Liability of amusement parks and traveling carnival rides

Every year, millions of Californians and out-of-state residents visit permanent amusement parks and water parks, such as Disneyland, Six Flags Magic Mountain, Universal Studios, Knotts’ Berry Farm, and Raging Waters, and go on amusement rides. In addition to visiting permanent amusement parks, millions of people visit annual traveling carnivals, such as the annual county fairs that bring with them a portable midway equipped with dozens of amusement rides for young and old.

Unfortunately, a significant number of park visitors are injured or killed by amusement rides that malfunction due to faulty design, construction, or maintenance: faulty operation; operator inattentiveness or carelessness; lack of warnings regarding the required age, height, weight, and general physical and medical condition of prospective riders.

Some amusement rides users are injured when they are thrown from their car because of the lack of, a defect in, or operator negligence in failing to properly set the safety bar or seatbelt. Sometimes the whole car itself may detach from the ride, causing serious injuries to and even death of the riders, or other fairgoers who are walking or standing in the area. In some cases, the rider is injured or killed because of a defect in the ride or the negligence of the owner or operator in inspecting and maintaining the ride every day to ensure its safety.

Sometimes a rider who is injured because the ride wasn’t in safe working condition may escape with only a few bumps and bruises. A number of others, however, may lose fingers or toes, a hand or a foot, or even an arm or a leg if the limb gets trapped in a tight space while the ride is still moving. Or they may suffer broken bones, such as an arm or leg, or even a fracture of the neck or spine that leaves them paralyzed from the neck down (quadriplegia) or from the waist down (paraplegia). Some riders may lose their life due to a defective amusement ride.

At times riders—especially those who ride the high-speed roller coasters and similar “thrill” rides—suffer traumatic brain injury (TBI) as a result of the ride. Severe TBI can result even if the rider doesn’t hit his or her head on anything during the course of the ride. Rather, the force of the violent shaking of some rides is enough to cause TBI by causing the rider’s brain to move around and strike the inside of the skull, causing, among other things, bleeding in the brain.

Amusement rides as common carriers

Civil Code sec. 2100 provides that “[a] carrier of persons for reward must use the utmost care and diligence for their safety ….” Section 2101 provides in part that such carriers must provide vehicles that are safe and fit for the purpose to which they are put.

In Barr v. Venice Giant Dipper Co. ((1934) 138 Cal. App. 563), the plaintiff was injured while riding a roller coaster in an amusement park. The coaster was in the nature of a scenic railway, consisting of a train of small cars constructed to carry two persons each. The court held that the owner and operator of a scenic railway in an amusement park who has accepted passengers for hire, is subject to the liabilities of a carrier of passengers generally.

In Gomez v. Superior Court ((2005) 35 Cal. 4th 1125), a 23-year-old woman suffered a severe brain injury and eventually died from her injuries several weeks after riding on the Indiana Jones amusement ride at Disneyland in Anaheim. The deceased woman’s estate filed a wrongful death action against Disneyland, claiming that the woman’s brain injuries were caused by the violent shaking and stresses imposed by the ride.

The Indiana Jones attraction utilized jeep-style ride vehicles that were computer-controlled with 160,000 different combinations. The deceased woman’s estate alleged that the ride was “fast, turbulent, combining the ups and downs of a roller coaster with jarring jumps, drops, and unpredictable movements.” They also alleged that the Indiana Jones attraction shook and whipsawed riders “with such fury that many passengers are forced to seek first aid and in some instances hospitalization.” The woman’s estate claimed that the ride’s sudden changes in direction could and did cause bleeding in the woman’s brain similar to what happens in “shaken-baby syndrome.”

The case was appealed to the California Supreme Court on the issue of whether or not an amusement attraction such as the Indiana Jones ride is a common carrier. If found to be a common carrier, the ride’s owner and operator would be held to a higher standard of care than ordinary negligence, and they must use the utmost care and diligence for their patrons’ safety. (Civil Code sec. 2100.)

Disneyland contended that it was not a common carrier, as they did not transport their guests from one place to another, and that the ride started and ended at the same place. The Supreme Court ruled that the Indiana Jones ride met the common carrier criteria, despite the fact that it started and ended at the same place and did not transport passengers from one site to another. The Court stated that the fact a passenger begins and ends the ride at the same place does not mean that the rider has not been transported.

The California high court reasoned: “A tourist in San Francisco who takes a round-trip ride on a cable car solely for entertainment has been transported and is no less entitled to a safe ride than another passenger on the same cable car who disembarks to visit a store or restaurant.”

Before Gomez was decided, California courts had long held that vehicles, planes, stagecoaches, and trains that began and ended at the same place were common carriers. Thus, an airplane operator who gave sightseeing tours along the coast for five dollars a ride was a common carrier, even though he took off and landed at the same place. (Smith v. O’Donnell (1933) 215 Cal. 214.) A mule train operator who made round trips from Palm Springs to Tahquitz Falls and back was held to be a common carrier, notwithstanding that the trip started and ended in the same place. (McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal. App. 2nd 489, 492-93.)

In Gomez, the Court also found that the lack of rider control makes a roller coaster subject to common carrier principles. The Court noted that riders surrendered their freedom of movement, and the amusement park predetermined any ascents, drops, accelerations, decelerations, turns, and twists of the ride. The court observed that riders of roller coasters and other thrill rides seek the illusion of danger while being assured of their actual safety.

In Sharufa v. Festival Fun Parks ((2020) 49 Cal. App. 5th 493), the plaintiff was injured while riding down a waterslide at Raging Waters when he fell out of the inner tube he was riding and landed on his stomach. He was carried by the flow of the water to the splash pool, where the force of the impact of his feet on the bottom of the pool was so great that he broke his pelvis and hip. The court found that the waterslide was a “thrill ride” because riders did not control their movements, as they were transported to the pool below, the entire course was predetermined, and the riders experienced unexpected ascents, drops, turns, and twists along the way.

The court stated that a waterslide is an amusement ride similar to a roller coaster in that the rider surrenders control while being transported from one place to another. It follows that a waterslide operator owes riders the heightened duty of a common carrier. The plaintiff contended that the park had failed to warn him to slide on his back and not his stomach. However, the plaintiff failed to present any relevant evidence that the defendant’s failure to so warn the plaintiff was a breach of its duty.

The defendant argued it was not a common carrier because the plaintiff had some control over his actions. The court disagreed, stating that the fact the rider has some control does not change the relationship between the rider and the common carrier, nor does it relieve the latter of the obligation to exercise the utmost care for the rider’s safety. (Sharufa vi. Festival Fun Parks (2020) 29 Cal. App. 5th 493; McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal. App. 2nd 489, 492-93.)

The court noted that a common carrier is not strictly liable, nor is it an insurer of its passengers’ safety. The duty is to act with the utmost care and the vigilance of a very cautious person. (McGettigan v. Bay Area Rapid Transit (1997) 57 Cal. App. 4th 1016, 1017.) No evidence that the defendant breached a duty other than the fact of the injury itself, is no indication of negligence. (Sharufa v. Festival Fun Parks (2020) 49 Cal. App. 5th 493; Brooks v. Eugene Burger Mgmnt. Corp. (1989) 215 Cal. App. 3rd 1161, 1620.)

In Nalwa v. Cedar Fair ((2012) 55 Cal. 4th 1148), the California Supreme Court ruled that the operator of a bumper car attraction was not a common carrier because, unlike roller coaster riders, they do not surrender their freedom of movement and actions. Bumper car riders are not passively carried or transported from one place to another. They have independent and complete control over the entertainment element of the ride, actively engaging in a game trying to bump others and taking action to avoid being hit themselves, as they determine when to turn and accelerate. This differs from roller coaster riders, who have no control over the elements of the thrill of the ride; the amusement park predetermines any ascents, drops, accelerations, decelerations, twists, or turns of the ride.

As an interesting side note and exception to the common carrier rule, the operator of a hot air balloon is not a common carrier because he knows not where the balloon will go. It travels essentially at the whim of air currents as there is no steering mechanism. (Grother v. Escape Adventures, Inc. ((2017) 14 Cal. App. 5th 1283, 1295.)