The Sizzler: One ride that's not so amusing..

Sorry for the blog neglect of late. Occasionally I have to do work that pays the bills, and unfortunately, blogging for Google ads just doesn't do it! To catch up, today I've got several items that have been sitting on my desk for a while, but seem interesting if not so timely at this point...

The first comes via law prof and amusement park safety expert Bill Childs. He wrote an interesting post last week on his TortsProf blog about "The Sizzler," an amusement park ride that has killed an injured some kids, including a 9-year-old in Texas who was thrown from the ride. While there's plenty of evidence to suggest that the ride is defective (particularly the restraints that should have kept the girl in her seat), the people of Texas won't be able to sue over any associated injuries, Childs writes, because the 2003 tort reform law there creates a 15-year statue of repose. So even though the Sizzler is in active use in many places, it is at least 15 years old, and thus its owners and operators are largely immune from lawsuits. Childs writes

there are dozens or hundreds of Sizzlers in operation (it is, I have read, the most popular carnival ride in existence), with the same restraint system.  But due solely to its age, its manufacturer is immune from suit, and the operators will generally be effectively immune from suit.  Where's the appropriate deterrence and motivation to (for instance) urge ride owners to update the restraints?

Comments

[David Nieporent]

Childs' post is accurate. Yours is disingenuous. The statute of repose in question bars lawsuits only against the manufacturer. Not the operator.

Childs' argument is that the operator may be judgment proof. (He later points out that in fact in Texas the operator is required to have a million dollars of liability insurance, which obviates that entire line of argument, but that's a side issue.) The tort reform statute has no relationship whatsover to anybody's ability to recover against the operator.

[JMG]

Obviates the entire line of argument, except that no carnie operator anywhere _ever_ violated a mandatory coverage statute, right?

[Bill Childs]

$1 million is (in many fatalities or serious disabilities) often going to be insufficient, setting aside JMG's reasonable point. I'm also much more comfortable with the design defect claim than the negligence claim against the operator.

[Elliot]

If the Sizzler is really defective, shouldn't that defect have resulted in some injuries during the first 15 years it was in use at each park? (Which would have resulted in lawsuits and, presumably, the Sizzler being shut down for fear of more such lawsuits.)

If no one gets injured on a Sizzler that is less than 15 years old, maybe the fault lies not with the Sizzler but with park operators who don't maintain it. (Nothing in the Texas law would bar such a suit against the park owner for failure to maintain; only the manufacturer gets the benefit of the 15-year statute of repose.)

Now, maybe the operator is only good for $1 million, but why should the manufacturer be liable for something that's not its fault?

[David Nieporent]

Obviates the entire line of argument, except that no carnie operator anywhere _ever_ violated a mandatory coverage statute, right?

I'm sure some have, but what does that have to do with anything? Some tort defendant somewhere has probably had a key witness for the plaintiff killed to avoid liability too. But that's already illegal. You can't complain about inadequate statutory requirements by arguing that some people will violate the statute. (You can complain about inadequate enforcement of the statute, but that's an unrelated point, and not what Prof. Childs did.) None of that has anything to do with the statute of repose.

"The operator might break the law" is not grounds for holding the manufacturer liable.

[Bill Childs]

I've posted a comment in response to Elliot's identical post on my blog here:

http://lawprofessors.typepad.com/tortsprof/2007/01/statutes_of_rep.html#comments

I also make the point (again) there that the facts as I understand them are much more supportive of a design defect claim than a claim of negligence against the operator. I also again reiterate that one can rationally support the statute of repose even in face of these facts; I present them to make sure we're aware of what the statute does.