Posted Thursday, June 16, 2005 11:03 PM | Contributed by Torgo
In a 4-3 decision, the California Supreme Court ruled that the Indiana Jones ride at Disneyland, accused in a lawsuit alleging brain injury (later resulting in death), is subject to the elevated standard of care for common carriers. Read more from MassTort.org.
When are they going to build a rollercoaster link between my house and my work so I can use this new form of "mass transit" to commute?
1) Obviously, the justices couldn't agree on the issue of whether an amusement ride constituted a common carrier. It was a 4-3 decision.
2) The California courts seem to have applied this law strangely at times. I understand that despite a specific exemption for telegraphs, (the only form of electronic communication common at the time) the courst have said that the law does apply to telephones.
3) I still haven't heard a definition of how "utmost care" has been defined legally.
4) If this is based on common law to do with stage coaches, does this mean that roller coasters only have to be as safe as 19th century stage coaches. ;)
This case does not mean that Disney will lose this particular case. The court was only deciding whether the plaintiff could sue under a common carrier theory - not whether Disney was ultimately liable for for violating a common carrier standard of care. The case will be sent back down to the trial court where a trial will be conducted to determine whether the standard of care was met. It is entirely possible that Disney will still win this particular suit.
To attempt to answer the above question about what "utmost care" means, I will quote the case:
“A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” “Common carriers are not, however, insurers of their passengers’ safety. Rather, the degree of care and diligence which they must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of the business of the carrier. [Citations.]”
If I were Disney, I would be more concerned with the court allowing a claim for strict liability. (which the Plaintiff in this case is also attempting to sue under). In this theory, the defendant is strictly liable for any and all injuries that occur. This is true even if the defendant was not negligent in any way. This type of liability is used when the activity in which the plaintiff is engaged is so dangerous that no matter how careful the defendant is, injuries are inevitable. The classic example of this is blasting. If the courts allowed this type of suit, amusement parks would be liable for any and all injuries - regardless of the fact that the park was not negligent.
Does this mean that all the *incidents* involving the blocking of BTMRR will heretofore be referred to as "fender benders"....;)
This has MAJOR implications for the industry, and none of them good. Fiogures that this would occur in CA, huh? :(
The following opinion post is a response to a detailed evidenced-based take. Those of you who are unable to read and comprehend writings more than 1-5 lines should avoid reading and commenting. If the time and commitment required for reading a few paragraphs scares or frightens you, then be advised to stop reading now. It is assumed that reasonable-minded people understand that there are no absolutes and that occasional summation and generalities must indeed be incorporated into the postings in order to allow for reasonable discussion. No all-encompassing prejudices are intended and/or assumed.
Nice detailed take. I was waiting to comment on this subject until you posted as you seem to know a lot more than anybody about this subject. In the past I've been in the "doom" crowd, but your take gives me hope.
Out of curiosity (and I assume there is no evidence for this based upon our prior discussions for related issues), is their any evidence that might suggest that those states that apply the common carrier status are indeed safer? This is my primary argument against common carrier status and, in related matters, my argument against further regulation (Markey stuff).
I'm sure everybody has good intentions in regards to legislation and court decisions, but we know the road to "heck" is littered with good intentions (my tired cliche). I honestly do not believe the common carrier status and/or further regulation will make a dent in the accident rate. If this stuff truly leads to safer rides, or can be reasonably expected to increase safety then I could at least understand and possibly support these types of actions. Absent this type of evidence, I find it unreasonable to require further effort and paperwork from the parks.
In related matters, I believe that there is a good chance of the Markey legislation at least getting out of committee sometime soon. With the recent Mission Space accident and this common carrier decision, there has certainly been a lot of media coverage. The media seems to love these types of stories. I hardly believe the general public will feel the same about Markey as enthusiasts seem to emote. Politicians seem to rally behind accidents involving 4-year-olds and I believe the public could fall in line (or visa versa). I do not expect the politicians whom to date have held firm and kept this bill from coming to a vote to continue demonstrating courage of convictions should the media onslaught continue.
My question for you Torgo…? Do you believe the Markey legislation could have a major or minor affect on the industry? Is there a chance the Markey stuff is more threatening than common carrier status? Or do you believe that Markey legislation is also just a minor inconvenience for the parks? I always appreciate your opinions…
*** This post was edited by Jeffrey R Smith 6/18/2005 6:53:22 PM ***
The regulation question is different, and frankly I'm still developing my position on Markey's legislation. I like the idea of an effective national agency coordinating information, but have questions about whether the CPSC can be that effective agency under its current situation. I think effective local regulation can be outstanding (Pennsylvania seems to be a pretty good example), and I'd hate for any national regulation to preempt local regulation, but I don't think Markey's approach would do so (at least the CPSC's involvement hasn't done so on the non-fixed-site side). I think the best use for national regulation is information-sharing and getting information from an investigation in one state to regulators everywhere rather than having CPSC inspectors all over the place, with the day-to-day work being done by states. In the end, I'd probably prefer that states all provide effective and efficient regulation, but unfortunately there are several that haven't taken that responsibility.
But, as I said, I'm still developing what I think. It's a tricky spot. I do think a carefully-crafted national regulation system could improve safety; it certainly has done so in areas like prescription medications and many consumer products (both in combination with the tort system).
As for the effect of Markey's legislation, I think it largely depends on which model it comes down to. If it's the idea I like (mostly information-sharing post-incident), the effect is probably minimal. If it's really the imposition of a whole new layer, it could be more significant -- but still probably not anything that's going to put companies out of business.
That's some rambling, none of it terribly planned out, so I may take some or all of it back. :)
As to Markey's legislation. As I understand it, Markey's legislation would do two things. It would bring amusement rides with fixed locations under the jurisdiction of the CPSC and it would create a national listing of amusement ride accident's. In a way the second item is more or less necessary for any intelligent regulation.
I don't see much impact from these items as such. The standard CPSC is to only investigate after accidents occur. Their procedures are really designed for items that are mass produced. Even the most popular amusement rides are produced in very small quantities. Further, the CPSC techniques are really only effective in dealing with design issues, not maintenance or operation issues which tend to be unique to each location.
The bigger worry is that things might later be expanded to include prescriptive design requirements that could have huge impacts of ride design.
While I do think that state legislation can be good, I have to admit that the one amusement park that I won't ride at due to safety concerns is in Pennsylvania.
Thanks for the insight Jim...
I think their approach can be effective even in amusement contexts, as, even though there are small quantities in play, there are certain components that show up over and over again -- a problem with one flat from a particular manufacturer may well show up in other rides by the same manufacturer.
I also probably disagree a little bit on whether such an approach can be effective on maintenance or operation issues -- more accurately, I'm not sure they're so unique. Checking restraints is location-agnostic, as is following a manufacturers' maintenance schedule. And if there's a particular maintenance step that tends to get skipped at one park, there may be human factors reasons it gets skipped elsewhere (the part is hard to get at, etc.).
In any event, I think -- like in so many places -- folks on both sides probably overstate the impact.
(Incidentally, though I have no interest in getting into the discussion on the other Markey thread, the fairly substantial new regulations in Massachusetts, getting fought very strongly by the portable and inflatable operators [though not, so far as I can tell, by SFI], were implemented by the appointee of our Republican governor.)
Since the subject of Markey's legislation has come up again...Has he added a provision to create a national accident registry? It wasn't in there the last time he introduced it, but I haven't re-read it this time. His approach all along has been to remove a line from the CPSC authorization which exempts fixed amusement parks from CPSC jurisdiction, then allocate another half-million dollars to the CPSC budget. I've been against this approach for many years, because first of all the CPSC methodology is one of investigating failures, when improving safety should be about preventing failures. The CPSC method works great when you are dealing with lots of identical products and one of the millions of consumers gets hurt or killed. All amusement rides are unique, hand-built machines, and not available in the quantities usually associated with consumer products. Applying the CPSC methodology to amusement rides is kind of like closing the barn door after the horses leave. Second, Federal legislation pre-empts State legislation, and knowing this, if some loudmouth Congressman from Massachusetts claims that because the CPSC now has the authority to investigate accidents,we now have Federal oversight of amusement rides, how many states will fail to establish or will shut down ride inspection divisions?
I'm not entirely against a Federal inspection standard for amusement rides. But I think Markey's approach is totally wrong. It would be far better for the Federal government to establish a set of standards which the States would be expected to comply with, and for a Federal agency (and I don't think the CPSC is necessarily the right one) to collect nationwide incident data. Or, establish a Federal oversight agency and establish bureaus across the country with inspectors to conduct proper ride inspections as many States are already doing. But of course that isn't going to happen, because quite frankly, it's too expensive and the States are already doing it anyway.
--Dave Althoff, Jr.
Not necessarily, or even usually; in general (especially in recent years), Congress has to be pretty determined to preempt state activity in an area, and I think it's unlikely that Congress would want to have this be a federal-only area.
There are many areas in which the federal system and state system overlap. The fact of FDA regulation of drugs doesn't preempt state lawsuits regarding the safety of those drugs. FDA regulation of consumer products does not preempt state regulation, at least not in all areas. (Connecticut, for example, regulates the sale of used hats.)
Indeed, the best example of why this wouldn't preempt state activity is non-fixed-site amusement rides, in which both the CPSC and local regulations have control. The Euro-bungy ride my daughter was on yesterday at the Taste of Amherst had a Massachusetts inspection placard on it (at least I think that's what I saw) but if something had gone wrong, both the CPSC and the Mass DPS would have had the opportunity to investigate.
I also disagree that post-accident investigation is closing the barn after the horse is gone. It's clearly not enough by itself, but there is genuine value in having a centralized entity doing post-accident investigations. That's why you see the in-depth investigations performed after aircraft failures.
Should post-incident investigation be to the exclusion of pre-incident inspections? Of course not. But the unique aspects of amusement rides do not eliminate what they have in common.
But if concern about preemption is the main concern, that's a relatively simple matter to deal with in the legislation -- in other words, that's avoidable.
It does not specify a national accident registry, except insofar as the CPSC already does that sort of reporting as a matter of course. And, as you note, the CPSC's model is one of investigation and followup. The budget allocated is simply not enough to do more, and I expect that's Markey's intention -- not to take over the world, but just to allow for centralized investigation and information-sharing.
I would be very surprised if any states abandon their own regulation if this is all that happens. Again, we haven't seen states shut down the inspections and regulation of non-fixed-site rides; is there a reason to think they'd respond differently to this?
Do not read this post if you have adverse reactions to more than a few lines of material. The following opinion piece is meant for those who are willing and able to participate in the discussion of the topic at hand. It is assumed that reasonable-minded people understand that there are no absolutes and that occasional summation and generalities may indeed be incorporated into the postings in order to allow for reasonable discussion. No all-encompassing prejudices are intended and/or assumed.
Do we have a problem that needs to be addressed?
This is the basic question for me. It is apparent (I believe) that there is not enough data available to determine if there is even a safety problem outside of a reasonable and acceptable range. I think we all know that accidents happen. The question that needs to be answered is if amusement ride accidents are happening at a statistically significant level above that which is to be expected.
I think we all agree that some centralized data collection agency is needed. I believe this should be the function of the insurance industry, but could be convinced to pass this on to a governmental agency in certain circumstances. In general, Markey is correct with addressing this issue, but I do not think his bill is the way to go about it. I just don’t automatically assume that government is the best answer in this case.
In regards to CPSC oversight being after the fact (barn door)…I question why they are needed at all until we know that amusement rides are not safe? I could argue that CPSC may have zero affect on the portable ride safety issue as there is no system set up to see if they are successful. If they (CPSC) are unable to provide objective data that justifies their duties and expenditures, then I’m of the belief that they are a burden on every taxpayer and society in general. Why continue to have them (CPSC) monitor any rides, let alone assign additional responsibilities to an agency that has yet to provide evidence they can indeed improve ride safety (this sentence assumes that there is even a safety problem that needs improving)? I may be able to argue that a better bill would be to get CPSC out of the ride regulation business all-together since they are addressing a problem that does not exist based upon available data.
The intervention into personal lives and private business by a government agency under the guise of “safety” is an unnecessary infringement in my opinion. If there is indeed statistical evidence that could justify needed governmental intervention, then I’m willing to change my mind. At the present time, Markey and his co-sponsors tell us there is a problem, but they have no objective data to prove it. Why should I, or anybody, believe him and his supporters if they have no evidence to back their complaints? Does anybody have evidence to show that CPSC oversight works in the amusement industry and that they are now needed in the “fixed” parks?
For extreme (though not really) example, is the CPSC needed to come in and investigate every “slip and fall” that may happen at any store? Should they come into everybody’s home whenever there is a “fall down the stair” accident? Should business and private citizens have to suffer/comply with lengthy investigation procedures from some governmental agency when we do not have the data to prove that there is even a problem? I called this an extreme example, but I’ve no evidence to prove or disprove that walking is not more dangerous than riding a coaster.
The rush to provide a government solution for a problem that may or may not exist bothers me. First, let us objectively determine if there is a problem. Then we can talk solutions. Given the sorry state of data collection on this issue, I’d say we are a good 10 years down the road until we can even determine if there is indeed a problem that needs fixing.
You guys who are on the fence or are leaning toward endorsing some sort of government oversight explain to me where my thinking may be flawed. Am I missing something? Do you know that there is a problem that needs a solution (besides the obvious need for a centralized data collection source which I think everybody agrees about)? Why do you believe government intervention is needed and what data are you using to form your opinion? By agreeing to or endorsing CPSC (government) intervention, I have to assume that you have concluded there is a problem that needs to be addressed. Where are you getting the information that has led you to believe there is a statistically significant problem with respect to accidents in the amusement industry? Help me see where you are coming from…
P.S. Thanks for finding another republican Torgo. There are indeed a few of them out there if you search hard enough to find them.
*** This post was edited by Jeffrey R Smith 6/20/2005 10:52:36 AM ***
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