A Safer Ride? (Pt. 1): Is The Federal Government A Better Regulator Than The States?

To state the obvious (and to understate the matter significantly), this has been an extremely bad week in the amusement industry. The week began with news of the death of 10-year old Caleb Schwab at Schlitterbahn waterpark in Kansas City, Kansas.  Just days later, news broke of an accident at a carnival in Tennessee involving a Ferris wheel and resulting in injury and hospitalization to three guests.  And the week ended with news that a three-year old was thrown from a roller coaster at Idlewild amusement park in Pennsylvania.  As the public has learned more about these incidents, and especially the reportedly gruesome nature of Caleb’s death, the outcry for answers has been immediate and unmistakable.  The media, in particular, has repeatedly focused on the so-called “patchwork” of state regulations in the amusement industry and, more specifically, the fact that there is no federal regulatory body overseeing ride safety in the United States.  

None of these criticisms are particularly new – indeed they arise whenever a tragedy strikes our industry.  But this time, faced with the unbearably tragic death of a young boy at a family-friendly waterpark, these criticisms seem to have gained more traction in the public consciousness.  It is simply impossible to look at a picture of Caleb Schwab and to not feel the greatest empathy for his family and to not want to make changes to ensure that no other family has to ever go through this again.  It is easy to argue, as Jake Tapper recently did on CNN, that the system failed Caleb, and that the answer is federal oversight. 

But, even after this week, one of the worst I can remember in the nearly 25 years I’ve been involved in the industry, I still maintain that federal ride safety regulation is not the answer.  And I think it’s time, after all these years writing this blog, that I explain exactly why I feel that way.  As I’ve done with other important issues in the industry, I’m going to look at this in three parts:  In this piece, I’m going to look at the question of whether the federal government is somehow inherently “better” than the states at regulating.  The next piece will look at what a potential federal ride safety program might actually look like and, critically, how much it might cost U.S. taxpayers.  The third will look at the question of whether there is any actual evidence that state regulation is not working.  The media has made their case.  It’s time for me to make mine.

Massachusetts Bill Would Criminalize Enforcement of Amusement Ride Safety Requirements (Really ... It's True).

In Massachusetts, this sign could soon be illegal.

On May 16, 1999, a 37 year old man was ejected and injured while riding the Superman Ride of Steel roller coaster at Darien Lake.  "Park officials say that the passenger restraint system was working properly, and that the weight of the rider, which was in excess of 300 pounds, could have been a factor." 

On September 21, 2002, a 40 year old woman fell to her death at Knotts Berry Farm while riding the Perilous Plunge.  According to the coroner's report, "the woman weighed 292 pounds, had a 58-inch abdomen, and ... her hips were about 50 inches around." The seat belts on the ride only extended 50 inches.



On May 1, 2004, a man was ejected from Six Flag's New England's Superman roller coaster and killed.  Investigators found that a contributing factor to his death was that the "girth of the victim's lower torso was incompatible with the "T" bar restraint" on the ride."

And just a few weeks ago, on July 19, 2013, Rosy Esparza, a 52 year old woman, was ejected from the Texas Giant and fell to her death.  Her weight may have been a factor in her death.  While Six Flags has not released the findings of its investigation due to pending litigation, a statement issued by Six Flags on September 10 states that the ride was being reopened with modified restraints and a test seat at the entrance because "as with other rides in the park, guests with unique body shapes or sizes may not fit into the restraint system." 

Meet the man trying hard to make your next amusement ride more dangerous.

Weight clearly can be a problem on some amusement rides.  The fact is that rides are simply not designed to safely accommodate everyone of every size.  That's the reason manufacturers establish height requirements and, less frequently, weight requirements for amusement rides.  And while every operator has faced, on numerous occasions, the wrath of a parent who vociferously insists that his child be allowed to ride notwithstanding the height requirement or the guest that only JUUUUUUUST fits into the restraint but steadfastly insists on riding, whenever anyone is injured or killed a central theme in the inevitable ensuing lawsuit is that the operator should not have allowed the rider to board if the ride could not safely accommodate him.  But what if it was actually against the law for an operator to enforce height requirements?  What if it was actually a crime to turn someone away from a ride due to their weight?  Well, if State Representative Byron Rushing (D., Boston) has his way, that might soon be the case in the fine Commonwealth of Massachusetts. (Thanks to my colleague Paul Cavanaugh, of Daly Cavanaugh LLP for bringing this one to my attention!).   

Click "read more" for the rest of the story....

In Favor Of Federal Amusement Oversight? Why Pennsylvania Proves It Won't Work

In the weeks following the tragic death of Rosy Esparza on the Texas Giant at Six Flags Over Texas, there has been a great deal of debate and scrutiny of amusement regulation, or lack thereof, at the state and federal level in United States.  One state, though, has emerged as the poster-child for "what's wrong with amusement regulation" in this country - Pennsylvania.  Research conducted by Pittsburgh-based PublicSource has revealed holes and systemic weaknesses in Pennsylvania's amusement industry oversight - holes and systemic weaknesses that should be fixed.  But beyond the obvious issues raised by the PublicSource investigation, I think the experience in Pennsylvania must be viewed as a microcosm for the problems that would certainly be encountered if federal oversight of the amusement industry were to become a reality.

Special Report - Tragedy On The Texas Giant: A Call For Focus Amid Distraction

Its been a bad weekend for the amusement industry.  First, an incident on Friday evening at Cedar Point's Shoot the Rapids ride resulted in several minor injuries, with one guest treated and later released from a local hospital.  Luckily, all indications at this point in time are that this incident looked worse than it actually was.  Unfortunately, the same can not be said for the incident at Six Flags Over Texas, occurring just a couple of hours later, that tragically ended the life of Rosy Esparza after a fall from The Texas Giant roller coaster.  Understandably, these incidents, particularly the death of Ms. Esparza, have garnered a huge amount of attention from the local and national media, not to mention social media, over the last 36 hours.  That's to be expected when an event like this occurs.  Over the next few days, there will be a plethora of media reports, tweets, Facebook posts, and editorials opining about what happened in Texas, how it could have been prevented, and what is "wrong" with the amusement industry that such an event could occur.  In the midst of this maelstrom, I think it's important to keep some perspective and to keep a few things in mind so that the important work ahead of us can get done and get done right:

New Study Confirms That Children Are Safe On Amusement Rides (You Didn't Hear?)

So, did you hear about the new amusement ride safety report published today in the journal Clinical Pediatrics that actually demonstrates scientifically that amusement ride injuries to children under the age of 17 are exceptionally rare?  How about the scientific study that shows that amusement ride related injuries to this population dropped by an estimated 50% between 1991 and 2003?  Well, surely you must have seen the study, which received institutional review board approval at The Research Institute at Nationwide Children's Hospital, showing that, of those extremely few guests under the age of 17 that are injured on amusement rides, 97.8% are either treated and released or examined and released without treatment?  No?  You didn't see that either?  Yeah ... me neither.  But here's what I did see today:

A Response To Consumers Digest's Waterslide Safety Report (Part 1): The Numbers Don't Lie

A story was published today in Consumers Digest entitled “Waterparks:  Is Public Safety Going Down the Tubes” that paints an extremely unflattering and misleading picture of the safety of the waterpark industry as a whole.  Authored by Sara Bongiorni, the piece makes a number of disturbing assertions to suggest that injuries at waterparks in the United States are increasing at an alarming rate and that the best solution to countering this trend is federal regulation of the fixed site amusement industry.  The piece takes great issue with the so-called “patchwork” of state regulations governing the amusement industry and even goes so far as to portray the industry as expending hundreds of thousands of dollars per year specifically to avoid federal regulation.  I’ve seen other pieces like this – usually in the wake of a tragic accident at a park or carnival.  Rarely, though, have I seen a piece that goes to the extent that this piece does in mis-characterizing the facts and ignoring gaping holes in the logic and reasoning underlying its conclusions.  I thus feel compelled to address some of the more troubling aspects of Ms. Bongiorni’s piece.  The article though is rather lengthy, so I thought the best way to address it was in two parts.  Today, I’ll discuss the problems with Ms. Bongiorni’s injury statistics, and how they were manipulated to paint a far direr picture than exists in reality.  In Part 2, I’ll address her contention that federal regulation is the answer to all the industry’s problems.

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.

The SeaWorld OSHA Decision And The Dangers Of Captive Animals: A Reasoned Response To Media Distortion

Last week, Administrative Law Judge Ken S. Welch in Orlando issued the long awaited opinion in Secretary of Labor v. SeaWorld of Florida, LLC, more commonly known as the Dawn Brancheau case.  As most of you probably know, on February 24, 2010, Dawn Brancheau, a seasoned and respected trainer at SeaWorld, was killed by a killer whale that dragged her into the water, fatally injuring her.  Following Ms. Brancheau’s tragic death, OSHA investigated and assessed a $75,000 fine and issued two citations.  OSHA also ordered that SeaWorld abate the hazard by not allowing trainers to have contact with killer whales during shows unless they are protected by a physical barrier or a minimum safe distance of dry land.  SeaWorld appealed the violations to the OSHA Review Commission, which largely, but not totally, affirmed the OSHA investigator’s findings. 

Now I’m not going to try to pick apart Judge Welch’s decision – I don’t know the evidence, I wasn’t there for the testimony, and I don’t have significant experience with OSHA regulations and law.  The decision is quite long and very detailed and, absent greater familiarity with the underlying facts and arguments, I would not purport to challenge Judge Welch’s factual and legal determinations intelligently.  However, what does warrant comment is the treatment the decision has received in the days following its issuance and, in particular, a recent piece I read in the Huffington Post authored by David Kirby entitled “Labor Department Fires Warning Shot At Animal Entertainment Industry.”  Mr. Kirby’s piece omits key facts of the case, wrongly implies that Judge Welch found SeaWorld to be irresponsible and unconcerned with employee safety, and relies on inaccurate and misleading “statistics” and information sources to unfairly depict the frequency and severity of incidents involving animals held in captivity.

Curing The Crisis Of Credibility And Kicking The "Carnie" Connotation

 A few days ago, my friend and former colleague, Matt Heller, posted some interesting and spot-on thoughts on professionalism on his excellent leadership blog.  Matt makes the point that “the perception of safety is largely determined by what we see and experience,” and to support this point he attached this photo capture from a travel channel program on amusement parks, asking the question, “is this really how you want your facility portrayed on TV, or at all?”  

Matt’s point is very well taken.  Appearance and professionalism matter when it comes to the perception of safety. However, it doesn’t just stop at the perception of safety.  Rather, these same issues – appearance, cleanliness, and professionalism - also have a real impact on the perception of credibility – and this is a crucial issue to getting the best result possible in every form of legal proceeding.

Similar Cases, Dissimilar Outcomes: How Politics Shapes A State Amusement Ride Investigation

This week we learned of two state sanctions related to two high-profile amusement ride fatalities this summer:   the death of three year old Jason Dansby while riding the Python Pit roller coaster at Go Bananas family entertainment center in Illinois and the death of Sgt. James Hackemer while riding the Ride of Steel roller coaster at Darien Lake.  While the cases are quite similar in many respects, the sanctions imposed are quite different.  With respect to Go Bananas, the owner of the facility has been charged criminally with violation of the state’s amusement ride safety law and faces a potential jail term of up to a year and / or a fine of up to $2,500 while in the case of Darien Lake no criminal charges were filed and the facility was merely ordered to re-train ride operators and post better signage warning guests about ride safety requirements. 

So why the difference?  After all, Illinois and New York have similar ride safety laws (at least in this respect) and these two cases were quite similar in both the severity of the event and the conclusions reached by the state following the investigation.  It could reasonably be expected, therefore, that these states would impose similar sanctions or at least similarly serious sanctions at the end of the investigations.  After all, in a court of law similar cases tend to be treated similarly.  But these cases clearly weren't treated similarly.  Why not?  Was it that the state found one facility or ride to be “less safe” than the other?  Was it that the state found one operator better than the other?  I think the answer to both these questions, at least on the state of the current record, is no.  Rather, I think its likely that the difference in legal sanctions in these two cases can be attributed, as much as anything else, to political pressure exerted on state officials.