LawyersUSA

Thirteen-year-old Kaitlyn Lassiter and two of her friends loved the stomach-churning thrill of the Superman Tower of Power amusement ride.

So when the three girls entered Six Flags Kentucky Kingdom in Louisville on the afternoon of June 21, 2007, for a few hours of fun, the tower was their first destination. They climbed into one of the ski-lift style cars, anticipating the climb to the 177-foot peak and then the thrilling, 50-mph plummet to a bouncing, bungee-style conclusion.

But only 20 feet into their ascent, things went terribly wrong.

The girls heard a whipping sound, looked up, and saw cables falling. They began screaming for help.

"When we got to the top, I looked over at [my friend] Blair, and she was bleeding," Lassiter stated in a deposition about the incident. "I told her I loved her, and we started screaming, 'Stop the ride.' Something hard hit our heads and then we dropped."

Lassiter said that she couldn't remember much about the fall. But when it was done, "I remember feeling like I was on fire and smelling burning flesh."

A cable had severed both of her feet.

The next month, her family filed a negligence suit in Jefferson County Circuit Court against the amusement park. The case is currently in discovery and a trial date has not been set.

Regulatory questions

The Lassiter case may be an egregious example of what can go wrong on amusement rides, but it is apparently not an isolated one.

If previous Consumer Product Safety Commission (CPSC) estimates are correct, some 6,000 to 7,000 people can expect to be treated in emergency rooms for amusement ride injuries by the end of this year.

The amusement-park industry steadfastly rejects these figures and claims that the injury rate is less than half of CPSC estimates.

But in fact, nobody really knows exactly how many people are injured on amusement rides. Even though the CPSC was created in 1972 to protect the public from "unreasonable risks of injuries associated with consumer products," its regulation of the amusement park industry is limited.

In 1981, lobbyists for fixed-site theme parks like Six Flags gained an exemption from CPSC regulation, leaving only mobile operations – the kind that move from one venue to another – under the Commission's purview.

According to Kathy Fackler, founder of the LaJolla, Calif.-based nonprofit consumer advocacy group Safer Parks, the CPSC has not been proactive on amusement ride safety, restricting its efforts to post-incident investigations.

In addition, neither the Commission nor any other federal agency requires reporting of amusement ride injuries, and state requirements vary widely. Critics contend that as a result, the true injury toll is underreported.

The CPSC used to compile estimates on amusement ride injuries, utilizing data gathered from emergency rooms around the country. Over an eight-year period – 1997 to 2004 – the Commission estimated that 60,000 emergency-room injuries were related to amusement rides.

Then, in 2005, the CPSC stopped compiling estimates. According to Fackler, this was the of result industry pressure.

Currently, the only national data on amusement ride injuries is gathered and reported by the industry itself via a voluntary system. An industry group, the International Association of Amusement Parks and Attractions, asks its members to submit anonymous reports of injuries requiring medical attention without identifying the patron, the ride, the nature of the injury or what caused it.

The latest data from the Association suggests that the number of injuries is much lower than what the CPSC had claimed. According to the Association, the number of injuries on fixed-site rides in 2005 was 1,713 – fewer than half the annual number of injuries estimated by the CPSC in the years preceding 2005, when it quit counting.

The state of litigation

Barry Novack, a Beverly Hills, Calif. lawyer who has carved out a national practice representing plaintiffs who sue amusement parks, thinks that amusement park injuries are worse than the public has been led to believe.

Operators are in constant competition to lure people to wilder and wilder rides, he claims, and escalating injuries are the result.

"There's an arms race – bigger rides and more bang for the buck," he said. "After a while, rides become stale and they have to attract new customers.

"If they can attract millions of new people and there are a few who suffer adverse consequences, then I suppose from a cost/benefit analysis it's cheaper to pay off the claims than it is to tone down the rides."

Novack said that even though he's handled numerous cases over the last 10 years, he's never had a jury verdict, only settlements.

However, he did achieve one major court victory in 2005 when the California Supreme Court concluded that amusement rides were "common carriers," a legal category that includes trains, elevators and ski lifts. (Gomez v. Superior Court, 113 P.3d 41 (Cal.).) This ruling was important for potential plaintiffs because it placed a higher duty on amusement park operators, requiring them to show that they used the highest degree of care and diligence to keep rides safe.

The case involved a Spanish newlywed who died two months after she allegedly sustained a brain injury on the Indiana Jones ride at Disneyland. Her family filed a wrongful death suit against Disney. After the state supreme court's ruling, the case settled, and Novack said he couldn't discuss the details because the parties agreed to a confidentiality agreement.

But he said the harm suffered in the Gomez case, a brain injury resulting from an amusement ride, is typical of the cases that he handles.

"I specialize in injuries to riders due to ride dynamics," said Novack, who also holds a Ph.D. in engineering. "These are not cases where the ride goes off the track or fails. They're operating the way they're supposed to operate."

He argues that some people are predisposed to suffer brain injury from amusement rides and that operators fail to provide adequate warning of that risk. He also contends that amusement parks and carnivals should do a better judge of rating how risky their rides are in the way that ski operators rate slopes.

According to Novack, suits against amusement parks are difficult to win. One major challenge, he said, is overcoming the typical defense argument of user misconduct.

He said defendants also cite statistics to demonstrate how safe their operations and the industry as a whole are.

"They talk about how many millions of people have gone on the rides and very few have reported injuries. They try to compare it to statistics involving bicycles, bungee cords, getting hit by lightning," he noted.

Novack said that lawyers considering these cases need to go into litigation with their eyes open, and be sure that injuries are demonstrable before they proceed.

Further, "You have to be prepared for extensive discovery battles," he said. "They'll fight every which way – confidentiality, relevancy, privilege. They don't want to release any material. You have to be prepared to put in a lot of time, money and effort."

Legislation seeks improved reporting

U.S. Representative Ed Markey, D-Mass., has introduced a bill, the National Amusement Ride Safety Act, that would repeal the exemption for fixed sites and enable the CPSC to collect injury data.

William G. Childs, an associate professor at Western New England College School of Law, supports the legislation.

"It's not an out-of-control, catastrophic industry," said Childs, who monitors the industry and uses it in class when he teaches tort law, "but they could do better, [and] I think that more information is almost always good."

Others disagree.

"Why give more authority to the CPSC?" asks Chad Emerson, an assistant professor of law at Faulkner University's Jones School of Law in Montgomery, Ala. who has written several articles on amusement park liability. "There is absolutely no evidence that the federal government can do a better job than the states are [doing]."

But Fackler of Safer Parks claims that some states do a very poor job of regulating amusement rides.

"Some states don't regulate them at all," she said. "People can die and you can't go in and investigate."

Questions or comments can be directed to the writer at: dick.dahl@lawyersusaonline.com