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, August 30, 2016

A Safer Ride? (Pt. 3) - Is State Amusement Regulation The Problem?

            The amusement season is quickly winding down as daily operation (for seasonal parks) comes to a close and schools go back into session.  Like schools, legislatures around the country will also be heading into session shortly and, given the tragic and unfortunate incidents in the amusement industry recently, it is likely that at least some of these – maybe even at the federal level – will consider new regulation of the industry.  As I’ve detailed before in my last two pieces, the siren song of federal regulation is almost impossible to ignore in the wake of an amusement ride-related death or serious injury.  But the only real reason to look seriously at replacing the current system with a new federal oversight program is if the states' regulatory programs are not working.  So, for my final piece in this series I thought it would make sense to look at the evidence, or lack thereof, that state regulation is failing. 



There Is Nothing Inherently Wrong With A “Patchwork” of State Regulations


           
Read any media report after a serious incident on an amusement ride and you will undoubtedly see a
reference to the so-called “patchwork” of state regulationThe media loves this term, and they throw it around in the most pejorative sense possible.  What the media ignores is that our country is actually built on a “patchwork” of state laws and, indeed, many issues, implicating safety concerns that far outweigh any in the amusement industry, are similarly governed by a “patchwork” of state laws.  For example, in parts of Texas, motor vehicles can legally be operated at 85 mph, while in most of the Northeast a driver can legally go no faster than 65 mph.  In South Dakota, some fourteen year olds can be legally licensed to drive a vehicle, while in New Jersey drivers must be seventeen years old to get a license.  Some states require cars to undergo periodic mechanical inspections while others have no inspection requirement at all.  Yet, despite this “patchwork” and the undeniable fact that more than 32,000 people were killed in traffic accidents in 2014, there is no general outcry for federal motor vehicle or traffic regulation.
    
            Similarly, almost every consumer product on the market is subject to a “patchwork” of state regulation in the form of state product liability law.  While the CPSC and, depending on the product, other federal agencies may regulate some aspects of product liability law on a federal level, federal regulation is rarely the standard by which a product is measured in terms of a safe design or a manufacturing defect or a failure to warn of foreseeable risks.  When a product is defective, it is state law that generally governs the question, and state product liability law varies greatly depending on the jurisdiction.  The availability of punitive damages, strict liability, and even the type of proof required to prove that a product is defective are all questions that are heavily dependent upon which state’s law governs.  But, here again, outside of a few very specialized contexts (pharmaceuticals and aviation primarily) there is no real clamor for federal oversight to replace the “patchwork” of state regulation.

            If having a "patchwork" approach to regulation were, itself, a bad way to regulate safety, I would expect to see a similar outcry for federal regulation of traffic laws and product liability that we do in the amusement industry.  That there is no such outcry belies the notion that the "patchwork" itself is the real problem.  Therefore, if the claim is to be made that state regulation of the amusement industry is not working, critics will have to point to more than the existence of the same “patchwork” that is used to regulate a host of other issues in this country to make their case.  

One Incident (Even A Horrific One) Does Not Mean That State Regulation Is Failing


            One of the most frequent means of criticizing the effectiveness of state regulation is simply pointing to fatalities and serious injuries that sometimes, albeit rarely, occur under the current system.  Critics, particularly those with a news camera pointed at them, will make the impassioned case that state regulation must not work because someone died or was seriously injured on a ride.  This is a false syllogism, however, that actually says little, if anything, on its own about the effectiveness of any particular regulatory regime. 

            The flaw in this argument is that it assumes that the only measure of a successful regulatory program is zero deaths and zero serious injuries.  That is, of course, an impossible and unrealistic standard.  The goal of any regulatory scheme is to reduce the number of injuries or deaths as much as reasonably possible, not to eliminate them entirely.  Even in the most heavily federally regulated industries, such as aviation, people die and are injured.  Indeed, according to the Federal Aviation Administration, five people were killed in three separate aviation accidents on August 28, 2016 alone.  Does that fact mean that the FAA is failing as a regulator?  Without knowing a lot more about those accidents, it does not.  .

            I probably won’t win many popularity points in the industry for saying this, but the truth is that it is impossible for any industry, amusement or otherwise, to be 100% safe.  The only way to prevent 100% of ride-related injuries or deaths is to not operate amusement rides.  Since that is obviously not realistic, the sad fact is that as long as rides are operating people will, on extremely rare occasions, die or be seriously injured on them.  The industry simply cannot be absolutely safe regardless of the level of regulation or the identity of the regulators.  And because of that, the fact that a death or serious injury occurs, in isolation, says very little about whether regulation is working or whether the industry is, as a whole, safe. 

            Now, it is, of course, true that serious incidents can be indicators of problems.  For example, if there were a significant number of injuries or deaths on the same ride or in a single jurisdiction or if the cause of an injury or death were to be attributable to a gap in the regulations, those events might indicate a problem that demands attention.  But I am unaware of anything in recent events that would raise such concerns now.  
      
            A last note on this point.  I am not arguing that we should be content to allow tragedies to occur or that we should not undertake every effort to investigate every accident.  I understand, perhaps better than most given my experience, that every incident demands the highest level of attention and investigation.  I expect that every incident leads to self-evaluation and an effort to prevent it from re-occurring.  I am only arguing that assuming that the system must be broken because a death or serious injury occurred, without knowing more about the cause of that accident, is simply misleading.
  

The Numbers Do Not Support The Conclusion That State Regulation Is Failing


            If the patchwork approach to state regulation is not indicative of a failing system, and an isolated death or serious injury is not indicative either, perhaps the data shows that state regulation is not working.  Here again though, I struggle to find any evidence that the states are failing.
  
            Before I get into the numbers, it is necessary to explain where the data comes from and why I think it is useful in this circumstance.  The Consumer Products Safety Commission uses a system called “NEISS,” the National Electronic Injury Surveillance System, to compile injury estimates on a huge variety of products each year, including amusement rides.  NEISS collects data from a sampling of approximately one hundred hospital emergency rooms around the country and uses that data to extrapolate a national estimate of injuries related to a particular activity or product each year.  Now, I am normally not a fan of NEISS in the amusement context because I think it is unreliable.  Not because it underestimates the number of injuries caused by amusement rides, but because it almost certainly overestimates them.  Here’s why. 

            NEISS works reasonably well when a product is somewhat equally distributed among NEISS-reporting hospitals, but amusement rides are not distributed like other products.  Amusement rides tend to be concentrated in certain areas of the country and are virtually absent in others.  Nonetheless, NEISS treats amusement rides much like any other product – which practically ensures that its estimates overstate the number of amusement ride related injuries each year. 

            Moreover, and perhaps more importantly, NEISS data is not intended to imply a causal connection between an injury and a particular product.  The NEISS Coding Manual specifically instructs reporting hospitals that “it is not necessary to determine that a product was at fault to report an associated injury.”  Hospitals are to report any injury “where a consumer product, sport, or recreational activity is associated with the reason for the visit or related to a condition treated.”  Consequently, NEISS data for amusement ride injuries necessarily includes injuries caused by amusement rides, but also includes injuries “associated with” amusement rides such as injuries occurring in queue lines or on midways near rides, injuries occurring during loading or unloading when the ride is completely motionless, and injuries occurring on rides but caused by guest conduct.  Because of these issues, it is a virtual certainty that NEISS data overstates the number of injuries causally connected to amusement rides every year. 

            So why use this obviously flawed data?  Because it likely represents the “worst case scenario.”  And if even the worst case scenario does not suggest a safety problem in the industry, it is safe to assume that more accurate data would not suggest one either.   With that said ... 
  
            The CPSC estimates that, in 2015, there were approximately 30,000 NEISS-reportable injuries associated with amusement rides in the United States.  While that number sounds scary out of context, keep in mind that IAAPA, the International Association of Amusement Parks & Attractions, estimates that U.S. amusement parks host approximately 375 million guests per year.  Setting aside the fact that this estimate does not include the millions of guests who visit mobile amusement attractions each year (even though the NEISS data does), this means that only .008% of guests visiting amusement parks each year are injured seriously enough to warrant a trip to an emergency room. And, remember, in all likelihood that number is overstating the situation – potentially significantly.

            A .008% chance of injury is a risk almost anyone would take.  But drilling down a little deeper into the data reduces that risk even more.  NEISS data differentiates injuries based on, among other things, the treatment (or lack thereof) necessitated by the injury.  The data indicates that of the .008% of guests nationwide who are estimated to have visited the emergency room for an amusement ride related injury in 2015, 98.3% of them were treated and immediately released or left the emergency room without being treated at all.  The CPSC estimates that only 381 people, nationwide, had injuries associated with amusement rides that were serious enough to warrant hospitalization in 2015.  Put another way, the worst case data available suggests that the chance of being seriously injured on an amusement ride in the United States in 2015 about one thousandth of one percent (.0001%).  Pretty impressive considering that the CPSC estimates that over a thousand people were hospitalized in 2015 for injuries associated with unpowered garden equipment and more than twenty thousand were hospitalized with injuries associated with exercise.
 
But what about deaths?  Well, the CPSC has no nationwide estimate for the number of deaths occurring on amusement rides in 2015.  Why?  Because not a single hospital in the entire NEISS system reported a death associated with amusements in 2015.  Without a sample, an extrapolated estimate cannot be made.  This alone speaks to the rarity of death in the amusement industry.  But I do not believe that we need CPSC data, flawed as it may be, to show that deaths are rare.  Deaths on amusement rides do not escape public attention.  The media descends on the scene of a fatality almost immediately.  There is, therefore, no mystery about the number of deaths that occur in amusement parks each year.  The fact that in any given year the number of deaths in amusement parks can generally be tallied on one hand is ample evidence that there is no pervasive safety or regulatory problem that is killing parkgoers in the United States.


Amusement parks are supposed to be fun. They are supposed to be thrilling.  And they are supposed to be safe.  Because that is what amusement parks are supposed to be, it is enticingly easy to presume that the system must be broken whenever something tragic happens.  It is easy to claim that things would be better if there were not a “patchwork” of regulations – even though the same patchwork oversees many other aspects of our daily lives. It is easy to claim that a single tragic event is proof that the system is broken – even before anyone knows how or why that tragedy occurred or if it has any connection to the "system" in the first place.  It is easy to point to thousands of injuries occurring in amusement parks – even though those thousands of injuries are but a minuscule percentage of the hundreds of millions of visitors to amusement parks each year.  Wanting to blame someone or something for bad things is understandable.  But, looking objectively at history and the data, there is just no evidence that state regulation is the problem.  

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