When Fun isn’t Fun

Posted by Kenneth C. Anthony Jr.

As our society seems more and more bent on entertaining itself, the proliferation of ways and places for entertainment continues and the forms of such entertainment constantly take new and unexpected forms. While much attention is focused on the Internet, computer and video games and even video poker, we have also seen an increase in less sedentary forms of amusement.

Some years ago we saw the sudden popularity, outside of rodeo circles, of the bucking bronco simulator. We have, in recent years, seen the soaring (and plunging) popularity of bungee jumping, which even now takes place outside some bars. Skateboard parks exist. Resort and vacation areas have long had permanent amusement parks, featuring many rides of various kinds, and, in most localities, the fair or carnival came to town once a year with its own amusement trucked in and bolted together for a week. But while the most vigorous form of ride which most communities generally had year-round consisted of the small toy horse, boat or motorcycle outside the grocery store which, for a quarter, rocked four-year olds back and forth for a minute, we have in recent years seen the vast increase in what is known in the trade as the Family Entertainment Center (FEC).

FECs

An FEC is a small amusement park. The FEC usually contains three or four different activities, in addition to having a concession stand, playground – indoor or out – and the obligatory video games. The activities usually consist of a small go-kart track, batting cages, waterslides, carpet golf, and a fairly new ride known as bumper boats, similar to the old bumper cars, but consisting of round boats surrounded by inner tubes with a small two-stroke engine in the center. Since the development of FECs in our area, I have been involved with a constant stream of suits involving injuries, and, unfortunately, death, at these family amusement parks. I have also learned, to my amazement, that, in this modern day, there is a virtually total lack of safety features or standards being utilized as to the devices and operation of this essentially unregulated industry. While there are laws and regulations in this state which technically apply to these FECs, as we will see, these are drawn to apply to traditional fairs and carnivals.

Most of the major amusement parks – Disney, Paramount, Warner Brothers – have their rides, especially their large rides, such as roller coasters and flume rides, specially designed. As we have seen in recent months, even these can malfunction and cause injury or death. But the small rides which comprise the FEC are virtually all designed by small companies operating out of small local manufacturing facilities. They are most often laid out by the developers. If an engineer is involved, it is rarely one with any experience with amusement parks. The manufacturers of equipment have frequently grown out of truly garage operations, such as the manufacture of go-karts, and have expanded into other rides because of a similarity of design or out of a desire to fill more of the customer’s needs. These small operations compete with one another on one level only – price.

The owners of FECs have generally been to date local entrepreneurs who saw a market niche and strove to fill it as quickly as possible. While there are now emerging chains of FECs, which either construct their own small parks or buy up existing ones (many of which have not done well, either because of location or lack of professional management), most FECs are owned by a local operator, or, more frequently, a group of local investors. The operator of the park has no prior knowledge or training in the area. He really could not, because the FEC is a creature of recent origin. Even if he has some experience, it is probably in the entertainment end – operation of a carpet golf course, bowling alley or video arcade – and likely includes no experience whatsoever in the safety aspects of the operation of an amusement park.

This operator is usually the one to select the rides and their manufacturers. He may do this by visiting other operations and gleaning word-of-mouth information, attending trade shows (there are several large ones each year, the largest being in Florida), reading product brochures and talking with manufacturers. Nowhere in any of this information is there likely to be any discussion of safety.

The small manufacturers, similar to the operators of the FEC, have no safety training. They may have no engineering background at all, but simply have fabrication experience. Virtually none of these small operators employ a full-time safety expert, and do not go to, or probably even consider, the expense of hiring a consultant in the design process.

The products are designed with several factors in mind: function, durability and cost. If a corner can be cut which does not inhibit the desired functioning of the product, and can make the product last through what is known to be constant use, it will be cut, so that the manufacturer can undersell the competition. The products are generally simple and can easily be copied by upstart manufacturers who, with lower overhead than established vendors ( such as lack of products liability insurance) can make and sell the product and wedge their way into a fragmented market.

While the FEC will generally not employ anyone with safety training, they will most always employ a full-time handyman or maintenance man, as the rides and amusements are constantly breaking down, and the park needs these back in operation as quickly as possible. This individual, similarly, will probably have little or no training, other than perhaps technical school or backyard experience with two-cycle engines. When the rides at the FEC break, as they inevitably will with the constant and hard usage, their is no time or inclination to send the product back to the manufacturer. The ride needs to be back in use immediately. So the handyman will fix it, using whatever parts or skills are available. If a part breaks regularly, his engineering skills will undoubtedly come to the fore and he will try to fashion his own “retrofit,” to keep it from happening again, or at least so often. No consideration will be given to safety in any of these repairs, nor is the original manufacturer likely to be consulted.

Because the rides are mostly outdoor rides, FECs are largely seasonal businesses. The video arcade and perhaps the inside playground and concession stand may be open, but the outdoor rides will probably shutdown in the winter. Much of the staff, therefore, is also seasonal, and consequently, consists of college students or others between jobs. Turnover is constant, with often an entirely new staff each year, so experience is usually lacking. Safety training, if any, is cursory. There will probably be no type of safety plan, as that is generally known. Safety equipment will probably be limited to a stock first aid kit.

If there is an FEC in your area, you will hear of injuries. Some of those injured, because of the number, will almost inevitably show up in your office. When this happens, some of the procedures you should pursue are as follows.

Investigation

Go to the scene as quickly as possible. Since this is a public facility, this is easy. Go as soon as you can. You may want the client to go with you. It is nothing unusual for people to take pictures at an amusement park, so take your camera and take pictures of everything in sight. Everything at these parks changes constantly, and, particularly if you let a season pass, the park may have been changed radically during the off-season. Photograph the area where the injury occurred, of course, in as much detail as possible. Photograph any changes which have been made since the accident, if you can tell, but if not, just be sure to photograph everything thoroughly. Be sure to photograph any safety warnings or signs. If there are none, photograph the area where such signs would have been appropriate or could have been displayed. Photograph signs in other areas of the park which could have been installed or altered for display in the area where the accident occurred.

Pick up any printed information which is available, advertisements and such. Listen to any safety instructions being given by any attendants at each amusement.

Talk with any witnesses. Obviously, if your client had companions, these need to be interviewed. Because such parks attract crowds, there are likely to be bystander witnesses. Fortunately or unfortunately, there may be many, for, as we all know, if there are many, their versions will inevitably differ. Still, all must be interviewed. Any emergency medical personnel should be interviewed.

It may even be more possible than usual to talk with FEC employees. Pertinent ethical rules may come into play in whether or not to contact those still employed by the FEC, although, unless they have management authority, there is probably no prohibition. Of course, they may be unwilling to talk.

Because of the seasonal nature of the FEC, however, turnover of employees is high, approaching one hundred percent. Most of the employees tend to be students working for the summer who will not return the next year. Once the season is over, they are no longer employed, have no allegiance (perhaps some animosity) to their former employer, and are willing to talk. If the ethical rules do not dictate otherwise because of their former position, contact them. You may be pleasantly surprised.

Experts

The next thing to do is to hire an expert. As in most cases, this is no small feat. As always, it requires a careful review of the expert’s background, meeting with the expert to evaluate his appearance and credibility and so on. It is made more difficult in this case because there really are no “FEC experts.” The entire concept is relatively new and, as described herein, such parks are largely mom-and-pop sort of operations that someone with a get-rich-quick mentality and a bulldozer have created. So it is important to look at the way in which the client was injured.

Before choosing an expert, you are going to have to have some theory of liability in the case. If you think that your issue is essentially a safety or warnings issue, there are many experts who can address these issues.

If the theory is some sort of mechanical failure, either through a manufacturing defect, or, more likely, inadequate maintenance, inspection or repair, then an engineer familiar with similar failures will probably serve. It will be helpful, but not essential, that he have experience with amusement parks or FECs.

Batting cages

As most FECs now exist, such mechanical injuries will most likely arise in the context of either the batting cages or the go-karts. Each is notorious and is almost certain to give rise to injuries constantly. Batting cages, frequently included at such parks, cause many injuries. Pitching machines, if properly installed, calibrated and maintained, are generally predictable and reliable, but even under these circumstances, can throw a wild pitch if the ball is wet, dirty or defective, as they often are. The fact is, however, that at these small parks, run with a minimum of barely trained employees, they are rarely maintained, although the manufacturer supplies a maintenance schedule and prescribes regular inspection and calibration. They come out of calibration constantly, however, and most parks have no inspection or maintenance schedule, but only respond when someone is struck or complains. There is also almost never any supervision at the batting cages. These are left largely as a self-serve amusement.

Go-karts

Go-karts also malfunction, and the in-house “maintenance person” will band-aid them back together, so they fail often. The most common cause of injuries in this area, however, is failure to supervise. There is no method or device to prevent the cars from running into one another, and it is a common thrill, particularly when the drivers of two vehicles know one another, to treat the go-karts as bumper cars and try to run into one another. This commonly occurs at the end, when the cars are lining up and being brought to a halt. True whiplash is what occurs here as there are no headrests and the driver in front has no warning that his car is about to be struck from behind and often pushed into the one in front. The other, and often more serious injury, also in this unloading area, occurs when a go-kart strikes embarking or disembarking pedestrians, in which case the injury is usually to the legs. Again, this arises out of a failure to warn, supervise, instruct and to have adequate personnel. Go-karts have been around long enough, and most people exposed to them, so that everyone thinks they know how to run them. At most parks, people stand in line and as the cars pull in, riders disembark and new riders step into the cars with no safety warnings or instructions other than perhaps the admonition to use a seat belt. Why the seat belt is required is not clear as one of the few events not likely to occur is for the vehicle to overturn or be involved in a crash of sufficient speed as to throw an occupant from the car.

Water rides

The other, and most deadly, type of amusement typically found at these parks involves water. There seems to be an almost total lack of awareness in the amusement industry that water rides can result in drowning. Whereas true waterparks, containing waterslides, tube floats and wave pools, treat the water with respect, utilizing numerous trained lifeguards, lifesaving equipment and warnings, since most rides at FECs and amusement parks which involve water evolved out of dry rides, the same level of awareness does not seem to exist. Bumper boats, for instance, evolved out of the old bumper cars, and are generally treated the same. Because the boats are large and very stable, not likely to overturn, life jackets and other safety measures are not universal. I had the unfortunate experience to represent the mother of a four-year old child who fell from the bumper boat into the water and drowned. She had not been required to wear a life jacket; no lifeguard was on duty and no sort of safety plan existed.

The amusement industry seems to be further confused because there are, among water rides, what are sometimes referred to as “hard” rides and “soft” rides. If the injury arises out of the ride itself, it is important to determine as early as possible whether this is a true water ride, a Asoft@ ride, where the boat actually floats freely in the water, or a “hard” ride, where the boat or vessel is attached and runs on a track similar to that of a roller coaster though surrounded by water. Splash Mountain at Disneyworld, for instance, is a hard ride, since the “log” runs on a track as it spills down the flume. Pirates of the Caribbean is another example. Bumper boats and paddle boats are soft rides, in that they are not attached in any way, allowing them to overturn, or at least tip, and allowing the course of the ride to be controlled by the patron. A true water ride needs an aquatic expert; a hard ride needs an amusement park expert.

Aquatics experts are those who have created or managed areas where people swim or can be expected to fall into water in which they could, or might need to, swim. Those who have designed or overseen water parks – the kind involving waterslides and wave pools – or large group swimming areas are ideal. Hard ride experts have designed or managed large amusement parks – including roller coasters and the like – such as those run by Disney or Paramount.

It is not readily apparent to the public whether a ride is hard or soft; indeed, the overwhelming majority never give the thought any consideration and would not know the difference if they did. Consequently, they are not in a position to consider, nor do they, whether life jackets or other forms of safety procedures should be used or available before boarding the ride.

Still another dangerous feature of many water rides is the practice at many parks to dye or color the water in which the ride runs, or at least not to keep it clean. While it may be acceptable, even desirable, for hard rides to run in colored water, since there is no danger of overturning and the coloration hides the rail, soft rides should always have clear water. Though this seems obvious to anyone on reflection, and would be the first requirement of anyone with any lifeguard training, many operators give no thought to the matter. Because Pirates of the Caribbean has colored water, this operator thinks his bumper boats should too.

There are several reasons why FEC operators want to color water used in rides. First, as noted, on a hard ride, colored water hides the rail and provides the illusion that the ride is floating. Second, on any ride, hard or soft, coloring hides the bottom and does not require the operator to keep the water or the bottom clean. Third, coloring retards or prevents algae growth. This eliminates the need for chlorine and filtering equipment, which is expensive and requires some method of disposing of the chlorinated water at times, in a way while will not damage surrounding grass or landscaping. The problem, of course, is that colored water also makes it more difficult to locate a patron who has fallen into the water. In the case I handled involving a bumper boat, the child fell into the water. Since she had not been required to wear a life jacket, she went under the water. She might have bobbed back toward the surface, though she could not swim, except that her clothing became entangled in the propeller of the boat. Had she been wearing a life jacket, she could not have gotten this far under the surface of the water. Had the water been clear, she would have easily been spotted underneath the boat, could have been extricated and saved. As it was, because of the colored water, searchers, including her mother, were forced to try to locate her by feel. The underside of the boat was the last place they thought to look, and after twenty minutes, it was too late.

Regulation

You will need to determine what, if any, laws or regulations apply to the operation of your FEC. There may be local ordinances which apply, though this is unlikely unless on the coast. The South Carolina Amusement Rides Safety Code, Section 41-19-10, et. seq., contains certain requirements (and pre-empts local ordinances to the extent of any conflict) and gives the Department of Labor, Licensing and Regulation administrative authority. A review of this section will make clear, however, that it was drafted with annual carnivals or fairs in mind, or traditional amusement parks with merry-go-rounds and ferris wheels. The owner is required to obtain a permit and there is a requirement to maintain liability insurance. The Department is given authority to inspect rides, but it is clear that the Department does not have, and should not be expected to have, the ability or resources to make decisions on general safety considerations, training or warnings. The Act is clearly geared toward visual inspections of mechanical parts.

The essential requirement of the Act, as promulgated through the Department=s Regulations, 71-4000 et. seq., is that the owner have and follow the manufacturer=s recommendations as to the equipment. And, as we have seen, in the case of most FECs, the manufacturer of the equipment may or may not have produced adequate recommendations. The information provided may cover operation and even maintenance of the equipment, but it probably does not address training of employees or safety considerations.

Discovery

Serve discovery requests to obtain, of course, prior incidents, but also to obtain original plans for the park, identity of manufacturers of equipment, date of installation, identity of installer, original operation manuals, maintenance checklists and warnings. Find out who designed the park, who selected the equipment and how. Depose the person or persons who did so. Did they visit other parks? If so, which ones? You may need to visit these parks to compare. If the other parks are utilizing safety procedures this one is not, you have valuable evidence. What equipment did they consider? Obtain the sales information from the manufacturer. Did they visit trade shows or expositions? Several large shows are held every year.

Subscribe to Funworld. This monthly publication is the virtual bible of the industry. It will have advertisements for all of the new equipment, as well as the trade shows. Enjoy the articles, as well, which are always concerned with profits, not safety. If there is a trade show happening in your area, attend, and compare the various equipment and talk with the manufacturers. They will certainly tell you all of the bad features of the competing products, and often stories of prior incidents.

Depose the maintenance man. Again, he may no longer work for the park and be free with information. Obtain his credentials. Ask him if safety was ever discussed. What was the objective when something broke? To see why it broke? To determine if the amusement was dangerous? Or to get it back in operation as soon as possible? Did he ever make safety recommendations which were ignored?

Obtain a list of all former employees. Talk with those you can and depose others. Find out if and how often safety meetings were held. Find out what was discussed. Find out what training, safety or otherwise, was given. If materials were distributed, obtain them. If an employee manual was given out, see how much of it was devoted to safety. See how much was devoted to profits.

Obtain as much financial information as your local law will allow. You will want financial information both to determine, in dollars and percentages, how much of the parks’ revenue comes from this particular amusement, and for punitive damage arguments.

Conclusion

At amusement parks in general, and certainly at the modern FECs, safety is literally the last consideration, if it is considered at all. Anyone handling a case in this area, or simply interested in the topic, should obtain a copy, and perhaps subscribe to, Funworld magazine, which seems to be the Bible of the industry. Article after article appears describing how to maximize profit, put the park to different uses, attract different groups of customers, keep patrons in the park longer and how to advertise. When safety is mentioned at all, it is in the context of security, trying to prevent or deal with violence, or of premises liability, preventing falls or dealing with someone who has been injured, not preventing the injury.

Customers are not aware of the hazards at these parks; they go out for a few hours of fun, giving no thought to any possible danger. With such small parks proliferating and the number and variety of rides constantly changing, until all parks put safety as the first consideration, needless injuries and even death for those who went for an afternoon of fun, will continue.

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