June 2004

Thousands of visitors are injured every year at amusement parks, but the industry remains largely unregulated. Injured people’s lawsuits ask, How much fun is too much?

Robert E. Ammons

Memorial Day was the unofficial kickoff of the amusement-park season. As families flock to parks this summer seeking fun and excitement, government authorities and consumer advocates continue to question the safety of rides in an increasingly competitive industry.

Most people assume that these rides are safe, but public scrutiny of amusement parks has increased dramatically since 1999, a particularly deadly year for the industry:

      • A 12-year-old boy fell 200 feet to his death after slipping through a harness on the Drop Zone Stunt Tower ride at Paramount’s Great America Theme Park in Santa Clara, California.
      • Five people were injured when a piece of wood came loose from the track of a Knott’s Berry Farm roller coaster in Buena Vista, California.
      • A 20-year-old man sustained fatal injuries on the Shockwave roller coaster at Paramount’s Kings Dominion in Doswell, Virginia.
      • A 39-year-old woman and her 8-year-old daughter were killed when their car slid backward down a 30-foot ascent and crashed into another car, injuring two others on the Wild Wonder         roller coaster at Gillian’s Wonderland Pier in Ocean City, New Jersey.
      • A 28-year-old woman drowned when a raft capsized at Six Flags Over Texas in Arlington.
      • A teenager died of internal bleeding when he was thrown from a decoupled car on Coney Island’s Super Himalaya. 1

Tragically, ride-related deaths have occurred every year since. According to the most recent figures compiled by the Consumer Product Safety Commission (CPSC), in 2002 an estimated 3,800 injuries were associated with fixed-site amusement rides, 3,000 with mobile rides, and 2,500 with inflatable rides. 2

Amusement is big business. The International Association of Amusement Parks and Attractions (IAAPA), a leading industry organization, estimates that there are 600 parks and attractions in the United States. Last year, according to the organization, 322 million people visited amusement parks, a 27 percent jump in attendance from 1990. Revenues over the same period increased much faster —revenues of $10.3 billion in 2003 were 81 percent higher than those in 1990. 3

Although parks come in many different sizes, the industry is dominated by large, corporate-owned establishments. According to Amusement Business, an industry newspaper, nearly half of all 2003 visitors—over 155 million people—went to the 50 largest parks in North America. It is not surprising that Walt Disney Co. owns the five most highly attended parks on the list: The Magic Kingdom, Disneyland, Epcot, Disney MGM Studios, and Disney’s Animal Kingdom. Six Flags Theme Parks, Inc., is another big player, with 14 parks in the top 50 for attendance in 2003. 4

Amusement is also a highly competitive business. Customers are no longer satisfied with the quiet thrill of a spin on the Ferris wheel; they want the tallest and the fastest, and companies struggle to outdo each other to deliver.

Until last year, the largest and fastest roller coaster in North America was Superman: The Escape, at Six Flags Magic Mountain in Valencia, California. At 415 feet high, with a 328-foot drop and speeds up to 100 mph, the $20 million coaster had held that record since 1997. 5 The Cedar Point amusement company spent $25 million to top Superman by 5 feet and 20 mph with its Top Thrill Dragster in Sandusky, Ohio. 6

Wild rides, weak regulations

Federal regulation. Surprisingly, this highly lucrative and competitive industry is not regulated by the federal government. When Congress established the CPSC in 1972, it gave the commission the authority to regulate all types of amusement rides. 7

In 1981, however, Congress amended the Consumer Product Safety Act to exclude certain types of rides:

The term ‘consumer product’ . . . includes any mechanical device which carries or conveys passengers along, around, or over a fixed or restricted route or course or within a defined area for the purpose of giving its passengers amusement, which is customarily controlled or directed by an individual who is employed for that purpose and who is not a consumer with respect to that device, and which is not permanently fixed to a site. Such term does not include such a device which is permanently fixed to a site.
According to the commission, the term “consumer product” includes “mobile rides,” which are moved from location to location with fairs, carnivals, parties, or other events, as well as inflatable rides. However, the description explicitly excludes the “fixed-site rides” found in amusement parks, theme parks, or other permanent locations.9 This means that the biggest rides are the ones most likely to operate without real oversight.

Not surprisingly, the big corporate players in the amusement industry lobbied extensively for this amendment. Rep. Edward Markey (D-Mass.), a long-time advocate for the return of federal regulation over fixed-site amusement rides, calls this amendment the “roller coaster loophole.”10

The CPSC has no jurisdiction to investigate any incidents at the large parks, and fixed-site operators are not required to report incidents or ride malfunctions to authorities. Because the data the commission obtains through its National Electronic Injury Surveillance System (NEISS)—a sample of about 100 U.S. hospitals with emergency rooms—involves only situations that require hospitalization, no one knows how often rides malfunction or operators make mistakes that do not result in injury. It is likely that injuries, fatalities, malfunctions, and operator errors are under-reported.

Markey introduced a bill last year to close the roller coaster loophole. The National Amusement Park Ride Safety Act (currently pending) would restore the CPSC’s jurisdiction over fixed-site rides and would appropriate funds for the commission’s expanded duties.11

State regulation. Regulations are also lacking in some states. Eight do not have state-administered inspection programs for mobile rides, and another eight states and the District of Columbia do not have state-administered inspection programs for fixed-site rides.12 Amusement companies in these states may operate without any government regulation at all.

State regulations that do exist are based on vague standards drafted primarily by the amusement industry itself. Most of them are based on standards created by the American Society for Testing and Materials (ASTM), which merely provides a management and administrative system for the development of voluntary, consensus standards.

In 1978, ASTM created a technical committee on amusement-ride safety standards. The committee, called ASTM F-24, developed 15 standards addressing ride design, operations, maintenance, quality control, and testing. The most recent of these, F2291-03a—issued late last year and known as the “world standard” for amusement-ride design—details specific criteria, including g-force limits.13 These are the only standards that apply specifically to amusement rides.

Of the nearly 400 members of ASTM F-24, more than half are either ride manufacturers or amusement park operators.14 Most of the committee’s officers are from the amusement industry or aligned with its interests.15

The plaintiff’s perspective

Given the large number of ride-related injuries and deaths each year, along with weak regulations heavily influenced by the industry, litigation involving amusement companies will no doubt continue. The first consideration for the lawyer is, of course, whether the plaintiff’s claim is viable in the relevant jurisdiction.

One of the most common hurdles to an amusement park injury case is the doctrine of “assumption of risk,” which bars a claim if the plaintiff expressly or impliedly assumes a risk of harm.16 Many, but not all, states follow this doctrine.17 Counsel should determine whether the relevant jurisdiction recognizes the doctrine, and if so, the manner in which it is applied.

For example, in Georgia, a person who uses amusement park rides assumes the risk of injury arising “as a result of the natural and obvious hazards necessary to the purpose of the device.”18 In New York, a participant in a recreational activity consents to those commonly appreciated risks that are inherent in and arise from the nature of the activity. 19

Liability theories

Several causes of action are typically available to an amusement park patron injured on a ride. Evidence that the patron was not properly secured in a ride, or that the amusement company failed to properly maintain or operate the ride , should support an allegation of general negligence. Rides are typically operated by low-wage workers, so finding evidence to support a negligent hiring or training claim is not unusual. In states with regulations that apply to a particular ride, you should plead negligence per se, which will probably be based on ASTM standards.

The facts underlying many amusement park accidents support allegations of premises liability. Patrons are generally considered invitees, triggering the highest premises-related duties on the part of the amusement company in most states. 20 There may be evidence, for instance, that the company knew of previous problems with a particular ride.

Also consider whether strict products liability is a viable claim. Strict liability does not apply to owners and operators of amusement rides in most states. 21 However, if evidence shows that a manufacturing, design, or marketing-related defect in the amusement ride contributed to cause the injury, you should assert a strict products liability claim against the appropriate parties. For example, a patron injured on a roller coaster at a Pennsylvania amusement park sued the park on the theory of strict liability; the plaintiff alleged that his injuries were caused by the defective manufacture and design of the ride’s seat belt.22

Many of the larger parks design their own rides, in which case a design defect claim may be alleged against the park. Some parks, however, contract with outside companies to design and manufacture rides. You will need to be careful in asserting products liability claims against such contractors, because they often have limited or no insurance coverage.

Some states hold amusement parks to the heightened duty of common carriers.23 Common carriers typically are engaged in the business of transporting the public, or its property, and have a duty to exercise the utmost diligence, skill, and foresight to provide for passengers’ safety.24 You should determine whether the relevant jurisdiction recognizes amusement parks as common carriers, and if it does, you should assert claims based on this heightened duty.

Discovery. Ask for all maintenance and operations records and instructions. You should also get all of the manufacturer’s specifications for the ride. In some cases, you will find that the amusement company was not maintaining or operating the ride properly. If state regulations apply to maintenance or operation, you may discover that the company did not comply with those regulations, either.

Also ask for any reports of injuries or other complaints. Amusement companies are often required by state law or insurance companies to keep track of injuries and complaints, although they are not necessarily required to report them to authorities.

Discovery may reveal information to support a spoliation-of-evidence claim. Because the defendant has complete control over its rides both before and after an accident, it may attempt to fix a ride before you can inspect it.

For example, in Nguyen v. Six Flags Theme Parks, Inc., a 13-year-old boy was ejected from the front car of a moving roller coaster, the Mayan Mindbender, which operated inside a closed structure in complete darkness.25 Each car had a T-shaped lap bar to be pulled down onto each rider’s lap before the ride started. Weeks after the accident, a company mechanic recorded that the lap bar on the subject car had an “intermittent locking malfunction.”

Although Six Flags received several notices of the claim, the company completely disassembled and rehabilitated the ride—including replacing the lap bars in almost every car—before the plaintiff could inspect it. The company employee who supervised the rehabilitation project testified that the company did not keep track of which bars came out of which cars, so it was impossible to determine the condition of the bar that came out of the car involved in the accident.

To avoid problems like this, notify the amusement company in writing of a potential claim as early as possible, and request an immediate inspection of the ride before it is altered in any way. Quick measures such as these will help preserve, or even prevent, a claim of spoliation.

Blame-the-victim defense. Amusement companies almost always attempt to blame the patron for his or her injuries. However, because those injured at amusement parks are often young children, the company may be barred from asserting contributory negligence.

In Nguyen, the defendant blamed the boy for not staying in the roller coaster car. Despite the lap-bar locking malfunction, Six Flags asserted that the boy came out of the car and flew approximately 20 feet to the concrete floor because he stood up and was jumping up and down on his seat. The company’s case began to crumble when it took the ludicrous position that the purpose of the lap bars was simply to remind the guests to stay seated, rather than to physically restrain them.

Nguyen exemplifies the inadequacies of the CPSC’s data collection capabilities: Because the child was treated at a non-NEISS hospital, his injury was never reported to the commission.

Experts. Knowledgeable experts can help you refute the blame-the-victim defense and keep the jury focused on the ride, not the rider. For example, a biomechanical engineer or similarly qualified expert can analyze the forces exerted on a person’s body while on a particular ride. Often these forces are powerful enough to eject riders who are not properly secured or who are aboard rides that malfunction because of defective equipment.

Also consider retaining an industry expert with experience in the proper maintenance and operation of amusement rides. He or she can explain how negligence contributed to a mishap.

Amusement parks, theme parks, and water parks, with their array of thrill rides, have become an integral part of the American summer experience. Most parks encourage a false sense of security among patrons, who think—as they stand in line waiting for their turn— “Surely, with all these people here, these rides must be safe.” But numerous incidents from all over the country suggest otherwise.

Until the government establishes effective regulations, and until companies are required to report injuries that occur at their parks, visitors won’t know the dangers that await them.

Notes

1. Marc Silver, Fatal Attractions—Are Amusement Park Rides Unsafe at Any Speed?, U.S. NEWS & WORLD REP., Sept. 13, 2000, at 56.

2. MARK S. LEVENSON, U.S. CONSUMER PROD. SAFETY COMM’N, AMUSEMENT RIDE-RELATED INJURIES AND DEATHS IN THE UNITED STATES: 2003 UPDATE 4 (Nov. 2003).

3. INT’L ASS’N OF AMUSEMENT PARKS & ATTRACTIONS, U.S. AMUSEMENT/THEME PARKS & ATTRACTIONS INDUSTRY—ATTENDANCE & REVENUES (2003) available at www.iaapa.org (search for “attendance”) (last visited Apr. 28, 2004).

4. AMUSEMENT BUSINESS, TOP 50 NORTH AMERICAN AMUSEMENT & THEME PARKS (2003).

5. Jessica Reaves & Frank Pellegrini, The New Roller Coasters: Thrills, Chills, and Few Spills, TIME, June 26, 2001, available at www.time.com (search for “new roller coaster”) (last visited Apr. 28, 2004).

6. Top Thrill Dragster: Race for the Sky, available at www.cedarpoint.com (search for “Top Thrill Dragster”) (last visited Apr. 28, 2004).

7. Memorandum from Susan Ness, Office of General Counsel, U.S. Consumer Prod. Safety Comm’n, to Charles H. Boehne, Office of Field Coordination, U.S. Consumer Prod. Safety Comm’n, stating that “amusement rides fall within the jurisdiction of the commission, and are subject to regulation under the Consumer Product Safety Act,” citing 15 U.S.C. §2052(a)(1) ( Nov. 13, 1974). As originally enacted, the act defined a “consumer product” as “any article or component part thereof, produced or distributed . . . (ii) for the personal use, consumption, or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise . . .” (emphasis added).

8. 15 U.S.C. 2052(a)(1) (2000).

9. LEVENSON, supra note 2.

10. Statement of Rep. Edward Markey (D-Mass.) introducing the National Amusement Park Ride Safety Act of 2003 ( May 22, 2003), H.R. 2207, 108th Cong., 1st Sess. (2003).

11. National Amusement Park Safety Act of 2003, available at www.theorator.com/bills108/ hr2207.html (last visited Apr. 28, 2004).

12. JAMES A. DEMARCO, OFFICE OF COMPLIANCE, U.S. CONSUMER PROD. SAFETY COMM’N, DIRECTORY OF STATE AMUSEMENT RIDE SAFETY OFFICIALS (Mar. 2004).

13. Standard Practice for Design of Amusement Rides and Devices, available at www.astm.org (search for “F2291”) (last visited Apr. 28, 2004).

14. T. Harold Hudson, A New World Standard for Amusement Rides (Aug. 2003), available at www.astm.org (search for “world standard”) (last visited Apr. 28, 2004).

15. Committee F24 on Amusement Rides and Devices, Officers and Staff Support, available at www.astm.org (search for “F24,” then click on “Committee Officers & Staff Support”) (last visited Apr. 28, 2004).

16. RESTATEMENT (SECOND) OF TORTS §§496B, 496C (1965).

17. See, e.g., Jekyll Island State Park Auth. v. Machurik, 552 S.E.2d 94 (Ga. Ct. App. 2001); Beroutsos v. Six Flags Theme Park, Inc., 713 N.Y.S.2d 640 (N.Y. Sup. 2000).

18. See Jekyll Island State Park Auth., 552 S.E.2d 94, 95-96.

19. See Beroutsos, 713 N.Y.S.2d 640, 641.

20. Harrelson v. Wild Adventures, Inc., 588 S.E.2d 341 (Ga. Ct. App. 2003); Lilya v. Greater Gulf State Fair, Inc., 855 So.2d 1049 ( Ala. 2003).

21. Ferrari v. Grand Canyon Dories, 38 Cal. Rptr. 2d 65, 71-72 (Ct. App. 1995); Siciliano v. Capitol City Shows, Inc., 475 A.2d 19 (N.H. 1984).

22. Eljizi v. Dorney Park Coaster Co., No. 92-C-2322, 1996 WL 1038823 (Pa., Lehigh County Ct. Com. Pl. June 19, 1996).

23. See, e.g., Friedli v. Kerr, No. M1999- 02810-COA-R9-CV, 2001 WL 177184, at *7 (Tenn. Ct. App. 2001).

24. Id. at *6.

25. No. 2001-54868 ( Tex., Harris County Dist. Ct. 2002).

Robert E. Ammons is a partner with The Ammons Law Firm
"Posted with permission of TRIAL (June 2004)
Copyright the Association of Trial Lawyers of America."

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