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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This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice (or any legal advice). By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher and / or author nor can such a relationship be created by use of his Blog / Web Site. By using thisBlog / Web Site you understand that any statement on the blog site are solely those of the author and do not reflect the views of Wiggin and Dana LLP. By using this blog site you understand that the Blog/Web Site is not affiliated with or approved by Wiggin and Dana LLP. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction. This blog is not published for advertising or solicitation purposes. Regardless, the hiring of a lawyer is an important decision that should not be based solely upon advertisements.

Tuesday, June 19, 2012

A Photo Is Worth A Thousand Words, But Then What?

A really cool video produced by Coke has been flying around the internet recently.  It's a good-natured spin on hidden camera stories that is supposed to demonstrate that bad things are not the only thing captured on hidden cameras. Hidden cameras are just as likely to catch all of us at our best as at our worst.  Its a pretty entertaining little video that admittedly makes you feel all warm and fuzzy.  If you haven't seen it yet, here it is.
 
My reaction to this video was two-fold.  First, I was pretty darned impressed and a little moved.  Assuming its genuine (and heck, even if its not), the video did a nice job at making me feel good about humanity - and  strangely I am suddenly thirsty for a Coke too.  But then the lawyer in me kicked in and I wondered:  What happened just before and after each of those little snippets?  How do we know that all of these heartwarming moments really were heartwarming moments?  While it's true that, today more than ever, someone is always watching.  And taping.  And posting.  Are they really getting the whole story?  I don't think so.

Thanks in large part to Apple and the iPhone, over the last few years the majority of our guests have the ability to snap a picture or take a video and post it, moments later, to Facebook or YouTube for worldwide dissemination.  Whereas in years past, events were presented in court through nothing more than an occasional grainy snapshot, business records, and witness testimony, none of which generally were particularly compelling, today it is common for incidents in our industry to be captured in full color 1080p high definition - preserved for all time.  And, from the jury's perspective, cameras don't lie.  But they don't tell "the whole truth and nothing but the truth" either.  Consider this guest footage of a ride incident at Port Aventura in Spain that happened just a couple of weeks ago:

 


Judging from appearances, this video was taken by a guest.  Its high quality, and appears to be a reasonably good historical record of the incident.  Its also a rare video that is not clearly great for either the park or a potential plaintiff (if this incident were to have occurred in the US).

On the plus side for the park, the video clearly shows that guests took it upon themselves to get out of the boat on their own, not once but twice. In fact, the guests in the second boat waste no time at all exiting the boat in the middle of the flume.  There's absolutely no hesitation.  If one of the guests standing on the track rails had been injured by the first boat after it was struck by the second or if any of these guests had been injured while in the ride area, this video would be pretty compelling evidence that the guests had acted improperly by jumping out of the boat on their own.

On the negative side, the video also seems to show that ride attendants were relatively slow to respond.  There appears to be a single take from about the 10-second mark (starting when the riders in the first boat are already out of the boat) until about 1:55 where there does not appear to be any ride attendants in view despite the fact that guests are evacuating themselves.  This doesn't look great for the park.

So, in a hypothetical case involving this incident, is this video better for the park or better for the plaintiff?  The answer, of course, turns on what the video doesn't show.  For example, the footage cuts from the boat coming down the chute to the boat stuck in the runout and already unloaded.  What happened in the interim?  How much time passed?  What caused the guests to unload themselves?  Is there some unseen ride attendant directing the guests?  What is going on in the station during this time?  We just don't know the answers to any of these questions from the video, but this information surely would influence the way a judge or jury looked at the footage.

Video and photographic evidence can be very compelling and for that reason it is evidence lawyers love to show.  It is attention-grabbing, flashy, and can be very memorable.  But when it is spontaneously captured (as is becoming more common), it is almost certain to be incomplete.  The gaps in the story can only be filled in with other, generally more traditional, evidence:  documents, manuals, checklists, witnesses, maybe other photographs and videos if they exist.  This more traditional evidence is thus more important than ever in influencing exactly how a judge or jury fills in the blanks left out of the "sexier" video evidence.  While it is the dramatic video that the jury might remember more than any other evidence, it is that other evidence that is the key to how excactly they remember and interpret that dramatic video.  

Take these actual photos from Google Streetview for example:

Is this guy breaking in the process of burglarizing a home by climbing over a locked gate?  Is he just locked out of his house and climbing over to get inside?  Is he just screwing around by swinging on a gate for fun (perhaps the camera just happened to catch the moment the gate swung closed).  Maybe he is in to parkour and is climbing up the side of the building?




What about this one?  Are these kids vandalizing a bus stop?  Could they be cleaning up or painting over the vandalism?  Are they painting a mural and its not vandalism at all? 


And God only knows what is going on here.  Best that we don't ask any more questions.






The point is that context matters.  Jurors have come to expect flashy video with compelling story lines because they see it on the internet and on television everyday.  And, given how public our facilities are, there is no way to control the flow of information originating from guests whenever an incident occurs.  As a consequence having document retention and preservation policies, incident reporting procedures, and emergency response plans has become even more vital to a successful defense in an amusement lawsuit.  Your lawyer can help with this, but ultimately it is up to you to make sure your lawyer has the tools necessary to tell the whole story, regardless of whatever flashier evidence might be out there.

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