a Safety Champion by the Colorado Self-Insured Agency.
Discussion by the Court
Plaintiffs said Kloberdanz’s expertise exceeds aquatics and extends to the standard of care for branding franchisors like LSI. Broadly stated, Kloberdanz concluded that LSI “departed from clear industry standards that required . . . steps to ensure that the instructions given to [Jellystone] about recreational water management were complete and scientifically accurate, and to regularly inspect or audit the park for compliance with defined standards.”
The Court observed that Plaintiffs have identified no education, training, or experience Kloberdanz may possess about franchise issues. She does, however, claim to have knowledge about three companies that operate recreational-water attractions in multiple locations—Great Wolf Lodge, Water Country, and Hyatt Regency.
The Court held that Kloberdanz has no known experience with franchise issues. As for her examples, she appears to have done work for only one of them, Hyatt. For the other two examples—Great Wolf Lodge and Water Country—she bases her opinions on presentations she attended or gave about their water-management procedures. But she does not say whether those presentations mentioned industry standards for franchisors—like LSI— that have agreements with owner/operators.
In fact, Kloberdanz has never read any of the franchise agreements for the companies she cites—assuming those agreements exist. And she knows nothing about the companies’ business structures. She could not, for example, say whether the locations were independently owned and operated as was Jellystone. The Court held that Plaintiffs cannot show Kloberdanz is an expert in the standard of care applied to franchise agreements like the one here without showing some “knowledge, skill, experience, training, or education” in franchise agreements or industry standards for such franchisors.
The Court held that Plaintiffs have not met their burden of showing by a preponderance of the evidence that Kloberdanz is qualified to give opinions on franchisor duties or that her opinions are reliable.
Held
The Court granted LSI’s Daubert motion to exclude certain opinions from Barbara Kloberdanz.
Key Takeaway:
Even if Kloberdanz were qualified, her opinions are unreliable. She cites three examples without knowing anything about those companies’ business models, and she generally looks to basic principles of water management rather than the more precise issue presented. Plus, the Court questions whether these three examples are enough to show an industry standard. Finally, her opinions about the standard of care for franchisors could be viewed as a legal opinion that conflicts with the consensus position from courts and commentators who have considered those duties.
Case Details:
| Case Caption: | Neeley Et Al V. Great Escapes Pelahatchie, LP |
| Docket Number: | 3:21cv786 |
| Court: | United States District Court for the Southern District of Mississippi, Northern Division |
| Order Date: | December 16, 2024 |
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