A Safer Ride? (Pt. 2) - What Would Federal Amusement Ride Regulation Cost & Do Regulators Even Want It?

            The question of federal oversight of amusement ride safety is one that comes up every summer in the wake of an unfortunate, sometimes tragic, incident in the industry.  But while many in politics and the media are quick to speak out in favor of federal ride safety oversight, this rhetoric is typically devoid of any detail.  What would a federal ride safety program look like?  What would it cost?  And does the agency that would be charged with administering it share the view that it would be a good idea?  In my last post, I made my case for why I just do not see the federal government being any better (and perhaps it would be worse) than the states when it comes to ride safety oversight.  But even setting that aside, it is important to think about the details here and consider whether this program might be not enough bang and too much buck. 

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.

On a Roll: Cedar Fair Wins A Major Victory For The Industry In The Missouri Supreme Court

Cedar Fair has done it again.  In 2011, Cedar Fair came out on the losing end of a surprising California Court of Appeals decision, Nalwa v. Cedar Fair, L.P., a case that stunningly held that guests riding a bumper car ride do not assume the risk of injury caused when the cars bump.  In 2013, the California Supreme Court reversed that decision in a decision that represented a major victory for the entire industry.  In November 2013, Cedar Fair again suffered defeat in a case called Chavez v. Cedar Fair, L.P. (“Chavez I”), this time in the Missouri Court of Appeals.  That case broadly expanded the standard of care applied in negligence cases against amusement parks, likening their operation of amusement rides to the operation of airplanes, explosives or firearms.  I strongly criticized the Chavez I decision as not only bad in result, but bad in the flawed reasoning required to reach that result.  Well, the Missouri Supreme Court seems to have agreed (although I won’t go so far as to surmise that any of the justices read this blog necessarily).  In a decision issued on November 12 called Chavez v. Cedar Fair, L.P. (“Chavez II”), the highest court in Missouri not only overruled the Court of Appeals ruling in Chavez I, but also took the remarkable step of undoing more than sixty years of case law defining the negligence standards applied to amusement parks in Missouri.  Whereas, before Chavez II, it could safely be said that some, not all, amusement operators would be held to a heightened degree of “utmost care” in preventing injuries to their guests, after Chavez II, the law in Missouri is the more appropriate “ordinary care” standard in every amusement case.  This is a big win for the industry.  And once again, we have Cedar Fair to thank for it.

Planes, Trains, & Waterslides? Missouri Imposes Heightened Liability Standard On Amusement And Water Parks

The Missouri Court of Appeals this week issued a stunning decision in Chavez v. Cedar Fair L.P. holding that a water slide operator (or, in that case, a family raft ride operator) owes the same duty of care as a so-called “common carrier,” i.e. operators of mass transportation – airplanes, trains, ships, etc., to safeguard guest safety.  In so holding, Missouri has become the first state in the country to impose this heightened standard of liability on water park operators.  The Court’s analysis is fundamentally flawed both in its application to the allegations in this case and in providing guidance to future courts in future cases.  Even accepting the Court’s suspect legal analysis, the result ignores the plaintiff’s own allegations of liability – allegations which should have resulted in a lower standard of care than that which the Court imposed.  Moreover, and more importantly, the Court failed to undertake the case-by-case analysis the court claims is required to reach the result it did, thus sending the wrong message to future courts.  If permitted to stand, this decision will increase liability exposure to Missouri amusement operators (both water park and otherwise) and sets a dangerous precedent for amusement industry cases filed in other jurisdictions.  More on all of this after the jump.**

A Response To Consumers Digest's Waterslide Safety Report (a belated Part 2): Federal Oversight Is No Answer

My last post was a response to a recent article in Consumers Digest magazine that suggested that waterpark injuries were on a sharp rise and that the best solution to solving that problem was implementing new federal regulation that would require reporting of waterpark injuries to federal authorities.  My initial response took on the factual underpinnings of this article, showing that even the very injury-data Consumers Digest relied upon failed to support the central thesis that waterparks were dangerous and becoming more so.  Now it’s time for the second issue raised both in the Consumers Digest piece and, more generally, in the media every time an unfortunate incident occurs:  Is federal regulation the answer?

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.

New ADA Regs Proposed That Would Allow Temporary Lifts In Pools (Courtesy of Julie Mills)

Julie Mills, an attorney and blogger who writes about ADA issues in the hospitality industry, wrote a piece this week on HR 203 - a new bill that has been introduced in Congress that, if passed, would permit pools to use temporary lifts instead of incurring the expense and potential safety issues that arise from the ADA's current requirement for fixed lifts in most pools.  Julie does a nice job of summing up the issue so, with her permission, I've reprinted her piece below.  Julie's Blog, "The ADA:  Titles II and III," can be found here.  
(read her piece and my thoughts after the jump)

The Most Important Amusement Industry Lawsuit In Years May Have Just Been Filed In California

Do disabled guests have an absolute right to ride amusement rides under the Americans with Disabilities Act?  That's the question posed in what could be one of the most significant amusement-related lawsuits to be filed in years.  Assuming this suit does not settle, and this is the kind of suit that might not, the result of this lawsuit could have significant ramifications on our industry from both a liability perspective and a guest-service perspective.  It could affect the way rides are designed and manufactured.  It could affect operational protocols and procedures.  In short, I do not believe it is an understatement to say that this is a lawsuit that every member of our industry needs to watch.  It is one of the rare legal decisions that could equally impact the day-to-day operations of a small FEC and a huge multi-park resort.  It is potentially that big.

A Slippery Slope? Massachusetts Just It Made It Easier For New England Waterpark Operators To Lose A Lawsuit

If you’re operating a water park in New England (or, most likely, any other amusement facility for that matter), a recent decision from the Massachusetts Appeals Court just made it easier for you to lose a law suit.  Even when I try hard to set aside any "pro-industry" bias I may occasionally have and look at this from a purely objective legal viewpoint, I can only reach one conclusion:  Massachusetts got this one wrong.  The case’s potential impact on the New England amusement industry really cannot be overstated.  So what is the issue?  Read on to find out....