Daniel G. Kagan, trial lawyer and partner at Berman & Simmons

Mayhem on the Midway: Winning the Amusement Park Liability Case

Summary

With both injury rates and amusement park attendance on the rise, one might expect a corresponding increase in liability cases brought against amusement parks. Indeed, there are indications that this is occurring nationally. This, however, has not been the story here in Maine.

I. Introduction to Amusement Park Liability Cases
 
In a few short weeks, schools will let out and summer vacations will begin. By the Fourth of July, Maine's many amusement park attractions will be alive with activity. Many Maine families seeking wholesome entertainment and respite from the heat will join tourists from away at our state's numerous water parks and slides. Others will flock all summer long to amusement parks, and thousands will enjoy rides at midways around the state during the fair season that runs from mid-summer through the fall.

Few among us give much thought to the safety of the rides to which we entrust our children and ourselves. Industry statistics, however, combine to suggest that such blind trust is misguided.
 
A. Counting the risk

Last year alone there were six amusement park deaths. Serious injuries short of death are on the rise as well. According to the web page of the Consumer Product Safety commission, amusement park injuries nationally more than doubled during the mid-1990s.
 
B. Maine's amusement park industry

With both injury rates and amusement park attendance on the rise, one might expect a corresponding increase in liability cases brought against amusement parks. Indeed, there are indications that this is occurring nationally. This, however, has not been the story here in Maine. No doubt, Maine's amusement park industry would suggest that the relative paucity of such claims here is due to superior management and safety concerns here at home. More likely, however, the rarity of amusement park cases here in Maine is due to the legislative insulation afforded the industry under Maine law.

II. Pursuing a liability claim against an amusement park
 
A. Comparison with typical product liability cases
 
Pursuing a liability claim against an amusement park is never an easy task, even without special legislative insulation. Numerous factors make such a claim a perilous venture for plaintiffs. Such cases are defended very aggressively, in much the same manner as are product liability cases against major manufacturers. Like many product manufacturers, amusement park operators simply cannot afford the publicity that would accompany significant personal injury settlements or verdicts against them. And, like product liability cases, the defense focus is heavily on comparative fault. 

In product liability negligence cases, the plaintiff's conduct is measured against a "reasonable person" standard. In strict product liability, the defendant must prove that the plaintiff knowingly assumed the particular risk that resulted in the plaintiff's injury. In either case, the burden is on the manufacturer to establish the standards for its users' safe conduct. This is often established by defendant, and refuted by plaintiff, through expert witnesses rather than through instruction. 
 
B. Comparison with personal injury liability cases
 
In contrast, whereas in the typical product liability case the standard for safe is established through expert witnesses, standards for comparative fault in Maine amusement park cases come directly from the bench. Maine's product liability statute has a specific Code of Conduct, written to be delivered verbatim to a jury. 8 M.R.S.A. section 803(2). A rider must "refrain from acting in any manner that may cause or contribute to injuring the rider or others." This includes refraining from:

  • exceeding the limits of the rider's ability
  • interfering with safe operation of the amusement ride
  • not engaging any safety devices that are provided
  • disconnecting or disabling a safety device except at the express instruction of the ride operator
  • using the controls of the amusement ride designed solely to be operated by the ride operator
  • extending arms or legs beyond the carrier or seating area except at the express direction of the ride operator
  • throwing, dropping or expelling an object from or toward an amusement ride except as permitted by a ride operator
  • getting on or off an amusement ride except at the designated time and area, if any, at the direction of the ride operator or in an emergency, and
  • not reasonably controlling the speed or direction of the rider's person or an amusement ride that requires the rider to control or direct the rider's person or a device.

8 M.R.S.A. § 803(2)(B). Delivered as instructions from the bench rather than through the advocacy of partisan expert witnesses, these standards give the defending amusement park operator a distinct advantage in personal injury liability cases.

The breadth of the language setting the standard for comparative fault is astonishing. Who hasn't seen photographs of roller coaster riders waving their arms in exhilaration, for example? Under Maine law, this normal and expected conduct by amusement park patrons constitutes comparative negligence as instructed by the bench.
 
C. Does the rider have the right to ride?

 
Beyond just establishing broadly the standards for amusement park rider conduct, the statute affords even greater insulation for the industry by questioning the rider's right to even be on the ride in the first place. Section 803(3) shifts disclosure responsibility from the operator to the rider. Under the statute, a rider "may not get on or attempt to get on an amusement ride unless the rider or the rider's parent or guardian reasonably determines that, at a minimum, the rider:

Has sufficient knowledge to use, get on or off the amusement ride safety without instruction, or has requested and received before getting on the ride sufficient information to get on, use and get off safely

Has located, reviewed and understood any signs in the vicinity of the ride and has satisfied any posted height, medical or other restrictions

Knows the range and limits of the rider's ability and knows the requirements of the amusement ride will not exceed those limits

Is not under the influence of alcohol or any drug that affects the rider's ability to safely use the amusement ride or obey the posted rules or oral instructions

Is authorized by the amusement owner or the amusement owner's authorized servant, agent or employee to get on the amusement ride

8 M.R.S.A. § 803(3). It sure looks like the "wish list" submitted to the Legislature by the industry's lobbyists was adopted. This is very strong pro-industry language. The statute even helps the amusement park industry with their pre-suit investigations. Under the statute, an injured amusement park rider shall report the injury in writing to the park owner. . 8 M.R.S.A. § 803(1). 
 
While the statute says failure to report in writing does not affect the rider's right to a civil remedy, the "shall report in writing" requirement makes sure that the park owner gets to conduct its investigation (sanitization?) first.

Can you win a case in the face of this pro-industry statute?

Yes.

But to do so, you must begin preparing from the moment the client walks in the door. You need to know all the areas covered by the amusement park ride statute, and address these up front with your client. What was she doing at the time of the accident? What was her conduct? What was the conduct of those with her? What limitations did she have physically, and of these, which did she know about at the time of the accident? Are there witnesses to the accident who can confirm that her conduct was not a factor in causing the accident? What signage was in place at the time of the accident, and did the client heed them? Was she injured despite having read them, or was her conduct contrary to the warnings? Was she totally under the ride's control, or did the ride afford her some measure of control over its use?

Your investigation must begin immediately. Go to the scene. See what happens in the ride's normal use. Investigate the type of ride and see if others have been injured similarly. Record how the ride works and how the riders typically use the ride. Does everybody do what your client was doing at the time of her injury, or was her conduct somehow different? Familiarity with the ride and how it works is critical to both understanding the liability case and in preparing your client for delivering her story of what happened under oath.

III. Conclusion

The moral of this story is that you must be very careful in taking on a injury case against an amusement park. The damages must warrant the effort. Your client's conduct must be unquestioned. You must get your investigation initiated and completed before the operator can get the industry's war machine cranked up. In the face of this statute, your best weapons are a thorough investigation of your own case and the element of surprise.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.