Its that time of year when Fairs are happening all over. With the Washington State Fair getting ready to start up, I was reminded of a case I handled a few years ago. I am one of only a handful of plaintiffs’ attorneys who has actually handled an amusement park ride case in the region. I represented a group in families in a case involving a children’s ride that collapsed at a local fair while loaded with kids. I ended up suing the ride operator and the foreign manufacturer of the ride. The case was interesting and challenging in many ways, but also very rewarding.
When operating an amusement right, the operator is considered a common carrier. This designation creates a very high duty of care owed to those who board its ride. This is a heightened duty of safety. Unfortunately in my case, the ride’s operators failed to keep the ride safe for the kids riding on it.
Here’s some legal background for amusement ride liability (feel free to skip ahead to the facts of my case if you like):
Our law makes it clear that common carrier owes the highest degree of care to its passengers “commensurate with the practical operation of its conveyance at the time and place in question” and “consistent with the practical operation of its business.” Tortes v. King County, 119 Wash. App. 1, 7-8, 84 P.3d 252, 255 (2003). This standard of care has been applied broadly to operators of all types of conveyances including escalator and elevator operators, busses, taxies, ski lifts and even amusement rides.
Holding ride operators to the standard of common carriers, our courts rely on the long standing rule that escalator and elevator operators are considered common carriers. In Dabroe v. Rhodes Co., 64 Wash.2d 431, 434-35, 392 P.2d 317 (1964), the court held it was error not to have given the plaintiff’s instruction that the store had a duty to use the highest degree of care consistent with the practical operation of its escalator. In another recent case involving injuries in an elevator, our court held, “to protect its passengers from the danger of injury from malfunctions or defects of which they [the defendants] knew or should have anticipated from facts and circumstances known to them.” Houck v. University of Washington, 60 Wash.App. 189, 196, 803 P.2d 47, 51 (Wash.App.,1991).
Likewise, other jurisdictions have applied the common carrier standard to ski lifts and carnival or amusement rides. The California Supreme Court (home to numerous amusement parks) offered the following discussion when applying the common carrier standard to a roller coaster operator:
“We continue to adhere to the view we adopted in Smith v. O’Donnell, supra 215 Cal. 714, 12 P.2d 933. As the cases cited above make clear, our conclusion that the operator of a roller coaster or similar amusement park ride can be a carrier of persons for reward is consistent with the authority holding that operators of ski lifts are common carriers, despite the fact that the skiers who ride such lifts are engaged in recreation. (Squaw Valley Ski Corp. v. Superior Court, supra, 2 Cal.App.4th 1499, 3 Cal.Rptr.2d 897.) A passenger’s purpose in purchasing transportation, whether it be to get from one place to another or to travel simply for pleasure or sightseeing, does not determine whether the provider of the transportation is a carrier for reward. The passenger’s purpose does not affect the duty of the carrier to exercise the highest degree of care for the safety of the passenger.
As one federal court in California court eloquently laid out the justification for holding ride operators to a heightened duty of care, “amusement rides have inherent dangers owing to speed or mechanical complexities. They are operated for profit and are held out to the public to be safe. They are operated in the expectation that thousands of patrons, many of them children, will occupy their seats.” (U.S. Fidelity & Guaranty Co. v. Brian (5th Cir.1964) 337 F.2d 881, 883.) Riders of roller coasters and other “thrill” rides seek the illusion of danger while being assured of their actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt. The rule that carriers of passengers are held to the highest degree of care is based on the recognition that “ ‘[t]o his diligence and fidelity are intrusted the lives and safety of large numbers of human beings.’ ” (Treadwell v. Whittier, supra, 80 Cal. 574, 591, 22 P. 266.) This applies equally to the rider of a roller coaster as it does to the rider of a bus, airplane, or train.” See Gomez v. Superior Court, 35 Cal.4th 1125, 1136, 113 P.3d 41, 4, 29 Cal.Rptr.3d 352, 360 (Cal.,2005).
Other jurisdictions agree with the rule adopted in California. The Alabama Supreme Court in Best Park & Amusement Co. v. Rollins (1915) 192 Ala. 534, 68 So. 417, 418, followed the decision of the Illinois Supreme Court in O’Callaghan v. Dellwood Park Co., supra, 242 Ill. 336, 89 N.E. 1005, and held that a “scenic railway” in an amusement park “‘should be held to the same degree of responsibility in the management of the railway in question as a common carrier.’” (See Bibeau v. Fred W. Pearce Corp. (1928) 173 Minn. 331, 217 N.W. 374, 376; Tennessee State Fair Assn. v. Hartman (1915) 134 Tenn. 159, 183 S.W. 735, 736; Lyons v. Wagers (1966) 55 Tenn.App. 667, 404 S.W.2d 270, 274.) The Colorado Supreme Court held in Lewis v. Buckskin Joe’s, Inc. (1964) 156 Colo. 46, 396 P.2d 933, that a stagecoach ride that traveled over a fixed course as a tourist attraction in a replica of a ghost mining town should be held to the highest degree of care regardless of the passenger’s purpose in entering the ride: “It is not important whether defendants were serving as a carrier or engaged in activities for amusement. The important facts are, the plaintiffs had surrendered themselves to the care and custody of the defendants; they had given up their freedom of movement and actions; there was nothing they could do to cause or prevent the accident. Under the circumstances of this case, the defendants had exclusive possession and control of the facilities used in the conduct of their business and they should be held to the highest degree of care….” (Id. at p. 939.) Additionally, the Oklahoma Supreme Court held in Sand Springs Park v. Schrader (1921) 82 Okla. 244, 198 P. 983, 987–988, that the operators of “a scenic railway or rolly-coaster” was “bound to use the highest degree of care and caution for the safety of his patrons,” observing: “We are unable to see the force of the contention that one who rides a scenic railway should be held to assume any other or further risks than would a passenger riding a passenger train. The fact that the passenger on a scenic railway might be seeking pleasure and recklessly accepts the risks, it may be stated, would be no more different than would a passenger riding a passenger train on a pleasure trip.”
Back to the case I handled:
In my case, the ride operator and the manufacturer denied any responsibility. They maintained this position up until just before trial, despite the fact that the evidence of their negligence was overwhelming and it caused injuries to a number of children.
The official cause of the ride’s collapse was found to be “soft and saturated soil conditions and lack of adequate blocking of the ride’s support posts for the soil conditions.” The weather report for the week leading up to the incident indicates that inches of rain had fallen on the area. Not only was the ground saturated at the time the ride was set up, it continued to rain throughout the day of the incident, only further saturating the ground. To compound matters, the ride was set up on an area where a trench was dug earlier in the year for the installation of underground utilities making the soft ground even less stable. Apparently, this didn’t matter to the operators, a choice proved dangerously fateful.
As the fair opened, the ride was out of service due to an electrical malfunction. It was repaired and put into service on the morning that it fell over. One of the operators reported to Police investigating the incident that “they were having problems keeping the ride level due to the soft mushy ground under the ride in the grass area where it was set up.” Another operator admitted to officers that, “he informed his supervisor of the leveling problem and requested extra items to stabilize the ride at the base.” The operator went on, “he used a floor jack to raise the one side of the ride, and then he placed some ‘2X4’s and 4X2’s and some three quarter inch plywood’ under the ride to shore it up so that ‘everything was sturdy’.” Obviously, “everything” was not “sturdy.”
Generally, the softer the ground, the more robust the blocking under the ride should be. One of the operators of the ride, who teaches ride setup and blocking, testified that “plywood does not have a tremendous amount of heavy weight structural support on its own, so you might use something heavier underneath.” Unfortunately, despite the heavy rain and wet soil, the operator filed to issue an order to double check the blocking on its rides despite the fact that its own technician testified that the blocking should be checked throughout the day.
When the operators were asked under oath about the blocking used for the ride which toppled over, they described the material used as “a piece of plywood that appears to be in bad physical condition.” One testified, “It appears to be rotting in the center and probably doesn’t have a lot of support left to it.” Another operator testified that the plywood used to block the ride was not adequate blocking for soft grass. He even added that he would use the blocking under the toppled ride in one of his classes where he teaches ride setup, saying, “I would hold it up and say that is not what you use.”
During the litigation, the ride operators were forced to concede that the blocking used under the ride “has no structural support” and “It’s partially rotted out, and it’s in bad condition. It’s not going to hold anything. Once again, it’s soft ground. You’ve got a small foot. And plywood is not gonna support it on soft ground.” One operator even testified “The plywood obviously should not have been used as a base.”
Despite the complete lack of care in setting up the ride, at approximately 6:00PM the ride opened. It was loaded with kids for the first run of the fair. The operators (one who had no prior experience) explained that about 45 seconds into the fateful ride, they heard a large “snap” sound and saw the front base of the ride begin to sink down into the soft grass and dirt under the ride. He believed that the plywood they had placed under the ride gave way and broke. The ride then tipped over while spinning, loaded with children on board.
In discovery, I was able to show that several measures would have prevented this incident which injured numerous children. The method and material used to block and support the ride were contrary to the instructions provided by the manufacturer. The operator should have simply shut down the ride or refused to run it once any issues with leveling were encountered. They should have insisted that the ride be set up on pavement or concrete rather than soft, saturated ground, where it had conducted utilities excavations earlier in the year. Finally, if the ride was to have been operated as it was, the operators should have used adequate and safe blocking materials and techniques. This incident was 100% preventable.
When I took the deposition of the president of the amusement ride company operating the ride, he testified, “I think the operator failed to block the ride given the deteriorating soil conditions.”
Despite the complete lack of care and the aggravating factors leading up to the ride’s collapse, the operators refused to accept responsibility.
In the end, this case settled just before trial. My clients were happy to have the case resolve. It was a hard fought battle to hold the ride operators accountable every step of the way and I’m glad I got to be part of it.
Hopefully you have a great time at the Fair this year. But, if tragedy strikes and you or a friend or family member are injured on an amusement ride, give me a call.
Here’s a link to one of the many news stories on the case: