Metropolitan News-Enterprise


Friday, June 17, 2005


Page 1


Park Ride Operator May Be Sued as Common Carrier, S.C. Rules


By Kenneth Ofgang, Staff Writer/Appellate Courts


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

In a 4-3 decision, the justices reinstated two causes of action 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.

The claims are 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.”

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 he said the Legislature did not intend either of the sections to apply to amusement park rides offered for the purpose of entertainment rather than transportation.

The Court of Appeal disagreed, as did the narrow Supreme Court majority yesterday.

Justice Carlos Moreno, writing for the high court, noted that California has recognized a heightened duty of care owed by common carriers, going back to an 1859 decision involving a stagecoach accident.

Case Law

Later in the 19th century, he noted, the common carrier rules were applied to a hydraulic elevator in a store.

More recent cases, the justice added, have extended them to an airline pilot offering sightseeing services who took off and landed at the same airport, a mule train that took passengers from Palm Springs to Tahquitz Falls and back, a ski resort chair lift facility, a roller coaster, and two other Disneyland rides—a stagecoach ride called The Surrey With the Fringe on Top (the case was decided in 1962) and the Pirates of the Caribbean boat ride.

The pilot case, Smith v. O’Donnell (1932) 215 Cal. 714, Moreno explained, rejected a view later taken by courts in some other states that “whether a form of transportation constitutes carriage of persons for reward depends upon the purpose of the transportation.”

Amusement park rides, the justice wrote, should be treated no differently than other means of pleasure travel. “The passenger’s purpose does not affect the duty of the carrier to exercise the highest degree of care for the safety of the passenger,” Moreno said.

The opinion was joined by Justices Joyce L. Kennard and Kathryn M. Werdegar and by Justice Miriam Vogel of Div. One of this district’s Court of Appeal. Vogel and Justice Rebecca Wiseman of the Fifth District were assigned under the court’s rotation plan to replace Chief Justice Ronald M. George and Justice Janice Rogers Brown, who recused themselves.

Justice Ming Chin, joined by Justice Marvin Baxter and Wiseman, dissented. The notes of the Code Commission, which drafted the statutes originally, indicate that lawmakers intended to treat steamboats, steamtugs, stagecoaches, railroads, ferry services, and similar business providing transportation “from one point to another” as common carriers, the justice said.

‘No Transportation Function’

“The Indiana Jones ride does not provide such transportation and serves no transportation function,” Chin argued, because “its function is solely to thrill park patrons through excessive speed and as alleged in the complaint, ‘jarring jumps, drops, and unpredictable movements.’”

  The decision was criticized by the head of an amusement park trade group, who said the ruling would lead to more lawsuits without making parks safer.

“This is a legal technicality that opens the floodgates of senseless litigation,” John Robinson told The Associated Press. He is chief executive officer of the California Attractions and Parks Association, which filed a legal brief supporting Disney.

Barry Novack, the Beverly Hills attorney for the family of Christina Moreno, unsurprisingly disagreed.

“The Supreme Court has upheld the rights of consumers to have thrill rides that are safe,” Novack said. “Whether you’re going on a ride to be thrilled or for any other reason, that shouldn’t dictate the safety that you’re owed.”

Moreno, who had traveled to California on her honeymoon, suffered a brain hemorrhage and ran up more than $1.3 million in medical expenses, including the cost of an air ambulance home to Spain, before she died in September 2000, two months after the accident. In their wrongful death lawsuit, her family attributed her injuries to the “violent shaking and stresses imposed by the ride.”

The case is Gomez v. Superior Court (Walt Disney Company), 05 S.O.S. 2876.


Copyright 2005, Metropolitan News Company