Guest Column - Theme Park Legislation
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Cal-OSHA's handling of the situation provide a real-world example of the points made earlier:

I. First we have a state agency which immediately oversteps its bounds by at best inferring, and at worst strong-arming, that Disneyland needs to make similar changes on its other dark rides. Never mind the fact that the latest Orange County Register article listed Peter Pan and Sleeping Beauty among those dark rides (would someone explain to me how a "skirt" on the bottom of the suspended boats or a giant castle would protect people), the very thought of the agency stepping outside of its authority is frightening to me. Cal-OSHA was brought in to look at Roger Rabbit, not to make sweeping generalizations about attractions which it has not even yet inspected.

II. And the fact that such a statement was made should bring home my earlier point expressing doubts about the capabilities of such a regulatory agency. Roger Rabbit is the only spinning dark ride in Disneyland. How can it possibly be compared to Snow White, Pinocchio, Alice in Wonderland, or Mr. Toad? The potential for falling or being thrown out (as is being alleged by the Zucker family) of one of those ride vehicles is very much less than with Roger Rabbit (not to infer that the chance of such an accident on Roger Rabbit in anything more than minuscule). You will have to excuse me if I doubt the abilities of an organization that cannot tell the difference between Roger Rabbit and Snow White.

III. The State sponsored findings about Roger Rabbit are most likely admissible at trial, thus realizing my fears about theme park regulation being nothing more than a pro-plaintiff tool. You may be saying, "But if Disney changed the attraction on their own, wouldn't the plaintiff's attorney bring that up at trial?" Well, they would try, but they would be barred by evidentiary rules. Generally speaking, if a defendant makes modifications to a product, area, etc after an accident, these modifications may not be used by the plaintiff as evidence that the defendant knew of the dangerous nature of the product, area, etc. Take this example: A person is shopping in the produce section of their favorite store. A grape has fallen on to the floor, making the tiles slick. The person comes along, slips and falls, and sues the store. The next day the store has installed plastic shelves to prevent grapes from falling off the displays, and installed a non-slip surface on the floor. May the person introduce evidence of these modifications at trial? No! The law has decided that it is in society's best interest to have the defendant fix the problem quickly, rather than refuse to fix it for fear it will be used against them in a lawsuit. Let's look at the Roger Rabbit situation. Let's suppose that hypothetically Disneyland increased signage on the attraction to make it clear that guests are not to stand up, rough-house, or otherwise not pay attention on during the ride, in addition suppose Disneyland went even further and made voluntary modifications to the ride vehicles. Generally speaking, such hypothetical changes would not be admissible at trial (at the least not for the purpose of showing causation). But when the State issues a report, and Disney is forced to enact modifications based on that report, those are admissible at trial. Essentially the State has once again helped out plaintiff's attorneys, and quite significantly.

As you can tell, in both practice and principle I think this legislation and its accompanying regulations are bad law. I realize that I am open to being called a Disney fan, and thus not an objective voice in this debate. Perhaps there is a grain of truth to that. But all of us, whether Disney fans or not, should be opponents of bad law. This law is simply legislation for the sake of legislation, and none of us should be proponents of such an approach to lawmaking.

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-- Nick Morgan

-- Posted January 21, 2001