Guest Column - Theme Park Legislation
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C. Modifications: Imagine this scenario. Walt Disney Imagineering spends years upon years designed a ride system and ride vehicles for its latest attraction. There is an accident of some sort, and the State comes in, spends a month looking at the attraction, and gives a laundry list of modifications that must be made before the attraction may re-open. What is to say these modifications will not make the attraction more dangerous? If I have to choose between one month of analysis from a State agency or years of design work by Imagineering, there is no doubt which one I would choose.
1. Taking it a step further, what if there is an accident on the newly modified attraction that the State required to undergo said modifications? I wonder if the State will indemnify Disney or any park from liability in that case. I tend to doubt it, don't you?
D. Overstepping their bounds: The hallmark of all government intervention is the tendency to try and overstep their bounds. It happens all the time. You let a State agency into your business, and the next thing you know they are meddling into affairs outside of their stated authority. And if you are large company like Disney, if you fight them on it the press paints you in an unfair light. Think I am overstating this tendency?
1. At part of its report on the Roger Rabbit incident, Cal-OSHA stated that they "hoped" Disney would make modifications to all of its dark rides, similar to what Cal-OSHA was requiring on Roger Rabbit. Forget for a moment whether or not the modifications on Roger Rabbit are necessary, but where does Cal-OSHA get the authority to make such blanket statements about all dark rides in Disneyland? It is ludicrous and is action clearly outside of the authority given by the legislation.
Stepping outside of theme park regulation on the whole, let's take a look at the recent Roger Rabbit accident. Young Brandon Zucker somehow ended up on the ground, outside of his Cab within the attraction. The Roger Rabbit cars travel in two's, and the second car essentially ran over the young boy and dragged him along for a time. There were very serious injuries, some of which the child may never recover from. Let's not understate the seriousness of what happened. However, a key to understanding any potential liability comes from understanding causation, that is, was a given defendant the cause-in-fact of the injury. If I climb out the coaster car on Big Thunder before the ride is complete, I have contributed to my own injury, and perhaps have become the cause-in-fact of this injury. So while Counselor Girardi may stand up and spout off about how Disney caused this injury, right now we simply do not know.
Within the context of this discussion, we have a California regulatory agency stepping in and stating that before Disneyland may re-open the attraction a number of design changes should be made. Interestingly, the agency requiring these changes is Cal-OSHA, and the legislation discussed above are the source of their power. Since the accompanying regulations have not been promulgated yet, there is a serious question as to whether Cal-OSHA even has the authority to require such modifications. However, it appears at this time that Disney has agreed to the modifications.