Metropolitan News-Enterprise


Thursday, November 13, 2003


Page 1


Supreme Court Agrees to Decide Whether Operator of Amusement Park May Be Sued as ‘Common Carrier’


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday agreed to decide whether the operator of an amusement park ride may be classified as a “common carrier” subject to a heightened duty to protect patrons.

At its weekly conference, the court voted 5-0 to grant review of the ruling by Div. Eight of this district’s Court of Appeal in Gomez v. Superior Court (Walt Disney Company) (2003) 110 Cal. App. 4th 667. Chief Justice Ronald M. George and Justice Janice Rogers Brown recused themselves, without explanation.

The suit was brought by the family of a young Spanish woman who allegedly died as a result of injuries sustained while riding the Indiana Jones attraction at Disneyland. Among the causes of action were two based on the common carrier statutes, specifically Civil Code Secs. 2100 and 2101.

Sec. 2100 provides that a “carrier of persons for reward” is required to “use the utmost care and diligence for their safe carriage” and to “exercise to that end a reasonable degree of skill.” Sec. 2101 requires such carriers “to provide vehicles safe and fit for the purpose to which they are put” and says the carrier “is not excused for default in this respect by any degree of care.”

The family’s attorney, Barry Novack, argued that the sections apply to the Indiana Jones ride. The attraction, he explained, “consists of a dynamic ride vehicle which is used to enhance the sensation of vehicle motion and travel experience by passengers in the vehicle [which] is configured to resemble an off-road jeep” and “is moved along a predetermined path on a track.”

Los Angeles Superior Court Judge James R. Dunn acknowledged that at least one of the challenged causes of action appeared to meet the literal requirements of the statutes, but concluded that the Legislature did not intend either of the sections to apply to amusement park rides.

The Court of Appeal reversed, saying the case should be allowed to proceed.

In other conference actions, the justices:

•Agreed to resolve a dispute pitting the Davis administration and state employee unions against the State Personnel Board. The justices will review the Third District Court of Appeal ruling, in Association of California State Attorneys and Administrative Law Judges v. Department of Personnel Administration (2003) 109 Cal. App. 4th 1574, that the state Constitution does not permit the state to enter into labor contracts that make an arbitration board, rather than the personnel board, the primary decisionmaker in employee discipline disputes.

•Summarily denied a habeas corpus petition by Martin James Kipp, sentenced to death by Orange Superior Court Judge Donald A. McCartin for a1983 rape-murder, in Huntington Beach. Kipp was also sentenced to death by then-Los Angeles Superior Court Judge Michael Nott, now a justice of the Court of Appeal, for the September 1983 murder of Tiffany Frizzell.

Frizzell was found, strangled and apparently raped, in her room at the Long Beach Ramada Inn where she was staying while waiting for her college dormitory to open for the fall term. Kipp’s direct appeal from  that conviction was turned down in 2001.


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