A few days ago, I read an interesting article on LinkedIn about therise of interactivity in the attractions industry and something it said got my lawyer-brain thinking. Here’s what it was:
Interactivity doesn’t stop with great-looking, immersive technology. There is a still a need for pure physical interaction.
“Pure physical interaction.” As a fan of amusements, that phrase puts a grin on my face and starts the adrenaline pumping. As a former operator, that phrase equals “repeat business” and additional revenue - something that the article emphasized. But as a lawyer, that phrase made me pause for a minute and think about whether the rising popularity of interactivity could change the liability calculus for owners and operators of these attractions. I thought that question deserved a closer look.
There is no doubt that interactivity is on the rise in the attractions industry. Walking the show floor at the IAAPA Expo over the last several years proves the point. New technologies that blend games with ether rides or walk through attractions are as prevalent on the show floor today as they were non-existent just five or ten years ago. The lure of these attractions is obvious as they frequently are the one with large groups of (hopefully) buyers standing around them and long lines waiting to try them out. And while they all offer something different insofar as the precise experience is concerned, they all have one commonality: they allow the guest, to a certain (sometimes large) degree, to shape his experience and, often, to shape the experiences of other guests as well. And that is precisely what makes these attractions unique from both an operational and a legal perspective. The guest is in control to a much larger degree than on a traditional ride or attraction. So what does that mean in terms of liability?
I see two primary areas where the rise of interactivity could change the liability landscape for operators. The first is that interactivity may broaden the kinds of legal claims that will be asserted against operators of an interactive attraction. This would obviously be detrimental to operators. But the second effect may, in some circumstances, counteract that detriment. More specifically, interactivity could give owners and operators additional defenses, focused on the conduct of those other guests, and potentially bring more parties to the settlement table. In this manner, interactivity might actually decrease the potential liability and settlement value of a case from the owner or operator’s perspective.
We don’t have to look very hard to see evidence of both of these with respect to interactive attractions. Let’s remember that interactivity, while becoming more and more predominant as it is utilized in a broader array of attractions, is nothing particularly new to the industry. Guest controlled, interactive rides and attractions have been around for decades – the most popular of which, arguably, is the go-kart. And a relatively recent go-kart case out of a New York federal court illustrates well the unique impact of interactivity in an attraction related lawsuit.
The case is Corneli v. Adventure Racing Co., 2015 WL 3890373 (N.D.N.Y. June 24, 2015). Corneli involved an spinal injury resulting in paraplegia from a rear end collision on a go-kart track. Mr. Corneli alleged that the stopped on the track waiting for operators to tend to another kart when another driver, a seventeen year old with Down’s Syndrome, struck Mr. Corneli’s kart from behind causing severe and permanent injuries. Now, in many ways, this case resembled a garden variety (albeit very serious) personal injury claim. For example, Mr. Corneli sued the owners and operator of the go kart track for negligent “ownership, operation, management, maintenance, supervision, staff training and control of its go-kart ride.” These are the kinds of allegations frequently raised in ride-related litigation.
But the interactivity of the ride also caused Mr. Corneli to raise additional claims and additional parties – both relatively atypical in most amusement cases. In addition to the claims arising from the operator’s control of the ride and its staff, Mr. Corneli also alleged negligent “supervision and control of its customer” – the other driver (known in the case as “C.S.”). Additionally, Mr. Corneli sued C.S. in addition to the owner of the attraction for “operating and driving a go-kart in a dangerous manner.”
Before trial, the owner of the track moved for summary judgement asking the court to dismiss the claims against it because Mr. Corneli assumed the inherent risks of injury involved in operating a go kart – including being hit by another driver. The plaintiff argued, however, that C.S. had made statements before the ride indicating his intent to drive aggressively and that the operators should have controlled C.S.’s conduct through use of the “Kartrol” device that shut down the karts remotely. The Court agreed with the plaintiff, finding that the jury was entitled to determine whether the owner “knew or should have known that Defendant C.S.’s allegedly intentional actions created an unreasonably increased risk to his co-participants, a risk that imposed on [the owner] a duty to supervise him or prevent him from harming his fellow racers by use of the Kartrol device.”
The plaintiff also asked that the court rule, without the need for trial, that C.S. was liable for the plaintiff’s injuries under general motor vehicle laws. Deciding not to decide whether these laws applied equally to automobiles and go-karts, the court allowed this issue to go to the jury anyway finding that the jury should determine whether the collision even occurred in the first place (which was apparently disputed).
Corneli gives, I think, some insight into the future of lawsuits arising from the growing popularity of interactive attractions in the amusement industry. Traditionally, owners and operators of amusement attractions need only worry about reasonably operating and maintaining the attraction and training the staff. These duties are all to be expected in connection with any operation. However, the increased popularity of interactivity carries with it, potentially, additional duties to supervise and control the conduct of other guests. The practical import of this potential expansion of duty is to add further ammunition to a plaintiff’s attorney’s arsenal – another hook for liability. An operator might demonstrate a top notch training, operational, and maintenance program - one that would pass muster in any traditional ride-related lawsuit – but still be found liable if it could not demonstrate similarly that it reasonably supervised the conduct of other guests to prevent injuries. While the draw of interactivity is undeniable, from both a business and guest experience perspective, interactivity also means that, from a legal perspective, operators should give careful consideration to the reasonably foreseeable conduct of other guests and what steps can be taken proactively to prevent guest-on-guest injury arising from the attraction’s interactivity.
|How many of these negotiating chairs will be filled?|
Corneli also highlights another, more advantageous aspect of interactivity (at least from the owner's / operator's viewpoint). Rarely are other guests brought in as defendants in a typical ride-related lawsuit. But interactivity means that those guests may, in fact, be properly named as parties with more frequency. And this could have some benefit to owners and operators. Depending on the laws of a given state, the presence of a guest-defendant may allow the owner of the attraction to assert a comparative negligence defense – essentially shifting some of the liability from the owner to the injury-causing guest – where such a defense would not be permitted without the guest present as a party. More importantly from a practical perspective, the presence of another guest likely puts another party (likely a liability insurer) at the table to contribute to the settlement. This, potentially, could reduce the comparative share of the settlement the owner, or its insurer, will have to contribute and could make settlement more palatable to everyone. Simply put, it’s generally easier to reach a settlement when a few parties are contributing something than when one party is contributing everything. The possibility of another defendant in a lawsuit might, therefore (and somewhat non-intuitively), actually decrease the owner’s or operator’s risk exposure arising from an interactive attraction.
Interactivity in the amusement industry is undoubtedly here to stay. Guests love it. And the more guests love our attractions, the more money they spend in our facilities. The business motive for these attractions is clear. But interactivity also carries with it legal consequences that are easily overlooked, but that must be considered carefully. Given the likely profitability of interactivity, I don’t think the legal ramifications warrant avoiding this technology. But they do warrant a change in mindset when it comes to risk avoidance and litigation strategy.