Danger at the Amusement Park

When an outing to an amusement park or fairground ends in tragedy, it’s essential to conduct early and thorough investigation of the ride and parties involved in its manufacture and maintenance.

By || M ARK K ITRICK AND M ARK L EWIS

DANGERat the Amusement Park

In 2017, the Fire Ball ride at the Ohio State Fair catastrophically failed, killing our 18-year-old client Tyler Jarrell and injuring others.1 “Described as an ‘aggressive thrill’ ride, the Fire Ball swings riders from side to side like a pendulum, reaching 40 feet above the ground while spinning riders at 13 revolutions per minute.”2 Tyler was thrown 60 feet into the air and died on impact with the cement ground. An extensive investigation found that the catastrophic failure was caused by exces- sive corrosion, leading one of the pendulum ride’s gondolas (the cart that carries the ride’s passengers in a row of seats, which was fixed at the end of a metal arm) to break loose.3 People who visit amusement parks or fairgrounds buy tickets believing that Ithe rides are designed, assembled, and maintained properly; that they’ve been thoroughly inspected; that the operators are well trained; and that safety is primary. However, the amusement park industry was deregulated in 1981, resulting in no national safety standards for fixed and permanent attractions, known as the so-called “roller-coaster loophole.”4 Today, the rules and inspections vary by state.5 Further, the U.S. Consumer Product Safety Commission (CPSC) has no serious oversight of the industry.6 As a result, national data on safety risks is incomplete.

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However a study found that from obvious.”13 Premises liability claims first lessee more than 10 years preceding 1990–2010, approximately 92,885 ­injuries may arise from injuries resulting from the injury or harm.16 Georgia has a to people under 18 from amusement rides a dangerous ride or attraction; trip and similar law.17 were reported nationally, with approxi- falls due to hazards on the ground, Negligence. Consumers also may mately 33 percent arising from large, fixed ­walkways, or stairs; food poisoning or bring general negligence claims. In rides at permanent ­amusement parks other illnesses from consuming items at amusement ride cases, negligence is such as Universal Studios or Disneyland.7 the park’s or fairground’s restaurants or one of the broader and most common The same study found that mobile rides concession stands; and dangers caused causes of action, and it depends on the that are assembled and disassembled to by the park’s or fairground’s failure to specific facts of your case. “Negligence is migrate among seasonal fairs and carni- comply with applicable fire and building defined generally as the failure to exer- vals caused 29 percent of injuries.8 When codes. For example, if a large pothole in cise ‘that degree of care for the safety a client is injured on one of these rides, the middle of the park’s go-kart track of others, which a person of ordinary here are common steps to follow early caused someone to crash, the injured prudence would exercise under similar when gathering critical evidence and party could potentially bring a premises circumstances.’”18 evaluating potential claims. liability claim against the owner or oper- Negligent hiring, retention, training, ator of the go-kart track or amusement and supervision. An amusement park Causes of Action and park who failed to repair the pothole. may be held liable under respondeat Defendants Products liability. If your clients are superior for the negligent acts or omis- Before you start looking into potential injured because the amusement ride is sions of its employees who are operating legal claims and defendants, keep a defective, possible products liability and maintaining the rides. This could few things in mind: Most amusement claims include failure to warn, manu- include an amusement park employee ride cases that involve serious injuries facturing defects, and design defects. who fails to tighten and secure a ride’s settle, and very few proceed to trial. For example, an injured rider could lap restraint mechanism, causing riders Typically, settlements are confidential, allege a failure-to-warn claim against the to be thrown about—or worse, ejected which can make case evaluation and amusement park owners and ride opera- from—the cart. The injured plaintiffs ongoing negotiations more difficult.9 In tors who failed to post safety rules and could allege, in part, that the amusement addition, some states also cap damages signs; failed to adequately communicate park hired and retained personnel who in wrongful death and personal injury ride restrictions based on age, height and were incompetent, reckless, or unquali- cases, and it is often difficult to obtain weight, pregnancy, or health conditions; fied for their positions, as well as failure punitive damages.10 or failed to provide adequate instruc- to provide oversight and the proper and Potential legal claims may be tions on using the safety equipment and necessary training to its employees to grounded in premises liability; products precautions before riding. ensure the park’s rides would be safely liability; and general negligence,11 among In the Fire Ball case, ride manufac- operated and maintained. others. But these claims depend on the turer KMG’s product manager stated specific facts of your case and the laws of that after an inspection of the 18-year-old Essential Evidence your jurisdiction. Potential defendants ride, “it was determined that ‘excessive Ride failures occur for many reasons, may include the owners and operators corrosion on the interior of the gondola including unsafe practices and opera- of the amusement park or fairground; support beam dangerously reduced the tion, lack of training, defective design, manufacturers or designers of the ride; beam’s wall thickness over the years’ and careless maintenance and assembly, inspectors of the ride; and distributors, ‘led to the catastrophic failure of the ride and metal fatigue and corrosion, to list suppliers, and retailers of the ride’s parts. during operation.’”14 Other defects to a few. Not surprisingly, a ride’s creation, Premises liability. People who look for include a loose lap bar or inad- assembly, and ongoing inspection for sustain injuries could pursue a claim equate safety belts.15 safe operation require high levels of against the owners or operators, or Unfortunately, statutes of repose expertise and knowledge. both.12 Owners have a general duty seriously limit manufacturer liability in Determine the manufacturer and to invitees “to exercise ordinary care products cases. For example, Ohio has its assets, discover the ride’s age and to keep the premises in a reasonably a 10-year statute of repose that bars a maintenance history, recreate the ride’s safe condition and to warn invitees of products liability claim if the product lineage and dates of ownership, and dangers that are latent, unknown, or was delivered to its first purchaser or uncover other similar incidents. Collect

40 January 2019 || Trial RIGHT AND PREVIOUS PAGES: GRACE HO/UNSPLASH this evidence swiftly, and follow a examined and explained. This includes protocol to track it down. Our suggested obtaining photographic evidence of rubric, which may be applied to cases the ride and surrounding areas. Using involving any of the aforementioned the earlier example, if your client was causes of action, includes injured while riding a go-kart that hit immediately preserving the scene a large pothole, acquiring photographs and social media evidence A STUDY FOUND THAT and measurements of the hazardous obtaining witness statements from FROM 1990–2010, condition, the resulting destruction visitors (who often do not live (such as the demolished go-kart), and locally) APPROXIMATELY the rider’s injuries, as well as securing ordering all related state and local 92,885 INJURIES TO video footage from security cameras, inspections, including police and PEOPLE UNDER 18 will be crucial. Also, immediately order relevant investigatory reports FROM AMUSEMENT the official police, fire, and emergency obtaining other documents such medical services reports. These are typi- as certified weather reports for RIDES WERE cally public records requests governed the date in question and the ride’s REPORTED by your state’s public records laws.19 operational history over at least the NATIONALLY, WITH While engaging in these actions, previous five to 10 years hand-deliver letters of representation conducting national and interna- APPROXIMATELY and preservation of evidence to the tional research on its history 33 PERCENT ARISING appropriate parties. Indicate that in determining the manufacturer and FROM LARGE, FIXED the near term you want to conduct an the various owners urgent, nondestructive inspection of the uncovering liability insurance for RIDES AT ride with your experts. any and all potential defendants PERMANENT Research the ride’s inspections discovering any companies that AMUSEMENT PARKS. and malfunctions history. You must have recently conducted inspec- know whether prior, similar incidents tions and certified the ride would not have otherwise obtained and involving the ride have occurred. retaining the appropriate experts. was not in the formal state investigation According to Saferparks.org, state Obtain video and photographic reports. But keep in mind that this type regulatory agencies and the CPSC evidence and witness statements. of evidence can be traumatic for your provide public records of incidents Many incidents and injuries are caught clients, who lived through the horror involving amusement rides and devices on camera, providing important captured on video. regulated under their jurisdiction. firsthand photographic and video Hire an investigator and obtain Many rides are manufactured overseas evidence. Because many amusement relevant reports. We recommend or have duplicates or similar iterations park attendees are out-of-town visitors immediately hiring a seasoned, qualified operating around the world. The Fire or itinerant amusement ride operators investigator who will obtain statements Ball, for example, was manufactured in and employees, contemplate using from the injured people—if possible— the Netherlands by KMG. It is KMG’s both the press and social media as and other witnesses, such as amusement most popular ride, and depending investigatory tools to draw appropriate park or fairground employees, other on the venue, it is also known as the attention to the incident. This can lead guests, and bystanders. An investigator ­Afterburner, Eagle’s Claw, or Vortex. to witnesses coming forward with videos with experience and training in Also look into whether the company or their firsthand accounts. engineering, amusement ride safety and has notified other vendors or distribu- Often, such evidence is compelling inspections, or law enforcement is useful. tors of any issues with the equipment. and helps prove liability. For instance, The investigator may also liaise with Contact various distributors of the ride in the Fire Ball case, a visitor captured emergency personnel, local police, to determine whether they have been the incident on video, and millions and state officials who are conducting put on notice of a product recall or a posted it on YouTube. Social media and the investigation. This collaborative defect germane to the case at hand and press interviews provided us with many effort will ensure that the evidence is what the outcome was. witnesses, as well as evidence that we preserved and that the incident is fully Depending on the jurisdiction,

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state officials or third-party corpora- of and any information on all inspectors tions tasked with inspecting amuse- and inspection companies, verifying prior ment park rides on behalf of the state inspection and safety seals after inspec- have a legal duty to document certain tion, and liability insurance coverage.25 information before the ride can operate. Last, but critically, review all state This may include the ride’s maintenance laws relevant to your case. For instance, and safety records, its conformance to check laws regarding inspection require- manufacturer’s specifications, whether ments, insurance coverage, reporting there is an appropriate assembly of requirements, and the consequences of migrating rides, and whether the owner potential malfunctions of amusement REQUEST A TIME TO purchased the appropriate liability rides. Notably, South Carolina’s stan- INSPECT, coverage. For example, South Caro- dards should be used as a “model” for a PHOTOGRAPH, AND lina requires its Office of Elevators and national inspection and safety checklist Amusement Rides to perform annual when investigating your case.26 VIDEO THE RIDE AND inspections of amusement devices, and Compile industry standards. ITS PARTS WITH YOUR ­amusement ride owners must perform Determine the generally accepted RETAINED EXPERTS. daily inspections.20 engineering standards for the ride. THEN, PLAN AND In Florida, the Department of Agri- The American National Standards culture and Consumer Services inspects Institute (ANSI)’s standard for aerial COORDINATE A DATE all amusement rides located in the state, passenger/tramway-type rides and WITH ALL with the exception of amusement parks ASTM International provide important CONCERNED TO with more than 1,000 employees— and sometimes statutorily adopted those parks have full-time inspectors.21 mandatory guidelines for final seals of ENGAGE IN Temporary amusement rides like the operational approval. NONDESTRUCTIVE Fire Ball are inspected on relocation, The ASTM International Technical TESTING. and permanent amusement rides are Committee F24 on Amusement Rides and inspected on a semi-annual basis.22 Devices, for instance, is an international support your liability claim.30 Under the Traveling carnival rides “are constantly forum of nearly 1,000 experts from Consumer Product Safety Act, a ride being set up and broken down then 26 countries who share best practices manufacturer or owner and operator moved to another location, perhaps and develop industry standards.27 This must notify the CPSC if it obtains infor- even another state without adequate and includes design and manufacture, testing, mation that a portable amusement ride proper inspection,” which unfortunately operation, maintenance, inspection, creates an unreasonable risk of serious “makes it more difficult to monitor the quality assurance, and terminology. ASTM injury or death.31 Establishing that a safety of these rides.”23 In California, International has also developed standard manufacturer had knowledge about the Department of Industrial Rela- practices for the quality, manufacture, a defect but then breached its duty by tions Division of Occupational Safety and construction of amusement rides failing to notify the CPSC about the and Health’s Amusement Ride Section and devices, including the minimum defect could help support a negligence provides a “Portable Ride Owner Inspec- requirements for a quality assurance claim against that manufacturer. While tion Guide,” which is “meant to serve as program.28 These often become built-in the CPSC has limited investigation or a general guide to understanding the liability standards. enforcement authority, assiduously regulations and inspection process.”24 Also, the International Association of reviewing standards it has compiled is Some states, such as South Carolina, Amusement Parks and Attractions, the paramount for establishing liability. require significant amounts of basic largest international trade association Retain experts. Seek out and retain information on a ride, such as all rele- for permanently situated amusement the appropriate experts early on. In addi- vant manufacturer and owner records facilities worldwide, is an excellent tion to selecting experienced engineers including ride instructions, inspection resource regarding amusement park (structural, electrical, mechanical) and history, and operation manuals. Mate- safety around the world.29 certified mechanics, there are “amuse- rial evidence that is formally filed with Finally, pull from the CPSC relevant ment park ride inspectors.” The National the state includes cataloging the names information on standards and safety that Association of Amusement Ride Safety

42 January 2019 || Trial Officials certifies these inspectors Manufacturer in Fatal Fair Accident, Malfunctions Mid-Ride on Texas Roller at three levels: basic, advanced, and Columbus Dispatch, https://tinyurl.com/ Coaster, ABC News (Apr. 28, 2016), https:// y6u2ovff. abcnews.go.com/US/dad-grabs-son-seat- senior.32 For example, these experts can 3. Ohio State Highway Patrol, Incident No. belt-malfunctions-mid-ride/story?id= testify to relevant engineering standards 17-103001-0080. 38705341. and safety regulations and the ways in 4. Daniel Engber, Who Regulates Our Nation’s 16. Ohio Rev. Code 2305.10(C)(1) (2006). which the ride failed to comply with Amusement Parks?, Slate (May 17, 2005), 17. Ga. Code Ann. §51-1-11(b)(2) (2017). https://slate.com/news-and-politics/2005/ 18. Steinberg v. Sahara Sam’s Oasis, LLC, N.J., them. These experts can also accu- 05/who-regulates-our-nation-s-roller- 142 A.3d 742, 745 (N.J. 2016) (plaintiff was rately identify the ride’s specific manu- coasters.html. injured after falling from a ride called the facturing or design defects and speak to 5. Saferparks, a nonprofit founded to help FlowRider and sued the owner and prevent amusement ride incidents through how those defects caused your client’s operator of the indoor water park). research, information sharing, and 19. See, e.g., Ohio Rev. Code ch. 149 (2013). injuries—and about how to improve the effective public safety policy is a helpful 20. S.C. Dep’t of Labor, Licensing & Regulation, ride’s safety. resource: https://saferparks.org. It contains Frequently Asked Questions About All inspection experts should be information about each state, including Amusement Rides, https://llr.sc.gov/ which government entity is in charge of professional engineers and licensed elevators/index.asp?file=amuseridefaq. amusement ride safety. htm; see also S.C. Code, §§41-18-10 et seq. as such in their respective states. At a 6. U.S. Consumer Prod. Safety Comm’n, (2005). minimum, they should receive specific https://cpsc.gov/. 21. Fla. Stat. §616.242 (2018). 7. Nationwide Children’s Hosp., Press training in corrosion and corrosion 22. Fla. Dep’t of Agriculture & Consumer Release, New Study Finds 20 Children a Day Servs., Fair Rides Inspection, https:// prevention, although it is most beneficial During the Summer Are Treated in U.S. freshfromflorida.com/Business-Services/ if your professional engineer specializes Emergency Departments for Amusement Fairs/Fair-Rides-Inspection. Ride-Related Injuries (May 1, 2013), https:// in corrosion. It is ideal for your inspec- 23. The Nat’l Law Rev., Amusement Park tinyurl.com/y7l56ht6. Liability—What You Need to Know (July 16, tion expert to successfully complete 8. Id. 2018), https://natlawreview.com/article/ 9. Bruce Kaufman, Quiet Settlements Close continuing education requirements. amusement-park-liability-what-you-need- Out Many Theme Park Ride Cases, Request a time to inspect, photograph, to-know. Bloomberg Law (Oct. 13, 2016), https:// 24. State of Cal., Dep’t of Indus. Relations, Div. and video the ride and its parts with your www.bna.com/quiet-settlements-close- of Occupational Safety & Health Amuse- retained experts. Then, soon thereafter, n57982078610/. ment Ride Section, Portable Ride Owner 10. Currently, 11 states cap noneconomic plan and coordinate a date with all Inspection Guide (2016), https://www.dir. damages in such cases—Alaska, Colorado, ca.gov/dosh/AmusementRides/2016_ concerned to engage in nondestructive Hawaii, Idaho, Kansas, Maryland, Portable_Amusement_Ride_Owner_ testing. The parts still can be used when Mississippi, Ohio, Oklahoma, Oregon, and Inspection_Guide.pdf. 33 Tennessee. Dani Alexis Ryskamp, The the inspection or test is completed. 25. S.C. Code, §§41-18-10 et seq. By following these action points, you Current State of State Damage Caps, The Expert Institute (Dec. 7, 2017), https:// 26. See, e.g., S.C. Code §§41-18-10 et seq. will better prepare your client’s case for theexpertinstitute.com/state-state- 27. ASTM International, Technical Committee successful resolution and protect other damage-caps/; see, e.g., Ohio Rev. Code F24 on Amusement Rides and Devices, https://www.astm.org/COMMIT/F24_ similarly situated consumers. 2315.18(B)(2) (2005). 11. Amusement ride injury and death cases Fact_Sheet_2016.pdf. typically are a hybrid of negligence, 28. ASTM International, Committee F24 on Mark products liability, and contract claims. In Amusement Rides and Devices, https:// Kitrick and this article, we will focus on the first two www.astm.org/COMMITTEE/F24.htm. 29. Int’l Ass’n of Amusement Parks & Mark Lewis aspects and not on assumption of risk, ticket contract language defenses, or Attractions, www.iaapa.org/. are partners damages. 30. U.S. Consumer Product Safety Comm’n, at Kitrick, 12. West v. KKI, LLC, 300 S.W.3d 184 (Ky. Ct. https://cpsc.gov. 31. 15 U.S.C. §§2051 et seq. (1972). Lewis & Harris in Columbus, Ohio. App. 2008) (plaintiff filed premises liability, products liability, and failure-to- 32. Nat’l Ass’n of Amusement Ride Safety They can be reached at mkitrick@ warn claims after she sustained a mild Officials, https://www.naarso.com/. klhlaw.com and [email protected]. vestibular lesion after riding a stand-up 33. Nondestructive testing is “the process of roller coaster at Six Flags Kentucky inspecting, testing, or evaluating materials, Kingdom). components or assemblies for discontinui- Notes 13. Id. (internal citations omitted). ties, or differences in characteristics 1. Janet DiGiacomo, Deadly Accident at Ohio 14. Lindsey Bever & Alex Horton, ‘Cata- without destroying the serviceability of the State Fair Caused by Corrosion, Says Ride strophic’ Fire Ball Incident at Ohio State part or system.” The Am. Soc. for Nonde- Maker, CNN (Aug. 7, 2017), www.cnn. Fair Caused by Corrosion, Ridemaker Says, structive Testing, Introduction to Nonde- com/2017/08/06/us/ohio-state-fair-ride- Wash. Post (Aug. 7, 2017), https://tinyurl. structive Testing, https://asnt.org/Minor collapse/index.html. com/y6uvurgf. SiteSections/AboutASNT/Intro-to-NDT. 2. John Futty, Ohio Law May Shield Fire Ball 15. Julia Jacobo, Dad Grabs Son After Seat Belt aspx; see also Fla. Stat. §616.242.

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