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Common Carrier Liability For Amusement Ride Operators - The Beginning Of The End For Reasonable Care?

In June 2005, the California Supreme Court, in a 4-3 decision in the case of Gomez v. Superior Court, Respondent Walt Disney Company, held that common carrier liability would determine the duty of amusement ride operators in California. The case involved a woman who allegedly suffered a brain injury and died after riding on a roller coaster. The plaintiffs alleged that the deceased's injuries were caused by the "violent shaking and stresses imposed by the ride." This closely watched decision involving a major international amusement park company has sent ripples across the country. At the present time, a majority of states throughout the United States apply a duty of reasonable care to amusement ride operators. Those states include New Jersey, Pennsylvania, Ohio, Delaware, and Florida - where Marshall, Dennehey, Warner, Coleman and Goggin has its offices.

This new California case may cause plaintiffs' attorneys to assert common carrier liability, even in states where the duty of reasonable care is settled law. Recent publicity about serious amusement ride accidents and successful criminal prosecutions may give the plaintiffs' bar hope that courts will be receptive to this argument.

The distinction between the standard of reasonable care and the common carrier duty is important when presenting a case to a jury. If a jury receives an instruction on the common carrier standard, they will be told that an amusement operator must use the highest degree of care and the utmost diligence. On the other hand, an amusement operator's conduct under the reasonable care standard must have been reasonable under the circumstances. Whether an amusement ride operator uses "reasonable" care or the "highest" degree of care is more a matter of form over substance because all operators do the best they can to provide public safety. However, the courtroom is not the real world, and words can make a difference in describing a case to a jury.

According to the Gomez Court, the common carrier standard, as set forth in a California statute, imposes upon a common carrier of passengers for hire the duty to exercise the utmost care and diligence for their patrons' safe carriage and to provide everything necessary for that purpose. Some states hold common carriers responsible for even the slightest negligence resulting in injury to one of its passengers. The Illinois Supreme Court, in the 1909 decision of O'Callaghan v. Dellwood Park Co., held that common carriers must do all that human foresight and vigilance could reasonably do to prevent accidents to passengers while riding on its cars.

The traditional theory behind the common carrier standard is that one traveling upon his/her daily activities must often use the ordinary means of transportation and is compelled to place himself in the care of carriers of passengers. The standard has traditionally been applied to railroads, buses and streetcars, and even to escalators and elevators in recent times. The theory is that carriers are in a better position to ensure the safety of the passengers and passengers have no control over the devices in which they travel.

The states of California, Illinois, Minnesota, Missouri, and Alabama have found that an amusement operator can be held to the heightened "common carrier" standard of care. See in California - Gomez v. Superior Court; Respondent Walt Disney Company, 35 Cal. 4th 1125 (2005); see, also, Illinois -- O'Callaghan v. Dellwood Park Co., 242 Ill. 336, (Sup. Ct. 1909).

The leading case in New Jersey on this issue is Kahalili v. Rosecliff Realty, 26 N.J. 595 (1958). The New Jersey Supreme Court heard an appeal from the lower court and reversed the Appellate Division's decision in part. In the Supreme Court opinion, the Kahalili Court stated that:

The standard of conduct laid down by the law is care commensurate with the reasonably foreseeable risk of harm, such as would be reasonable in the light of the apparent risk; for negligence is essentially a matter of risk, that is to say, of recognizable danger of injury.

Thus, while an amusement operator is not the insurer of its patrons' safety, they are obligated to exercise reasonable care and diligence to keep and maintain the device reasonably safe for its intended purpose. Operators have an affirmative duty to inspect properly and adequately to see that a device is operating with reasonable safety. Later New Jersey cases have held amusement operators to the standard set forth in the Kahalili decision, and it remains the law in New Jersey today.

Courts in Pennsylvania, Ohio, Delaware, and Florida have come to the same conclusion and have held amusement operators to a similar standard as set forth in Kahalili. See in Pennsylvania - Wood v. Conneaut Lake Park, Inc., 417 Pa. 58 (1965); Romeo v. Pittsburgh Assocs., 2001 PA Super 343 (2001); see in Delaware - Wagenschnur v. Green Acres Recreation Assoc., 196 A.2d 401 (1963); see in Ohio - Gutierrez v. Paramount Kings Island, 2003 Ohio 4469 (2003); and see in Florida -- Sergermeister v. Recreation Corp. of America, Inc., 314 So. 2d 626 (Fla. Dist. Ct. App. 4th Dist. 1975), cert den (Fla) 328 So 2d 844.

Despite the Kahalili Court's holding that the duty of reasonable care applies to amusement operators, the Supreme Court blurred the line between reasonable care and common carrier liability by quoting O'Callaghan v. Dellwood Park Co., the 1909 case from the Supreme Court of Illinois, without rejecting the O'Callaghan Court's holding. As noted above, the O'Callaghan case held that the amusement operator was to be held to the common carrier duty of care to exercise the highest degree of care and caution for the safety of its passengers.

The Appellate Division in the Kahalili case also blurred the line between the reasonable care standard and the common carrier standard. The court found no plain error in a jury instruction stating that the defendant operator must exercise a "high degree of care." Although the court acknowledged that "high degree of care" is not the law of New Jersey, the court stated that it was not error because "high degree of care" is "that degree of care which the circumstances justify and warrant."

The reasonable care standard adopted in New Jersey, as well as the four other states discussed, is sufficient to protect patrons of carnival-amusement rides, and it is not necessary to apply common carrier liability. Courts need not stretch the common carrier standard to include amusement rides when the legal concept was truly intended to apply to devices intended for transportation rather than entertainment rides that happen to move. It is not surprising a court would feel constrained to impose a high degree of liability upon the operators of roller coasters and similar rides, which have become increasingly more daring for the sake of entertainment. However, a court need not use the common carrier status to impose a higher duty of care on amusement park operators.

The reasoning behind the common carrier standard does not transfer to amusement rides. Railroads, buses, etc. differ from amusement rides in that an individual choosing to ride a roller coaster or similar ride "is under no impulsion of business or personal necessity. He is seeking entertainment, and, when invited by manager to avail himself of the equipment provided by certain forms of amusement, he can properly ask only that he be not exposed by the carelessness of those in charge of any given instrumentality to harm preventable by care appropriate to the operation of such instrumentality."

Ordinary negligence concepts protect the patrons of roller coasters and similar high-risk amusement rides. The ordinary care standard applied in New Jersey, Pennsylvania, Florida, Ohio, and Delaware recognizes that an operator's duty must be commensurate with the apparent risk of the ride. As the risk increases and a ride becomes objectively more aggressive or "dangerous," so does an operator’s duty of care to take steps to protect its patrons. The ordinary care standard does not ignore the potential risks involved in carnival-amusement rides.

Additionally, states have put regulations and standards in place for carnival-amusement ride operators, which regulate the activities and duties of amusement park operators. For example, in New Jersey, the Legislature enacted the Carnival-Amusement Rides Safety Act, N.J.S.A. 5:3-31, et. seq. The Act created an Advisory Board of the Carnival Amusement Rides Safety Act, as part of New Jersey’s Department of Community Affairs, to oversee the industry and make recommendations as to the safety and other concerns of the industry. The Act established numerous procedures and rules to ensure the safety of carnival-amusement rides, including: mandatory inspection and maintenance schedules to be performed by operators; safety analysis of rides prior to be granted permission to operate in the state; a permit and certification system for approval to operate in the state; and periodic inspections by the state to ensure safety of the rides and compliance by operators.

Defense attorneys and claims professionals working with amusement rides and attractions should be alert to attempts by claimants' attorneys to impose common carrier liability.

*Deirdre is an associate in our Cherry Hill, NJ office. She can be reached at (856) 414-6035 or dcollins@mdwcg.com.