11.05.05 GREAT NEWS!
THE AMUSEMENT LAW UPDATE HAS MOVED TO ITS NEW WEBSITE AT WWW.THEMELAW.COM
PLEASE RESET YOUR BOOKMARKS OR LINKS TO THIS NEW DESTINATION FOR WWW.THEMELAW.COM
THANKS!
11.04.05 It's Getting Real Close...Register!
After all, at current count, there are over 7 different sessions addressing legal issues...
11.03.05
This interesting position paper from the AMOA discusses how iPods might become a legal issue for some amusement facilities in terms of intellectual property problems. Definitely worth reading.
By the way, here's a general overview of the Amusement & Music Operations Association and governmental relations issues.
Lastly, The Update is working on compiling a master list of all amusement and recreation industry conferences and conventions that include educational sessions with at least one session covering legal issues. Here's an early list: IAAPA Expo; WWA Convention; FunExpo, IFEA Convention; RSA Convention.
We're certain that these are not the only ones so please contact us at cemerson@faulkner.edu with additions.
11.02.05
Here's a link to my article in this month's Funworld Magazine profiling the latest generation of thrill rides in the waterpark industry, including this one and this one.
11.01.05
In addition to the Amusement Law Symposium, I'll be presenting at the IIPGA workshop session at the upcoming IAAPA Attractions Expo discussing preventative legal strategies for inflatable attractions. The session is on Thursday, November 17th in Room B302 of the World Congress Center. Part of the presentation will be based on this recent article of mine.
10.31.05
Well, here's the Sizzler-related article from the Worcester Telegram that we commented for. Overall, a pretty good story.
Also, here are some comments by Bill Childs, whose was also interviewed for the story.
10.28.05
Just spoke with a reporter at this paper who is doing an investigative report for Sunday's edition on the Sizzler attraction and whether increased investigation and regulation is necessary.
As always, you never know how things will be written, but here were my main points:
1. When looking at the safety of an amusement attraction, you must consider not just the number of incidents but also the number of overall riders. Thus, an attraction that has had eight incidents during the course of 2 million riders might well be safer than an attraction that has had only two incidents but also only 50,000 riders. In other words, focusing on the number of incidents alone only tells half the story--if that.
2. It has apparently been suggested that, because the Sizzler is a spinning attraction that has had several incidents, then other similar spinning attractions should also be investigated. This of course is very skewered logic (if it can be called logic at all). Consider this: if a Honda Accord were to develop a steering column problem that leads to several accidents (which, by the way, I have no reason to believe that it has), does that mean that all similar vehicles in its class should also be investigated? All Camrys? All Honda Civics?
The answer is obviously no, that is of course unless they have the same steering column. In the case of the Sizzler, unless another attraction has the same mechanical or engineering configuration, then its completely ridiculous to try to analogize another different attraction as potentially being subject to a similar incident merely upon the fact that some rides also "spin".
Anyhow, we'll see how it plays out and will post a copy of the article next week if its available.
By the way, Bill Childs has posted some related documents here.
10.27.05
Here's an update from Greg Van Gompel concerning apparent criminal charges against an English roller coaster operator and a maintenance electrician arising out a death on the coaster. We're certainly not an English law experts (or frankly even novices), so when it means that someone has been found guilty of "misadventure" we can only guess that it's worse than it sounds.
Also, make sure and check out the latest entires over at IAAPA's Governmental Relations Legislative Action Center, including the September version of the Regulatory Tracking Report.
They've also posted the official IAAPA Comments on the recent ADA guidelines.
10.26.05 The Little Less Common Legal Round-up: Quick Looks at Somewhat Strange Amusement Law Happenings...
1. Here's an example of amusement law becoming a political campaign issue as one challenger in a local legislative race apparently advocates privatizing the county-owned Playland park at least in part because of the recent incident on the Ye Olde Mill ride. Apparently though, that route has been tried before...quite unsuccessfully it appears.
2. Let's hope that this amusement facility owner doesn't have the title of his amusement park in the same name as his other properties. Might this be an issue for smaller, family-owned facilities that you represent? Like the old adage says: "Personally-owned, Personally-liable"
3. The legal perils over personal zoos...and the good samaritan zoo that was just trying to help out.
4. From the festivals front: here's one example of why to carefully develop a pro forma for and insure aggressively planned new festivals.
5. And, finally, congratulations to Gulfport, Mississippi's Marine Life Oceanarium as its about to become one of the first reconstruction projects arising from the damage caused by Hurricane Katrina
10.25.05
While only tangentially law-related, my latest amusement industry magazine article is now up at Brandweek Magazine--this time taking a closer look at the Disney World/General Motors corporate partnership. As always, any feedback is welcomed and appreciated at cemerson@faulkner.edu.
10.24.05
Unfortunately, the switch-over to Liquid Matrix for The Update has been delayed until November 4th but, don't worry, we'll keep blogging away under the existing set-up until then.
And, today, The Update presents a little "whet your appetite for the upcoming Amusement Law Symposium" edition with this excerpt from Bill Childs' Criminal Prosecutions in the Amusement Industry white paper.
This brief excerpt demonstrates the type of great research that the Symposium publication will end up providing for attendees. If you need more info about how to register, contact Chad Emerson at 334.386.7536 or cemerson@faulkner.edu.
10.19.05 A Potluck of Museum Legal Updates
This article discusses an interesting union-related lawsuit that one Alaska museum is now facing. A great example of advising clients on the front end the importance of measured statements.
Also, on the museum front, this article discusses one legal challenge that can arise in the context of fundraising campaigns. The ole' dreaded "shakedown artist" museum board cartel...
Finally, here's a recent lawsuit involving an alleged "constructive dismissal" dating back to 2001 by a museum employee against here former museum employers--interesting only because it appears to be one of the most convulted constructive dismissal claims that we've seen in quite awhile. Yet still, the legal bills are sure to grow quickly in a dispute like this.
10.18.05
As promised, here is the most recent agenda for the IAAPA/IALDA/Jones School of Law Amusement Law and Symposium.
Also, it appears that the CPSC has recently posted its 2005 report on amusement park injuries. Rideaccidents.com has a synopsis of the report. We'll post our own review of the findings later.
10.17.05
Okay, The Update is back from much traveling the last two weeks and looks forward to several weeks of uninterrupted Updates as IAAPA Atlanta 2005 and the first Amusement Law Symposium are coming up soon.
To start the week off, here's a recent Update from Greg Van Gompel (who incidentally is also one of the symposium participants on the issue of ADA compliance by amusement facilities):
Seems like last
week was a bad week for Wade Shows. A roller coaster it had at the Alabama
National Fair was the subject of a lawsuit filed, while Wade had problems
getting its rides to pass North Carolina inspections.
One sure way to quiet your neighbors is to have the government pass a law
that says you can't be sued for noise complaints. Another way is to have
the court rule in your favor as long as you meet decibel levels.
Finally, Kennywood sues the borough of West Mifflin for unfair tax collections.
And, here's a link to several articles included in Greg's update.
We'll be back soon with the Symposium agenda and registration details.
10.12.05
Today we finish up our Updates regarding information we ran across while at the recent WWA Convention. First, here's an interesting article regarding legal risks faced by waterparks. And, second, here's information that we received back from the United States Department of Labor in response to our FOIA request related to the recent Fact Sheet #60 that limits the lifeguarding roles of 15 year olds.
This evening we're off to participate in the Mississippi Renewal Forum mega-charrette so there will not be any Updating until next Monday. See you then!
10.11.05
As promised, here's a rundown of some legal and legislative happenings we ran across while at the WWA Convention and Symposium:
1. Click here to learn more about the Healthy Pools Partnership between the CDC and several industry groups. The partnership plans on providing guidance for preventative strategies that might help avoid pool infections and injuries.
2. According to Recreation Management magazine, new aquatic safety standards were recently released by the International Aquatic Foundation. These voluntary regs focus primarily on waterpark pools and rides while being applicable to both new and rehab construction.
3. And, while not specifically related to water issues, the CDC has also established a new searchable database where users can track state legislation regarding physical activity and nutrition issues.
Okay, that's all for now. On Wednesday we'll be back with some new articles and documents focusing on pending waterpark legal issues.
10.10.05
The Update is back from the World Waterpark Association 25th Anniversary convention and has a ton of water leisure facility Updates ready to go. We'll post a major Update on Tuesday morning concerning some very important legal issues involving water-based amusements.
Until then, here is the Risk List powerpoint presentation we gave at WWA. We welcome the opportunity to conduct similar presenations for other companies, associations, or the like. Also, feel free to use either presentation for any non-commerical use as needed, crediting Professor Chad Emerson, Faulkner University's Jones School of Law.
And, finally, today kudos to the entire WWA staff for an excellent convention. Very well run with one of the best educational session schedules we've seen.
Also, kudos to IALDA attorneys Michael Amaro and Gaylee Gillim for an excellent presentations on other legal issues facing waterparks. We highly recommend contacting either of them to get a copy of the materials if you weren't able to attend their session.
That's it for now. Look for the major Update in the morning.
10.03.05
Well, The Update will be out of pocket a bit over the next two weeks so Updates will be a little less regular. I'll be speaking at the World Waterpark Association, the SmartCode Workshop, participating in the Mississippi Gulf Coast Renewal Charrette, and attending the Disney World Holiday Celebration Preview Press Event so, needless to say, until we can start updating The Update remotely, we'll be a little sparse in our entries over the next week or so.
Fortuanately though, it looks like we'll have all the new software in place by October 21st so, starting then we'll have Updates 7 days a week (up from the regularly scheduled 5)
Until then, thanks for everyone's patience and participation. We just crossed the 20,000 visit mark and are growing fast. That's a credit to the entire industry!
Chad.
p.s. Here's an interesting article from Greg Van Gompel on how a judge has refused to dismiss Westchester County as a defendant in the lawsuit arising from the 2004 incident.
9.28.05 Update
Good news for IP attorneys in the amusement industry. This presentation at the upcoming World Waterpark Association convention will focus in on intellectual property issues facing waterparks--and, in doing so, will likely be analogous to many of the IP issues facing other types of amusement facilities.
9.28.05
This article takes a somewhat humorous look at a very real legal issue facing today's amusement facilities--namely, their potential as terrorism targets (in this case, waterparks and mini-golf venues).
While it might seem like an unlikely risk (and is frankly a sad commentary on the state of things these days), amusement facilities should nevertheless seriously consider engaging in legal, security, and insurance planning for this possibility.
9.27.05
Several persons have asked, so here they are: this link is to a copy of the recent IFEA convention powerpoint presentation that I gave on preventative legal strategies. And, here's a copy of my powerpoint presentation on state amusement regulations from last year's IAAPA Orlando convention.
We welcome the opportunity to conduct similar presenations for other companies, associations, or the like. Also, feel free to use either presentation for any non-commerical use as needed, crediting Professor Chad Emerson, Faulkner University's Jones School of Law.
I hope they help!
9.26.05 Changes in Amusement Taxes?
This article and this article describe more efforts by municipalities in Pennsylvania to pass increased "amusement taxes". Looks like its a possibility in Chicago too. Even, Guam looks to be getting in on the trend.
Although, admittedly, some places do appear to be considering amusement tax cuts instead.
9.22.05
Here's a copy of my latest legal issues article from this month's Tourist Attractions and Parks magazine. It focuses on some preventative legal strategies for inflatables--one of the fastest growing segments of the amusement and leisure industry.
Also, we're in preliminary talks with trying to organize a lunch or dinner meeting between inflatables operators and manufacturers and industry counsel during November's IAAPA Attractions Expo. We'll keep you updated as we get closer. In the meantime, if you'd be interested in participating, please contact us at cemerson@faulkner.edu.
9.21.05
Rideaccidents.com is reporting on several instances where legal issues have arisen involving alleged conduct by ex-convicts working at mobile parks and carnivals. Obviously, any employee who commits a crime(s) while working for an amusement facility is problematic. But, the situation is especially exacerbated when that employee (or in some cases even an independent contractor) with a criminal record commits the crime(s) considering that most states have some version of common law negligence hiring or entrustment civil action.
Yes, background checks can take time and cost resources, but these instances only further demonstrate the need for amusement facilities (especially those marketed to minors and children) to conduct background checks on employees and, in many instances, contractors and vendors too.
Doing so in the long run will likely be both a wise preventative legal investment and, most importantly, a wise guest safety investment as this is clearly the troubling type of scenario you want to avoid.
9.20.05
This story discusses how Kennywood is threatening legal action against its local government over the alleged "selective enforcement" of tax provisions. Sounds good on paper but there's always a ton of challenges when suing a government.
And, The Update ran across this interesting sounding Department of Homeland Security program while we were recently preparing our "Preventative Legal Strategies for Festivals & Events" presentation. Sounds like it could be a valuable resource for parks on the preventative side of things. We wonder if doing so qualifies an amusement facility for any type of insurance breaks or the like?
9.19.05
First off, congratulations to IFEA for an excellent convention last week. Everything was incredibly well-coordinated and thoughtfully planned. Kudos!
For today's Update, here's some interesting information from IALDA attorney Lary Zucker on liability issues for sports facilities. And, here's the case he refers to. Plus, an interesting Sports Law Blog entry from last year providing some addtional background information to the case.
And, lastly, here's an update from Greg Van Gompel regarding the class action lawsuit in New York related to waterparks that we recently reported on.
9.14.05
Off to the IFEA convention today so that means we won't have an Update tomorrow but will be back on Friday. So, today you get an extra dose of Updates...
1. AmusementBusiness.com is reporting on a "major new player" entering the Six Flags takeover fight in this story. They also are reporting that Six Flags will be closing its AstroWorld park in Houston because, basically, the land is now simply to valuable to use for an amusement park anymore.
2. MassTort.org has some new information posted regarding the Ye Olde Mill accident that has now resulted in a lawsuit for the Rye-based park. And, they also have some details about a recent incident involving the Cyclone attraction at Coney Island. While I'm sure there will be some type of lawsuit for something, it sounds like the safety mechanism worked like it was supposed to when it encounters a "misaligned" track.
3. Elsewhere, here's an interesting example of how intellectual property rights can end up forcing major changes for amusment facilities and festivals. The power of the Biscuit extraordinaire...
4. And, in this interview, the Louisana State Treasurer reports that both the New Orleans Aquarium of the Americas and the Audobon zoo are intact. Unfortunately, the same cannot be said for the Six Flags park in New Orleans:
9.12.05
This week we'll be presenting at the International Festivals & Events Association Convention on preventative legal strategies. Which got us to thinking that maybe it would be worth posting a list of upcoming amusement and leisure industry group conventions and meetings during this always busy fall season. So, here goes:
• International Festivals & Events Association (IFEA) September 12-16, 2005 in San Antonio, Texas at the Marriott San Antonio Rivercenter
• FunExpo (combined IALEI, AMOA, AAMA event) September 11-16, 2005 in Las Vegas, Nevada at the Las Vegas Convention Center
• World Waterpark Association (WWA) October 3 - 7, 2005 in Las Vegas, Nevada at the Mandalay Bay Conference Center, Mandalay Bay Resort
• International Association of Amusement Parks and Attractions (IAAPA) November 14-19, 2005 in Atlanta, Georgia at the Georgia World Congress Center
• International Association of Fairs and Expos (IAFE) Nov. 28-Dec. 1, 2005 in Las Vegas, Nevada at the Paris Hotel
•
AIMS International January 16-20,
2006 in Irving, Texas at the Harvey Hotel & Convention Center
NOTE: all of these conventions and meetings have various sessions involving legal and/or legislative issues.
If you know of a conference or convention that we've omitted, please bring it to our attention so we can add it to the master list by emailing us at cemerson@faulkner.edu.
9.09.05
Following up on yesterday's Update, below are the most recent yearly Florida reports regarding their inspection arrangement and conclusions concerning the larger Florida parks:
Have a good weekend and we'll see you Monday as we head into the IFEA Convention Week.
9.08.05
With some recent talk about whether Florida's law exempting certain large amusement facilities from certain state inspections is effective or not, The Update decided to obtain some of the relevant state documents and let the actual documents (and the conclusions of the Florida state officials contained in those documents) speak for themselves. So, over the next several days, we'll be posting various State of Florida reports regarding the inspection arrangement the State has with Universal Orlando, Walt Disney World, Busch Gardens, and Sea World. Here's the first batch:
1. Memorandum of Understanding and Amended Memorandum of Understanding Between Florida and the Parks
2. 1999 State of Florida Report
3. 2000 State of Florida Report
4. 2001 State of Florida Report
We'll post various other reports (including the most recent State of Florida reports) over the next several days so check back regularly.
9.07.05 Quick Hit Updates...
• ETC (the maker of the ride mechanism for Disney World's Mission:Space--and involved in a lawsuit about that very attraction) recently settled this lawsuit filed by an investment bank for 900+ thousand dollars it claims ETC failed to pay it. Hmm...
• And, speaking of Disney, add rabidly behaving parking lot paparazzi to the list of previously unlikely legal threats that probably now warrants the attention of amusement facilities. Or maybe not.
• The City of Fort Worth, Texas certainly benefited from statutory damage caps in this recently settled case involving a drowning incident at its waterpark.
• And, lastly, it looks like a nasty lawsuit is brewing over a "massive parasitic outbreak" at a New York state park water play facilitiy.
9.06.05
Just back from a long Labor Day weekend and an excellent time at the Walt Disney World Resort. We'll be adding new Updates frequently this week so check back often. To start us off, one thing we noticed this weekend while at Disney World is Disney's new Ticket Tag system where each ticket is tied to a biometric fingerprint reading for each guest. Here's a good FAQ on the new system.
If it sounds very Buck Rogerish that shouldn't be a surprise because it is--in a very cool way. And, most importantly, the technology worked wonderfully during our visit. Still, one interesting question came up.
While the technology is designed to prevent what is essentially a black market for resold Disney tickets in Orlando, one person perceptively asked, "So, does Disney store our fingerprint as part of their demographic database? If so, for how long? And, do they share it with anyone else?"
Obviously, while an excellent tool for weeding out illegal tickets, it's not hard to imagine how it also could be a touchy privacy subject for some. That being said, none of the materials we could find on Ticket Tag indicated how the guest fingerprint information is kept...protected...or even shared (if at all). Clearly, if you represent a facility considering a similar technology, then you should carefully review its privacy policies and disclosures.
8.31.05
The Update will be out of town for the long Labor Day weekend and will return next Tuesday with some new featured Updates (and hopefully the new website design that we are continuing to work on). Until then, here's an interesting story (albeit a little late) on how the Orlando area Holy Land Experience recently prevailed in its legal efforts seeking classification as a non-profit--at least for property tax purposes.
Interestingly though, we've heard rumors that the current company chief will be resigning soon. If anyone has confirmation, please let us know.
Also, in addition to the recent Six Flags takeover attempt by one of its major shareholders (Daniel Snyder who is also owner of the NFL's Washington Redskins), it looks like another industry leader, this time concessionaire extraordinaire Centerplate, is facing a takeover attempt. While it has spurned the original offer by a large capital management firm, don't be surprised to see this one result in some legal wranglings by the time everything is said and done. Here's the real kicker (pun only slightly intended), in a somewhat strange coincidence, Centerplate also happens to be the concessionaire for the Redskins.
Finally, with a much less conspiracy-ish bent, here is a recent article from IIPGA on inflatables that contains some good advice on one way to avoid some potential legal problems.
Have a safe weekend and don't forget our friends in New Orleans, including respected industry attorney Joe Hassinger.
8.30.05
The Update was recently browsing the web for interesting amusement and safety law information and discovered that the New Jersey Amusement Association has developed this helpful page with links (although a few aren't working right now) to a variety of industry websites dealing with safety law, legislation, and regulation (under the right hand side of the page heading Safety & Legislation). We recommend checking it out as future resource.
Also, The Update was recently given a heads up on this Theme Park City blog that, in addition to general industry news, also occasionally reports on legislation and lawsuits in the industry.
Well, that's all for now. Have a safe day!
8.29.05
Well, the law school is about to close down for the day as a hurricane precaution, so here's a quick summary of some updates by Greg Van Gompel on a settlement in the Hawk case, an important new development in the Kentucky Kingdom defamation case, and a new finding in the Ye Old Mill case.
As always, thanks to Greg for the information. Enjoy and we'll hopefully be back soon with a post-Katrina update...
8.25.05
Looks like some transactional attorneys are about to have a busy few months with Six Flags announcing that its up for sale--via auction no less. Details here.
8.24.05
I've just agreed to present at the upcoming World Waterpark Association convention in October in Las Vegas and have now finalized the topic. The presentation is entitled:
The Risk List: Developing a Preventative Legal Liability Plan
Here's a short description of the presentation:
This multimedia presentation will introduce the concept of developing a Risk List to help waterparks avoid the sometimes obvious and the sometimes hidden legal risks facing their operation. Attendees will leave with a how-to outline for developing their own Risk List and, hopefully, preventing some legal problems before they ever occur.
If anyone will be at the convention and would be interested in participating as part of a panel during this session, please contact me at cemerson@faulkner.edu. The session will be on Wednesday, October 5th from 9.45am to 10.45am. It promises be a very interesting event.
8.23.05
With the inaugural Amusement Law Symposium and Workshop coming up soon, we thought that we'd periodically highlight the symposium topics beforehand. The first topic is entitled Pre-Event Waivers and Releases: A Comparative Review of Current State Laws, including the Emerging Use of Modern Technology and will be presented by Joseph Brownlee, current president of IALDA (which, by the way, is in the process of revamping its website with some impressive visuals) and Michael Amaro the incoming president of IALDA.
This presentation, and resulting white paper, will examine how states are treating the legal enforceability of amusement facilities' use of waivers and releases, including a focus on the growing area of electronic waivers that are now sometimes included as part of the click-wrap agreement used for the purchase of admission media on-line.
This issue is especially timely as, just recently, the use of on-line ticketing has increased as the result of new technology and partnerships by vendors such as LeisureTickets.com and a Cygnus (which recently announced new eticket agreements with several Paramount and Wild Adventure parks).
Obviously, it's not hard to imagine a time soon when many parks use on-line ticketing almost exclusively. Learning what can and cannot be included in these type agreements will be a key strategy in protecting your facility.
Joe and Michael's presentation promises to be an important resource on that precise issue.
8.22.05
After some technical difficulties, The Update is back today and we'll have some interesting new Updates later this afternoon. Thanks for your patience!
...okay, as we get back up to speed, here's some interesting new information from Greg Van Gompel regarding a new Knott's Berry lawsuit and new California workplace regs that will affect amusement parks there.
Also, IAAPA now has their educational schedule up for this year's Attractions Expo in Atlanta. Here's a direct link to the Amusement Law Symposium--the very ever of its kind and one that draws on the expertise of the nation's leading amusement and leisure law practitioners. The Update will be there in full force and we hope to see you too!
8.16.05
Here's a copy of the complaint filed against Dollywood regarding an alleged brain injury involving the Blazing Fury ride (btw: I've ridden this ride many times and simply can't fathom how this ride--of all rides--could induce a brain injury, or for that matter if rides even cause such a thing). Needless to say, plaintiff's claim that Dollywood failed to warn of the potential of brain injuries from this ride is not something likely to make its way onto warning signs any time soon.
And, thanks to Greg Van Gompel from this information regarding the incident and the Blazing Fury attraction.
8.15.05
If the need to fully educate the general public on amusement law issues wasn't apparent before, then this recent Southern Living article on amusement safety demonstrates why. The article (basically a profile of amusement industry consultant Richard McClary) discusses his effort at obtaining a national regulatory system. In addition to his claim that a "national identifying plaque or seal" is "in the committee stage" (the article fails to identify what committee he's referencing), the article contains this completely erroneous quote attributed to Mr. McClary (we can only assume that he was misquoted or it was taken out of context):
"Richard advises the same caution for permanent theme parks 'Most are exempt from state inspections,' he notes."
Most fixed-site amusement parks are exempt from state inspections? Really?
In reality, the number of fixed-site amusement parks exempt for any form of state inspections is less than 5% nationwide. Several in Florida. Several in Texas. Several in the few states without existing state regulations. And that's it.
The article makes it sound like, well, that most permanent parks are not regulated...and that is simply false. Hopefully our letter to editor correcting this factual error will make it into the next edition.
8.12.05
As we mentioned earlier, IAAPA's Governmental Relations team has posted the first Government Relations Action Alert. Overall, this resource replaces the monthly Government Tracking Center report and, after testing it out for awhile this morning, it definitely has the potential to be a great tool for amusement law and government relations practitioners.
Some of the new features we like best are the easy links for communicating with elected officials at both the state and federal level. This can end up saving alot of time locating this contact info in the various different places that, until now, were scattered throughout the Internet.
Also, the Current Legislation section is easy to navigate, up-to-date, and covers both state and federal legislation (although it currently only has state legislation for Arkansas and Arizona).
The only section that doesn't seem to reach its full potential is the Key Votes section that incorporates all key Congressional votes rather than just amusement and leisure industry-related ones. This causes a bit too much clutter and makes finding actual amusement-related votes a little cumbersome.
Overall though, the resource is a "must bookmark" source of amusement and leisure industry law and GR news--with its frequent cross hyper-linking and search boxes being very helpful navigational tools for getting to the information you need as efficiently as possible.
Kudos to Randy Davis and Corey Connors (and all others who worked on the project) at IAAPA for a great new addition to the industry!
8.11.05
(photo of the Ye Old Mill dark ride)
A few Updates from yesterday's report...first, Bill Childs passed along information that the park where the young child died on the dark ride has now added new signage in response to that incident. Also, here is an article reporting how the preliminary inspection report did not find any mechanical failure with the Ye Old Mill (a so-called "tunnel of love" ride) in question that also happens to be on the National Historical Register.
At least a few amusement industry commentators are suggesting that neither the parent nor the ride owners should have allowed the boy onto the ride himself. Our understanding, though, is that the boy met the height restriction limit and that the ride has been inspected and approved by state regulators.
Lastly, this editorial includes a finding last year by a safety inspector that "there is very good warning signage in the ride vehicles on Ye Old Mill."
8.10.05
Greg Van Gompel forwarded us this article about an incident where a young child mysteriously died while apparently riding a dark ride alone. Obviously, this is another example of why facilities should undertake comprehensive evaluations of their warning signage and rider rules in order to best guard against potential incidents and the liability they oftentimes result in.
Also the IAAPA Government Relations Action Alert recently premiered. So far, we've only briefly browsed it but it looks like a great resource. We'll post a detailed review later this week.
8.09.05
This month's Amusement Business has an interesting article discussing a growing dispute between some fairground operators regarding whether off-duty police should be allowed to carry their weapons into the fairgrounds. Apparently, the fair operators are concerned that an incident could occur if their security force were to encounter an armed off-duty officer--without realizing they were a law enforcement officer. Also, there is concern about the potential for the off-duty officer's weapon discharging if it were to become dislodged while on a ride (such as a ride that goes upside down or drops at high speeds).
The question we have is whether this is also an issue for non-officer's whose states allow concealed weapon permits?
Amusement Business is also reporting that the new Cypress Gardens ownership is suing its insurance carrier over disputes relating to coverage from recent hurricane damage. According to the article:
"The dispute centers on how much coverage the park has for replacement costs, according to the newspaper, and also questions why Landmark is treating damages as three separate claims in calculating deductibles, but not in setting its overall liability limit."
Lastly,
it
looks like problems may be brewing between Disney and Intamin
over the recent California
Screamin' roller coaster incident at Disney's California Adventure park.
This should definitely be an interesting one to follow...
8.08.05
Here's an article summarizing several different viewpoints regarding the recent series of incidents at Walt Disney World. One interesting question that the article proposes is to what extent did the hot and humid Central Florida weather?
Which in turn leads to a different potential legal issue, namely, to what extent should parks in hot climates warn their guests of the challenges posed by this type heat and some ways to protect against it. While we personally don't think there is a legal duty to warn about heat and its effects on the body, nevertheless doing so in some formalized way would likely be a good preventative legal liability strategy to consider, especially for those parks who know that many of their guests come from places where this type of heat does not normally exist.
And, here's an interesting article from Oregon discussing how legislation has been introduced that would "put the fair, as well as the state fairgrounds, under the control of the state Department of Parks and Recreation."
8.05.05
Okay, so they're not technically amusement law related. Nevertheless, here are my two articles in this month's Tourist Attractions & Parks magazine. This one on Disney World's entertainment-driven food & beverage program and this one on the recent Disney World press event.
See everyone Monday as The Update returns to its regularly scheduled amusement law content...
8.04.05
We normally feature legal happenings in the zoo and aquarium world on Thursdays but The Update recently ran across this interesting website featuring legal articles for the coin-op and gaming segments of the industry. Several of the articles are very interesting and it appears that all of them have been written by attorneys. If you work in the coin-op or gaming industry, we recommend bookmarking this resource.
Also, several readers have asked about the Seton Hall Legislative Journal law review article that I wrote opposing efforts to federalize the safety regulation of fixed-site parks and, more specifically, where you can download the article for free. Here you go...
8.03.05 Waterpark Wedneday
This article discusses a recent incident in which two guests were pulled into a water intake valve and, ahem, shall we say...stuck. Obviously, the issue is serious (and, therefore, warrants, a broader review) but also only slightly Seinfeld-ish to visualize the actual incident in your mind's eye..
8.02.05
The Internationl Festivals & Events Association convention schedule is now available on-line. You can find my session on Thursday, September 13th at 10.15am. If you're at the convention, please stop by and let me know that you heard about the presentation here at The Update.
8.01.05
A few quite updates just before I head over to Mississippi this afternoon to give a presentation to an area City Council on the SmartCode (yes, indeed, The Update does do more than just Amusement & Leisure law).
1. The July Carousel of Capitols is now available on-line. Here's the excerpt from the IAAPA website:
The July 2005 edition of IAAPA's Carousel of Capitals government relations newsletter is now available. Focusing on public policy issues within the amusement industry, this edition's headlines include New GR Tool Coming to IAAPA Website; Future Impact of California Ride Safety Ruling Unknown; India's Amusement Industry Talks to Natl. Government; and Colombian Ride Safety Standard Under Development.
2. Here's a couple of interesting articles from Greg Van Gompel regarding a new ADA lawsuit facing Busch Gardens. Apparently, the ride in question is a rollercoaster which suspends guests...and, in doing so, leaves their legs dangling. The ride, Montu, also involves inverted loops, hairpin turns, and high speeds.
Frankly, it sounds like just the type of attraction that someone with a prosthetic limb could cause serious injuries to others if the limb (in this case a leg) came loose (as opposed to a so-called "floored" coaster in which a detached prosthetic would be much less likely to be expelled from the ride and become a potentially very dangerous projectile).
Here's an alternative approach someone suggested: I wonder if the plaintiff would have been just as incensed had Busch required him to execute an indeminity agreement before riding this ride?
7.29.05
In a somewhat unique turn of events, we were recently forwarded this interesting story where a ride inspector was apparently sued by the park operator for which he was doing inspections. MassTort.org also has a copy of the original complaint in this strange story of alleged extortion, deception, and about anything else that a good episdoe of "As the World Turns" might include.
Apparently, the lawsuit ended up settling, but the whole story is definitely worth a read. Even more interesting is that the inspector who was sued, Ken Martin, and the attorney who represented the plaintiff, R.Wayne Pierce, are currently both members of the amusement industry safety inspection organization NAARSO.
7.28.05
Zoo Thursday...
As many of you who represent zoos (and parks that include zoos, especially petting zoos) have noted, E.Coli and other "germ lawsuits" are an increasing issue. Here's a website operated by a plaintiff's firm that specializes in these germ lawsuits (I know, I know...who would have believed there was such a firm, right?) that includes many accounts of germ suits and the amusement facility. If you are defending these type suits, its definitely worth taking a look at what the other side is saying these days...
Also, here is a recent ITPS blog seemingly suggesting that there could be some stockholder legal issues facing Six Flags (note though, The Update has asked around and nothing appears to been untoward in what is being described). Nevertheless, we're certainly not corporate lawyers but The Update still understands that in today's legal world of increasing shareholder derivative suits, amusement parks and facilities owned by public companies need to be especially aware of these type problems as the amusement industry almost always makes an appealing legal target.
7.27.05
The criminal side of the Pigeon Forge matter looks to be reaching a close with Charles Martin receiving to 200 hours of community service and 4 years probation, but no jail time. This article provides some additional details while the local Knoxville paper is reporting that a settlement in at least part of the civil lawsuit may be imminent.
Waterpark Wednesday
We've sent off a FOIA request to the Department of Labor regarding Fact Sheet #60 and lifeguards but have yet to receive anything back. We'll keep you posted when we get a response.
In the meantime, here's an interesting article about how some waterparks are hiring outside companies to conduct covert audits of their lifeguard's conduct. Sounds like an effective idea although we could see an issue arising about whether the employees (and possibly even guests) should be notified that video surveillance could be ongoing.
7.26.05
Lots of busy things going on in the amusement and leisure law world these days, so let's get started. First, the Industry Organization Highlight for the week is the International Festival & Events Association. Here's an excerpt regarding the mission of the IFEA:
From small, localized celebrations to mega-events with global outreach, festivals & events bring hope and joy that burns bright among those who attend. In fact, events have brought more people together, peacefully, than any other world entity or profession, creating memories, milestones and magic around the world.
Growing and responding in tandem with this changing and dynamic industry, the IFEA has distinguished itself as "The Premiere Professional Association Supporting Festival and Event Leaders Worldwide" . While respectively much younger than the industry itself, the IFEA will celebrate 50 years of event leadership in 2005. From small beginnings to simply share ideas, today the IFEA officially represents members in 38 countries on 5 continents, under the umbrellas of IFEA North America; IFEA Europe; IFEA Asia; IFEA Australia; and IFEA Africa/Middle East.
Similar to IAAPA, the IFEA does not exclusively focus on a single market segment of the larger amusement and leisure industry but instead includes members ranging from small inflatables operators up to large theme parks like Disney.
Their big 50th anniversary convention is coming up September 12-16 in San Antonio. We're grateful to have been asked to present at the convention on the topic of "Preventative Legal Strategies for Festivals & Events". The presentation is tentatively scheduled for Friday, September 16th at 10.30am. If you'll be in the area we'd love for you to stop by.
Also, Bill Childs has some new and interesting documents posted related to the Superman accident.
He also takes an opposing view that on-ride photo systems might be more helpful than harmful for ride operators. From a strictly evidentiary perspective, he might be statistically right, but I still suspect that for every example of rider misconduct captured on tape, an image of an injured, unconcious rider might outweigh--both PR-wise and possibly jury-wise--the benefits.
Of course, the big variable is how much revenue that these photo systems generate--and, more specifically, whether that amount might outweigh the potential risks. To date, I haven't seen how profitable these systems are, although it might be relevant that the Walt Disney World Resort has not added these systems to several of its most recent new attractions.
Finally, here is a thought-provoking editorial regarding the new background check requirements in Massachusetts. We can see both sides of the issue and suspect that this is one of the instances where bad facts end up making potentially bad law.
7.25.05
Well, The Update is back from the beach (including a visit to a wonderful FEC on Hilton Head Island) and ready to get going. For a start, here's yet another excellent legal update from Greg Van Gompel.
Also, here's a news article reporting on the early effects of the DOL re-interpretation of the lifeguard rules for minors as reported in the 7.14.05 Update. Coincidentally, I'm teaching Administrative Law this summer and we just covered formal/informal rulemaking vs. interpretative opinions. It appears that the Department of Labor is treating this as simply an interpretative change as opposed to a rule-making--thus relieving it from a variety of notice obligations. If that's the case, the issue appears ripe for judicial review as the effects of this decision certainly raise serious questions about whether it really is a newly-promulgated rule dressed up as something called a Fact Sheet.
We'll hopefully be getting comment from DOL soon in response to our FOIA request.
7.15.05
The Update is headed to a conference at the beach for a week and Mrs. Update has made it very clear that there shall be no Updating during this time. So, we'll be gone next week but rest assured, we'll still be gathering a whole load of new information as several important amusement and leisure law issues will be heading The Update so on...
In the meantime, here's an article about an aquarium that recently set a new record ...unfortunately, we suspect that their lawyers will have some explaining to do.
And, here's another interesting update from Greg Van Gompel on a recent waterpark lawsuit that might end up making some headlines soon.
Finally, if you have access to westlaw, the Loyola of Los Angeles Entertainment Law Review has an interesting article entitled EMERGING BUSINESS AND LEGAL ISSUES IN VIDEO GAMES in its latest issue. Here's a link. The citation is 25 Loy. L.A. Ent. L. Rev. 79.
We'll see a week from Monday with an exclusive update on the First IALDA/Jones School of Law Amusement Law Symposium this November at the IAAPA Attractions Expo...
7.14.05
Wow!
A busy Thursday morning at The Update today. First, here is a copy of the Orange County Sheriff's Incident Report regarding the Tower of Terror incident referenced in yesterday's Update. The officer's narrative is extremely thorough and, in reading it, a couple of thoughts came up. First, it sounds like the first Disney employee to respond to the mother and daughter was well-trained in offering water and to call a paramedic. This just reemphasizes the importance of cross-training your employees (including basic life support training for as many employees as possible).
Second, the report references the "ride photo" being included in the investigation record. Which brings up an interesting issue, that is, with an increasing number of amusement attractions adding these on-board photos, what might the legal significance of them be in the future? Obviously, they could be pretty damaging evidence if they ever demonstrated some type of liability generating conduct or event. That's not to say that happened at all in this matter, just that a serious cost-benefit and risk management analysis probably should be considered for these increasingly popular ride photos.
Important New Waterpark Regulatory News...
The Update has also received word from a waterpark industry source that the US Department of Labor has just issued a new Fact Sheet (a DOL Fact Sheet is not a newly promulgated rule but something more akin to an interpretive opinion) severely restricting how 15 year olds can be employed as lifeguards. Basically, the interpretation allows them to serve as lifeguards at traditional pools but not water amusement attractions that include water slides, wave pools, or other active components.
We've reviewed the Fact Sheet and, frankly, don't understand the reasoning of this interpretation. There is no evidence that The Update is aware of that makes helping guests out of the water at the bottom of a water slide (an act the new interpretation prohibits for 15 year olds) any more dangerous than lifeguarding at a traditional pool.
And, speaking of which, how might this affect the thousands and thousands of traditional pools that also have a waterslide--usually small in size and short in length. This interpretation appears to prohibit 15 year olds from lifeguarding at that type pool (curiously, it does allow 15 year olds to operate certain deep-frying machines at the snack stand ...something that sounds potentially much more dangerous than lifeguarding a water slide).
Anyhow, here is the World Waterpark Association alert on the new Fact Sheet which includes contact information for expressing your opposition to this new interpretation whose effect on the summer operation and staffing of waterparks could be very damaging.
7.13.05 Update
Here are the official statements from the Walt Disney World Resort regarding the recent incident where a 16 year old guest was taken to Celebration Hospital after riding the Tower of Terror attraction at the Disney-MGM Studios. We are still working on obtaining a copy of the county and state reports. If we are able to get an electronic copy, then we will post them here.
7.13.05 Waterpark Wednesday
I've just agreed to write an upcoming feature article on recent technological and theming advances in the waterpark industry and welcome any and all input from Update readers. While not necessarily legal in nature, it still should be a very interesting article as waterparks are one of the fast growing amusement/leisure industry segments in the country.
In terms of legal issues, as waterparks grow in popularity, the lifeguard per guest ratio is hard to keep up. Therefore, efficient preventative planning is a key supplemental tool for waterpark clients in mitigating potential guest injuries--and the often resulting legal liability. While this article relates specifically to residential pools, it also has some strong risk management suggestions that are equally applicable to waterparks.
Lastly, on the non-waterpark front, a reader recently forwarded this email to The Update:
Probe:
Ride didn't cause boy's death
July 7, 2005
Nine summers ago, an amusement park accident in central Indiana killed a
woman and paralyzed her granddaughter.
It led to a state law that set standards for fun rides and mandated inspections
of amusement park and carnival attractions.
Last weekend, inspectors looked into a Gary boy's death on a carnival ride
in Highland, Ind. Dakota Stevenson, 9, died Friday night when he tumbled
from a Wind Shear ride.
But unlike the earlier accident, inspectors determined the ride itself did
not cause the boy's death.
"They did not uncover any mechanical malfunction that could be connected
to that accident," official Pam Bright said Wednesday.
Presumably, the child must have somehow fallen out of the ride by his own action. Needless to say, this demonstrates the importance of contesting causation even when the case sounds ominous at first...
Update: Thanks to Greg Van Gompel for this additional update on this case where the parents of the deceased child have not retained counsel.
7.12.05
Good news. The Update (and all its files) survived Hurricane Dennis and will be back later today with a series of new updates. See you then.
7.12.05 Update
A couple of quick updates as The Update gets its sea legs back...First, thanks to Joe Hassigner for this update on inflatables in Louisiana where Governor Blanco has signed the bill lowering liability insurance requirements for inflatables from $1,000,000 to $300,000. Here is a copy of the Act.
Also, Corey Connors just sent word that the May/June version of IAAPA's always excellent Government Tracking Report is up. A quick look reveals several interesting new state bills as well as a federal bill seeking to require CPSC safety regulations for vending machines --presumably including those involving amusement activities. Essentially, the bill, if passed, would require the CPSC to promulgate a Section 7 safety standard within 180 days.
We've sent an email to the AAMA to see if they intend to take a position on this bill. Here's some additional information on the bill.
7.08.05
The FunExpo has just released the schedule for the FunExpo Academy sessions. The FunExpo is a leading yearly event for FECs (family entertainment centers) and coin-operated attractions, among others. The Update has yet to attend one but has always heard good reviews from other attendees.
Joe Brownlee is scheduled to be presenting on legal issues facing the amusement industry on Monday September 12th at 11.15am. Also, Wayne Pierce will be moderating the Legal Roundtable on Tuesday September 13th at 3.30pm. If you're at or near this year's FunExpo, we highly recommend taking the time to attend both of these presentations as both Joe and Wayne have extensive experience in the industry.
Also, CoasterBuzz has this article and this article on recent brawls at separate amusement facilities. When coupled with other recent brawls like this one (see the 2.15.05 Update) all facilities should probably, at the least, review their response procedures (yes, that means you need to have them in the first place in order to review them!!) to events like these with their counsel. And, will at it, your facility's admission procedures should be reviewed as its hard to imagine that over 100 gang members should be able to make it into an amusement park without raising some red flags...
7.07.05 Thursday Zoo & Museum Update with a General Update on the side...
As an increasing number of cities use new museums as a catalyst to reinvigorate downtowns and other areas, this story demonstrates why paying attention to the legal--and political--concerns of nearby residents is an important part of counseling your client. (Of course, even so, one might surmise that it really takes a grinch of a neighborhood to ban a children's museum...)
And, in the "Yes, We're Serious" file, we find this story out of Massachusetts explaining how the increasingly popular bar sport of sumo wrestling indeed constitutes an amusement which must receive a license in that commonwealth. While the topic just begs for a variety of pun-driven comments, the serious point in it all is that it is very important for amusement industry counsel to be well-versed in what activities require amusement licenses--no matter how arcane or absurd they might seem.
The Update has noticed several recent instances where sporting and other general leisure activities (such as card games, bathing suit competitions, and even video game tournaments) were deemed to fall within the requirements of an amusement/entertainment license.
7.06.05
Someone recently asked what amusement and leisure industry publications does The Update read?
Here's some of our favorites:
Tourist Attractions & Parks Magazine--Best Operational and Inside Looks at the Industry
Amusement Business--Best Production Value in a Tabloid Format--Great Statistics, Too
Theme Parks Magazine--Best Ride and Attraction Images
Amusement Today--Best Coverage of New Attractions especially at fixed-site parks.
We also enjoy reading IAAPA's Funworld Magazine and the WWA's World Waterpark Magazine (however, the WWA publication requires membership in order to subscribe to which can make it pretty expensive. Hopefully they'll consider offering a direct subscription option soon).
7.06.05 Waterpark Wednesday
Here's an interesting article on the existing lifeguard shortage exacerbated in part by an increasing number of state and local laws that require upwards of one lifeguard for every 4ooo square feet. Obviously, facilities need to keep track of any changes in local/state lifeguard staffing laws and avoid any temptation to use the shortage to hedge against the requirements. It could only take one incident for a facility to possibly face the dreaded negligence per se that some of these laws might carry with them.
7.05.05
We hope everyone had an excellent Independence Day!
Today, we're off with a couple of Updates:
1. Industry Organization Highlight Tuesday
As we mentioned last week, each Tuesday we'll highlight an amusement and leisure industry organization so that Update readers can hopefully get to know each industry segment better.
This week, we look at the World Waterpark Association. Headed by Rick Root, this is the only industry organization that we're aware of focusing entirely on waterparks. They also operate a consumer/guest-focused website in addition to their primary one.
One of the WWA's best offerings is its annual convention--this year in Las Vegas from October 3-7th. They also offer a monthly publication and some governmental relations information on their website; however, you must be a member to access any of it. Even with that restriction though, I've found that their office is very responsive to questions by both email and telephone so if you have a specific GR or legal issue involving waterparks, I highly recommend contacting them. And, they also have a good "press room" part of their website with helpful background facts and other statistics.
2. General Update
MassTort.org has a new story and some commentary on the new laws going into effect following the electrocution death last year an Ohio Fair.
Also, here's a new article discussing recent inflatable incidents and how the federal government is starting to take notice.
7.01.05 Update
Welcome everyone to the seventh month of the year and the peakest of peak parts of the amusement season. Today, The Update, courtesy of MassTort.org, brings you more discussions between Ed Pribonic and Craig Pittman (see 6.25.05 Update).
The gist of Mr. Pittman's argument (and the apparent argument of others in the news media) is that the Florida state law that exempts parks with over 1000 employees from state inspections and instead requires them to retain full-time safety inspectors somehow makes rides less safe. Presumably, he suggests this because of his belief that there might exist some sort of internal pressure on these safety inspectors to cut corners. Whatever merit it might have at first simply doesn't survive a logical analysis.
First, we've never read a single instance of a former internal safety inspector claiming such internal pressure so, despite being reported as nearly fact, its really only hypothetical speculation at best.
Even so, it still lacks logical heft. After all, these large amusement facilities are under huge amounts of pressure to avoid the incredibly bad P.R. that comes with accidents at these marquee parks. Heck, one google search after the Mission:Space accident quickly reveals the internal incentive for these large parks to operate as safely as possible. Because so many of the attractions are based on perceived perilous thrills but a reality of actual safety, its in the parks own self-interest to avoid accidents lest their guest simply go to another park that they deem safer--especially with the many alternative options in the Central Florida market.
To suggest that the larger parks will use the Florida law at issue to cut corners on safety ignores logical reality for an industry in which one's safety reputation is of the highest concern...and business asset.
Nevermind the fact that there is no empirical evidence to suggest that the Florida-employed inspectors are more credentialed or qualified than the large park-employed safety inspectors. Conspiracy theorists aside, the suggestion that the Florida law in question imperils guest safety is built upon, at best, layers of unsturdy speculation.
Then again, it does make for some good copy...
6.30.05 General Update
Michigan is considering legislation that would prohibit schools from starting their school year before Labor Day. Obviously, amusement facilities are one of the supporters of this bill for obvious reasons. In fact, this quote from the article is pretty interesting (if for no other reason than it reminds us of the Griswold's fate upon visiting Wally World)...
Camille Jourden-Mark, vice president and general manager of Michigan's Adventure, a Muskegon amusement park, said upset tourists have left notes at her theme park when they show up the week before Labor Day only to find the place closed.
She said school siphons off so many of her workers that the park has to close Monday through Thursday, before opening again on the Friday before Labor Day.
``It's like a terrible Wally World experience,'' she said.
Unfortunately, even if it passes, it's still too late to save the Boblo Island of The Update's youth...
Zoo & Museum Update
Here's an article about a brewing legal dispute in Chicago where a city alderman is preparing to introduce an ordinance that would require captive elephants to have at least 10 acres of room (5 inside and 5 outside). Apparently the ordinance is similar to the one that was passed in San Franciso (although that one required 15 acres of room) and now essentially bars elephant exhibits in that city.
Obviously, this could affect the ability of zoos (Lincoln Park Zoo in particular) and circuses in the area to exhibit elephants. No word yet on the likelihood of this ordinance gaining traction but it's nevertheless probably worth sharing your views of it with Alderman Mary Ann Smith.
6.29.05 Waterpark Wednesday
As referenced at the top of the page, each Wednesday we'll be adding a Waterpark Legal Update to The Update in general.
So, for the very first Waterpark Wednesday Update, here's a recent article discussing a service mark dispute faced by a waterpark in Rochester, New York. The gist of the complaint is that the new owners of the Roseland waterpark are improperly using the service mark "Roseland Waterpark" Here's an excerpt from the article:
The lawsuit accuses Fuller [the current owner of the waterpark] of "trading upon the good will created by the plaintiff" to achieve "unjust enrichment" through continued use of the Roseland name, which the suit claims is "the registered service mark of the plaintiff."
Indeed, the term "Roseland Waterpark" is registered with the United States Patent and Trademark Office. However, the owner is currently listed as:
REGISTRANT) Paradise Water Parks, Inc. CORPORATION NEW YORK 250 EASTERN BOULEVARD CANANDAIGUA NEW YORK 14424
It's unclear whether the plaintiff in this matter is the owner of this corporation, but if he's not, then they obviously have an incredibly difficult case to prove. They'll essentially need to either show that the USPTO has the wrong owner listed or that the list corporate owner has somehow falsely asserted ownership to the service mark. One thing I noted from the article that causes me pause about the plaintiff's suit is the fact that they apparently first filed it in state court despite the fact that litigation over federally-registered marks is a federal question for federal court. It could have been an innocent mistake, but I don't know many credible IP attorneys who'd make that simple of an error.
Anyhow, the important point of the newspaper article is that intellectual property rights can often be one of the legal issues that amusement and leisure facilities overlook in their overall legal planning process. Things like workplace realtions and guest safety issues are certainly very important and, therefore, deserve the attention they get in the legal planning process. However, the legal handling of IP rights can also turn into a huge legal issue if not carefully planned with a well-informed IP lawyer.
If you'd like some background material on intellectual property issues and the amusement/leisure industry, here's an article I wrote for Tourist Attractions & Parks magazine last summer on the issue. (And, just in case, here's an article I wrote for Funworld magazine this spring that includes a seciton on the equally important IP issue of copyright use). Feel free to reprint or use the articles internally at your facility if you'd like.
6.28.05
Following up on yesterday's earlier Update, thanks to Elliott Portnoy for this synopsis of legal issues facing the coin-operated industry that he emailed to The Update today:
State and local
legislative efforts to restrict access by minors to video games with depictions
of violence
continue to require substantial focus in the public policy arena, with over
one dozen states having considered measures in 2005. The most recent challenge
is in Illinois, where we await Governor Blagojevich's
signature on a bill that passed the Illinois Legislature recently that would
ban the distribution, sale, rental and availability of violent and sexually
explicit video games to children under age 18.
Beyond video content, the coin-op industry continues to devote particular
effort in the public policy arena to matters involving Internet gambling
(attempting to ensure that Congressional efforts to restrict Internet gambling
do not unintentionally cover skill-based coin-operated games made available
for play on the Internet) and to
efforts to enhance the circulation of dollar coin (the U.S. House of Representatives
has passed H.R. 902, the Presidential Dollar Coin Act, that would substitute
the current Golden dollar coin design (Sacagawea) with a commemorative series
of dollar coins that would feature U.S. presidents in the order in which
they served).
Also, note where at the top of this page where we've added some general issues that we'll be covering each issue on specific days. These will be in addition to our regular general amusement and leisure law Updates so check back periodically for the most information.
6.27.05
While much of the attention in amusement and leisure law is often focused on parks and carnivals, there are also several other interesting segments of the industry including the coin-operated attractions segment. One trade group for this segment is the American Amusement Machine Association (AAMA). They have an excellent website including a regularly updated governmental relations/legal section where Elliott Portnoy of Sonnenschein, Nath & Rosenthal serves as their general counsel.
One of the major focuses lately in the industry has been proposed state laws seeking to govern video game content. This month's AAMA government relations/legal section update focuses on some of those efforts.
And for those who want even more coin-operated news, you can find a discussion board on topic here.
6.25.05
Good Monday morning to Update readers! First of, a word of thanks. The Update's daily readership for last week hit an all-time high. As we mentioned when we started this effort, The Update is an entirely volunteer effort and does not generate (nor does it even accept) any revenue or renumeration of any type. It is owned by Faulkner University's Jones School of Law and operated by Prof. Chad Emerson and several of his law students. Also, it's strictly an educational tool that we hope serves as a helpful resource to our readers. Of course, this means that we continually strive to improve the resource based on your feedback. We have several exciting changes and additions coming this fall, but even with those, we continue to welcome your input on how we can improve. Just send any suggestions or the like to cemerson@faulkner.edu or call Chad Emerson at 334.386.7536.
Okay, on to The Updates...
First, MassTort has an interesting exchange between Edward Pribonic (an oft-cited expert in amusement industry matters) and the St. Petersburg Times regarding the accuracy of its analysis of Florida's amusment safety laws.
Second, several readers have asked about how to contact state amusement authorities and if we have a master list of that contact info. While we don't, the CPSC does. Generally, the list is very helpful although I'd call and double check the contact info before I sent a letter or email as in a few cases some of the contact info has changed. Overall though, a very helpful list that The Update recommends bookmarking.
6.24.05
More trouble for inflatable operators as another incident is making its way through the court system. With several inflatable related lawsuits out there, an interesting idea was floated to The Update recently on this issue: should ASTM or another standards organization consider issuing uniform training standards that renters most satisfy before operating an inflatable not attended by an owner/operator. This might be a good alternative to requiring all companies to provide an employee attendant with all inflatable rentals as that could well make renting inflatables much more (and possibly even prohibitively) costly.
There's also the issue that some states have relaxed (or even no) standards when inflatables are rented strictly for private use (this month's Tourist Attractions and Parks magazine has a good article on this topic). This exception obviously provides a financial incentive to renting only for private use--but, in doing so, does it create too unlevel of a playing field between the different types of inflatable operators.
The International Inflatable Products and Games Association has several interesting articles on its website involving this issue including this one on different state regulatory approaches and this one on age specific safety issues and, finally, this one on general safety standards.
As inflatables continue to grow in popularity (every year their section at the IAAPA Attractions Expo seems to get bigger and bigger), this is one segment of the amusement and leisure industry to closely monitor for legal developments.
6.23.05
Recently, I've had the opportunity to write several articles for Tourist Attractions & Parks magazine on both legal and non-legal related amusement industry issues (confession: the non-legal ones are much more fun!).
Anyhow, here's a legal one on the hot issue of criminal liability and amusement facility operations. And, here's one on Disney World's special events program as well as one on their merchandising program. As always, your feedback is welcomed and appreciated (including topics that you might find interesting or helpful in the future).
Also, I spoke with Corey Connors of IAAPA's government relations team and the new IAAPA/Capwize GR resource mentioned in yesterday's Update sounds even more exciting. For me, the best part is that some information will now be updated more often than monthly (as the Government Tracking Center currently is). I highly recommend checking it out later this summer.
6.22.05
Here is an update from the IAAPA Government Relations team on future changes to the always helpful IAAPA Government Tracking Report resource. While we'll miss the monthly Tracking Reports, the new project partnership with CapWiz sounds like it will allow IAAPA to provide even more government relations information than ever before. Here at The Update, we're looking forward to hearing more about this exciting new development.
Also, t hanks to Greg Van Gompel for forwarding this article concerning how all of the civil lawsuits in the Hawk incident in Pigeon Forge have been consolidated into a single lawsuit and this article regarding the CPSC's directive that warnings be placed on Sizzler rides (I'm assuming only mobile versions because of the CPSC's regulatory limitations) for prospective riders with preexisting heart conditions.
The CPSC also just announced a voluntary recall regarding certain go-karts and new inspection guidelines for Gravitron rides.
6.21.05
We noticed a recent comment where it was suggested that Walt Disney World does not submit any documentation of their safety checks to the State of Florida. That's actually incorrect as here is a copy of the Epcot safety affidavits that Disney World has filed with the state for the last three years.
6.20.05 Update
The recent incident on the Mission:Space attraction at Disney World has brought some new focus on the lawsuit pending between Disney Imagineering and Entertainment Technology Corporation, the maker of the ride mechanism for Mission:Space.
The federal judge in the case recently granted Disney's motion for summary judgment in part and denied it in part. We've added a copy of Disney's Answer, Disney's Amended Answer & Counterclaim, and Entertainment Technology Corporation's Answer to the Counterclaim to the Update.
Also, here and here are news articles discussing the latest ruling in the case.
p.s. In an interesting side note, it appears that Jay Rasulo (head of Disney theme parks) and Rep. Markey met on Capitol Hill several days before the incident in question.
6.20.05
Get ready for a bevy of Updates over the next several days as the summer season has brought alot of legal happenings to go along with, from what we hear, alot of guests this peak season.
So, without further adieu, let's begin:
A reporter from the Worcester Telegram & Gazette emailed me this weekend for a comment on the decision to criminally charge the inspector in the Massachusetts Sizzler matter. Here's the article (including my comments).
I'm really looking forward to the issue of criminal liability for amusement industry officials being presented as part of upcoming IALDA/Jones School of Law Amusement Law Symposium at this year's IAAPA meeting in Atlanta. One reason that I have opined that there is a growing trend toward criminalizing amusement park incidents is that, in the last five years, there have been more criminal felony charges arising out of amusement facility incidents than the previous 50 years. And, for that matter, the last 12 months has seen nearly as many as the previous 12 years.
So, it could simply be a coincidence but I suspect a variety of factors (led by political ones) are combining into a dangerous situation for amusement industry officials (I say "officials" because the recent spate of charges have included not only operators but also government inspectors). In the end, the criminalization of that which would previously have likely been a civil law matter is a very important topic to carefully consider by everyone.
Okay, that's it for now, we'll be back later with some Updates on the Hawk, Disney/ETC, and other legal happenings...
p.s. Just as a planning, fyi, it appears that the 2006 IAAPA Attractions Expo will also be at the World Congress Center in Georgia as it will be this year.
6.17.05
In addition to their excellent Government Tracking Report, another great legal/GR resource that IAAPA puts out is the quarterly Carousel of Capitols e-newsletter. While, unlike the Tracking Report, you have to be a member of IAAPA to receive the e-newsletter, I have seen a couple of copies and can certainly attest that its a fantastic resource.
Also, while I'm not sure when his term begins, a reader and IALDA member recently passed along to The Update exciting news about next year's IALDA leadership. In particular, congratulations to Michael Amaro as the new President-Elect of IALDA. Michael has been a great resource for our Amusement Law Studies in a variety of important ways.
At the same time, a huge thanks to Joe Brownlee the outgoing IALDA President. Joe has been instrumental and very supportive of our efforts, especially the upcoming Amusement Law & Symposium at this year's IAAPA in Atlanta.
6.16.05
By a vote of 4 to 3, the California Supreme Court has ruled that amusement rides are properly classified as "common carriers" and, thus, subject to the heightened standard to which California law holds common carriers.
First, for those who might not have been following this issue, here is the summary of the issue from the hearing notice by the California Supreme Court:
(6) Gomez v. Superior Court (The Walt Disney Company , Real Party in Interest), S118489 (George, C.J. and Brown, J. not participating; Vogel, J. and Wiseman, J. assigned Justices Pro Tempore.)
#03-133 Gomez v. Superior Court (The Walt Disney Company, Real Party in Interest), S118489. (B163651; 110 Cal.App.4th 667; Superior Court of Los Angeles County; BC258512.) Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case presents the following issue: Is the operator of an amusement ride that starts and stops at the same place a common carrier and subject to the heightened standard of care set forth in Civil Code sections 2100 and 2101?
Apparently, the Court has answered yes. We are looking for the opinion and will post it (or a link) as soon as we can. Needless to say, the idea of amusement rides being analogous to the traditional scope of what a common carrier is, requires some definite legal contortions to get there. Apparently, at least 4 of the California Supreme Court judges were nimble enough to do so. While The Update obviously disagrees with the opinion, one thing worth noting is that the California Supreme Court (as opposed to the 9th federal circuit which sits in California) is usually a pretty conservative body of jurists.
6.16.05 Update: Thanks to Michael Amaro's office for sending The Update this copy of the Gomez decision. Time to get a copy of coffee and start reading...
...okay back from reading the opinion. We don't have time for extensive analysis right now but here's a link to a few quotes from the Gomez decision that you might find interesting
6.15.05
Nothing really new to report on the Mission:Space incident other than that the autopsy did not reveal any blunt trauma.
Of course, as expected, articles such as this one are beginning to report on Florida's ride safety regulations and how facilities with over 1,000 employees are exempt from certain portions of the regs.
Here's Rep. Markey's first quote on the issue:
"Only a federal safety agency is in a position to ensure that this little boy's death is treated not just as a local concern or a concern for one park or owner, but also as a window on safety issues that apply in every amusement park with rides that share characteristics of Mission: Space," Markey said.
A cynic might respond something like "Oh, you mean just like they've been in the position to do with the mobile attractions that they currently have authority to regulate..." But, here we are not cynics. So, this quote from the Florida Dept. of Agriculture sounds more realistic:
"We're waiting for any information Disney can bring. We have never seen anything other than outstanding professionalism on the part of Disney," said Department of Agriculture spokesman Terry McElroy. "They have just a slew of very qualified engineers, who operate these rides."
6.14.05 Update
Here is a link to various articles discussing Monday's incident in which a guest (a 4 year old child from Pennsylvania) died after riding Epcot's Mission:Space attraction. No cause of death has been announced however an autopsy is being conducted by the Orange County Medical Examiners Office.
While I'm sure that there will be alot of speculation on how this incident occurred, rather than deal with mere speculation, I thought that I would instead simply post three relevant documents that I've obtained today regarding the incident: Disney World Office of Public Affairs Initial Statement; Disney World Office of Public Affairs Second Statement; and the Orange County Sheriff's Office Incident Report. I highly recommend that all Update readers read all three documents as they each provide important information.
Also, by way of background, the Florida Department of Agriculture (and more specifically the Division of Standards, Bureau of Fair Rides Inspections) has state jurisdiction over the incident pursuant to their Memorandum of Understanding with Walt Disney World. That memorandum outlines an incident reporting agreement between the Department and Disney World
(Note: Florida also has a statutory injury reporting requirement; however, because Florida law exempts "[p]ermanent facilities that employ at least 1,000 full-time employees and that maintain full-time, in-house safety inspectors" facilities like Universal, Busch, and Disney parks are exempt for the statute--that's why they have a separate Memorandum of Understanding with the Fl. Dept. of Ag.)
6.14.05
It seems like suing a charity carnival is usually not a very good idea, however maybe this guy has a good excuse. Although, it sure seems like an injunction would make more sense that a suit for damages. Can any of our English barrister readers explain that?
6.14.05 Update
Apparently, Mr. Hill's concerns about guests being upset because they'd head on a trip to the zoo only to find the road to the zoo closed by the carnival without advance notice assumes that these prospective guests don't read the police, er, constabulary website.
6.14.05 Update Two
Looks like there's peace in the valley tonight. Apparently the efforts of suing a judgment proof charity carnival are overrated.
Ugh! Blogging these English law disputes takes too much time. The Update is thus resolved to returneth tomorroweth with onlyeth newseth from this side of the pond...
Until then, here's the latest on the always hot topic of corruption scandals at Filipino grade school carnivals (yes, The Update did have too much free time this evening...)
6.13.05
Bill Childs over at MassTort.org has some thoughts and documents regarding the two rides at Six Flags New England whose operation was recently suspended by the Massachusetts Department of Public Safety.
Also, lest anyone think that a tax lawyer can't find work in the amusement industry, here's a recent article regarding how the IRS is requiring the International Speedway Corporation to restate some tax information based upon a depreciation rule that applies to "theme and amusement parks and other similar combinations of entertainment attractions." (who knew such a thing even existed--not The Update).
So, being the curious blogger that we are, The Update has located IRS Section 168 and linked it here for your reading pleasure (and while we were at it, we ran across this interesting tax ruling regarding gaming and entertainment assets). Now, in all seriousness, by the sounds of the article, this is definitely an important provision for all amusement facilities to be aware of and plan for.
6.09.05
While not completely law-related, a reader recently sent us a copy of the 2004 IALEI industry report. The IALEI (International Association for the Leisure and Entertainment Industry) Report primarily focuses on the various types of Entertainment Centers and includes some very interesting industry stats and analysis.
Also, here is an updated copy of the Amusement & Leisure Industry Organization List (The List). We'll be adding a section to the Amusement & Leisure Law Studies section of the website in July so please send me any suggested additions (or modifications) as soon as possible. One of the ultimate goals of The List will be to have short articles, resource links, attorney recommendations and the like for each of these industry segments. If you'd like to participate in this project please contact us at cemerson@faulkner.edu or 334.386.7536.
6.08.05
Saferparks.org has posted a new editorial on the recent Sizzler incident in Colorado. Unfortunately, it really does nothing more than suggest an immediately ineffective solution. What does that mean? Well, let's just look at the editorial
No government agency in Arizona was empowered to protect paying customers. Congressman Markey requested intervention by the Consumer Product Safety Commission, but his request was denied .
The driving argument behind the Markey/Fackler goal of federalizing fixed-site park safety regs is that the CPSC is better suited to do so. However, I think this very statement from the editorial demonstrates the error of that argument.
If, today, the CPSC were charged with regulating the safety at fixed-site parks then the safety level would decrease because the CPSC itself makes clear that it is not in a position to do so (and Rep. Markey's $500,000 appropriation wouldn't even be a good start). Nevermind the fact that the CPSC currently has the authority to regulate mobile attractions like the Sizzler involved in the recent Colorado incident.
That's right, the Markey solution is to give total regulatory authority to the agency that doesn't even currently regulate that which it has authority to do so (and that isn't a complaint against the CPSC as they simply don't have the funding to comprehensively regulate mobile attractions). Okay, more from the editorial
The eerie repetition got me wondering how far Frazier Shows could travel in the mountain states without hitting a state that mandates government-led accident investigations for thrill ride fatalities.
This statement in turn had me wondering. In particular, I wondered why the complaint at issue is not directed toward the level of government that has authority to regulate this type of mobile attraction--not the state--but the federal government. Yes, some states do end up regulating mobile attractions--but they do so only because the CPSC has chosen not to exercise the regulatory authority that it has been given over this topic. If it had the funding to do so, the CPSC could immediately initiate a comprehensive testing program over all mobile attractions (including mobile versions of the Sizzler).
It hasn't. And, it is not the states fault that it has not done so. At worst, the absence of state regulations over mobile attractions is not a breach of their regulatory responsibility but a failure to do what the CPSC is authorized to do.
Ultimately, Rep. Markey (and Ms. Fackler and other supporters) need to explain how federalizing all amusement park safety regulation within a federal agency that currently is not funded enough to regulate those mobile attractions under its existing authority would somehow increase industry safety--or have prevented the Colorado incident involving a mobile attraction.
6.07.05
With several states amending their amusement safety laws this spring, thanks to Bryan Pope for the following general description of the recent changes in the Texas amusement law:
This year the changes
to our Amusement Ride Act are very small. They are
allowing operators to procure combined single limit policies for their rides
(which may make insurance easier to come by) and have added some language
to
the statute exempting challenge courses from the scope of the Act so long
as
the challenge courses carry insurance.
Also, thanks to Joe Hassinger for passing along another recent liability waiver case. I'm in the process of preparing a law review article on this increasingly discussed topic (combined with Rider Responsibility laws). The article is tentatively titled "Contractual and Legislative Risk Mitigation Techniques: Lessons Learned from the Amusement and Leisure Industry". My intention is to have it finished by the first of September. Feel free to provide any feedback, insight, etc. that you might have...
6.06.05
Here's an article about interesting proposed legislation in Massachusetts that would require carnivals to conduct criminal background checks of employees--with a particular focus on sex offenders. In theory it sounds like a good idea, although I suspect that it will require alot of cooperation by law enforcement officials.
I've sent an email to Bob Johnson over at OABA to find out how the carnival industry as a whole views this idea. I'll let you know if I hear something soon.
On another note: we are working on a master list of leisure and amusement industry organizations. Here is an initial list we've developed. If you get a chance, please review and let us know if you think there are any organizations that should be added (or even deleted) from this list. As always, your comments will be held in strict confidence unless you state otherwise.
Our goal is to ultimately add governmental relations and legal contact info for these organizations to provide an efficient resource for those looking for GR and legal information concerning the many different segments of the amusement and leisure industry. Thanks in advance for your feedback! We'll be posting the final list later this month.
6.04.05
Checking in with a Weekend version of The Update...several readers have asked that we post some information on legal issues facing climbing walls. Here's something I found earlier this week about Missouri legislation on topic. Also, scroll down to the bottom of the article for some additional interesting links on the issue--including a CPSC advisory related to climbing walls.
Personally, I've had no experience at all in this area of amusement law but I suspect that--with the increasing number of malls and restaurants at which I see these walls being added--climbing wall law might wll be next in line as one of the hot new amusement law topics.
6.03.05
Rideaccidents.com has posted a letter from Rep. Markey and Rep. Salazar requesting that the CPSC investigate the recent Sizzler incident in which a rider died while the ride was in operation. As this appears to have been a mobile version of the Sizzler--and as the Sizzler has been involved in several other incidents recently--I personally believe that it's entirely appropriate, if not warranted, for the CPSC to open an investigation.
So, Update readers can now finally say that I've at least once agreed with Rep. Markey on a general issue of amusement regulation--though I wouldn't bet on it happening again as I fully expect that this incident will somehow be used to support his efforts to federalize all amusement attraction safety regulation.
Neverminding the fact that this type of mobile ride regulation has already been federalized...
6.02.05 Update
Here's a Google listing of the abundance of new articles on the Massachusetts climbing wall incident. What should be real interesting to see is, if the initial indications that this incident was the result of operator error, then what, if any, causation might be attached to any failure to have the inflatable attraction inspected.
My prediction is that this is just the type of high profile incident that the local D.A. won't be able to pass up figuring out a way to criminally charge somebody for something. I hope I'm wrong but I doubt it.
6.02.05
Apparently, the CPSC has now opened an investigation into this incident. Also, a strange dispute has arose about whether a state official had inspected the attraction (as the manufacturer claims) or whether that same official had actually been on vacation that week (as the Executive Office of Public Safety claims).
6.1.05
Here's an article about the recent inflatables incident in Massachusetts where a guest was killed in a fall. Based upon the article and several other conversations I've had, this will be one to watch for several reasons most notably the conduct of the state regulators. Below is an particularily interesting excerpt from the article:
Just for Fun's
statement said it believed it was in compliance with all state regulations
because Mark Mooney, the chief inspector for the Department of Public Safety,
had granted permits for the company's mechanical devices in late April.
The company, which is conducting its own investigation, also claimed Mooney
gave permission for the Rocky Mountain Climb to operate at an event in Cambridge
last month and that the operators of the climbing wall last Sunday were
properly trained.
Mooney did go to a carnival in Cambridge last month to attach identification
plates to Just For Fun's mechanical rides, but did not inspect or permit
the climbing device, Ford said.
5.31.05
Here is a recent update from Greg Van Gompel on the Texas legislation:
S.B. No. 1282 AN
ACT relating to insurance and regulatory requirements for
certain amusement rides passed the house on May 25th. The final bill sent
to the Governor is attached. [click here
for the bill]
Also here is some preliminary information about the Inaugural IALDA/Jones School of Law Amusement Law Symposium at this year's IAAPA conference in Atlanta
Monday November 14th
8.30am to 5.00pm
Georgia World Congress Center
Preliminary topics include:
Pre-Event Waivers, ADA Access Issues, Criminal Liability Issues, State Safety Regulatory Approaches.
Please feel free to contact me at cemerson@faulkner.edu or 334.386.7536 if you have any questions.
5.26.05
Surfing around the amusement law web this morning and found these interesting stories...
Bill Childs at MassTort.org reports (with the relevant legal docs) how Intamin has recently received more good news (or at least as good as news can get when you've lost a case on summary judgment). The California court has vacated the sanctions against them in the recent suit based on California procedural law. Basically, the end result of this all is that the court ruled that Intamin did not have a legall-cognizable purpose for filing the suit, but the suit did include factual allegations that could have served as a basis for a suit.
International
Theme Park Services has recently started an
amusement industry blog
that sometimes discusses industry legal issues. So far, it's had some
interesting commentary and is updated fairly regularly.
Also, here is an article about how the Tennessee legislature (the State House in particular) quickly approved the state's proposed amusement safety law following the Martin conviction. (This article explains some of the bill's more noteworthy provisions). I'm not saying that there is a direct correlation, but...
Okay, that's it for now. We'll be back soon with more Updates.
5.25.05
The latest IAAPA Government Tracking Center is now available. Overall, things appear quieter than in March--especially on the federal front. There are several interesting state developments include a new Kansas law requiring amusement liability insurance be written by a company authorized to do business in the Kansas. In my research, I don't recall this provision in many other states.
Also, we've just received word that both the Tennessee Senate and House have passed the proposed new Tennessee amusement safety law. There have been several amendments and we are working on getting a copy of the finally approved version. Here are links to the amendments listed on the Tennessee legislature website. I suspect that, if he hasn't already, Gov. Bredesen will sign this legislation. I'll try and find out this afternoon.
Lastly, The Update recommends checking out the new IAAPA on-line courses. Membership is required; however one of the courses includes a legal presentation on the important issue of sexual harassment.
5.24.05 UPDATE
I was doing some research on inflatables today and came across the form that New Jersey uses for approving them for use. I thought some of the non-New Jersey practitioners might find it interesting as it seems to be a very user friendly document.
5.24.05
The Update is back this week with several new things today. First, if you have access to Westlaw, here is a new section from the Massachusetts Muncipal Law Practice Series discussing local approval of certain amusement attractions. I haven't figured out yet if this is specifically part of the recent emergency regulations or somehow related. Hopefully someone from that area can fill us in with the details.
Also, a reader from Louisana gave us a heads up about new legislation in Louisana (click here for a copy of the the actual bill) that would extend the existing amusement regulations to inflatables, with a caveat allowing inflatables to maintain 300k in liablity insurance, instead of the currently mandated 1 mill in liability insurance for other amusement attractions.
Frankly, based on several recent conversations, I'm not sure if many inflatable operators could afford this amount of insurance. I'm still trying to track down some inflatable operators to discuss whether this would be realistic or not.
(And, for this week's entry into the Oh and By The Way File, I commend the Louisana legislature for maintaining a very easy to access and understand website regarding current legislation. The section that compares Present Law with Proposed Law is particularily helpful. I read hundreds of legislative-related websites a week and this is one of the best so far in terms of explaining the effects of the proposed legislation)
5.20.05 UPDATE
I was just forwarded a copy of this statement attributed to Congressman Markey regarding his re-introduced bill seeking to federalize fixed-site attractions. It's basically pretty much the same as his earlier statements on the issues. Needless to say, it's full of inaccuracies (ex: " 'Fixed' or 'fixed-site' rides are found predominantly in destination theme parks. When an accident occurs on such rides, the law actually prevents the CPSC from even setting foot in the park to find out what happened. )(emphasis in original)--inaccurate because its a fact that CPSC personnel have actually not only set foot, but investigated several fixed-site incidents within the last several years).
Anyhow, my understanding from various sources is that it's very unlikely that this bill will go any further this year than it has any other year. Nevertheless, hopefully the few states that still don't have comprehensive amusement safety regulations will go ahead and adopt them).
5.20.05
Well, I guess I had it coming. After gloating about "having" to taste test the new Disney 50th Anniversary Celebration desserts a couple of weeks ago (see 5.02.05 Update), I received an email from our good friend Lary Zucker letting us know that, following a rigorous state engineering review process, New Jersey has issued a permit for the new Six Flags Great Adventure Kingda Ka rollercoaster--now the world's tallest and fastest rollercoaster--and one that he was preparing to board very soon after he emailed me. Needless to see, as a thrill-ride, speed-freak, The Update was very jealous.
But also to glad to hear from Lary that New Jersey continues its excellent and thorough safety regulation of amusement attractions and that Six Flags is putting complete safety testing ahead of everything else for this ride.
We eagerly await his review (in the meantime, here's a video of the ride)!
5.19.05
Well, you can place this one in the Oops! I Did It Again file...apparently Congressman Ed Markey plans to refile his bill seeking to federalize fixed-site amusement park safety. The press release is really a wildly-inaccurate piece of paper. My biggest confusion is with this statement:
Markey’s legislation would
allow the CPSC to perform its intended mission –
preventing accidents before they occur by ensuring that safety corrections
found necessary on one ride in
one state are implemented on all similar rides in all states.
Oh, you mean like the recent Massachusetts mobile attraction accident? I wonder if he's missed the fact that there have been as many (if not more) mobile ride accidents lately as there has been fixed-ride incidents? (note: in the big picture--and compared to other leisure industries--the total remains extremely low) For, were he to know that, I can't imagine he'd have let his press secretary to release this release.
Like I've said before, I appreciate all efforts to ensure consumer safety--even if I don't agree with their approach or substance. However, after noting the factual inaccuracies of this latest effort, my personal opinion is that this issue is in danger of simply becoming a C-SPAN opportunity for the Congressman.
That being said, I've left numerous messages with his office inviting him to discuss this issue in greater detail--whether it be via an interview, at a conference, you name it. Unfortunately, the messages remain unreturned.
Also on the general topic of amusement safety, here's a recent Slate article discussing some of the basics regarding amusement safety regulation. The article is well-written and pretty accurate except that, contrary to the article's claim ("[t]he federal government only issues regulations for rides that aren't fixed in a permanent location") the federal government--even though it has authority to do so--hasn't actually promulgated any safety regulations.
And, finally, on the same topic, but a different note, here's a relatively recent editorial by Kathy Fackler over at Saferparks (I often don't agree with her but do find her to run an interesting and informative website and I appreciate her passion) taking a humorous look at some amusement safety issues.
5.18.05
Just in case you missed it, here is an article describing how Charles Martin was convicted of reckless homicide. Based on one juror's comments, it sounds like the decision to have Martin testify in his own defense ended up being a good one. So, while he avoided second degree murder, he still faces up to four years in prison on the reckless homicide conviction.
Bill Childs also has posted some interesting thoughts on the way the conviction turned out. Sentencing is scheduled for July 26th. We'll keep you updated.
Okay, on a non-Charles Martin front, Greg Van Gompel sent me an interesting email regarding amusement law happenings in Texas. Here's another version of the new legislation that shows even more clearly the proposed changes. I suspect these will also be covered in the upcoming IAAPA Government Tracking Report.
5.15.05
A quick weekend version of The Update. Here's the latest article on the Charles Martin trial status that I could find from yesterday's rare Saturday trial session.
Also, while the Martin trial is taking up alot of everyone's attention, there are actually some other interesting things going on in the amusement law world. Lary Zucker reports that the recent IALDA workshops at the RSA convention went very well. If you are a rollerskating facility operator and didn't get a chance to attend the convention, I highly recommend you try and obtain the materials from IALDA if possible.
Lastly for today, another interesting IALDA event will be their mock trial presentation at the upcoming Bowling Propietor's Association of America convention and trade show in Orlando this June. I'm trying to adjust my schedule to make the event as it sounds very interesting and informative.
Okay, that's it for now. We'll be in a charrette all next week but we still plan on posting Updates when possible. By the way, now that The Update is generating quite a bit of traffic, I'm also looking for some guest bloggers for the times we're gone. If you are interested call me at 334.386.7536.
5.13.05
Well, here's the yearly Friday the 13th version of The Update.
The Charles Martin/Hawk criminal trial continues today. Here's a news report detailing yesterday's trial happenings. The testimony started with the deceased's son who was also on the ride with her. In my opinion, and based on what I saw, a very strong evidentiary and emotional start for the prosecution as the teenaged son was incredibly poised for having gone through what he has.
Prior to that, defense counsel suggested in his opening statement that the ride manufacturer, Zamperla, had failed to provide a manual for the attraction (a fairly dubious proposition, but, even if true, begs the question why the defendant would have begun operating an amusement attraction without a manual in the first place).
This article also discusses how defense counsel is now suggesting that the manufacturer and park's insurance provider allegedly engaged in some type of cover-up conspiracy. While anything is of course possible, one of my general rules of thumb is that when a defendant's first line of defense is a conspiracy of others, that usually is a signal of trouble--for the defense. Again, I could be proven wrong, but I highly doubt that the attraction had no manual and even more highly doubt that the manufacturer (whose top execs I've met and respect) and the insurance provider engaged in any type of cover-up--especially with the intimated acquiescence of the police department in this matter.
That being said, the questions of the defense counsel about wearing gloves (ugh, visions of O.J.) actually might be geared toward a spoliation argument. I'll keep everyone updated about how it plays out.
5.12.05
Several additions to The Update today:
First, remember that the comment period on the Revised ADA Accessibility Guideline Standards expires on May 31, 2005. Don't let your voice go unheard on this issue that will definitely affect amusement operators.
Second, I'm excited to announce that IAAPA has added the Inaugural IALDA/Jones School of Law Amusement Law Symposium to their education program for this year's IAAPA Attractions Expo in Atlanta. The symposium will be a full day event (tentatively scheduled for Monday, November 14th) featuring several of the amusement industry's leading attorneys covering some of the industry's most pressing legal issues. Once the final agenda is completed (we are getting very close), I'll post some additional information. Needless to say, if you are active in the amusement industry, you'll definitely want to add this event to your IAAPA Attractions Expo schedule as it is the industry's only day-long legal symposium and interactive workshop and will present a unique opportunity to get detailed legal analysis on these pressing issues--without having to pay by the hour! :)
Lastly for today, Bill Childs is doing so really good blogging on the Charles Martin criminal trial. I recommend having a read. The testimony is supposed to start in earnest today, although I was passed information that a plea deal might be in the works. I'll update everyone if a deal does come down. Also, it appears that Court TV is now televising the trial (indeed I'm watching right now as Judge Vance is issuing his ruling finding tha the prosecution's expert is competent to testify). Court TV is also providing an on-line video stream (it requires registration but the first 30 days appear to be free--let's hope the trial doesn't last longer than that!)
Have a great day! cde.
5.11.05
A couple of Updates today:
1. Thanks to Greg Van Gompel with the National Amusement Park Historical Association for this Update on the case against Six Flags allegedly discriminatory practices in enforcing their line-cutting policies in which the appellate court remanded the discrimination claim back to the trial court because of jury instruction error.
2. Here is the complaint and the exhibits to the complaint that Roy Disney and Stanley Gold recently filed against Disney regarding alleged breaches of fiduciary duty. While not directly affecting Disney's theme parks, the lawsuit obviously could have an overall effect on the company. After a first reading, my initial thought is that the complaint is almost drafted like a press release (Paragraph #20 is a good example) and somewhat oddly for this type of lawsuit refers to "credible sources" without naming the source. Odd because that type of allegation is almost begging for an interrogatory or RFP. Anyhow, we'll keep you updated on any noteworthy developments.
5.10.05
As the Charles Martin criminal trial resulting from the Sevier County Hawk incident begins tomorrow, here is a new AP article summarizing the events leading up to the trial. The full version of the article also references a 2003 event in which the safety harness apparently did not engage for an Indiana man on the same version of the Hawk but he was able to hold on. I've ridden the Hawk and that seems to me to be an amazing feat...
Anyhow, here is another new article and yet another one. Lastly, Bill Childs over at MassTort.org informed me that he thinks the trial is being taped for Court TV and will be shown at a later time. If anyone finds out when, then please let me know so I can post it.
5.09.05
Just back from the recent Disney press event and I've got alot of Updates ready to go. We'll start with several recent pleadings I just received related to the Hawk incident in Pigeon Forge, Tennessee. Here is the original civil complaint, the answer of Zamperla, and defendant Charles Martin's (recently denied) Motion to Dismiss the Indictment against him.
I'm not a criminal lawyer so the I don't have much comment on the defendant's motion. One interesting thing from the civil complaint though is that the plaintiffs did not sue the manufacturers for a products liability manufacturing/design/warning defect--despite the fact that that is basically what the complaint alleges against them. One major reason might be because of the alteration defense contained in Tennessee's Products Liability Statute (as well as the fact that the facts simply don't seem to support this--in my opinion--overreaching claim).
5.09.05 Update
I had heard that the criminal trial in the Hawk matter involving Charles Martin (scheduled to begin this Wednesday, May 11th) was going to be televised on Court TV, but I haven't been able to find any confirmation. I'm probably missing something obvious on the Court TV website but--if anyone else can confirm the details of the trial telecast, please email me at cemerson@faulkner.edu. Thanks.
5.02.05
Here's a followup article on the new Massachusetts amusement regs. Of particular note is how these regs (and more specifically their timing requirements) will likely possibly affect inflatables worse than other attractions. I'll be out of town covering the press event at Disney World this week so the next update will be late Friday/early Saturday. Until then, keep sending in your emails about amusement law topics that concern/interest you. The ones so far have been very helpful. cde.
By the way, here and here are two strange but true articles about amusement facility legal issues that I bet many of us have never really discussed with our clients...
5.02.05 Update
This update has absolutely nothing to do with amusement law but I thought that most readers would still enjoy the subject matter:
Here's where you can find a listing of all the other special desserts that Disney has created for its forthcoming Happiest Celebration on Earth...Enjoy (at least visually) and I'll make sure and report back on as many of them as possible!
4.30.05
For a rare weekend version of The Update we bring you the latest in amusement park parking fee law...apparently Six Flags Great Adventure in New Jersey and Jackson Township (where the park is located) might be headed for a lawsuit over a potential law assessing a parking surcharge on what would essentially apply to only Six Flags Great Adventure guests.
If the bill indeed would essentially assess the tax on only Six Flags Great Adventure guests, even if not expressly by word, then the township indeed appears legally misguided on some potential due process and equal protection grounds.
That being said, one quote from the article really interests me though (and I'd love to hear from someone in the know about its accuracy):
“Only 15 percent of their park is taxed because they won a decision in about 1990 that classifies their amusement park as moveable and therefore not subject to full taxation,” Krakower said.
Does this mean that some form of court has classified Six Flags Great Adventure as a mobile facility rather than a fixed-site one? If so, is that classification somehow specific only to tax law? If not, a variety of regulatory implications could exist that would present for a very interesting case study.
4.29.05
Here's an article on yesterday's public hearing for the Massachusetts emergency amusement regulations. I completely agree with Mr. Reitter's comment that raising insurance requirements will not increase safety. On one level, I agree that creating minimum insurance requirements in the first place will likely increase safety because it culls out the uninsurable--whether it be for operational or solvency issues. That's why most states have them.
However, simply increasing minimum requirements doesn't necessarily lend to that. What logic is behind the suggestion that this incident would not have occured had an extra 1 million dollars worth of insurance been in place? From my perspective there is none--but it is an easy soundbite for regulators to say "Increase insurance requirements!". In other words, give the public a sense of increased safety, even if its only a perception-based.
Well, guess what: Massachusetts insurance requirements are pretty much in line with the other states that have requirements. So, why isn't this type incident happening elsewhere?
Because, as a threshold hold safety regulation feature, requiring minimum insurance amounts culls out the uninsurable from operating attractions. However, simply incrementally increasing the minimum amount only culls out those with smaller operating margin or less available capital.
Does anyone really think that the way to avoid this type of incident in the future is to require increased insurance? Please, somebody, anybody, present some type of precedent on which to base this argument for I have yet to see any in all of my research.
postscript: Oh, and of course, this type of new emergency reg certainly creates a larger cash pool for prospective jury awards...that's not to say necessarily that reality is at play here. Right?
4.28.05
I meant to post this earlier but simply forgot. Here's a link to registration for the 2006 AIMS International Safety Seminar. After hearing how great a job the IALDA members and others do on the program I definitely plan on attending this year. Early bird registration apparently ended on April 15th but maybe you could still call directly to get the reduced rate. Just tell me that The Update forgot to update you in time... :)
When the actual program comes out, I'll post a link. All in all, definitely one of the best amusement industry legal/safety events available.
4.27.05
Put today's Update in the "not necessarily legal news, but still quite interesting" cateogry: We keep hearing rumors about Disney and Universal looking at regional theme park concepts. Maybe this is why.
p.s. If you want something legal to chew on, here is an article, another article, and yet another article on the recent settlement of the Chaos attraction lawsuit. My understanding is that this leaves just a couple of more lawsuits arising from the incident unsettled.
4.25.05
As I mentioned earlier, I'm working on an article discussing legal issues faced by operators of inflatable attractions. Things like insurance, training, design and the like. This is certainly not one issue that I'd thought of yet. I wonder if this means that Disney should rename, if not retheme, its upcoming Expedition: Everest attraction in deference to all those sherpas and explorers who never made it down...
I'd say no. Resoundingly.
4.22.05
Just received a call from a Massachusetts print reporter looking to discuss the recent spate of legal issues facing amusement operators in Massachusetts. We focused on two topics: the likelihood that the DA in the Sizzler case will issue (additional?) indictments next week and the hearing next week on new amusement regulations for Massachusetts (I assume these regs would then supersede the current emergency regs--by the way, does anyone have a copy of these proposed permanent regs?).
He asked if I was aware of any lawsuits likely to come out of the new regs. I told him no but that guys like Bob Johnson at OABA or Dave Daly at Daly Cavanaugh would be much better persons to ask. That being said, if I were considering a lawsuit, I might certainly consider whether the Commonwealth's regulation of mobile attractions is preempted by the Consumer Product Safety Commission's regulatory authority over those attractions.
Of course, this leads to the hazy question of what exactly does the CPSC's regulatory authority over mobile attractions mean? According to a recent CPSC publication, this is what they consider to be regulating mobile attractions:
The
CPSC staff engages in the following activities to foster amusement ride
safety:
1. Serving as a clearinghouse for safety information on ride incidents identified
by
Commission investigators and state and local ride officials. We transmit
this information to
state and local officials periodically or as needed.
2. Monitoring and participating in voluntary standards activities associated
with mobile
amusement rides through the ASTM Committee F24 on Amusement Rides and Devices.
3. Developing technical expertise for mobile amusement rides.
4. Undertaking investigations to identify specific mobile rides which may
contain defects
which present substantial product hazards. Most Commission investigations
are in
response to mobile ride incidents. As complaints are received either from
state officials,
consumers, or others, our technical staff evaluates them and we take appropriate
follow-up
action.
5. Providing state and local officials and media information on deaths and
injuries associated
with amusement rides.
Essentially, the CPSC is stating that it does not specifically inspect mobile attractions or, for that matter, engage in scheduled regulation of these attractions. Personally, I call this a "half measure" in that the CPSC regulates only part of what it has the authority to do. In fact, the result is that the CPSC essentially assigns much of the actual safety regulation of mobile attractions to the individual states. That would be fine if it weren't for the fact that it leads to some mobile attractions not being regulated at all, presumably because states believe that area is within the CPSC's purview.
So, what's my point? Simple.
The CPSC either needs to engage in a comprehensive regulation of mobile attractions or entirely cede that regulatory authority to the states. Half measures such as their current approach only lend themselves to inconsistent results and uncertainty.
4.21.05
Today, The Update is beginning a semi-regular series in spotlighting interesting provisions from existing state safety laws and regulations. First off, is New Jersey.
State Amusement Safety Law Spotlight: New Jersey
New Jersey is generally considered to have one of the better set of state amusement safety laws and regulations. One of the somewhat unique aspects of the law is that it is based on a ride type certification model where specific types of rides are inspected and approved, generally for three year terms. Here is the list of currently certified types. So far, it seems to be working as New Jersey's number of severe attraction injuries has decreased from 6 in 2003 to 3 for 2004.
Another interesting part of the law is a requirement that injured guests must file a written injury report within 90 days of the incident before a personal injury lawsuit may be filed arising from the incident. According to Lary Zucker, counsel for the New Jersey Amusement Association, this provision has been upheld as constitutional by at least one New Jersey appellate court.
One poor part of the New Jersey statute though is the fact that the law and the administrative regs each contain different signage requirements with the law requiring signage posting at fewer locations than the regs. New Jersey should consider consolidating all signage requirements in either one statutory provision or one adminstrative regulation in order to promote clarity and consistency.
All in all, the NJAA should be commended for their safety success so far.
4.20.05
I've been doing some research into the legal issues facing inflatable attractions and, while doing so, recently came across this article about an inflatable that literally blew away while two children were playing inside it. While I'm not aware of a lawsuit actually being filed yet, it appears to be only a matter of time based upon the parents complaint that they were not properly warned of the wind dangers faced by this inflatable.
Apparently, the parents admit that there was a written warning contained in the rental agreement and that they did not read the rental agreement (or at least that part of the agreement). Regardless, they claim that they should have been verbally warned of the danger too. Obviously, this likely case will turn on the written agreement and, more particularly, how the written warning was conveyed in the agreement. If the written warning was conspicuous and unambiguous, then the lack of a verbal warning doesn't sound like a strong negligence case--unless, possibly, someone can show that verbal warnings are the standard and accepted industry practice. Even then, it's really hard to believe that rental companies cannot rely on conspicuous and unambiguous written warnings in their rental agreements.
Also note the comments by the "industry expert" (who incidentally appears to also be a competitor of C&J's--albeit a more costly one). The reporter did an excellent journalistic job of making sure that the expert's comments about requiring attendant's also might lead to exponentially greater rental costs. That should put that suggestion in a little context no doubt.
If anyone else has any additional info on this matter, please pass it along.
4.19.05
As one of the few law school professors who extensively research the amusement and leisure industry, I'm always considering new ways to disseminate my research to others. Usually that means speaking engagements, scholarly articles, magazine articles and the like. Well, it looks like another law prof, Bill Childs from Western New England College of Law, has figured out yet another way to do so...
4.18.05
Okay, back on March 18th, The Update started reviewing the new state and federal bills/regulations as set forth in the most recent IAAPA Government Tracking Report (GTR). Let's start looking at the state legislation today. And, as always, your comments are appreciated.
Many of the state bill's listed in the GTR involve minimum wage increases which are pretty self-explanatory so I'll skip much discussion on those. Of the remaining bills, one of the highest profile is the South Carolina Rider Responsibility bill that was recently passed into law. As discussed in earlier updates, the most reported portion of this bill is the right of amusement facilities to temporarily detain guests under certain situations. The new law is scheduled to take effect January 1, 2006.
Another noteworthy bill is the attempt in Tennessee to pass a thorough state amusement safety law. The current Tennessee law is pretty sparse dealing pretty much only with some insurance issues. The new bill is much more thorough in its approach to safety regulation and includes such common provisions as minimum insurance requirements, pre-opening inspections, an amusement safety board and the like. Of particular note is the provision that allows for spot checks without notice.
The bill is being sponsored by a state representative and state senator whose districts either include or are very close to Dollywood so I suspect that this bill meets with their approval although I haven't heard for certain.
One potential problem might be its fiscal note which projects a one-time start up cost of $496,000 and recurring costs of around $80,000. With money being tighter than ever in Tennessee (much has to do with their TennCare problem), even these relatively small amounts will make passage a tough chore. That being said, its apparently on Wednesday's House committee calendar so we'll see what happens.
4.17.05
Not surprisingly, another new "petting zoo" lawsuits is upon us. James Zoltak has a good article on the issue in the latest Amusement Business issue. However, I disagree with the suggestion by some that these petting zoo lawsuits might blow over quickly. Mainly because, when children getting sick or injured is involved, it seems like the events garner extra and extended media attention.
Also, while speaking at the AZA Eastern Regional event this weekend, several of the zoo operators expressed much concern about the issue because petting zoos (frankly, to my surprise) are big guest hits and revenue drivers--making the idea of closing them or restricting their use to "older kids" (presumably ones who might be better at following the hand washing instructions) anathema to the operators.
I could be wrong, but I suspect that these cases might be important ones to follow. If for no other reason than following how the issue of comparative negligence for minors'--and potentially even their parents' conduct--plays out in the causation side of these negligence-based actions.
4.14.05
Paramount Parks recently announced a new policy of prohibiting smoking in ride lines and in most park walkways. Here's an article, another article, and an op-ed (free registration req'd) discussing this move. With many municipalities passing tough new public smoking restrictions, it seems like this new policy should be a boon for non-smoking guests (which, though I haven't seen any stats, I suspect is a large portion of park guests). The interesting question is if Paramount did this sua sponte or if it was a preemptive move of some sorts. Anyone with insight into this decision-making, please pass along your thoughts to The Update at cemerson@faulkner.edu.
4.13.05
To those who have emailed, yes, I am still planning on analyzing the new legislative bills from the recent IAAPA Government Tracking Center. The delay is simply that I wanted to do a little independent research on some of the bills. Look for The Update to begin on these this coming Monday.
In the meantime, head over to the IALDA website and check out the handy Member Directory where you can locate amusement industry counsel by region and even internationally. It also looks like they are getting ready to post newsletters on line which should be a great resource for the industry.
4.12.05
The CPSC recently posted an updated North American Amusement Officials directory. I've found the past versions to generally be pretty accurate. All in all, definitely worth bookmarking or printing out if you do multi-state amusement industry research, lobbying, or representation.
4.11.05
Just back from the(excellent!) SmartCode workshop and noticed some articles and commentary on the California common carrier issue that was argued before the California Supreme Court last week. Law Prof Bill Childs suggests that the 1800's statute at issue needs amended to resolve the issue. I'm not sure that's necessary as I think a legal distinction could reasonably be made regarding whether the transit at issue is entirely internal--as is the case with theme park trains, monorails and the like--or a system that travels crosses property lines. This would resolve the San Francisco trolley car question he raises (i.e. amusement attraction vs. transit system).
Anyhow, here's the Bloomberg wire report as well as the Orlando Sentinel's article as well.
If anyone was at the SC hearing, we'd love to hear from you regarding how it seemed to go. Just email me at cemerson@faulkner.edu .
4.05.05 More negative response to South Carolina's new amusement safety law. While I think the bill is generally pretty well drafted, the guest detention provision does just sound a little, well, let's just say awkward. If I'm representing an attraction operator in the Palmetto state, I'd still be very cautious about counseling them to utlize the detention provision--at least at this stage. Too many potential tort, agency, and other legal issues are still swirling around on this one. Let the dust settle and, by all means, do extra, extra background checks on your park security personnel...
4.04.05
Okay, back from spring break and a research project and ready for some more Amusement Industry blogging. As promised, we'll soon start analyzing the latest bills, laws, regs, and such listed in the most recent IAAPA Government Tracking Center. The Update just needs a few days to get back up and running. So, in the meantime, here's some info on the new South Carolina Rider Responsibility law from both Saferparks.org and MassTort.org.
Neither site appears very happy with the new law (especially the part of the law that allows parks to detain patrons who allegedly violate the law). I'd be interested in other's views on the law in general and that provision in particular.
3.22.05
Well, things have been very busy these last couple of days so the promised review and analysis of the new state bills and regs as identified in the IAAPA Tracking Report will have to wait until next week. In the interim, I hope to speak to several more industry reps for their impressions on these new proposals. I also of course welcome and solicit reader comments.
In the meantime, I recently prepared some comments on the new CPSC Restraint Failure report (see 3.02.05 Update) after being requested to do so by an amusement industry organization. Here they are. The short version is that I commend the Human Factors division for considering the issue but nevertheless find their consideration to be lacking in some key areas. All in all, the report provides helpful information but its primary recommendation of requiring redundant restraint systems on most mobile amusement attractions simply fails to fully consider the impact or efficacy of such a move.
Have a read...and we'll be back next week with more Updates!
3.21.05
Rideaccidents.com has posted what it is calling the Massachusetts Department of Public Safety 2005 Amusement Ride Regulations Emergency Promulgation. I assume this is the final version but haven't confirmed that yet. If any can, please let me know (cemerson@faulkner.edu or 334.386.7536)
UPDATE: Thanks to Bill Childs for the link to the official word on these regs per the Massachusetts State, er, Commonwealth website...
Also, I'm interested in compiling comments on what practitioners and other readers think of these new "emergency" regs. Please send me your comments and please put in the email whether you want to be attributed or would like your identity kept anonymous. In particular, I'm looking for what is the good and what is the bad of these new regs.
3.21.05
A leading industry attorney and I have been having an excellent discussion on whether the industry should even consider a legislative (or other) effort to enforce parent-executed waivers for minors . Also, another question is--with the advent of e-signatures and the increasing purchase of amusement facility admission media on-line--should amusement facilities consider adopting an electronically executed preadmission waiver program?
For me at least, both issues are very interesting and timely and demonstrate why preadmission waivers and amusement facilities make for such an interesting industry legal topic.
UPDATE: 3.20.05 I received an email from Bob Johnson, President of the Outdoor Amusement Business Association in which he indicated that OABA is part of a coalition working to pass the Save Our Small or Seasonal Business Act of 2005, Senate Bill 352 (the companion bill to H.R. 793). I'll provide additional updates as I hopefully hear from other industry interest groups.
3.18.05
The Jan/Feb 2005 issue of the IAAPA Government Tracking Center is now available. As always, it is very well done. This issue in particular is very informative as many state legislatures have recently re-convened for the new year. The Update will be analyzing some of the new bills, proposed regulations, and the like over the next week or so.
On Monday we'll take a first look at the proposed state regulations and on Tuesday we'll take a first look at some of the proposed new state laws. Today, I'll just briefly mention that the Tracking Center identifies several new Congressional bills that could affect the amusement industry. All but one deal with immigration issues which obviously could end up affecting the staffing of some amusement facilities. The other bill is yet another one aimed at increasing the minimum wage. I'm trying to get some industry feedback on the industry's stance on these bills (especially the immigration ones--I think the minimum wage position is probably pretty obvious). I'll let you know when I hear something from IAAPA, OABA, or other industry groups.
In the meantime, you can track developments of these bills by clicking on the following links: H.R. 793, H.R. 688, S.14, and S.278.
3.17.05
Thanks to Lary Zucker for forwarding this new preadmission waiver decision. Briefly, the incident involved an injury suffered by a minor at a skatepark. Prior to skating, the mother had signed a liability waiver that included a mandatory arbitration clause. The court upheld the arbitration clause but voided the liability waiver as contrary to public policy. As is often the case, the dissent is also a must read.
I hoping that this ends up being one of the topics addressed at a future amusement industry legal symposium.
UPDATE (3.18.05): Just finished re-reading the above case and a couple of things really stood out. The fact that the mother doesn't argue that she misunderstood or was subject to disparate bargaining power in executing the release in question really distinguishes this from the other previous preadmission liability waiver cases that have recently come down (See 3.03.05 & 2.24.05 Updates).
Here, the simple question is what a parent can and cannot waive on behalf of their children. Apparently, the highest court of New Jersey believes that no matter how clear, how concise, or how unambiguous a tort liability release, a parent in the Garden State can't execute an enforceable one--or at least absent some express legislative guidance. Nevermind that parents can make all sorts of crucial life decisions for their kids (schooling, religion, dating, etc.). In New Jersey, they can't decide whether to waive tort liability for an after school activity. Does the court really think that it is a better decision-maker on this issue, especially absent any other evidence of parental neglect?
The dissent accurately (and in my opinion very importantly) notes that, had the mother executed the release for her own skating pleasure that day, then it almost certainly would have been enforceable. A key point when considering the overall preadmission waiver risk mitigation approach. This case does not prevent a real problem for mitigating risk through that contractual mechanism. However, if I were an amusement facility in New Jersey, I'd be seriously considering a legislative review of this "parenting by the judiciary" decision.
3.16.05
With the comment period for the proposed ADA regs nearing an end, I thought I'd post this article which a reader sent me on this issue. While not amusement industry specific, it does remind me of several conversations that I had at IAAPA last year involving similar "drive by" type ADA lawsuits.
Don't get me wrong. Amusement facilities should comply with the laws just as much as anyone. However, when these type lawsuits are based solely on a minor technical violation, they present a real divorce between the intended results and the actual results of the ADA regs (not to mention that these type lawsuits are generally mass-handled by what I consider the very type of persons who make all attorneys the subject of so many punchlines and pointed fingers).
Maybe a process should be discussed where operators are given an opportunity to cure mere technical violations after receiving notice of them and before suit can be filed against them. Possibly a system somewhat similar to Rule 11 of the Fed.R.Civ.P.
By the way, from what I've been told, this issue is not merely a problem for small amusement operators but also many other small businesspersons around the country.
3.15.05
I was doing some additional research on Congressman Markey's Ride Operator Minimum Age bill recently and came across this discussion forum thread on the issue. Some of the posts provide some interesting observations on this really, really misguided proposal. Definitely worth a read if you are interested in this issue.
3.14.05
Here's a recent article that Mike Amaro forwarded to me on potential criminal charges arising out of the Massachusetts Sizzler church fair accident. This growing trend toward criminalizing what has historically been addressed through the civil courts really needs to be carefully considered by the industry. By essentially criminalizing common-law negligence, the entire amusement industry/regulatory balance might be facing an entirely new paradigm.
Does this mean that every act of negligence is also subject to criminal charges? Should it? Is this unique to the amusement industry? Is there more than just legal wranglings at work here?
These and other important questions will only grow in importance if this trend continues. Upcoming articles in Tourist Attractions & Parks magazine and Funworld magazine will address this issue and hopefully spark an even larger industry discussion on this critical matter. I'll let you know when the articles come out.
3.11.05
A reader forwarded another article about the ongoing Massachusetts amusement regulatory battles. Sounds like David Daly is continuing to fight the good fight. Do I sense a ConLaw debate in the offing regarding who really has the power to do what?
3.10.05
Here's a link to a Yahoo Group focused on amusement facility safety which an amusement industry leader recently passed along to me. In order to join you have to create a free Yahoo account and then apply for membership to the group (don't worry: no hazing, initiation fees, or other strange admission rituals required).
I just recently joined but, even in the short time I've been there, I've found the Group to be very interesting and informative. I recommend checking it out.
3.09.05
While not really law-related, you can find my latest Tourist Attractions & Parks article (the Feb/March cover article) here.
As always, I welcome any feedback...
3.08.05
According to local news accounts mini-train at the zoo in Florida injured several passengers when it recently derailed. The owner of the train is calling this "weird one" with early speculation being that a rear wheel on the train left the tracks after hitting a rock or similar object.
The train is apparently back up and running.
3.07.05
Here's a new story about recent illnesses from a buffet at a park in China. It seems like more and more of these type instances keep popping up. Maybe its just a coincidence, but regardless, it should serve as an important reminder of the importance for counseling clients on food safety issues. After all, in today's lawsuit climate, any illness is a potential legal problem.
3.03.05
Mike Amaro recently advised me of a new case in Wisconsin in which their Supreme Court found a liability pre-reservation waiver unenforceable for three main reasons:
1. The waiver language was overbroad
2. The dual purpose of the document (i.e. serving as both a reservation form and a waiver) raised serious potential notice questions
3. The plaintiff did not have any opportunity to bargain as part of the process (which in Wisconsin apparently is a violation of public policy...of course, I wonder if that makes cable t.v. and computer software programs also against public policy?).
Here's an article from the Wisconsin Law Journal on the case.
I think an interesting compare/contrast would be between this case and the recent 11th Circuit case that The Update blogged on 2.24.05. UPDATE: So interesting that I went ahead and reviewed both cases this morning. Basically, the difference is simply in the deference that each court gave the exculpatory langauge used in the form (placed side by side, the YWCA waiver language is clearly much better than the Swimwest language in scope and substance...it actually looks like an attorney wrote it, something which isn't necessarily the case for the Swimwest verbiage). Which leads to an interesting exercise (no callous pun intended) in speculation: Would the YWCA language also survived the scrutiny of the Wisconsin Supreme Court?
UPDATE: Make sure and read the well-stated concurring and dissenting opinions. In particular, note the dissents assessment of the practical reality of this decision: "the majority opinion will render it virtually impossible to enforce any exculpatory agreement in Wisconsin."
3.02.05
Rideaccidents.com has posted a copy of the CPSC's recently released Human Factors Review of Restraint Failures on Mobile Amusement Rides. Here's the gist of the findings (with some peanut gallery commentary):
The
available incident data suggests that most restraint-failure incidents involve
either the restraint system unexpectedly opening during the ride cycle or
the rider
deliberately defeating the restraint system. Restraint or latch designs
that allow
operators to readily identify the status of the restraint as either open
or closed may
address some incidents associated with the restraints unexpectedly opening.
The
most effective preventive measure, however, would be to require redundant
or
secondary restraints on all rides from which a rider could be thrown if
the primary
restraint unexpectedly opened. This would likely be effective at preventing
all
incidents associated with this scenario, whether due to a component failure
or not.
Preventing incidents associated with riders defeating restraint systems
would be
considerably more difficult, and would require making the rides essentially
riderproof.
Many of these incidents seem to involve very young riders, who have limited
cognitive development and are unlikely to recognize the consequences of
their
actions. Specific recommendations for injury prevention would require more
detailed
analyses of rides, restraints, and the particular methods employed by riders
to escape.
Secondary restraints may slow riders’ escape and provide the operator
with more
time to stop the ride, and reducing the time for a ride to stop would limit
the time
available to a rider to escape after being detected. It is unclear, however,
how
effective these measures would have been at preventing the incidents on
record.
Secondary restraints on essentially all rides? Sounds like a little overkill considering the fact that it really wouldn't address the rider misconduct issue. I'll stay tuned to hear how this report plays out. So far, no industry response.
3.01.05
As we head into March, things just seem to get crazier in Massachusetts. Here's
a story about the new "emergency regulations" in effect as well as the proposed permanent changes. Needless to say, alot of these machinations seem like "doing something to say we're doing something". It's time for the powers that be in Boston to slow down and take a thorough look at this issue rather than try to simply go through the line and pick various items from the "regulatory buffet".
Frankly, I'd highly recommend they start listening to whatever David Daly suggests...
2.28.05
As February comes to a close, I found this interesting bit of info the other day. Apparently, IAAPA is sponsoring a design contest for a water ride transfer device. I wonder if any attorneys should be included on the prospective design teams?
2.25.05
Well, I'm getting ramped up for the next law review article--this one being a survey of Rider Responsibility Laws (RRLs). So far, we've identified all the RRLs in effect but haven't found a real efficient resource for those that are still only bills in state legislatures. Any ideas would be greatly appreciated...just send them to cemerson@faulkner.edu Thanks and have a great weekend!
2.24.05
Thanks to Joe Hassinger just alerted me to a very interesting case in the 11th circuit where a patron's negligence claim (actually the patron drowned so I should say his estate's negligence claim) was barred because of a signed liability waiver. Here's the waiver language at issue:
I
desire to engage voluntarily in the YWCA fitness/aquatics programs in order
to
attempt to improve my physical fitness. I understand that the activities
are designed to
place a gradually increasing workload on the body and to thereby attempt
to develop and
maintain cardiorespiratory fitness, body composition, flexibility, and muscular
strength
and endurance.
I
understand the need for physical examination prior to beginning an exercise
program. Realizing that the results of such a physical examination might
indicate that I
not begin an exercise program, I elect to have X NOT to have such an
examination performed. I assume the risk for any injury I might suffer in
an exercise
program conducted at the YWCA.
I understand that I am responsible for monitoring my own condition throughout
the exercise program and should any unusual symptoms occur, I will cease
my
participation and inform the instructor of the symptoms.
In signing this consent form, I affirm that I have read this form in its
entirety and
that I understand the nature of fitness/aquatics programs. I also affirm
that my questions
regarding the fitness/aquatics programs have been answered to my satisfaction.
Also, in consideration for being allowed to participate in the YWCA
fitness/aquatics programs, I agree to assume the risk of such exercise,
and further agree
to hold harmless the YWCA and its staff members conducting the fitness/aquatics
programs from any and all claims, suits, losses, or related causes of action
for damages,
including, but not limited to, such claims that may result from my injury
or death,
accidental or otherwise, during, or arising in any way from, the exercise
program.
Therefore, I understand, that if I am injured during these YWCA programs,
that I am
responsible for paying my medical costs.
2.23.05
Amusement Business is reporting on an interesting potential golf course cup holder class action suit. Sounded kind of fishy from the outset...
2.21.05
The most recent Florida Federation Fairs newsletter reports that the Outdoor Amusement Business Association has hired Wayne Pierce as its first general counsel. Apparently, as part of this "historic word" (their words, not mine) he'll remain outside (er, no pun intended) but will act as their association GC (see p.8 of the newsletter).
2.18.05
Concessionaire liability for injuries suffered in a drunk driving? At first glance, it sounds like somewhat of a stretch to hold a concessionaire liable for injuries caused by patrons to whom they served alcohol. But, Aramark recently found out otherwise. Hit with over 100 million dollars in damages (inevitably likely to be reduced though), this case should be a must-read for park managers whose facility serves alcohol to guests--both as a risk management issue and a contractual issue with your vendors.
2.17.05
The 2003 Ohio bumper car electrocution accident continues to generate news. This time it arises out of one Ohio state legislator's effort to pass new amusement safety regulations. Here's how Rep. Tim Cassell, the bill's sponsor, describes the new safety provisions:
Greyson's
law also includes these requirements:
n The Ohio Department of Agriculture would provide training and equipment
necessary to inspect amusement rides at fairs and carnivals in addition
to all current inspected items.
n All amusement rides with electrical equipment have to be double-grounded
at the owner's expense.
n A ride is to be closed if it is not properly grounded.
2.15.05
In light of the recent basketbrawl at the Pistons/Pacers game (and the potentiall that the suggested lack of sufficient security might serve as the basis for a potential cause of action), I've heard several lawyers wonder aloud whether this type of issue might arise at an amusement park. Well, apparently it has. Sounds like a terrible mess where someone is likely to look at how much security a park needs in order to satisfy premises liability or other tort duties. What a mess...!
2.14.05
Well, the seminar was a huge success (and is now over). That means that readers should expect much more frequent posting here at The Update.
MassTort.org has some really interesting information on recent court sanctions against Intamin resulting from a patent lawsuit that Intamin filed against Magnetar Technologies. The court's opinion is pretty scathing and concludes that Intamin filed the entire lawsuit frivously and apparently for retaliatory purposes. I'm sure an appeal will soon follow but, even if successful, the court's opinion should be a "must read" before the filing of a patent suit these days.
I'd be curious if anyone has heard anything from Intamin?
2.08.05
Sorry about the delay in recent updates ...we're two days away from hosting a major smart growth conference here at the law school so things have been crazy. But, the conference will soon be over and I'll finally be able to get started on the Rider Responsibility law review article I've been researching.
In the meantime, here's a link to a very strange developing story in which Canadian police are apparently closing in on a pedophile(s) after they posted pictures on the web (with the victim digitally redacted) that appear to show that the abuse occurred at a Walt Disney World resort. This event is quite interesting in terms of how the authorities have creatively investigated it--in part by seeking information via Internet discussion boards for Disney fans.
Disney should be commended for assisting law enforcement officials in the investigation of the case--even though its clearly not the type of headlines they'd like. That being said, one colleague wondered how Disney legal is balancing the need to assist in solving this terrible (and apparently ongoing) case with the need to also protect itself from potential future civil liability. This is one to watch.
2.01.05
I just received an email from another law professor who publishes a website
that contains some great info on amusement industry lawsuits. I recommend bookmarking it...
1.26.05
I've just agreed to present at the 2005 AZA Eastern Regional Workshop on April 15th in Knoxville. The topic will be Preventative Litigation and Transactional Legal Strategies and will include a new presentation I've developed as well as an interesting panel we are putting together. It should be an interesting workshop...
1.25.05
For some of you who have contacted me about the planned IALDA/Jones School of Law Amusement Law Symposium the symposium has been postponed but that is not a bad thing. In fact, when details are hopefully released soon, the new plan for the symposium should be even better for everyone. I'll keep you posted via The Update until official details are released.
Also feel free to contact me at cemerson@faulkner.edu if you have any questions in the meantime.
1.19.05
Here's a interesting legal happening...looks like a judge is going to allow Conneaut Lake Park to open this season but under some pretty heavy restrictions.
MEADVILLE, Pa. (AP) - A Crawford County judge says a historic amusement park can open this spring. But the judge has placed some restrictions on the opening of Conneaut Lake Park. The Crawford County park can't borrow money or lease property without getting approval from the judge.
UPDATE: Here's another article with some additional information on the court's somewhat curious approach
1.14.05
The Update recently received notice that amusement industry attorney Wayne Pierce has started his own firm. The notice seemed to indicate that more information could be found at www.adventurelaw.com. Good luck to Wayne and his new firm.
1.13.05
The new issue of Tourist Attractions & Parks magazine is now on-line. This month's legal issues article looks at legal issues facing ride designers. In particular I outlined three "scenarios" where ride designers might find themselves facing a legal conundrum if they're not careful. I welcome any feedback regarding the article at cemerson@faulkner.edu.
1.11.05
Under the possible heading of "Learning From One's Own Settlements", I was recently sent the following analysis of the recent Disney World Travel class action settlement (apparently involving travel insurance issues) apparently by a plaintiffs attorney involved in this type of litigation. Several of his points are at least interesting takes on the matter...
I'll weigh in on this; I am in the class. I am also an attorney who handles consumer class action suits such as this one.
Often, a defendant in a class action suit will try to push a settlement in which it offers discounts on future purchases. These are commonly known as "coupon" settlements. They are generally frowned upon by consumer advocates and by many courts, who are responsible for scrutinizing class action settlements to ensure that they are reasonable, fair, and adequate. A number of courts will not approve settlements that involve future discounts.
When I reviewed the settlement notice, I thought that this was borderline, because there is no ability for anyone. I did not, however, think that this was the strongest of cases against Disney, so it did not bother me too much. I also thought that the attorney's fees being paid were on the small side considering the size of the class and the amount of work that was probably necessary.
It is true that these discounts are off the "rack rate," and discounts are frequently available to those rates in various packages, etc. It remains to be seen how much, if any value, this settlement will have to the class members.
Another about it that bothered me is that I found the notice very confusing. In referenced enhanced benefits to people who booked a cruise through the website, but the proof of claim form does not have an area to claim those benefits.
1.10.05
Happy New Year everyone...classes are back in session here at the law school so that means that The Update will be back with regular entries. To start of the year, here are two links to two recent breach of contract lawsuits involving Hersheypark/Interactive Rides and Star Amusements/Bluegrass Community Clubs. I haven't seen the actual pleadings yet but the stories make it sound like neither of the contracts at issue were very tightly drafted. If anyone has any additional info on either of these suits just let me know at cemerson@faulkner.edu and I'll post it.
Later this week I hope to have a report regarding the recent AIMS conference. If you attended and have some thoughts on how it went, please let me know. Thanks. cde.
12.15.04
Apparently James Fuller has left the CPSC and is now serving as a Chief of Staff within the Homeland Security Department. Here's part of the email I received confirming this:
I am no longer serving as Chief of Staff at the CPSC. I have accepted a new position with the Bush Administration as Chief of Staff for the Transportation Security Administration within Homeland Security.
Please forward your inquiry to either: Page Faulk at pfaulk@cpsc.gov or Julie Simonyi at Jsimonyi@cpsc.gov. You can also reach them via telephone at (301) 504-7900.
Personally, I congratulate James on his new position but regret that he's no longer working with the industry. He was always a very responsive and fair person to work with. Good luck, James.
12.14.04
Sorry that The Update hasn't been as updated as normal lately but its final exams time here at the law school so things have been a bit crazy. I'll be Updating for the rest of this week and then will be gone until January 1, 2005. That being said, things have been fairly quiet lately anyhow. So quiet in fact that The Update has had to go overseas for today's piece. In particular, it seems that the issue of amusement attraction safety has become a big issue even in Pakistan with the government recently appointing a Pakistan ride safety commission following a recent serious accident.
12.03.04
a) I've just completed the 2005 Survey of State Amusement Law and Regulations. While much remains the same, several states like Alaska and Connecticut have made changes this year. Thanks to Corey Connors at IAAPA for his input and information. NOTE: I'll continue to update the survey throughout the year as things change. In fact, I've been told that Arkansas is preparing to add administrative regs to its existing amusement safety law.
b) Several readers have inquired about the new report from CPSC Human Factors regarding restraint failures and why it is not on their website. Well, I just heard from James Fuller at the CPSC that their OGC is giving the final report a final review and that it should be posted within the next couple of weeks. I'll provide a link as soon as I see it up.
12.02.04
The newly-revised (the ad says over 50% of the content is new or revised) ASTM Amusement Rides and Devices Standards are now available. I've spoken with several persons involved in preparing these standards and have been quite impressed with the comprehensiveness of this version.
12.01.04
Just wanted to give a quick plug for the upcoming AIMS Safety Seminar in Dallas next month. AIMS is one of the most respected safety leaders in the amusement industry and I've been told that this should be one of their best seminars yet. Note that the discounted early registration rate ends on December 15th.
11.30.04
One of The Update's favorite industry websites is the new one for the World Waterpark Association. Besides looking great, the website is chock full of helpful and interesting information. One thing on the website that every amusement lawyer interested in safety issues should check out is the newly revised Considerations for Operating Safety. Kudos to Rick Root and his entire team for this excellent publication which in many ways is essentially a strategy guide for preventative legal planning in terms of operational safety.
11.29.04
Well, hopefully you also had an excellent Thanksgiving. As The Update gets back into the swing of things we thought a good place to start would be to mention that there has been some initial talk about holding an amusement industry government relations and legal symposium in 2005. Things are early so we don't have many details but, if you are a member or represent a member of the broad amusement industry--and you think you might be interested in participating--please contact me at cemerson@faulkner.edu and I'll keep you updated.
By the way, it looks like the Comments over at the ADA Access Board are going okay; however, I still "re-encourage" as many people as possible to head on over to their comments webpage and be heard.
That's all for now, I'll be back soon with some info on recent safety standards developments. cde.
11.20.04
Just back from an excellent several days at the IAAPA meeting in Orlando. In particular, I enjoyed meeting (and re-meeting) several industry attorneys and government relations-types. The level of industry cooperation on legal and government relation issues continues to be very impressive and should be commended.
I have much information to share and, frankly, am not sure where to start--especially considering that The Update won't be updated much over the next several days of Thanksgiving break. However, one pressing issue is worth mentioning: Anyone interested in Americans With Disabilities issues facing amusement attractions (and, in this industry, everyone should be) should head on over to the ADA Access Board website and offer their comments on the proposed Access Board regulatory changes. Several participants at the IAAPA Government Relations Roundtable made very compelling arguments regarding the potential problems faced by amusement operators (especially smaller parks) in relation to these proposed regulations. If the amusement industry matters to you or your client, this legal issue really merits your consideration and comment. The Update highly recommends thoughtful responses by as many industry participants as possible in particular because the Access Board panel members genuinely seemed interested in considering such comments.
Well, that's all for now. We've added a couple of additional weblinks in the Industry Links session thanks to amusement industry extraordinaire Lary Zucker. We welcome any other links that you might suggest as well as your general comments about the website. Lastly, if you have any legal or government relations information that you'd like posted on The Update, please email it to me at cemerson@faulkner.edu.
11.16.04
The Update should be quiet for the next several days as I head down to IAAPA Orlando. I'll try and post some updates from the conference but, if I'm not able to, be assured that I'll have plenty of amusement law info upon returning. For now, here's an article regarding Lego's sale of its four Legoland parks. Notice the interesting quote from Dave Koenig regarding the Legoland intellectual property rights. It certainly brings to the forefront an developing issue: how cross-branded does an amusement/theme park really want to be--especially in the context of its legal IP rights. And, even more importantly, have parks which have cross-branded or licensed creative rights from another fully contemplated how those rights might be affected if the park was sold. Not that Disney is planning to see its Disney Studios park anytime soon BUT--if it did--would the purchaser also have the rights to use the Indiana Jones, Twilight Zone or other third party rights that are used in that park?
Just a "preventative legal medicine" type thought to think about...hope to see some of you all in Orlando this week..
11.12.04
My latest column is up over at Tourist Attractions and Parks Magazine's website. This month we deal with the legal implications of the recent Congressional effort to set a minimum age for amusement ride operators. While the idea might sound good on the surface, it's really a strawman. Until the bill's proponents can demonstrate a quantifiable need for this--the potential impact of such a move on the industry simply warrants against the effort.
11.10.04
Several readers have asked whether we have an Amusement Law course here at the law school. Unfortunately, not yet...but I'm working hard to make it happen. While researching the possibility, I came across an interesting potential textbook. I'm not familiar with the authors but the TOC looks pretty good. I've ordered a copy and will have a review as soon as I receive it (looks like the release date is Feb.05). In the meantime, I welcome any other recommendations for an Amusement Law textbook...just send them to me at cemerson@faulkner.edu.
11.08.04
IALDA has recently introduced a redesigned website. Besides looking better than their earlier incarnation, the new website has a better information about how to contact IALDA attorneys. Overall, a very nice upgrade with some helpful links. I'd recommend that anyone involved in the amusement industry go ahead and bookmark this IALDA website in your Favorites...
11.07.04
IAAPA has some additional information concerning the Government Relations Roundtable at the IAAPA Orlando conference. I'm looking forward to presenting at the Roundtable and will be bringing the latest updated version of The 2004 Survey of Amusement Industry Safety Regulations manual I've put together. If you have any questions on the article in advance of the conference, feel free to email me at cemerson@faulkner.edu and I'll try to address them during the presentation.
Hope to see you there!
11.05.04
NOTE TO CASINO MANAGER: CALL TEAM DISNEY ANAHEIM...
Here's an article discussing the Nevada Supreme Court's denial of the Stratosphere Casino's efforts to build a new thrill ride that would apparently have dropped guests down the Tower, across the Vegas Strip, and then up another (thankfully shorter) Tower. The apparent legal problem with this crazy-sounding attraction would be its overall impact (sound, logistical, etc.) on the surrounding area. Frankly, I suspect the biggest issue driving the opponents was probably more aesthetic than anything; however, either way, Nevada's top court apparently agreed that vested property use rights can be counter-balanced by community interests in this instance.
As rides continue to get taller and longer, this is an important issue to pay attention to--especially for parks whose neighbors don't seem thrilled about living nearby a thrill zone...
11.02.04
Have you voted? If not, somewhere nearby there's a Diebold machine just beckoning your name calling for you to exercise this special right we've been given as citizens of this beautiful country..
Of course, exercising this right leads to an interesting question if you are part of the amusement industry: which candidate would be better for the amusement industry? The Update thinks that the answer is a no-brainer. Under George W. Bush, the CPSC has finally reigned in its previously almost insatiable appetite for increasing its regulatory reach. For amusement facilities, this means that today's CPSC is not actively seeking to be assigned fixed-site park safety regulatory authority--unlike the previous efforts of its previous Chairwoman Ann Brown.
Combined with the fact that Rep. Markey and Sen. Kerry are Massachusetts Congressional delegation colleagues--and fairly close friends--leads to The Update's reasonable conclusion that a re-elected President Bush would be better for the amusement industry as a whole.
11.01.04
Looks like Disney World is facing more intellectual property legal problems. A Tennessee man has filed suit alleging that Disney stole his idea for a line reservation system following a 1990 letter from him proposing such an idea. He ultimately argues that Disney's patented FastPass system resulted from his original idea and, therefore, Disney is liable to him for damages. Apparently, this occurred before Disney (and several other amusement companies) adopted No Unsolicited Submissions policies as evidenced by a referenced (but unproduced) letter from Disney back to the plaintiff telling him his idea wouldn't work.
I suspect that there's not really much to this lawsuit, but--either way--it demonstrates the importance of taking preventative steps to protect your client's intellectual property rights. The Update will keep an eye on developments in this one...
10.26.04
Last summer I wrote an editorial for the Knoxville News-Sentinel following a deadly accident involving a amusement ride along Pigeon Forge's so-called Amusement Row. Knoxville media is now reporting that the family of the lady who fell to her death has filed suit. According to another Knoxville media outlet, the gist of the lawsuit is that:
the defendants were negligible (ed. note: I'm pretty sure someone meant to type negligent here) for having a 17-year-old operate the ride and not having the ride properly inspected or maintained after a safety harness became loose in June 2003.
My first thought is that Tennessee's lack of a meaningful fixed-site park regulation surely contributed to the lax attention to overall ride safety in this incident. Regrettably, Tennessee remains one of a handful of states that has yet to pass a law requiring regular fixed-site attraction inspections. However, there might be some good news that comes out of this tragedy: Several amusement operators in Tennessee have expressed an interest in passing a meaningful state amusement safety law. This has led to some initial discussions with at least one prominent state legislator about sponsoring such a bill. Nothing's concrete yet but keep your eyes on The Update as I hope to have additional info on this issue by the end of the year.
10.25.04
Discussion about amusement law seems to often center around accidents and guest safety issues. That's certainly an important area--but amusement law is much bigger than just one area. Each week I'll highlight a less discussed area of law that can still often have a direct bearing on amusement operations. For this week, here's (scroll down to June 2004 newsletter) an interesting article discussing workers comp in the context of an amusement facility. As always, feedback is welcome to cemerson@faulkner.edu.
10.24.04
In an industry such as this one that is primarily state-regulated, keeping track of state law and regulatory changes can take some time. Fortunately, Randy Davis and his government relations team at IAAPA have developed an incredibly valuable research tool. They call it the IAAPA Government Tracking Center and you can find the latest monthly version here. I highly recommend checking it out if you represent amusement industry clients, research the industry, or manage in the industry. In fact, it's a great tool to use in tandem with the The 2004 Survey of Amusement Industry Safety Regulations which I published in the Seton Hall Legislative Journal this fall.
10.21.04
As one of the first updates to this pseudo-blog (don't worry, this is only temporary--the amusement law blog will be coming on-line early next year), I'm excited to announce that I'll be making a presentation on amusement attraction safety law during the Government Roundatable at the upcoming IAAPA Orlando conference (click here for conference info).
The IAAPA Orlando conference is the largest amusement industry gathering so this should be a great opportunity to advance the cause that fixed-site amusement parks should remain state-regulated.
10.20.04
Apparently, the CPSC is recommending that amusement operators stop the Sizzler spinning attraction (Click here for the AP article). The CPSC's concern arises out of a September incident in which the part of the ride vehicle apparently failed which then resulted in two occupants being thrown from the ride (Click here for the Official CPSC Safety Bulletin ). The governor of Massachusetts has responded to the accident by allocating over 1.5 million dollars in additional ride inspection monies for inspecting Massachusetts rides. (Here's an article on that).
While some fixed-site parks operate Sizzlers, the attraction is much more popular with mobile parks. In fact, the Sizzler involved in this accident was a mobile version. Why is that important, you ask? Precisely because mobile attractions are regulated by the CPSC. And, if a CPSC-regulated attraction is failing, that should at least give pause to the idea that all amusement attraction regulations should also be federalized.
UPDATE: Apparently, Rep. Markey and two other Congressman have asked the CPSC to open an investigation into the Sizzler accident. However, a recent editorial continues to confuse the issue:
Rep. Ed Markey, D-7th, and two colleagues have asked the federal Consumer Product Safety Commission, to open its own investigation of the Shrewsbury accident. The state has primary jurisdiction, but these rides are designed and manufactured around the world and often cross state lines. The federal government has an important role to play in evaluating ride designs, tracking accidents and informing ride operators, state officials and consumers about safety hazards before they cause injury or death.
Unless I'm missing something (which has happened before--occasionally), the Sizzler in question was a mobile version...and the CPSC is currently assigned responsibility for inspecting mobile attractions.