California Law--Risk and Liability in Amusement Park Accidents

[tombuch 0]

Risk and liability, and the importance of waivers, are often topics of discussion here. We often argue about the duty of a drop zone to prevent injury, and the expectations of student jumpers regardless of the waivers they sign.

There was an interesting decision offered by the California Supreme Court last week, in a case of injury following the use of an amusement park ride operated by Disney. The case relies on the interpretation of “common carriage” and the standard of care an operator owes the public.

The decision in this case defines the Indiana Jones ride as common carriage, and cites cases in various jurisdictions in addition to California. By this definition, the use of an airplane for skydiving could be considered common carriage under the California statute. The case does not directly relate to skydiving, but it provides insight into how the California Supreme Court interprets a law relating to risk, and how similar risks are managed in other jurisdictions.

If you are interested in a better understanding of ‘standard of care,’ and the responsibility an operator of an amusement ride owes the public, this decision will be a fascinating read. The entire decision is 49 pages, with an interesting dissent beginning on page 24. The case is called Gomez V Supreme Court of LA County/Walt Disney, and can be found at: http://www.courtinfo.ca.gov/opinions/documents/S118489.PDF.


…LiabilityCertainly there is no justification for imposing a lesser duty of care on the
operators of roller coasters simply because the primary purpose of the
transportation provided is entertainment. As one federal court noted, “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
(footnote continued from previous page)
however, such owner or operator shall exercise the highest degree of care for the
safety of persons using the devices compatible with the practical operation of the
devices being used.”
1 5
fidelity are intrusted the lives and safety of large numbers of human beings.’ ”
(Treadwell v. Whittier, supra, 80 Cal. 574, 591.) This applies equally to the rider
of a roller coaster as it does to the rider of a bus, airplane, or train.5… From the decision Gomez V Supreme Court of LA County/Disney
.

Tom Buchanan
Instructor Emeritus
Comm Pilot MSEL,G
Author: JUMP! Skydiving Made Fun and Easy

[gemini 0]

Although I see your point, I don't agree entirely. The aircraft can perform safely and be flown by a comtetent pilot, and the skydiver can still be injured. It's not quite the same since we effectively leave the roller coaster prior to the injury.

Of course if the dz does not adequately maintain the aircraft and there is an aircraft accident...

Blue skies,

Jim

[Kris 0]

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Of course if the dz does not adequately maintain the aircraft and there is an aircraft accident...

Exactly. There's not a waiver on the planet that will protect someone from willful negligence. Accidents happen, natch. But if the accident can be proven to be caused by someone cutting corners, etc... then it's game on for the sharks.

Sky, Muff Bro, Rodriguez Bro, and
Bastion of Purity and Innocence!™

[tombuch 0]

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Although I see your point, I don't agree entirely. The aircraft can perform safely and be flown by a comtetent pilot, and the skydiver can still be injured. It's not quite the same since we effectively leave the roller coaster prior to the injury.

Keep in mind this is California law, and the specific ruling does not apply outside of that state.

Now, the California Supreme Court has decided that a higher standard of care is required when a person in involved in "common carriage." And the court has decided that an amusement park ride is common carriage, as is a sightseeing flight, or an elevator ride. Each begins and ends at the same point, but involves movement. The distinction between travel and thrill seeking is not relevant to this discussion, according to the court decision.

The court decision defines the standard of care that must be provided to the public, requiring that a much higher standard of care be applied if the event involves common carriage. The court then defines a rollercoaster as being common carriage.

Clearly, the airplane part of a jump is common carriage according to my reading of the court decision. I can't see any reason to exclude the actual skydive from that definition, or any means of distinguishing a skydive from the rollercoaster ride. This decision, although strictly limited to defining common carriage and the required standard of care in California, seems to show the court is willing to reach and apply common carriage well beyond what we tend to think of as transportation. This logic is discussed as a concern in the dissent, and is addressed as it is applied in other jurisdictions.

The standard of care we provide to our students and experienced jumpers is something for all of us to think about, and is especially important if you are jumping or running a DZ in California. I posted the link to this decision because it does such a great job of showing how a specific court thinks about risk and the liability an operator has for maintaining care for the public, and how the same matter might be viewed differently in other jurisdictions.

Any thoughts on why a tandem skydive is different than a rollercoaster ride? Is it different than a horse ride at a thrill show, or an airplane sightseeing flight? Can you defend that logic in the context of the California Supreme Court decision?

(It's a nasty Saturday in Vermont, so I have had some free time to dig into the issue and think about it. I'd rather be skydiving.)
.

Tom Buchanan
Instructor Emeritus
Comm Pilot MSEL,G
Author: JUMP! Skydiving Made Fun and Easy

[gemini 0]

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I can't see any reason to exclude the actual skydive from that definition, or any means of distinguishing a skydive from the rollercoaster ride.

In the CA decision the emphasis was on the standard of care when a person is involved in "common carriage.'

My point is when does the "common carriage" end?

Obviously in the roller coaster ride the CC ends when the riders exit the car. Where does the owner's due care reasonably end? At the terminus of the ride or CC. Should not the same rule apply to skydivers?

In the court case, the riders never leave the ride until the ride terminates at the point of origin.

In skydiving the "ride" ends when the jumper exits the plane. Think of those jumps where the take-off is from a muni-aiport and the landing is miles away at the dz.

I think we have a case of apples and oragnes here.

I do agree with you that CA stands alone when it comes to some of its court decisions, but that is a whole other issue.

Sorry the weather is bad for you up there.

Blues,

Blue skies,

Jim

[EDYDO 0]

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In the court case, the riders never leave the ride until the ride terminates at the point of origin.

In skydiving the "ride" ends when the jumper exits the plane.

A tandem passenger has no parachute or skill and is at the mercy of the tandem instructor until he/she touches down.

I have often wondered about the legal liability of drop zones that require automatic openers and then someone is injured in a two out situation, because it is not a BSR, just their rule.

Ed

[rmsmith 1]

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Riders of roller coasters and other “thrill” rides seek the illusion of danger while being assured of their actual safety.

In skydiving, the "rider" is assured that risk does indeed exist...in writing on the back of a ticket, or in the page(s) of a waiver.

[BlindBrick 0]

[replyClearly, the airplane part of a jump is common carriage according to my reading of the court decision. I can't see any reason to exclude the actual skydive from that definition, or any means of distinguishing a skydive from the rollercoaster ride.

[kelpdiver 2]

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In skydiving we tell them straight up that what they are doing /is/ dangerous. We don't sugar coat it. We sress to them that they can do everythig right and still die. Knowing this, the student is making an informed consent to engage in the activity. If we told them that it's all the scary stuff is just stories or for show and that no one really gets hurt, then we would be in the same posistion as the amusment parks.

-Blind

The tandem passengers are not told that they could do it all right and still die. And more than a few dance a bit on the danger question, though I don't think I've seen any web sites recently that try the safer than driver BS.

But in the overall, I don't think you can compare jumping to rollercoaster rides. There is clearly no illusion of danger, it's really there.

[BlindBrick 0]

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The tandem passengers are not told that they could do it all right and still die.

You don't do that in CA? In AR, we verbally spell out the waiver, specifically mentioning the part about you can still die even if you do everythign right. I've seen similar stuff done in MO, IL and CO.

-Blind

"If you end up in an alligator's jaws, naked, you probably did something to deserve it."

[kelpdiver 2]

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You don't do that in CA? In AR, we verbally spell out the waiver, specifically mentioning the part about you can still die even if you do everythign right. I've seen similar stuff done in MO, IL and CO.

I'm sure the waiver is nice and lurid, and you have Bill Booth on the video doing the same. Just like every waiver for every remotely risky sport. People tune out after the first paragraph. I'm not sure about any verbal readings- I've seen several that ask the participant to handwrite out a passage of legalese indicating risk and acceptance.

It's not the same as when someone asks and gets that answer. That's when we see the 'more dangerous to drive to the DZ' stuff.

[lawrocket 3]

Hi, Tom. I think your assessment of this is dead on. This case was delivered to me by e-mail on Thursday, but I didn't have time to read it.

In looking at this discussion, I see a couple of different things in skydiving to where this case applies:

1) On the ride up to altitude; and
2) Tandems

There is no doubt that skydiving is a "recreational ride." Fortunately for the DZ, this ride would apparently end with exit from the aircraft for solo jumpers. However, it appears that tandems would also be under the purvey of this "common carrier" rule.

In Cali, a "common carrier" is everyoen who offers to the public to carry persons, property or messages. A carrier of persons for reward must use the utmost care and diligence for their safe carriage. A carrier for reward is bound to provide vehicles safe and fitr for the purpose to which they are put and is not excused for default in this respect by any degree of care.

I do see one thing that may take tandem skydiving out of the realm of "common carrier." That is if the tandem operations ensure that they do not warrant that tandem skydiving is "safe." I've seen Bill Booth talk about the dangers in video. There are waivers that suggest that it is not.

California does poitn out that many other states do not take such a broad view of a "common carrier." However, this does create an interesting new wrinkle on things...

My wife is hotter than your wife.

[sweep 0]

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I'm sure the waiver is nice and lurid, and you have Bill Booth on the video doing the same. Just like every waiver for every remotely risky sport. People tune out after the first paragraph. I'm not sure about any verbal readings- I've seen several that ask the participant to handwrite out a passage of legalese indicating risk and acceptance

At the DZ where I manifest, when I give tandem students the club indemnity (waiver) to sign, I say to them "This makes you a member of Skydive Strathallan, which you need to be to jump here. When you sign this you're saying you understand that skydiving is not an everyday activity. There is an element of risk,although it's highly controlled, and in the unlikely event that something were to happen you wouldn't sue the club, the landowner and so on".

I think that strikes a good balance between reassuring them that we're not a bunch of cowboys and reminding them that they aren't playing golf for the afternoon. And it brings out the salient points of the indemnity. I'd be interested in what other people think though.

We also have signs up all over the premises saying "Skydiving is dangerous. Just by being here you risk serious injury or death. If you cannot accept this risk go home now."

Sweep

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Yay! I'm now a 200 jump wonder.... Still a know-it-all tho..