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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Tuesday, June 9, 2015

Merlin Entertainment's Bold, And Extremely Smart, Move In The Aftermath Of The Smiler Accident



News in the amusement industry for the last week has been unfortunately dominated by the tragic events that occurred at Alton Towers on the Smiler roller-coaster on June 2.  As the days have progressed, it has become clear that the Smiler accident, in which a loaded train collided with an empty train on the track, was extremely serious, resulting in severe injuries to three guests, one of whom, seventeen year old Leah Washington, had to have her left leg amputated above the knee. 
   
For several days now, I’ve read the media coverage of this event and have purposefully decided not to write about it.  Why?  Because anything I might say about the accident itself would be pure speculation, something I strive to avoid.  But today, something about this case caught my eye that I could not ignore.  Today, according to media reports in the UK, the owner of Alton Towers, Merlin Entertainment, did something that most American operators (and their lawyers) would scarcely consider:  it took full responsibility for the injuries to its guests and promised to compensate each one.  I think, given the circumstances, that this was exactly the right move and one to which other operators should pay close attention.


A few years ago, I spoke at an annual meeting of the New England Association of Amusement Parks and Attractions about the importance of an apology.  I’ve since written an article or two on the same topic.  The message I have continually tried to communicate is that an apology – whether merely as an acknowledgment of injury and an expression of sympathy, or, in more exceptional cases, as an outright acknowledgement of liability, is often the right move both from a public relations and a legal exposure perspective.  Put simply, people are more likely to be reasonable if their injuries are acknowledged, sympathy expressed, and liability admitted, than if liability is hotly contested and an operator is viewed as trying to shirk responsibility for the injury.  Thus, when the circumstances dictate, conceding liability and promising to “make it right” can go a long way in the eyes of the injured guest and in the eyes of the public.  Merlin Entertainment’s recent statements, I believe, provide a perfect illustration of this point.

Now, its important to note that the media reports I have seen do not indicate that that Merlin has outright apologized and admitted fault.  In fact, from what I have seen, Merlin hasn’t done that.  But it has come very close – so close, in fact, that it may make no difference.  According to media reports, a Merlin spokesperson said that the company hand delivered letters to the injured parties over the weekend, and further explained:

We absolutely recognise what a difficult time this is for everyone, especially those who have been so seriously injured, and we have tried to do this in a way that is both sensitive and appropriate. 
Irrespective of the outcome of the current investigations into the causes of the accident, in these letters we have accepted full responsibility to those who had been injured in the accident and confirmed that we will ensure that compensation will be provided to them.
This is, in a word, remarkable.  In my mind, Alton Towers did at least two big things right here: 

1.  Hand Delivering These Letters:  Put the content of the letters aside for a second.  Think about the fact that an Alton Towers representative hand-delivered letters from, presumably, the top brass to each person injured on the Smiler.  Ask yourself, would the very same letter have had the same impact on the guest if it had been mailed?  I don’t think so.  Mailing the letter reinforces the guest’s view of the park as a corporation – without feeling, without sympathy, without compassion, and without concern for anything but the bottom line.  Hand delivery sends a very different message.  Hand delivery means a person, not a corporation, is standing there, putting a living, breathing face on the owner of the park.  Hand delivery sends a message to both the injured guest and the broader public that Merlin is its people, and those people didn’t want this to happen and are going to do what it takes to make it right.  That’s an important message to send, both to the injured guest and to the public, in the wake of an incident like this.

2.  Acceptance of “Full Responsibility”:  Now let’s talk about the content of those letters.  Merlin Entertainment has “accepted full responsibility to those who had been injured in the accident.”  In the United States, which has a legal system not altogether different from that in the UK, that is the kind of statement most lawyers never want to hear their client say out loud to anyone.  After all, lawyers are paid to ensure that their client’s liability is minimized to the extent legal and ethical.  In most cases, lawyers would never advise a client to admit liability – or at least not admit it a week after the accident occurred.  

But this is not most cases.  This is a true “no-win” scenario for Alton Towers.  Even if it were to fight tooth and nail and ultimately be legally exonerated in a court of law, it will have spent a tremendous amount of money to obtain that result and will have been subjected to an avalanche of negative press throughout.  Public confidence in Merlin and, more specifically, Alton Towers, would be undoubtedly shaken and could take years to recover.  This is a case that has quickly been tried in the court of public opinion and the media – and blame has been placed at the feet of the operator.  Indeed, maybe the park already knows it is at fault.  Maybe not.  It does not really matter.  From the operator’s perspective, this narrative – of the park that hurts people – is not helpful, and fighting responsibility for these injuries is only going to make it worse – perhaps much worse. 

So what to do?  Change the narrative.  By publicly taking full responsibility now, that has become the story.  Now Merlin is viewed as the company that is doing the right thing, that is accepting responsibility “irrespective of the outcome of the investigation,” that is putting people first.  And that is a narrative that Merlin, and its guests, can embrace as the park, its employees, and, most importantly, its injured guests try to recover.  Its also a narrative that a judge or jury will likely appreciate when and if this case lands in court.


Now, don’t misunderstand me.  I’m not in favor of admitting liability every time someone gets injured.  There is frequently no reason to do so, and I don’t think any operator should take that kind of action without a full and frank discussion with counsel and the insurer.  This is not a course to be undertaken lightly.  But, in an exceptional case like this one, it is an option that should be considered.  Operators, insurers, and their counsel should weigh the public and private costs of litigation (both monetary and perception costs) against the costs and potential benefits of accepting liability and moving forward toward recovery.  It may be that the costs and benefits of accepting liability early in the case outweigh the cost of litigating toward a pyrrhic victory – one where, under the best case scenario, the operator is legally exonerated but spent millions and lost public trust in the process.
  
Nothing is going to change what happened on the Smiler and nothing is going to make the injuries to those guests go away.  But Merlin has changed the narrative from one that looks back and focuses on the accident to one that looks forward and focuses on recovery.  In the long run, I think this will undoubtedly prove a very smart choice.      

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