MEGHAN FAXEL and MIKE FAXEL v. Wilderness Hotel & Resort, Inc.

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 21-1967
MEGHAN FAXEL and MIKE FAXEL,
Plaintiffs-Appellants,
v.
WILDERNESS HOTEL & RESORT, INC.,
Defendant/
Third-Party Plaintiff-Appellee,
v.
PROSLIDE TECHNOLOGY, INC.,
Third-Party Defendant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 19-cv-1026-slc — Stephen L. Crocker, Magistrate Judge.
____________________
ARGUED OCTOBER 25, 2022 — DECIDED AUGUST 15, 2024
____________________
Before SYKES, Chief Judge, and FLAUM and LEE, Circuit
Judges.

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2 No. 21-1967
SYKES, Chief Judge. Meghan Faxel was injured while rid-
ing an inflatable tube down the “Black Hole,” a water slide
at the Wilderness Hotel in Wisconsin Dells, Wisconsin. Her
tube became stuck and then flipped over, and she injured
her shoulder. Meghan and her husband, Mike Faxel, sued
Wilderness alleging claims for negligence, common-law
premises liability, and loss of consortium. Wilderness later
filed a cross-claim against ProSlide Technology, Inc., the
manufacturer of the slide, seeking contribution if found
liable.
The scheduling order set a deadline for the Faxels to dis-
close their liability expert, but the date came and went with
no disclosure. Almost three months later, they sought an
extension of time to name an expert. A magistrate judge,
presiding by consent, denied the motion. Wilderness then
moved for summary judgment, arguing that without expert
testimony, the Faxels could not prove their claims. The
magistrate judge agreed and entered judgment for Wilder-
ness.
We affirm. The hotel’s duty of care depends on what is
reasonably required of water-park operators regarding the
safety protocols, inspection, and maintenance of water slides
like this one. These questions require specialized knowledge
and expertise; they are not within the common knowledge of
jurors. It follows that without expert testimony, the Faxels
cannot prove their claims. Summary judgment for Wilder-
ness was appropriate.
I. Background
In August 2016 Meghan and Mike Faxel visited the “Wild
West” water park at the Wilderness Hotel & Golf Resort, one

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No. 21-1967 3
of several indoor water parks at the resort’s vast recreational
complex in Wisconsin Dells. Meghan decided to try a water
slide called the “Black Hole,” a thrill ride in which the rider
sits on an inflatable tube and courses down a covered slide
that opens into a large bowl. Churning water then pushes
the rider in a circular motion into a final covered slide that
corkscrews into the exit pool. Aquatics attendants are posi-
tioned at the beginning and end of the ride to assist riders
and monitor for safety issues.
Meghan’s ride on the Black Hole did not proceed as
planned. When she emerged from the first slide into the
bowl section of the ride, the force of her descent and the
flowing water pushed her tube to the ridge (or side) of the
bowl instead of toward the opening to the second slide. Her
tube then became stuck in a “dry spot”—not literally a dry
spot but an area of the bowl where the water was not circu-
lating with sufficient force to continue pushing her along the
route. Her tube flipped over after stalling in this spot for a
few seconds, and Meghan sustained serious injury to her
collarbone and shoulder. She finished the ride without her
tube. When she landed in the exit pool, she told the at-
tendant that she was hurt; the attendant provided first aid,
and the park temporarily closed the Black Hole. Later that
day an employee did a test ride down the Black Hole. He too
experienced a rollover, so Wilderness shut down the ride for
the rest of the day and contacted ProSlide, the manufacturer
of the slide.
Meghan was not the first rider to get stuck on the Black
Hole. Five months earlier on March 26, another rider got
stuck in a similar area—between the reverse injector and
first forward injector—in the bowl of the Black Hole. After

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4 No. 21-1967
the March incident, the resort’s aquatics director had
emailed a video to ProSlide and asked if there were “any
adjustments [Wilderness] should make in light of this.” A
ProSlide employee advised Wilderness that there was “no
cause for immediate concern” and encouraged it to continue
to monitor the Black Hole for performance issues.
In the months between the March 26 incident and
Meghan’s accident, Wilderness inspected and monitored the
Black Hole in accordance with its standard safety protocols.
Every morning aquatics supervisors performed safety
inspections of all water slides at the resort. These inspections
required a supervisor to check each ride’s water flow. In
addition, an aquatics staff member conducted a test ride of
each water slide before guests arrived. The aquatics supervi-
sors then completed a daily supervisor log confirming that
all water slides had been inspected and tested and noting
any maintenance issues.
Wilderness located most of its daily safety checklists and
supervisor logs completed between March 26 and August
18, the date of Meghan’s injury. Based on the park’s typical
visitor experience, the resort’s assistant general manager
estimated that “tens of thousands of guests used the Black
Hole ride” during this period. Incident reports and other
records do not reflect any stuck riders or other water-flow
issues. The records reflect one injury during this period: an
incident report from May 28 describes an injury on the Black
Hole when a guest slid off her tube and hurt her head. But
the report does not mention a “dry spot,” a stuck tube, or a
rollover, and provides no information about the cause of the
incident. The August 18 daily safety checklist and supervisor

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No. 21-1967 5
log do not report any water-flow problems on the Black Hole
during that morning’s inspection and test ride.
After Meghan’s accident, Wilderness and ProSlide in-
spected and serviced the Black Hole. On the evening of the
accident, a Wilderness aquatics manager sent an email to
ProSlide explaining that “there was something wrong with
the water pressure.” In December ProSlide representatives
visited Wilderness to evaluate the Black Hole’s performance
and fix the so-called “dry spot.” They adjusted the reverse
and forward injectors “to improve the performance inside
the bowl feature.” In February 2017 they returned to relocate
the first forward injector. ProSlide explained that “[i]t was
originally reported by the park that riders were becoming
stuck in a ‘dry spot’ between the reverse injector and first
forward injector.” The relocation of the injector “alleviat[ed]
the issue of riders becoming stuck inside the bowl.”
The Faxels sued Wilderness in federal court alleging
claims for negligence, common-law premises liability, and
loss of consortium. They initially filed suit in the Northern
District of Illinois. Wilderness moved to dismiss or to trans-
fer the case to the Western District of Wisconsin based on
lack of personal jurisdiction in Illinois. The district court
agreed that personal jurisdiction was lacking and granted
the transfer motion. Once the case arrived in the Wisconsin
federal court, the parties consented to proceed before a
magistrate judge and filed a joint status report proposing a
case schedule and noting that the Faxels planned to file an
amended complaint adding ProSlide as a defendant. The
magistrate judge held a pretrial conference and entered a
scheduling order, which included deadlines to amend the

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6 No. 21-1967
pleadings, disclose liability experts, complete discovery, and
other customary case-management deadlines.
The Faxels missed their deadline to file the anticipated
amended complaint. For the next two months Wilderness’s
counsel repeatedly emailed their attorney inquiring about
the status. When an amended complaint was not forthcom-
ing, Wilderness moved to dismiss for failure to prosecute.
Two days later the Faxels filed an amended complaint
adding ProSlide as a defendant. Though it was more than
two months late, the magistrate judge accepted the amended
complaint and denied the motion to dismiss. Still, the judge
admonished the Faxels’ attorney for her “lack of attention to
her obligations” and the “troubling lack of candor” in her
response to the dismissal motion; the judge warned her that
further neglect of her responsibilities would not be tolerated.
For its part, ProSlide moved to dismiss the Faxels’ claims
against it based on Wisconsin’s three-year statute of limita-
tions for personal-injury claims. The judge granted the
motion because the allegations in the amended complaint
demonstrated that the claims against ProSlide were time-
barred.
The Faxels soon missed another important deadline: they
did not disclose an expert witness by the deadline in the
scheduling order. Nearly three months later, they moved to
“reset” the expert disclosure date. The judge denied the
motion because the Faxels had not demonstrated good cause
under Rule 16 of the Federal Rules of Civil Procedure.
Wilderness then moved for summary judgment, arguing
that without a liability expert regarding the standard of care
for operators of water parks in general and water slides like

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No. 21-1967 7
the Black Hole in particular, the Faxels could not meet their
burden of proof on any of their claims. The judge agreed and
entered summary judgment for Wilderness.
II. Discussion
The Faxels do not challenge the judge’s order dismissing
their claims against ProSlide. Nor do they challenge the
denial of their motion for an extension of time to disclose an
expert witness. Their only argument is that the judge was
wrong to enter summary judgment for Wilderness; they
maintain that they can prove their claims against the resort
even without expert testimony.
We review the judge’s summary-judgment order de no-
vo. James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020). Our
inquiry centers on the negligence and premises-liability
claims. The loss-of-consortium claim is derivative of the
underlying tort claims; it is “a separate but dependent dam-
ages claim deriving from a tort injury to another.” Finnegan
ex rel. Skoglind v. Wis. Patients Comp. Fund, 666 N.W.2d 797,
805 (Wis. 2003) (emphasis added). So the crux of this appeal
concerns the viability of the negligence and premises-
liability claims.
The two substantive claims mirror each other legally. In
Wisconsin, as elsewhere, “[a] person is negligent when [he
or she] fails to exercise ordinary care.” Gritzner v. Michael R.,
611 N.W.2d 906, 912 (Wis. 2000) (alteration in original)
(quoting Wis. JI—Civil 1005). “[T]he duty of ordinary care
under the circumstances is determined by what would be
reasonable given the facts and circumstances of the particu-
lar claim at hand.” Hoida, Inc. v. M & I Midstate Bank, 717
N.W.2d 17, 30 (Wis. 2006). Moreover, Wisconsin common

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8 No. 21-1967
law requires premises to be “reasonably safe.”1 Gould v.
Allstar Ins. Co., 208 N.W.2d 388, 391 (Wis. 1973). Both tort
claims arise out of the injury Meghan sustained in the acci-
dent on the Black Hole slide at Wilderness’s water park, and
they turn on the same question: did Wilderness take the
precautions reasonably required of a water-park operator to
ensure that its water park remained reasonably safe for its
guests?
To determine whether Wilderness acted reasonably un-
der the circumstances, a jury must understand what is
reasonably required of a water park of its kind. More specifi-
cally, Wilderness’s duty of care is determined by what is
reasonably required of water-park operators regarding the
inspection, maintenance, and safety protocols of water parks
in general and water slides like this one in particular. These
are not questions that lay jurors can answer based on com-
mon knowledge or experience. “Where the specifics of a
defendant’s duty of care involve specialized knowledge,
plaintiffs must introduce expert testimony to establish this
element of a negligence claim.” Lees v. Carthage College, 714
F.3d 516, 522 (7th Cir. 2013) (Wisconsin law) (citing Payne v.
Milwaukee Sanitarium Found., Inc., 260 N.W.2d 386, 392 (Wis.
1977)). “Expert testimony should be adduced concerning
those matters involving special knowledge or skill or experi-
ence on subjects [that] are not within the realm of the ordi-
nary experience of mankind, and [that] require special
1 Wisconsin’s Safe Place Statute, see WIS. STAT. § 101.11, imposes “a higher
duty than the [common law] duty of ordinary care regarding certain acts
by employers and owners of places of employment or public buildings.”
Mair v. Trollhaugen Ski Resort, 715 N.W.2d 598, 605 (Wis. 2006). The Faxels
have not alleged a claim under the Safe Place Statute.

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No. 21-1967 9
learning, study[,] or experience.” Payne, 260 N.W.2d at 392;
see also Milwaukee Metro. Sewerage Dist. v. City of Milwaukee,
691 N.W.2d 658, 685 (Wis. 2005).
The Faxels can’t establish Wilderness’s duty of care with-
out expert testimony. The inspection, maintenance, and
safety practices reasonably expected of water parks are not
subjects that are within the realm of ordinary experience.
Without expert testimony, jurors would be left to guess
about the standard of care or infer a breach from the fact of
Meghan’s injury, neither of which is legally permissible.
The Faxels contend that Wilderness had a duty to repair
the “dry spot” on the Black Hole ride after the March 2016
accident. But Wilderness contacted ProSlide, the manufac-
turer of the slide, to determine if the ride needed repairs.
ProSlide advised Wilderness that the Black Hole was safe,
and Wilderness continued daily monitoring of its perfor-
mance. Perhaps a reasonable water-park operator might
have acted differently, but expert testimony is needed to
identify industry safety standards or other relevant evidence
before a jury could reach this conclusion. So too for the
allegation that Wilderness should have warned about dry
spots or instructed riders on best practices when stuck on the
slide. Without expert testimony to support this allegation, a
jury would have no evidentiary basis to find that a reasona-
ble water park has a duty to post a warning after one con-
firmed accident in tens of thousands of rides on the slide.
We note too that this is not a case of a clear or obvious
lapse in safety measures. Wilderness followed safety proce-
dures that seem reasonable on their face: supervisors carried
out daily safety protocols designed to check water flow,
detect maintenance or malfunction concerns, and confirm

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10 No. 21-1967
that all water slides were operating properly, including a
daily test ride. In the period leading up to Meghan’s acci-
dent, tens of thousands of guests rode the Black Hole with-
out noted injury or incident. Without expert testimony that
these measures were insufficient by industry standards, the
Faxels essentially ask that jurors be invited to speculate
about the duty of care and that Wilderness’s conduct violat-
ed it.
The Faxels point to the aquatics manager’s email to
ProSlide on the evening of Meghan’s accident noting that
“there was something wrong with the water pressure.” But
this email shows only that Wilderness was aware after the
accident that the Black Hole had experienced a dry spot on
that date and that a water-flow issue on the slide likely
caused Meghan’s injury. This evidence sheds no light on the
central question about the duty of care Wilderness owed its
guests. With that question unanswered, a jury could not
conclude that the safety precautions and remedial steps that
Wilderness took as part of its standard safety protocols
failed to satisfy its duty.
The Faxels also rely on the incident in May 2016 in which
a rider slid off her tube while riding the Black Hole, as well
as the February 2017 report by ProSlide after it repaired the
Black Hole. ProSlide’s report noted that “[i]t was originally
reported by the park that riders were becoming stuck in a
‘dry spot’ between the reverse injector and first forward
injector.” The Faxels claim that this evidence shows that
more than one rider encountered dry-spot issues on the
slide.
Again, without expert testimony, this evidence cannot
establish a water park’s duty of care in these circumstances.

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No. 21-1967 11
The May 2016 incident report does not describe the cause or
location of the rider’s accident; no evidence indicates that the
Black Hole had a “dry spot” at the time. Likewise, ProSlide’s
use of the word “riders” in its 2017 repair report does not
support an inference that water-flow issues were common
on the Black Hole. The record reflects that when ProSlide
wrote this report, Wilderness had reported that two riders—
one in March 2016 and Meghan Faxel in August 2016—had
become stuck in a dry spot on the Black Hole.
A few loose ends remain before we close. Meghan cites
two Wisconsin Supreme Court cases to support her argu-
ment that expert testimony is not necessary to prove her
case. Both concluded that the plaintiffs did not need expert
testimony, but neither addressed a factually analogous
situation. In Netzel v. State Sand & Gravel Co., 186 N.W.2d
258, 261–62 (Wis. 1971), the Wisconsin Supreme Court
determined that an expert was not needed to prove that
concrete handled by the plaintiff was defective; testimony
from the job foreman, a “lay expert,” and the fact that seven
other construction workers were injured on the same day,
was sufficient evidence to counter the defendant’s argument
that the concrete was safe. Id. at 262. Netzel shows only that
expert testimony may not be needed where other testimony
or evidence supports a determination that the defendant
breached its duty of care. Here the Faxels do not have any
evidence that would substitute for an expert.
In Bruss v. Milwaukee Sporting Goods Co., 150 N.W.2d 337,
340–41 (Wis. 1967), the court concluded that expert testimo-
ny was not required because the defendant’s employee had
earlier reported several defects in the bleachers that caused
the plaintiff’s injury and because the defendant’s president

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12 No. 21-1967
acknowledged the defects just before the accident but did
nothing. Again, the court’s conclusion that expert testimony
wasn’t required in Bruss doesn’t mean it’s not needed in this
case. The Bruss plaintiffs presented evidence that the de-
fendant was aware of a dangerous defect immediately
before the plaintiff’s accident and took no action, but no such
evidence exists here. Without an expert, the Faxels cannot
show that Wilderness’s many safety precautions—including
daily safety inspections that checked water flow—did not
satisfy its duty of care.
The Faxels’ final argument fares no better. They assert
that Wilderness had a nondelegable duty under Wisconsin
law and thus could not rely on ProSlide’s advice about the
Black Hole after the March 2016 incident. This argument
misunderstands Wisconsin’s nondelegable-duty doctrine.
Nondelegable duties are legal duties that the responsible
party may not assign to another; in other words, if a duty is
nondelegable, “[t]he person who has that duty … cannot
assert that another to whom he has allegedly delegated the
duty is to be substituted as the primary defendant in his
stead.” Barry v. Emps. Mut. Cas. Co., 630 N.W.2d 517, 526
(Wis. 2001) (quotation marks omitted). Wilderness has not
argued that it delegated its duty of care to ProSlide. Rather,
it presented evidence of its consultation with ProSlide to
demonstrate that it acted reasonably in response to the
March 2016 incident. The nondelegable-duty doctrine has no
relevance here.
In sum, without expert testimony the Faxels cannot
prove any of their claims. The magistrate judge properly
entered summary judgment for Wilderness.
AFFIRMED

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