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Nuisance lawsuits are a big headache for American business. Spend five minutes talking to a corporate executive or a small business owner, and you'll hear stories of greed and deception that will make you want to cry. High speed thrill rides combined with deep corporate pockets make the amusement ride industry a prime target for unscrupulous legal action.
Not all personal injury lawsuits qualify as nuisance lawsuits, of course, even if the amusement park industry does tend to paint all their litigation as frivolous and dismiss all their injured customers as selfish litigants. In fact, according to Jonathan Rauch, a senior writer for National Journal , only a small percentage of injury victims ever file lawsuits:
"Because litigation is expensive and often traumatic, very few people who suffer personal injuries ever sue -- about 2 percent, according to RAND research. Those who do sue may receive awards out of all proportion to the losses they suffered, or they may receive nothing. And the process will take months." (Source: Government's End by Jonathan Rauch)
Mr. Rauch goes on to describe the corporate backlash that results from increased litigation:
"The litigation system does, of course compensate some people, albeit almost arbitrarily. But its very arbitrariness creates negative elements on the other side of the equation: defensiveness and fear. You might at any moment be sued, but you might not. One consequence is business uncertainty, which can cloud the investment climate, complicate decision making, and introduce ever more lawyers and paperwork into deal-making."
Complicated decision making and "ever more lawyers" can have disastrous consequences for safety. In the past two years, I've heard theme park representatives blame nuisance lawsuits for a host of bad policies, most notably their insistence on keeping failure data secret -- not only from the public, but within the industry as well. Take, for example, the industry's definition of "serious" injury:
The ASTM standards developed by the amusement ride industry define "serious" injuries as "death, dismemberment, significant disfigurement, permanent loss of the use of a body organ, member, function, or system, a compound fracture, or other significant injury/illness that requires immediate admission and overnight hospitalization and observation by a licensed physician." All other injuries are deemed to be "minor".
As hard as it is to believe, industry doesn't think that the current definition of "serious" injury is restrictive enough. Last summer, an industry task group floated an ASTM ballot that would have demoted compound fractures and injuries requiring less than 24-hours of hospitalization into the category of "minor" injuries. The ballot was recalled due to a technicality, but industry formed a new task group in February to redraft the ballot. Although the ASTM F-24 standards are ostensibly engineering documents, a private-practice defense attorney has been put in charge of defining failure criteria for the amusement ride industry.
A sane person might ask: what difference does it make where the semantic seesaw between "serious" and "minor" injury winds up in some obscure engineering standard? In fact, it matters a lot. The ASTM F-24 standards operate like a clever little shell game for the amusement ride industry. 35 states reference parts of the standards in their regulatory laws, yet the standards are drafted and approved by a committee comprised almost entirely of industry representatives. States pass regulatory laws requiring that ride owners report "serious" injuries, and consumer advocates cheer, never suspecting that their new law categorizes a toddler's concussion or a kindergartener's broken femur as "minor" injuries. Self-regulation comes in many guises.
In addition, the ASTM standards require that ride owners report only "serious" injuries to the manufacturer. That means an amusement ride could be mashing kids on a regular basis, but the manufacturer won't know it until one of the kids has the bad luck to wind up mashed beyond repair. Even then, a single catastrophe might be dismissed as a tragic fluke. It takes a long time to recognize an accident trend when "permanent loss of body organ" is your failure criteria.
Which is exactly the reason why the theme park lawyers set the reporting bar so high. If every accident is a fluke, entirely unrelated to every other accident, then plaintiffs' attorneys have a hard time establishing liability. And that's a very good thing, if you're a theme park defense attorney.
Not such a good thing if you're the child who wound up brain damaged because none of the previous child-mashing accidents met the reporting requirement. Brandon, the 4-year-old boy in this photo, suffered massive global brain damage after being run over by a kiddie ride at Disneyland. Just a few months before his accident, a 12-year-old girl's leg became entrapped in the same ride. Although paramedics had to be called to free the girl, she was lucky enough to escape without "serious" injury. Therefore, Disneyland dismissed her accident as a "minor" incident. Notice how useful the ASTM language can be to the people who created it.
Brandon's injury is classified as "serious", even under industry's latest proposed definition. He suffered the permanent loss of one third of his brain function, and his hospitalization has exceeded the 24-hour limit by approximately six months -- so far.
Nuisance lawsuits are frustrating and expensive. They can ruin the lives of individuals and force businesses into bankruptcy. Money-for-nothing schemes evoke a fierce and justified anger. But that anger should never be allowed to cloud good judgment, or cause an industry to lose sight of its core responsibilities. Nuisance lawsuits are a poor excuse to compromise engineering standards, and a poor excuse to undermine accident prevention programs.
Amusement ride accidents can ruin lives too, and force individuals into bankruptcy. Spend five minutes talking to a the mother of a brain damaged 4-year-old, and you'll hear stories of suffering and loss that will make you want to cry.
