Disney challenges stricter ride oversight in California

Posted Friday, April 8, 2005 9:33 AM | Contributed by Jeff

Walt Disney Co. is seeking to overturn a California court ruling that it says would impose the heightened safety standards that cover buses and passenger trains on roller coasters and theme park rides. A lawyer for Disney, told the justices that under the higher standard of care, "something could always be safer. The ride could be slower, the curves less sharp, the hills less steep. The ride may lose its purpose for being."

Read more from Bloomberg via The Orlando Sentinel.

Friday, April 8, 2005 4:04 PM
Wow, if that goes into effect. SFMM is going to be screwed. I hope this is overturned.
Friday, April 8, 2005 6:54 PM
This ruling is beyond stupid, what kind of court would decide a roller coaster or amusement ride is just another mode of transportation like a bus or train? This is one of those rulings that just makes you want to scratch your head, and wonder why a judge would rule in favor of the person who was injured and died, when Disney was clearly not at fault on this accident. I'd understand if the Indiana Jones vehicle went lost control and crashed in a wall, or flipped over, but this person had some kind of medical issue that caused this.I'm glad to see Six Flags is stepping up to help fight this silly court ruling, and I expect Cedar Fair will have their army of lawyers out in full force as well.
*** This post was edited by Dan D McD 4/8/2005 6:56:21 PM ***
Friday, April 8, 2005 7:45 PM
"They say it's unfair to subject amusement parks to a law passed in 1872, when the public needed assurances to ride new technologies such as railroads."

Yes...I see how the 1872 law applies to Indiana Jones...

P.S. In my opinion, this case is the most important decision that can/will affect ride experiences that we have ever seen. If the appeals ruling is not overturned, you can kiss g-forces goodbye. Once this infects California, the other states will slowly fall in line as the lawyers and their lobbies get $$$'s in their eyes.

Saturday, April 9, 2005 2:04 AM
1) Any lawyer out there who can tell us what the legal difference between "reasonable care" and "utmost care" is?

2) I tried to use a rollercoaster for transportation once, but I kept winding up in the same place.

3) If I remember correctly, this whole case sounded pretty bogus when I first heard about it. Wasn't this a case in which the person didn't have any symptoms until 2 or 3 days after the park visit?

Saturday, April 9, 2005 10:19 AM
I've got some more on this at http://masstort.org.

"Reasonable care" means roughly like what it sounds like -- most scholars think it reflects a risk-benefit analysis, where you're required to take economically reasonable steps to avoid injury. It's more complicated than that, but the core question is what a reasonable person/company in the same situation would do. "Utmost care" is something more -- I haven't looked at California law in particular, but it means generally you have to do everything necessary to avoid injuries. Obviously, it's a higher standard of care.

Go read the statute. Actually, here:

"Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry." (Cal. Code 2168.)

Does the Indy ride carry people? Does Goliath? Some definitions of "carry" mean transport from one place to another, but the first one in my dictionary just means to hold or support while moving.

You can quite readily conclude that the statute should be changed (and I doubt I'd disagree), but it's harder than you might think to conclude that as written it doesn't apply to amusement rides. And if you think it shouldn't apply to amusement rides, what about amusement rides that double as transport -- e.g., Disney's trains? And if you think the court should read into the statute an exclusion for amusement rides, I trust you've never complained about activist judges.

P.S. The case was decided at the motion to dismiss stage, at which the allegations in the complaint are presumed to be true. The bogusness of the case, or lack thereof, is not at issue at this stage. It's purely a legal question.

Saturday, April 9, 2005 5:35 PM

You only bother to quote 2168. The entire civil code goes from 2168 to 2178. If you bother to look at the rest of the code it is obvious that there are inconsistencies within the statutes. It certainly is not as cut and dry as you would seem to indicate in your post.

From your link:

"The issue before us is extremely difficult" because previous cases fall on both sides, said Justice Joyce Kennard. "Ultimately, this is going to be a policy call of the Legislature."

Seems even State Supreme Court Justices are able to see the inconsistencies in the statutes. Apparently, beyond the statute inconsistencies, there are case law inconsistencies also...

I could have fun with all of the statutes in this thread but I'll comment on just the following two for fun...

"2171. A common carrier must always give a preference in time, and may give a preference in price, to the United States and to this State."

Seems that IF the state indeed rules that amusement rides are common carriers. THEN people from California will HAVE to be given line cutting priveleges. Or at the very least, all us Americans will have the right to cut in front of any crazy foreins...

"(2172.) Section Twenty-one Hundred and Seventy-two. A common carrier must start at such time and place as he announces to the public, unless detained by accident or the elements, or in order to connect with carriers on other lines of travel."

This statute alone shows legislative intent... They certainly intended (back in the 1800's) to have these laws apply to "lines of travel." And even use the term "connect!" It is certainly within the realm of reasonable minded citizens, jurors, and judges to interpret that the "common carrier" laws HAVE ABSOLUTLEY NOTHING TO DO WITH AMUSEMENT PARK RIDES!

I could bore you all with hours more of legal inconsistencies (and humor) with regards to the California Civil Code as it pertains to "common carriers." I actually like this stuff. But I realize I've said too much already. Needless to say, in my opinion (which is worth nothing), based upon a pretty decent legal background and an interest in this/these law(s), there is no way that they can rule amusement rides as common carriers. However, the law is definatley not fair---and California courts are known to come up with some confusing decisions (as are other states)...

Saturday, April 9, 2005 6:12 PM
You make some fair points.

The inconsistencies are of interest, but only (under, again, traditional statutory interpretation approaches) if you conclude that 2168 is ambiguous. My point, which I could have made clearer, is that a court could reasonably conclude that 2168 is not ambiguous and thus that all of what you (and the litigants) point to is simply irrelevant. Indeed, I think it's not ambiguous. Given that, you don't have to -- indeed, you shouldn't -- get to the other statutes (which is why I didn't cite to them -- I did indeed look at them as well).

If you conclude that "carry" is ambiguous, which is a reasonable view, then the other stuff is of interest and maybe gets you to where you're going. But it's far from "beyond stupid," to quote a different writer, nor is it self-evidently idiotic, as most posters appear to assume, to reach the conclusions of the lower courts.

I don't think I ever said that it wasn't within the realm of possibility to conclude that the laws shouldn't apply to amusement rides. My point was to say that it's also within the realm of possibility for reasonable judges to conclude the contrary.

Saturday, April 9, 2005 6:23 PM
I"m not sure how this plays into it, but I'm sure the counterargument will be using this statute which is the 1st staded under title (7) seven.

"2085. The contract of carriage is a contract for the conveyance of property, persons, or messages, from one place to another."

Does this ("from one place to another") move you more in my direction Torgo? Or are you still in the strict interpretation of 2168 camp? I can see where you are coming from IF you look at only 2168. I just cannot see how the higher courts will not observe a inconsistency in the statutes. In my opinion, this is THE ONLY time a higher court is needed. Believe me, I am not one who believes judges should be making law...

I think our discussion is moot. If you read between the lines, it looks like they will through this back to the legislature. As an amusement park buff, I hope and believe that the Disney lobby will hold enough weight with this bunch to keep trim breaks off the coasters...

Time will tell...

Saturday, April 9, 2005 7:52 PM
I understand your argument -- and if the court gets beyond the definitional statute, I think you're right. But I'm simply not convinced that the court will, or should, do so. I'm pretty far from a strict constructionist in other contexts -- probably as far that way as you are the other -- but I also believe in taking statutes at their word.

I also think you're right that in the long run, this is likely, but not definitely, to end up as a legislative issue -- which is exactly what the Supreme Court justice you quoted says. When they say "it's up to the legislature to decide," that's typically a signal that they think the plain language is (a) silly, but (b) controlling. Here, that means that Indy is a common carrier.

And what, incidentally, of monorails? And in-park trains that have multiple stops?

Saturday, April 9, 2005 9:55 PM
I'm not familiar with California codes, but there is a problem with trying to interpret any single sentence in law. The problem is there are probably several other lines that disagree with the line. That's without considering definitions that are obsolete or that violate physical law and common sense.

2168 certainly qualifies as obsolete. It would define not only amusement rides as common carriers, but also telephone lines, the internet, elevators, escalators, radio, television, cable television, satelite signals, intercom systems, cell phones, airlines, the space shuttle, and more as common carriers. None of these existed in 1872. This is why courts often have to be somewhat activist and why they often beg legislatures to clarify laws. If the court decides that amusement rides or cable television are common carriers, the court is being activist by expanding the law to include items that obviously were not in the legislature's original intent since they didn't exist. If the court decides that they are excluded from the law, then the court is still being activist, just in the oppisite direction. (Yes, I realize that many of the items that I mentioned are under Federal jurisdiction and largely immune to state law, but then so are railroads.)

Sunday, April 10, 2005 7:33 AM
I don't disagree that the 1872 legislature likely did not intend to cover many things that the language they chose did cover, because they couldn't intend it -- they didn't know what would come down the pike. But at the same time, they knew how to write things narrowly or broadly, and they chose broadly.

Based on that language, they intended for it to be interpreted broadly -- and clearly to incorporate items that were not in existence at that time, as they were drafting it to capture future technologies. That was, indeed, the point of the statute.

And so it has been interpreted as applying to ski lifts for tort purposes. Also escalators. And elevators. And, in fact (pre-FAA), airlines. And phone services. I don't see any cases on the other things you mention, but I imagine it's either because of federal preemption or just that it hasn't come up yet -- but there aren't cases going the other way, either (that I can see, anyway).

The legislature knows how to put in exceptions. In fact, the telegraph exception was added in an amendment a couple of years after the original statute. I imagine they'll put one in place here, as Jeffrey suggests, if the court stays consistent with the lower courts. But they haven't put in those exceptions for all of the items cited above that you suggested would be silly to be common carriers but in fact are.

The definition the lower court took for "carry" (which has to be the key term) is far from obsolete. I don't think it violates physical law. And I get awfully nervous when plain language is abandoned for "common sense."

Again: If the court says it's not a common carrier, that's fine with me. My point here was that there were a lot of knee-jerk reactions that failed to recognize that the argument on the other side has substance and merit.

Sunday, April 10, 2005 5:46 PM
Again Torgo...

There is conflict in the statutes. You pick one statute (2168) and have decided that the broad language of this statute alone indicates that the 1800 legislature intended that amusement rides be classified as common carriers?

Why should choose just this one statute (2168) and ignore those other statutes (2085 for example) that seem to indicate the opposite is true? I do not understand why you've based your whole argument/opinion (sound as it may be) on JUST ONE statute. Please help me understand why 2168 should be held in higher esteem than the other statutes...

Sunday, April 10, 2005 6:17 PM
It's simple. Section 2168 is what defines the term in question. That definition is arguably unambiguous.

Beyond the lack of ambiguity: The rest of the statutes have to do with regulating common carriers by the state, but do not have to do with tort law. The conflicting provisions have nothing to do with tort law -- and therefore they do not have to even be seen as conflicting. They describe one set of rules for common carriers to which they apply. The fact that they don't apply to some common carriers doesn't mean they're not common carriers; it just means they don't have to comply with those rules. There are other California cases that indicate that tort law borrows the definition of "common carrier" but doesn't worry about the rest of the statutory provisions.

I actually think I said expressly that the 1872 legislature didn't think about amusement rides at all; I've certainly never said that "the 1800 legislature intended that amusement rides be classified as common carriers." If I have, I trust you'll point it out; if I haven't, I trust you'll retract that.

But they knew how to write things broadly and how to write things narrowly. They wrote this broadly, and not a single legislature in the 125+ years since then -- in the face of many rulings finding various new technologies, including amusement rides, to be common carriers -- has changed it one word, except to take out telegraphs.

(Edit to add "arguably" in the first paragraph and clean up a bit of the rest.)
*** This post was edited by Torgo 4/10/2005 7:11:53 PM ***

Monday, April 11, 2005 12:04 AM
I'm not mad or arguing for the sake of argument Torgo. It is difficult for me to demonstrate my attitude while typing. I hope I'm not offending you. I'm honestly trying to pick your brain. You seem like you know the law better than I. Are you saying that as a matter of law, the only statute that the State Supreme Court is obligated to address is 2168? If, as a matter of law, this is the only statute that can be addressed and legally should only be addressed, then I'm with you 100%! I'm trying to ascertain if this is your opinion or if, as a matter of procedure law (fact), 2168 is all that can/should be addressed.

I honestly do not understand the proper procedures in terms of which statutes take precedence in this case. I study laws quite a bit, and am quite interested in legal matters, but I'm not a lawyer. I'm a physical therapist by trade. I just read the statutes and am able to easily determine that there is conflict within the statutes when looked at together. I do not argue that 2168 as it stands alone is broadly written and most likely would include amusement rides within its description. I'm not sure what statement you want/think I should retract? I just think there is ample evidence within the statutes themselves (outside of 2168) which can easily show legislative intent that certainly did not include amusement rides. I agree with you about the trains and monorails by the way... However, if due to procedure law, the judges are not allowed to look at anything other than 2168 to determine legislative intent, then you are certainly correct and I've wasted a lot of energy in this thread. I guess I'm trying to determine where it is written that only 2168 is in question in this case.

I just cannot understand, for the life of me, why 2168 takes precedence. Unless, this is the only question the court is allowed to answer based upon appeal procedures. I'm decent at reading and understanding laws. I have difficulty understanding court procedures...

Monday, April 11, 2005 2:40 AM
I'm honestly trying to pick your brain. You seem like you know the law better than I.

As I would expect most lawyers do.;)

I must say, it is nice to see the 2 of you make valid points without coming to the 'petty argument' stage. But I have to Agree with Torgo here, even though I really agree more with what Jeffrey is saying. Is Indy just a ride? Is it a type of transportation? I dunno, but it sure was fun. Hopefully the problem will be resolved.

Monday, April 11, 2005 6:33 AM

No offense taken. The comment you made that I was a bit bothered by was the one suggesting that I am arguing that the "1800 legislature intended that amusement rides be classified as common carriers." I don't think the legislature intended such classification; I think the legislature didn't intend to exclude them, though.

It's a narrow distinction, but an important one -- they didn't have to be thinking about something in particular to include it. They just had to be thinking broadly in writing the language.

The argument I'm making is based on a couple of things, both well-settled in U.S. law. The first is that if you're looking at a statute that potentially controls, and that statute is unambiguous, you don't go elsewhere to contradict it.

In other words, if law 100 says "A cow is a thing with four legs that says 'moo,'" you don't go to law 101 that shows that potentially shows that the definition given in 100 is broader than the legislature potentially intended. So you could end up calling a moose a cow, if you conclude that moose moo -- even if law 101 says something that you think suggests that the legislature really meant 100 to be confined to "real" cows.

The second part is that the fact that law 101 might give that suggestion doesn't by itself mean that law 100 should be narrowed. So if 101 talks about regulating the content of cow milk, and it's undisputed that nobody sells moose milk, that doesn't mean 100 should be narrowed to define "cow" as "a thing with four legs that says 'moo' and is what we usually call a cow." Regulating a subclass of items that fall within a broad definition doesn't mean the definition is made narrower -- it just means that particular regulation is narrower.

So there are two things: First, if the definitional statute is unambiguous, you don't have to get legislative intent from anywhere. Second, even if you get to look elsewhere for legislative intent, the other statutes here do not necessarily evidence a narrow legislative intent.

Incidentally, as I tell my Torts students, I think the common carrier standard of care in general is a bit odd, and possibly outdated. I have no dog in this fight, and as a policy matter would probably prefer that the standard not apply to amusement rides. (Though as a practical matter, higher standards like this rarely make a big difference in my observation.)

If you'd like to see the actual opinion the intermediate appellate court issued, send me an e-mail. (Address is at the bottom of the masstort.org page.)

Monday, April 18, 2005 1:12 PM
I personally believe that if there is some one that is at fault and that person is the person who rode Indy. I say that because it was the choice of the rider to go to Disneyland and to go on the ride and there fore is liable for their own life. Unless it was due to a lack of care to make sure that the ride will operate appropriately. But I suppose that any of this doesn't matters because AMERICA IS SUIT HAPPY. I just hope that people like this will be eventually be slapped on the wrist for trying.hmm funny it seems that this situation seems alot similer to the people who tried to sui Mc Donalds for making them fat. And in the end they made the burger law (not allowing people to sue fast food for making them fat).
I just hope that amusement parks might be able to create one similar to it. I hope that you many more coaster fans will take a stand for amusement parks. So that we may presurve a part of our culture history.
*** This post was edited by boogeyman 4/18/2005 1:14:12 PM ***

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