Thursday, June 15, 2006

Mission: Lawsuit

Last year, a four-year-old died a couple of hours after riding Mission: Space at Walt Disney World.  They've now filed suit:

The suit contends that Disney was negligent in letting the small child board the intense ride; that it posted insufficient warnings of Mission: Space's dangers; and that it was ill-prepared for the medical emergency and did too little to help the stricken boy.

Earlier this year, a 49-year-old German woman died a day after falling ill after the ride.  Press reports in both deaths indicate that the riders likely had preexisting heart or other conditions that contributed to their deaths, though most reports indicate that the ride forces were also involved.  In the child's case, the condition was evidently unknown; the adult was aware of her conditions.

Mission: Space is a spaceflight simulator.  From my understanding, the ride is made up of rotating ride vehicles on a centrifuge-style device.  Inside the capsules, the acceleration of the centrifigue simulates launch conditions, while the capsules' rotations simulate various maneuvers.  The gravitational forces on the ride are likely not significantly greater than those on many rides at a typical carnival, though other than warnings (see below), those forces are generally much more obvious to someone at a county fair than at Mission: Space, where the actual ride motion is hidden from guests' views.  Additionally, it is, I think, fair to say that patrons of a carnival likely expect more intense thrills than those at a Disney park (whether or not those expectations are reasonable).

The contrast between the intensity of Mission: Space and other rides at WDW, along with the fact that the ride itself is essentially hidden from view made warnings that much more important.  And indeed, riders at Mission: Space are met with thirteen warning signs and, as many news stories noted at the time, they're provided with vomit bags.  This story has a photo of one sign.  This site has many videos, including the warning video shown to each rider at a point where they have the opportunity to decide not to ride, but requires registration.  Google Video has a video (itself motion sickness-inducing) of the full experience, including a ride operator's exhortations to read the warnings and Gary Sinise, of all people, providing warnings as well.  Finally, this site has the text of many warnings, including these:

For safety you should be in good health, and free from high blood pressure, heart, back or neck problems, motion sickness or other conditions that can be aggravated by this adventure.

CAUTION! You may experience motion sickness on this adventure! Mission:SPACE is a realistic and intense simulation of space flight. It is unlike anything that you have ever experienced.

The warnings discuss the intensity of the ride and the fact that people with many preexisting conditions ought not ride.  The signs are in English, though warning brochures are available in many other languages.  I'm not sure which signs existed when, but I know that extensive warnings have been part of the ride since it started.

Since the second death, Disney has added a version of the ride with the capsule rotation but without the centrifuge motion -- in other words, there's motion, but no significant gravitational forces.

Setting aside the allegation of a failure to respond properly (about which I know nothing), the lawsuit presents a fairly fundamental question in amusement litigation: when a ride does exactly what it is supposed to do, and when that action is well-disclosed to riders and is safe for the vast majority of people, who, if anyone, is responsible when that action causes foreseeable injuries to people with unknown preexisting conditions?  Or, for that matter, known preexisting conditions, as in the case of the more recent fatality?

I don't think anyone has suggested that the boy's parents should have known (or did know) of his heart condition, and I certainly am not doing so here.  So it's not facially plausible to say that they shouldn't have let him on the ride, as often follows injuries to young children. 

And though the lawsuit apparently suggests otherwise, I haven't seen anything else that suggests that the boy's youth was part of why he was prone to injury -- if anything, I would assume that younger riders would be less likely to be prone to injuries of this sort.  So it's similarly not facially plausible to say that the park should bar young riders.

As for a warnings claim, I don't think I've ever seen a ride with such thorough signage.  Indeed, a non-amusement attorney I spoke with last week made a similar comment.  The non-English question is interesting, but good non-English warnings were available on request.

That leaves design defect.  If the ride is defectively designed because it caused this injury, it is probably impossible to design a high-intensity thrill ride for anyone that would not be defectively designed.  What probably caused these deaths is exactly what makes the ride what it is.  I am sure the "green mission" (the name given the no-spinning version of the ride) is fun, but I am equally sure that most kids would opt for the spinning version.

A few years ago, a prominent roller coaster designer made an poorly-considered comment about something like an "acceptable number of deaths" from amusement rides after a series of incidents involving safety equipment and restraint problems.  I think the number for restraint failures should no doubt be zero.  But for injuries like this, it's a trickier question.  If the number of post-ride heart injuries should be zero, then the rides just won't exist. 

As in every context, warnings can only do so much -- with unknown preexisting conditions, by necessity, and even with known preexisting conditions, by the choice of riders to ignore them.  That means if society wants rides like Mission: Space (or even the Gravitron), there will be injuries to innocents.  (This, incidentally, is one of the reasons I am interested in amusement safety -- the issues are much more generally relevant than one might think at a glance.)

In the end, the suit may be the result of Disney's reputation -- whether deserved or not, I don't know -- of settling just about everything.  I can't recall any park injury cases from any Disney park going to trial (and I know that a number have settled), but that may well be a function of them having relatively few injuries more than a policy not to take cases to trial.

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» Disney World ride fatality from Overlawyered
Writes Prof. Childs (Jun. 15) of the lawsuit over the death of a four-year-old hours after taking part in the Mission:Space ride:Setting aside the allegation of a failure to respond properly (about which I know... [Read More]

Tracked on Jun 21, 2006 7:35:50 PM

» Mission:Space Lawsuit Settles from TortsProf Blog
I previously wrote about the Mission: Space lawsuit filed based on the death of four-year-old Daudi Bamuwamye after riding the spinning attraction. (There are a number of interesting comments to that post as well.) That lawsuit has now settled. Disney, [Read More]

Tracked on Jan 30, 2007 1:10:29 PM

Comments

Although the child did not suffer injury because of his youth or size, what if the ride was subject to a height requirement? We rode this ride at WDW last November, and our 4 year-old was barely tall enough, according to the sign. I find it hard to believe that a two-year old was allowed to ride. Was the child 2 or 4 at the time? And when we rode it, someone did exit after the video.

Posted by: Christine Hurt | Jun 15, 2006 1:54:14 PM

All the reports I've seen indicate that he was four and met the height restriction (which is 44 inches). One claim in the suit is that the park should have had the height requirement be 48 inches (the boy was 46 inches), as the ASTM standards suggest 48 inches as the minimum height for rides with high acceleration. [Note: I edited this comment to add the height discussion.]

I have heard from lots of people that the warnings are almost as intense of the ride itself. Having watched the video of them, I'm not surprised someone left.

Posted by: Bill Childs | Jun 15, 2006 2:04:48 PM

Sometimes the facts speak for themselves:

"A medical examiner later determined the cause of death was an abnormal thickening of the heart muscle, a disorder that can throw heart contractions out of coordination.

The condition left Daudi more susceptible to sudden death, the examiner ruled.

Samartin said the family acknowledges Daudi's heart was enlarged. But he said the boy was pronounced healthy by a cardiologist two years before his death."


http://www.sptimes.com/2006/06/15/State/Disney_sued_over_chil.shtml

Posted by: Bumper | Jun 21, 2006 8:23:41 PM

I don't think you're saying otherwise, but this is what I say in the main story -- his heart condition was unknown at the time of the incident. His family believed, apparently reasonably, that he didn't have a heart condition. It seems like it turned out otherwise.

Also, if, in fact, his condition was previously known (and then cleared), is riding consistent with the warning signs?

Posted by: Bill Childs | Jun 22, 2006 3:40:03 AM

I happen to be a litigator with a good deal of experience with issues of warnings (in products litigation) and personal injury cases (defending PI cases). As luck would have it, I visited Epcot center in both the summer of 2004 and 2005, and rode the Mission: Space ride both times. The first time, my wife (not much of a complainer) experienced rather severe dizziness after riding, and had to sit for 20 minutes after the ride. She had never had a problem before riding a host of rather wild roller coasters or rides.

The husband in me was concerned, but the lawyer in me was absolutely amazed at the number of warnings posted throughout the ride. They are literally everywhere. On the wall, at the entrance, part of the "welcoming video". Disney staff explain the ride to you before you board, and give ample opportunity to "deboard" the ride before it begins. I concur - there is simply no way to provide "more" warnings to anyone on this ride. If I was representing a client in a similar case, I simply could not ask for any better "warning" than what Disney offers in this case.

I think Disney's problem in the case is that they are "Disney". And by that, I can't imagine that anyone believes that "death" is a possible consequence of doing ANYTHING at a Dinsey Park. It is a wonderful, "harmless", family-oriented facility, and it's just incomprehensible that simply by riding the ride, you might die - no matter how many warnings are offered to that effect. This isn't a case of somewhat jumping out of a moving ride, or wading into a canal with a live electrical source - it's a park attendee riding the ride as designed.

I hope and pray Disney fights this case and prevails. I hate the idea that we are "child proofing" this country to the point where adults can't enjoy "adult" activities, simply because no one is willing to take responsibility for their choice to participate in those activities. I've got to think that on the whole, your odds of dying of heat stroke baking in the summer Orlando sun are much greater than dying of a heart condition on that ride.

Posted by: elvindeath | Jun 22, 2006 11:02:48 AM

Elvin, you've described what Disney's problem is better than I did. It's because it's at Disney instead of a county fair, so nobody believes there could be dangers forces.

Thanks.

Posted by: Bill Childs | Jun 22, 2006 4:00:07 PM

Elvin,

I discussed this case a little bit in my torts class a couple of weeks ago. As a P.I. litigator, you know that these are TERRIBLE facts for Disney. How often do people die from roller coaster rides (in situations not involving mechanical failure or defect)? You also know that a "warning" is not a free pass to designing a dangerous product or engaging in negligent conduct that involves a high degree of risk of harm. How many people must get vehemently sick (and die) on this particular ride before Disney's risk-utility analysis concludes that the high risk of injury and/or death outweighs the benefit of just providing another fun ride at one of its many parks?

I have not read the complaint, but from what is stated in this post, it appears the plaintiffs are alleging ordinary negligence on the part of Disney in allowing the child to ride it to begin with, as well as not responding quickly enough to the medical emergency.

Looking at the first claim, you are suggesting that Disney has a valid defense that the plaintiff assumed the risk by choosing to ride it in light of the heavy warnings provided. But the key question is, assumed the risk of what? I think the plaintiff assumed the risk of what happened to your wife; that is, feeling sick, vomiting, dizziness, etc. -- Not death! I can just see the plaintiff's attorneys' theme for this case: "Disney says child assumed the risk of death."

Also, this just isn't a situation, for example, when somebody takes a hard fall running around on the moonwalk, in which case the plaintiff knows that he is going to fall down and can comprehend and assess the risks involved in taking a hard fall before he gets in it. So, if there was a warning sign outside the moonwalk that said, "You could get seriously injured from doing this, including the possibility of broken limbs, concussions etc.," and the person still voluntarily chooses to do it, then that person assumes the risk of the harmful effects from taking a hard fall. Another bad fact here for Disney is that, unlike the moonwalk, the customers can't witness the ride in operation while waiting in line and, thus, are not capable of making an informed and voluntary decision about how the ride operates. Furthermore, the warnings, arguably, are what make the ride even more enticing and attractive to people who love roller coaster rides!

But the warnings have nothing to do with the second claim -- that Disney was negligent in responding to the medical emergency -- which is a factual issue that will most likely survive a motion to dismiss. If this ride, in fact, has the capability to do exactly what Disney proclaims in its warnings, plaintiff has a pretty good argument that Disney breached its duty by not having a medical person to deal with the exact situation that Disney is warning about.

I agree with your sentiment about "child proofing" in this country, but this has absolutely nothing to do with child proofing. I also don't understand how the risk of heat stroke has any relevance here -- Did Disney make the sun and then charge people to absorb the sun's rays? This case has "settlement" written all over it.

Posted by: Rick Karcher | Jun 23, 2006 5:07:59 AM

Rick,

Thanks for the post.

On your first question, people die on roller coaster rides and other amusement attractions not due to defect or mechanical failure quite often; I would guess high single digits per year. Visit www.rideaccidents.com for a decidedly incomplete inventory of incidents going back quite a ways. Heart attacks, deaths due to pre-existing brain hemmorhages (sp?), etc., are relatively common. This outcome is *not* unusual, except that it happened at Disney.

On the warning issue, I actually think the park came pretty close to warning of the risk of death:

For safety you should be in good health, and free from high blood pressure, heart, back or neck problems, motion sickness or other conditions that can be aggravated by this adventure.

"Heart...problems" typically involve a risk of death. If they can be aggravated by the ride, it seems to me that there is a further risk of death. Certainly if someone knows of their condition, they should be aware that death can result from it being aggravated.

That said, I don't actually go down the warnings defense that much. I think they satisfied that obligation rather well, but as you note, that doesn't trump design. But I also think there's a tough problem on a design claim, because if you make this ride not do the things it does, it's not this ride any more, and this ride is appealing and safe for the vast majority of riders who comply with the warning signs.

All of that, of course, doesn't consider the allegation of a failure to respond. As I said in my original post, I don't know anything about the facts related to it. And if it's got legs, it's a tough claim for Disney (and one they presumably can't win on SJ).

Posted by: Bill Childs | Jun 23, 2006 5:34:35 AM

Bill,

I went to the website you suggested, but from a quick review and maybe I just overlooked it, each one of the incidents cited (except for Mission Space) involved a mechanical defect or failure. But even if somebody dies from heart failure after riding the typical roller coaster, it's easier to say that the rider assumed the risk because the rider "knows what he's getting into" on a typical roller coaster. I think Mission Space is distinguishable that way.

Also, I disagree with you on the impact/effect of the warning language for Mission Space. That's typical language of any high speed amusement park ride and does not say "death" and does not put death into the mind of the reader. If it said death, do you think as many people would ride it?

Just for the record, I don't have anything against Disney. But I do think we have to acknowledge, from purely a legal standpoint, that this is atypical from the standard amusement park incident.

Posted by: Rick Karcher | Jun 23, 2006 6:04:41 AM

Rick,

You're right; RideAccidents.com wasn't the right place to direct you. I thought it had more of the non-defect listings than it does.

A better source: If you scroll down at SaferParks.org, you'll see a couple of relevant pieces, one noting the likely impact of coasters on heart issues, and this one (the original of which does not appear to be available online):

CDC Researchers Publish Roller Coaster Fatality Study
In October, 2005 Injury Prevention published "Roller coaster related fatalities, United States, 1994-2004", describing a study conducted by Drs. Pelletier and Gilchrist from the Centers for Disease Control and Prevention. The researchers identified 40 deaths related to roller coasters over the 10-year period. 37 of the 40 deaths occurred on roller coasters at fixed sites. 22 of the deaths were caused by injuries from falls or collisions. Half of these were patrons, half employees. 18 people, 14 of whom were women, died from medical conditions that might have been caused or exacerbated by riding a roller coaster.

Approximately half of the deaths they studied (which is not, of course, the full number of deaths that occurred), then, related to medical conditions, not defects or mechanical failures. I believe there are likely more deaths like that that go unreported, because it's not related to a typical defect (unless it's a design defect to create those thrills).

Additionally, if you use SaferParks.org's database (and you should note its limitations and caveats, of course), you'll see quite a number of medical condition-related incidents -- heart attacks, arrhythmias, etc.

On the warnings issue, I think the full impact of the warnings at Mission: Space are substantially more likely to inform a patron of the risk of death than those of a typical ride. At a typical ride, that language would be all you get; there, it's much more. Additionally, if you have (for example) a heart condition, that warning language should make you recognize the risk of death even if it's the only sign -- say, if you're just riding a coaster at your local park. Do the warnings actually change conduct? Very little, of course, but that's true in all warnings defect issues, as you know, and that doesn't make the warnings necessarily defective.

Would it have as many riders if it warned of death explicitly? Quite possibly, actually. There is anecdotal evidence (not at Disney, and I'm frankly not convinced yet) that ridership on some rides goes up after a high-profile accident or death. I'm inclined to think it would impact ridership negatively, but that doesn't mean the warning should be there, either.

As for whether the patrons know what will be happening, my recollection is that the pre-ride video shows and describes the actions in some detail. It's not the same as seeing it firsthand, and I agree that it may represent a problem for Disney.

Also just for the record, I don't actually have anything for Disney or for the industry more generally. But this is not atypical as an incident. It just typically doesn't get the attention.

Posted by: Bill Childs | Jun 23, 2006 6:29:02 AM

Bill,

Let me give you another example. If somebody died in the moonwalk as a result of getting kicked in the temple, Disney arguably wins that case (regardless of whether or not a warning sign warned of possible death), because getting kicked in the temple is something that the customer understands could happen.

To put it another way, if a Disney employee told the people in line at the moonwalk, "I want you to be aware that you could be struck very hard by another person in the moonwalk, which could result in a concussion or possibly death." This wouldn't really deter that many people, because they can calculate the risk involved and they basically know that anyways. When a similar warning at Mission Space is given in the context of a ride that involves "motion, gravitational pull, blah, blah, blah," people are not necessarily going to make the connection that this ride is dangerous -- especially when they have no idea what it is that Disney is even describing, which makes them anxious to find out what the ride does. These people in line for Mission Space just got off Tower of Terror and Aerosmith, and had a blast and experienced no problems. It would be interesting to know whether the child and woman that died on Mission Space had ridden other high speed roller coasters without incident whatsoever.

Posted by: Rick Karcher | Jun 23, 2006 6:30:36 AM

Rick,

It's a great question. Since I'm just going from what I've seen of the warnings at Mission: Space, it's hard for me to answer it in a lot of detail, but my view is that people getting on the ride do have a pretty good sense of what they're getting on. But I of course recognize that I'm coming to it with quite a few years of following the industry, a law degree, etc., and so it's hard for me to predict how others see it. To me, the warnings are pretty close to the equivalent of "You could be struck by someone else on the moonwalk" warning.

Just out of curiosity, have you watched the video I linked to? (or been on the ride?)

Posted by: Bill Childs | Jun 23, 2006 6:43:19 AM

Incidentally, while I suppose it would be interesting, the question of whether they'd ridden other coasters, etc., doesn't make that much of a difference, evidence-wise, in the end, at least to the extent I understand the medical science. Each time they do something that increases heart rate, etc., they're increasing their risk from some small percentage of chance of death to a larger (but still small) percentage of chance of death.

Posted by: Bill Childs | Jun 23, 2006 7:08:22 AM

o.k. I just watched the video. To the extent the video is trying to portray and adequately explain that it's more unique and intense than the typical ride, the problem is that the experience of the ride is "unknown" to the prospective rider, which makes it all the more intriguing. There's obviously more to this ride than just spinning around in a circle, and people want to know why (and Disney knows it). Just read Elvin's quote: "The first time, my wife (not much of a complainer) experienced rather severe dizziness after riding, and had to sit for 20 minutes after the ride. She had never had a problem before riding a host of rather wild roller coasters or rides."

I have been there, and have not ridden it, but my wife and kid have. You see people all the time outside the exit lying on benches recouperating, much more than you would see with a typical roller coaster ride. So I guess the question is, what should Disney do with this information, not to mention the fact that two people have now died? Does it tend to suggest that people with borderline heart problems, or who are unaware of heart conditions, are more likely to experience severe injury or death from this ride vs. the typical roller coaster ride? I think it shows that the risk of harm is much higher with this ride. If the answer is that the social value of having one more ride at Disney outweighs this high risk of harm, then I guess Disney can keep doing it. How many people need to die on this one particular ride before we decide that the risk of harm outweighs the value of the ride?


Posted by: Rick Karcher | Jun 23, 2006 7:44:38 AM

Additionally, it is, I think, fair to say that patrons of a carnival likely expect more intense thrills than those at a Disney park

This statement indicates ignorance of the industry and a denial of basic economics. What is the economic transaction here? It's money in exchange for thrills. The average carnival has no gate fee and charges around a dollar to ride one of its dozen or fewer rides. Given the prices at Disney parks, anyone who isn't expecting more intense thrills for the additional money is a probably such an unwise consumer they could never afford to go to a Disney park. The large theme parks like Disney are the only players in the market with the resources to compete in the intensity of thrills race.

Now, if you said that carnival patrons have a higher expectation of unsafe rides and getting injured/killed, that would be more accurate.

Posted by: dweeb | Jun 23, 2006 8:47:07 AM

It may suggest a negative risk-utility or a greater risk than other rides, or it may not. This may be partially an unfortunate statistical coincidence combined with (a) many more riders than most rides receive and (b) the different nature of Disney riders versus county fair, Islands of Adventure, etc., riders. That's not criticizing the Disney population -- just a function of the park not largely being thrillseeker-oriented.

I am glad that they're offering a non-spinning version, though I imagine that does take out much of the ride experience. (And it really is essentially just spinning around, with the cars rotating and tilting. Somewhere on the web there exists a video of the ride in operation from a non-public area where you can see the full movement of the ride vehicles.) Perhaps it needs to have a separate process along the lines of ski resorts with more than just signs, but a very specific disclosure and waiver. That would almost certainly impact ridership, but that's not necessarily a bad thing, since it's clear that people who, according to the signs, shouldn't be riding are riding.

While the warning question does not trump the design question, the warnings are considered part of the design question. I understand the criticisms of the warnings, but also have sympathy (obviously) for the notion that the warnings, the people lying on benches recuperating, etc., should give people some pause before getting on the ride.

In any event, it will be interesting to watch. If it doesn't settle, I certainly agree that the response claim can likely survive summary judgment and the other claims may well too...

Posted by: Bill Childs | Jun 23, 2006 9:00:26 AM

Dweeb,

The economic exchange is not for thrills, it is for various forms of escape. Disney's escape has not traditionally been thrill rides. Their escape to market has been incredible theming and overall ride experience. Certainly the major parks have the money to invest in larger and flashier rides; but the carnivals can make their rides go faster, because their market's escape is speed and intensity, not immersion in a theme.

Carnival rides often exert greater graviational forces and run faster, especially on flat rides, than the fixed-site park equivalents. They don't have the height or the speed on their coasters, but the flats are run more intensely. Their market is more people looking for those forces rather than families. Market research indicates that families are not looking for the intense ride cycles.

Now, that's on average. Certain fixed-site parks run the intense cycles; the concessions at Coney Island are one example of that. But many, many flat rides on the carnival circuit exert greater forces than the large theme parks.

Posted by: Bill Childs | Jun 23, 2006 9:08:10 AM

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