Product Safety & Liability Reporter™ Reproduced with permission from Product Safety & Liability Reporter, 44 PSLR 1073, 10/10/2016. Copyright ஽ 2016 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com Recreational Equipment ‘‘The amount of engineering that goes into the devel- opment of amusement rides is truly unbelievable,’’ he said. Should Safety Worries Rob Fun ‘‘We have never seen an event involving an amuse- Out of Theme Park Rides? ment provider where additional regulation would have altered the cause of the event,’’ he said. musement and carnival park rides in the U.S. are LeVangie acknowledged that litigation can bring to regulated for safety—albeit haphazardly—at the light areas where improvement in manufacture or pro- A state level. cess could be improved. But that wasn’t always the case. ‘‘However, for the most part, recreation/amusement Before 1981, the Consumer Product Safety Commis- litigation, like all litigation, raises the cost of doing busi- sion regulated the safety of fixed amusement park ness and potentially limits the recreation options for all rides. of us,’’ he said. But Congress limited the agency’s authority in a bit- Clifford takes a different view. ter budget deal, and future attempts at reversing that ‘‘This is a very dangerous business because it deals restriction have failed. with people’s lives and safety, yet there is no consistent Plaintiffs’ attorney Robert A. Clifford says the amuse- enforcement of regulations, no national standards and ment park industry’s legislative arm, the International even some states have no regulations at all,’’ he said. Association of Amusement Parks and Attractions (IAAPA), has a ‘‘large lobbying presence in Washing- ‘‘The public needs to be more proactive in insisting on ton, D.C. and to date has successfully lobbied against greater safety measures before the next tragic head- federal oversight.’’ line,’’ he said. The trade group spends more than $600,000 a year Litigation or Regulation? But plaintiffs’ attorney Dan- lobbying against federal oversight, and in 2015 ‘‘spent iel G. Kagan told Bloomberg BNA that he’s ‘‘not a fan an all-time high of $1,160,000,’’ Clifford, the founder of more regulation as a solution.’’ He prefers lawsuits. and senior partner at Clifford Law Offices in Chicago, In this age of fiscal shortcomings in public budgets, it said. is not realistic to rely upon such agencies as the Maine Fire Marshall’s Office to inspect each and every ride and become the ‘‘guarantor’’ of public safety, said said Four Part Series on Amusement Park Kagan, with Berman & Simmons in Lewiston, Maine. Ride Safety and Liability The best way to promote safety is to make the conse- quences of ignoring it unbearably high, he said. s Four-part series examines amusement And the way to do that is to ‘‘allow those who are park ride safety and industry liability harmed by those who ignore safety concerns to recover fully for the harms they experienced,’’ he said. s Part 2 of 2: Park rides are generally safe, ‘‘The tort system is, and must continue to be, the po- but diffused regulation and a lack of reliable liceman of our community endeavors. If you want to data on ride safety raise concerns minimize occurrences of harm-causing negligent be- s Part 3 and 4: How do lawsuits over havior, we must continue to make the consequences of amusement park rides fare, and what role do li- negligent behavior cost a lot of money,’’ Kagan said. ability releases and assumption of the risk Adverse publicity also serves as a check on bad ac- play? tors. Everyone interviewed by Bloomberg BNA agreed that family-friendly theme parks are especially sensitive to perceptions of risk. Asked if periodic suits spurred by rider injuries sug- ‘‘Whether ultimately liable or not in a court of law, in- gest a lack of safety regulation in these areas, defense juries on rides will be tried in the court of public opin- attorney Michael J. LeVangie, with the LeVangie Law ion with adverse impacts on public relations, insurance Group in Sacramento, Calif., offered an emphatic ‘‘No.’’ rates, profits,’’ Professor James Kozlowksi, an authority ‘‘The amusement industry is now heavily regulated on recreational safety and liability, told Blomberg BNA. and the manufacturers and theme park operators take Kozlowski is a professor at George Mason University’s the safety of their parks and events very seriously,’’ School of Recreation, Health, and Tourism in Manas- LeVangie told Bloomberg BNA. sas, Va. COPYRIGHT ஽ 2016 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 0092-7732 2 Parks like Walt Disney World, Universal and Sea World are required to hire their own full-time inspec- Recent Amusement Park tors, he said. Florida and perhaps as many as a dozen more states Ride Accidents also do not require theme parks to report injuries unless Recent Amusement Park Ride Accidents: a fatality is involved or the injured rider is immediately s Boy killed in August while riding on a wa- hospitalized for at least 24 hours, he said. terslide at the Schlitterbahn Waterpark in Kansas On the other hand, New Jersey and Pennsylvania are City. two of the ‘‘toughest states’’ in promoting safety be- s Three children injured in August after falling cause they have state-trained inspectors and engineers out of a of a Ferris wheel at a county fair in Green- who routinely inspect rides, he said. eville, Tenn. Defense attorney Jordan Lipp, a partner at Davis, s Boy falls from roller coaster in August at Graham & Stubbs in Denver, told Bloomberg BNA that SoakZone amusment park in Ligonier, Pa. in his home state the Colorado Department of Labor s Girl injured on a carnival ride in May in and Employment, Division of Oil and Public Safety Omaha, Neb. (OPS), is responsible for regulating amusement rides. s Six injured on amusement park ride in Au- Under OPS regulations, amusement rides must be in- gust at Ocean Beach Park in New London, Conn. spected annually by certified inspectors, the operators must perform daily inspections, the operators must re- port certain events / injuries to OPS, and must maintain Are States Filling the Safety Gap? As far as the regula- certain levels of insurance, he said. tory structure that exists, the void in federal oversight Every state varies in its regulations of rides and its over fixed amusement park rides has somewhat been enforcement of those regulations, Lipp said. ‘‘And, filled by the states. there are certain rides, depending upon the state, that But the results are uneven. remain unregulated.’’ Cameron Jacobs, IAAPA’s media relations manager, According to Kozlowski, a trend toward innovation in said as a general matter that amusement park rides op- the industry—in a bid to to create more challenging erated by its members are inspected for safety each day ‘‘thrill’’ rides or a higher and faster roller coaster—is before any guest steps on board. presenting significant challenges for state safety regula- Inspections—whether they be voluntary or tors. mandatory— typically involve mechanical, electrical, There are, however, international ride standards pro- and operational inspections. mulgated by ASTM International. Many states incorpo- Rides are also inspected in accordance with the rate those standards in their regulations, he said. guidelines outlined by the attraction manufacturer, which can lead to additional detailed inspections and Should Patrons Worry About Safety? Do patchwork specialized maintenance procedures on a weekly, regulations and shifting media interest leave consumers monthly, or annual basis, he said. vulnerable? Currently 44 of 50 states regulate amusement parks, Yes, Clifford said, ‘‘Consumers should be very con- according to the IAAPA. cerned about amusement park ride safety.’’ The six states without state oversight—Alabama, Mis- ‘‘As proactive as one may be in being careful, the sissippi, Montana, Nevada, Utah and Wyoming— large volume and consistent use of these rides does not contain ‘‘few, if any amusement parks,’’ the industry allow for routine safety checks,’’ he said. group says. Clifford said new rides present their own set of safety But Clifford, the plaintiffs’ attorney, said the ‘‘patch- concerns. work’’ state laws that govern amusement park safety On new rides, ‘‘pinch points’’ or ‘‘zones of danger’’ and the inconsistent enforcement of those laws is a are not readily apparent from the drawing board, he ‘‘real problem.’’ said. Some states only exercise minimal oversight, such as Only after new rides are opened and go through pub- requiring operators to carry insurance, Clifford said. lic testing do certain design flaws become apparent, he And the abilities of each state to monitor its laws are said. often hampered by financial and personnel constraints, ‘‘Amusement park owners and operators should not he said. hype the opening of a new ride before fulfilling their ob- He singled out Utah as a special concern, because a ligations to thoroughly test it for possible flaws not seen state law, the Amusement Park Rider Responsibility in the diagrams and plans,’’ he said. Law, statutorily establishes that riders of ‘‘sufficient age Safety is paramount, but we must also be sensitive to and knowledge’’ assume the risks of injury at amuse- the role small-town fairs play in Maine and across the ment park rides. U.S., Kagan, the plaintiffs’ attorney, said. ‘‘This type of law is particularly disturbing because ‘‘Yes, of course, consumers should be concerned visitors have no way of knowing the maintenance and about ride safety,’’ but whether that means they should upkeep of these type of complicated vehicles that can ‘‘deprive themselves and their families of these experi- project people reportedly with unexpectedly high ences, only they can decide,’’ Kagan said. G-forces,’’ Clifford said. ‘‘Making public the safety inadequacies in midways Florida is ‘‘somewhat of an anomaly,’’ Clifford said, and carnival rides is a necessary and critical step to because state inspectors are responsible for examining changing the haphazard culture that some midway and rides except for those in parks that employ more than carnival ride operators bring to the industry,’’ Kagan 1,000 people.