About Me

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I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Sunday, October 2, 2011

A Picture Ruins A Thousand Warnings: How Marketing Makes Liability More Likely

I saw a particularly troublesome example of the collision between marketing and operations yesterday when I read a newspaper article on the Internet concerning ride safety at a large amusement park.  In the interest of not drawing any negative attention, I’m going to use an alias for the park, Happy Funland, and I’m not going to link to the article, so you’ll have to trust me on what it said.  At the top of the article was a photograph of a roller coaster descending down a drop.  Sitting in the car were two people, both clearly wearing name tags of the facility, both obviously enjoying their ride screaming and smiling, and both with their hands flailing about up in the air.  Under the picture was a caption reading, to paraphrase, “Employees test riding the WonderCoaster at Happy Funland Amusement Park.”  As if this wasn’t bad enough was this paraphrased quote from a park official:

“Our staff is extremely knowledgeable in what is required to run our rides incredibly safely and safety is our top priority when it comes to operating any ride in the park.”

Really?  ‘Cause the picture of the employees violating the safety rules sure doesn’t indicate to me that at least these employees are “extremely knowledgeable in what is required to run” this ride “incredibly safely.”  Worse, if someone ever gets injured on this ride because they weren’t holding on, this is exactly the kind of thing that plaintiff’s lawyers will jump on and that makes my job defending the facility a whole lot tougher.  This one highly publicized picture or other similar shots in marketing brochures or television commercials can (and will) come back to bite you (in that place that’s supposed to remain in the seat the whole ride) in the event of a lawsuit.  “Do As I Say, Not As I Do” is simply not a ticket to guarding against legal liability or building a solid liability defense.


Nor is this an isolated incident.  I see this kind of thing all the time.  Here’s just a couple of examples I found relatively quickly (note that neither of these facilities still operates today).  

 
Notice the guy doing a virtual swan dive on the coaster at the 4 second mark?  How about the guy with both hands up on the corkscrew train at about 10 seconds?  And what’s up with those t-shirts?  Ok, not really a liability thing, but still … what was THAT all about?



 
OK, so Action Park holds a “special” place in many of our memories (anyone out there ever try that looping slide they built?)  But, anyone think it’s a good idea for two people to go down a slide about 5 feet apart like they do in this ad?  Or do a back flip off a rope swing into the water?  What about having people (maybe an employee, who knows) running across the go-kart track while the cars are racing (see about 19 seconds in)?  And I feel really sorry for the lady who apparently thinks the shows at Action Park were like going to BroadWAY… clearly someone who has never been to BroadWAY.  But again, I digress.

I could have easily found more.  The problem is that some facilities see marketing and operations as completely independent.  Operations is there to make sure the rides are operated safely and marketing is there to get guests through the gates.  Rarely, if ever, does marketing run their promotional materials through the operations people, and it is even more rare that marketing personnel are given ride safety training so that they know what should and should not be depicted in promotional and media material.  From the marketing perspective, the park or ride should look as fun and exciting as possible and, let’s face it, a train full of guests all screaming with their hands in the air is a reasonably good way to convey this sentiment.  The problem is that these materials can undermine (and possibly destroy) the entire point of the warning signs and safety spiels given on the platform.  Guests seeing these depictions get the message that the warnings are really only there for legal reasons and that its really no big deal to violate the rules.  Moreover, once someone gets hurt and sues, a facility which could otherwise fall back on these warnings, now has to contend with the mixed messages it has sent – messages which can render warning completely useless.

Now, I know that some are thinking that this is just a hyper-concerned lawyer talking.  Someone once told me that ensuring that marketing materials and operations were in sync was unnecessary since no park had ever been found liable on this basis.  I have no idea if that’s true or not.  I suspect its not, but I admit that I couldn’t find any cases in this industry to raise the point.  However, that’s irrelevant for two reasons:

1).  The fact that there are no amusement cases out there talking about this issue doesn’t mean that it hasn’t come up.  In fact, a case where this issue might come up is almost certain to settle without going to trial – and settle for a lot more than if these photographs or depictions didn’t exist.  Settlement amounts are based on the comparative risk of an adverse verdict, and these kinds of materials drive that risk much higher and take settlement amounts with them.

2.  More importantly, courts have pinned liability on manufacturers, sellers, and operators outside the amusement industry for promoting a “do as I say, not as I do” use of a product.  Just a few years ago, a New Jersey Court recognized that

Counteracting representations have the capacity to nullify an otherwise suitable warning.  In other words, if a product seller or manufacturer promotes, advertises or encourages in any manner or fashion a specific use of a product that it simultaneously warns against, these “representations” may very well “counteract” the effectiveness of the original warning, rendering it null and void.  Such promotional and merchandising practices by the manufacturer, or those acting at his discretion, not necessarily limited to words, may “obscure or lessen the cautionary impact of the seller’s warnings.” 

Koruba v. American Honda Motor Co., Inc., 935 A.2d 787 (N.J. App. 2007).  Likewise, another court found that a jet boat dealer could be liable when, as part of a sales promotion, the manufacturer “sent a district sales representative to demonstrate the jet boat for dealers” which he did by “jumping it over rough waters – contrary to the explicit warnings not to do so.”  Of course, when a customer was injured when a dealer performed a similar jump which threw the customer from the seat, the court held that the “live demonstration of the use of the jet boat vitiated the effectiveness of [the] printed warning against jumping."  Levey v. Yamaha Motor Corp., U.S.A.,825 A,.3d 554 (N.J. App. 2003).

So the argument that this has never been an issue in the amusement industry so we shouldn’t worry about is just burying your head in the sand.  It may not have happened yet, but it certainly could.  So why tempt fate?

The easiest way to avoid this problem is to make sure that the marketing people are on the same page as the operations department when developing marketing and media materials (which, I suspect, are in the process of being prepared for next season right now).  This extends equally to in-house marketing personnel and outside ad agencies.  Everyone needs to know what is within the rules and what isn’t. 

You also need to have support on this from the top – i.e. general management or corporate offices.  Someone needs to stand up to those who insist that you can’t market excitement without showing guests doing what guests do.  That’s simply not true.  A coaster train can look just as exciting coming down the drop with everyone holding on as it does with hands up.  In fact, maybe it looks more thrilling  - after all, why would a whole trainload full of guests be holding on tightly if the ride wasn’t crazy scary???? 

Multi-location chains, especially those with similar rides, also need to be sure to send a consistent message between parks.  It’s great if all the promotional material for one park is consistent with safety warnings, but it might be ruined if this turns out to be an isolated example within a chain.  Or what happens when someone sues one park due to an incident that occurred there, but another park in the same chain is actually closer to where that guest lives and it is that park’s inconsistent promotional materials that the guest has seen?  Its not a slam dunk for the guest, but it is a fight I’d want to avoid if I could.  

Finally, there is an issue of employee training.  Your employees have to know that they need to abide by the rules when they ride, especially when they may be identifiable as employees.  They need to remember that just because its not a park-sanctioned photo shoot, that doesn't mean no one is taking pictures or video.  Everyone has cameras at the ready these days, and any photo or video can find its way onto the Internet within seconds of being taken.  

Take the time now, as the 2011 season is wrapping up and preparation is beginning for 2012, to make sure that your marketing people know how best to advertise the park while sending a consistent message of safety.  I sure wish that someone would have told Happy Funland’s employees about this before they extolled their dedication to safety while demonstrating the exact opposite with newspaper cameras snapping away. 


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