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Tuesday, June 3, 2008

Kentucky Kingdom: "Lessons Learned"

Kathy Fackler of SaferParks.org has an editorial about what she sees as the lessons learned from the Six Flags Kentucky Kingdom accident and the regulatory implications. Even if you're not interested in amusement safety as such, it's a good example to think about. My initial post about the report is here.

--BC

http://lawprofessors.typepad.com/tortsprof/2008/06/kentucky-kingdo.html

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Comments

Ms. Fackler's gross opportunism has reached new levels of egregiousness with this quote: "Over the last 27 years, an awful lot of children have suffered as a result of Marriott’s clever lobbying. Kaitlyn is simply the latest, and an especially poignant case. When is enough enough? How many more children will it take?"

Oh really, Kathy. Are you suggesting that having a federally-administered injury database would have prevented this tragedy? After all, that is the endgame for your (and Rep. Markey's efforts) isn't it?

To establish a federal database.

Or, maybe you both seek more. Maybe your real goal is to federalize inspections themselves. If that's the case then what empirical data do you rely upon to support the idea that federalizing fixed-site inspections would improve their safety. After all, the federal government currently has inspection authority over mobile rides and I've yet to see how that authority has mitigated accidents.

Plus, you do realize that the proposed appropriation for this bill is less than 1 million dollars, right? This would barely be enough to develop and administer the aforementioned database much less an entire inspection regimen.

Ms. Fackler, might I suggest that you embrace specificity, accuracy, and clarity to define your specific goals in federalizing fixed-site safety regulation. That would seem a much more worthy approach that political opportunism of one teen's tragic injuries.

Posted by: Chad Emerson | Jun 3, 2008 6:28:51 AM

I think there's a lot that a federal program could do between the database (which is the likely first step) and full federal inspections. A federal agency could (for example) set a floor for state inspection programs; could provide a federal library of up to date manuals; could impose a minimum age for operators. Any one of those could conceivably have made a difference here, and could all be done at relatively little cost -- far less than the straw man of federal inspections of every ride at every park.

On just one of those possibilities: While it's all a matter of probabilities, it is I think reasonable to read the report and conclude that an operator a couple of years older may well have hit that button faster (as all trainings, I'm sure, say to do). That report suggests that if that had happened, Katie would have escaped with cuts and bruises.

Posted by: Bill Childs | Jun 3, 2008 9:19:15 AM

I agree with Bill's comments. There is a lot CPSC could do from the top to assist the states and local governments in overseeing the safety of amusement rides (fixed and portable), and it doesn't have to cost a lot. A centralized technical library would help. A data collection and exchange system for ride safety information would help. National minimum standards would help, even if they're simply a recommendation from federal safety experts. The ASTM standards are a good baseline, but some key issues have proven difficult to address solely through F-24. Consensus standards can only deal effectively with safety issues on which the industry has established consensus. Federal regulators help by holding out the stick of federal rulemaking if the industry fails to develop a sufficient consensus standard. That stick is missing on the F-24 committee.

CPSC has a variety of in-house technical experts (e.g., human factors, child development, epidemiology, physiology) that aren't available in even in the best state programs. I'd like to see the CPSC's engineering talent used to mentor and supplement local inspectors in states that cannot justify expensive ride safety programs. I don't know what specifically this would look like, but I surely don't envision CPSC replacing the state/local inspection programs. I never have. I see CPSC watching the larger picture, centralizing resources, investigating major accidents, educating consumers about issues they have control over, and working toward some baseline uniformity for the sake of business and consumers.

This doesn't have to cost a lot, although it'll probably take a bit more than Rep. Markey is asking for. CPSC just got a significant funding bump, with more scheduled to follow. It is not unreasonable to carve out, say $2 million a year, to work towards those goals. They'd need to develop a different data collection scheme for this, but that's not an expensive proposition. Use the same model currently used by the FAA to collect data on household pets injured on commercial airplanes. I built a free online database of government accident reports and a consumer website for peanuts. There aren't that many major amusement park accidents in a given year, so the cost of investigation shouldn't spiral out of control. Set a test period of 3-5 years, a budget of $2 million a year, and see what CPSC can do with it. Require them report back to Congress at the end of the test period and justify an extension.

I think those few changes would improve the system as a whole. It doesn't step on the states' toes. The only real overlap is investigation of major accidents in states that have government investigation. States are often looking at a much more limited scope during their investigations. Some don't investigate at all unless the machine broke. Others stop once they determine who was to blame. CPSC looks at the whole enchilada. If patron error was the cause, then CPSC is the gang you want investigating because their agency is tasked with educating consumers about known hazards.

Those are some of my specific thoughts. Chad's beliefs about my motivations are simply his beliefs, and he's entitled to them. I agree that my editorial did get a bit melodramatic at the very end. These victims touch me deeply. Each child reminds me of what my own child lost. I carry them with me in a certain sense, and it’s getting pretty crowded after ten years. I continue to correspond with a number of the parents, so I'm able to see the long-term consequences of these accidents. The burden of injury, it's called. I do believe that children have suffered as a result of the federal exemption. When accidents are allowed to pass without independent investigation and public reports, the underlying safety issues are less likely to be effectively mitigated. This isn't always the case, but I believe it oftentimes is. I don’t think there is any justification for letting companies, and sometimes state agencies, bury the full story behind serious safety incidents. In any case, I did remove the last two lines of hyperbole.

Posted by: Kathy Fackler | Jun 3, 2008 2:06:26 PM

We simply have a fundamental disagreement on the efficacy of federal regulatory oversight (likely in general and certainly in this specific instance).

You are correct that the CPSC certainly has some talented staff members. However, even with the supplemental funding, the agency's regulatory scope is so broad that it is overburdened with its current assignments.

To add increased oversight without a fundamentally increased appropriation will simply further burden an overburdened system.

Which brings me to my most basic critique: you believe that CPSC oversight would mitigate injuries at fixed-site parks. But, you do not address the reality that injuries (many significant and even deadly) continue to occur at the mobile attractions for which the agency has current authority.

What about the CPSC's current regulation of mobile attractions gives you any reason that their performance has increased safety and would do so for fixed site attractions?

I don't see anything, personally.

If the CPSC had a high success rate with mobile attractions, then I'd give the proposal of expanding their authority more credence. However, their mobile ride oversight has not reached that level. Even anecdotally, the number and regularity of Sizzler incidents makes that clear.

Posted by: Chad Emerson | Jun 11, 2008 6:23:05 AM

We don't really have a basis either way to say that the CPSC has succeeded or failed with mobile rides. The situations are sufficiently different that there's no foundation for comparing rates of fixed-site and portable rides -- even if there were data (reliable transparent data) about the rate of accidents in either or both contexts. Which, of course, there's not. State inspectors state that they've found the CPSC people helpful, but that's really all we have to go from. If there are data out there that shows anything more, I haven't seen them.

We can say that the CPSC is generally underfunded and, for seven years, has been part of an administration that is not what I'd call aggressive in its approach to regulatory matters. (There are exceptions, of course.) The Markey bill would at least provide a modest increase in funding, and it could trigger a more serious look at doing more than they do now. It's not everything I would want, but it's a step.

I agree that the CPSC is overburdened. The solution to that is to properly fund it.

Posted by: Bill Childs | Jun 11, 2008 9:07:56 AM

The CPSC was the first agency I know of to document the child ejection hazard on the Sizzler, in their report on the Texas fatality published in 2006. Since Texas doesn't have a ride inspection program, that accident wouldn't have been investigated if it weren't for CPSC. The ride owner's report to the state was "Patron raised herself out of seat and was thrown out". CPSC's investigation included interviews with witnesses not employed by the carnival. They found that the girl had braced her feet on the upper side of the footwell rather than on the floor, a reasonable action given her smaller size. The bottom of her shoes were slippery, the gap between the lap bar and her lap was large, and the ride generates negative acceleration in the x-direction. Those were the factors that caused her to be ejected.

There's a wealth of information in that report to help with prevention. Parents can learn more about the anthropometric and dynamic force issues that increase risk for young children on certain rides. Industry can learn that children may find natural bracing points in places other than those intended by the designer. That accident and a non-fatal Sizzler child ejection that occurred shortly thereafter in California both highlighted a potential safety issue when children ride together. In both cases, the ejected rider was trying to keep from being pushed into the companion rider. The 9-yo girl in Texas braced her feet improperly and was ejected under the bar. The 5-yo girl in California was told by her seatmate: "get off, you're squishing me", so she stood up and was ejected from over the bar. Both reports documented an ejection hazard. Both added pressure toward a solution. Certainly California's authorities went farther by requiring an engineering review and mitigation, but the CPSC report added weight to their argument that the manufacturer's containment solution was inadequate. CA’s authorities took quite a bit of heat over their decision to challenge the manufacturer’s autonomy.

CPSC is not perfect. The erosion of their budget/staff/authority has had a negative impact on the safety of many products, not just carnival rides. Yet even in their weakened state, CPSC has been an important asset. I’ve worked with their technical staff and found them to be extraordinarily helpful. I’ve gained a better understanding through their reports – both accident investigation reports and research reports. Their studies on containment of children in other non-amusement products provide insight into the child reasoning behind containment accidents on kiddie rides.

I can’t prove that researching, documenting, and analyzing critical safety incidents reduces accident rates – for portables or fixed-site rides. It’s simply sound science to do so. The people using the machinery – whether operators, riders, or the parents of child riders – should know as much as they can about the known hazards on a particular ride so they can avoid choices and actions that may cause injury. Ride designers should know as much as they can about the safety histories of existing rides because it will help them build safer rides in the future. Industry cannot provide that kind of information. CPSC adds to the body of safety knowledge about portable amusement rides. They play a role different from that of state/local inspectors, and they play an especially crucial role in venues that have no government authority to perform a technical investigation of serious accidents. As long as consumers are at risk of injury on fixed-site rides, I believe CPSC should research, document, and analyze critical safety incidents on those rides as well.

Posted by: Kathy Fackler | Jun 11, 2008 5:04:38 PM

"We don't really have a basis either way to say that the CPSC has succeeded or failed with mobile rides." Bill, this is really a pretty dubious statement. Indeed, if this is really the case, then why should additional authority be given to an entity for which there is no baseline for determining whether it will be effective.

For that matter, what "reliable transparent data" do you or Kathy (or other federalization proponents) that fixed-ride regulation is insufficient as currently situated? I ask because I have not seen anything from you all beyond anecdotal evidence.

Quite simply, if there is "reliable transparent data" in support of restructuring fixed-ride regulations, then I believe everyone would welcome its presentation. However, to date, it has not been presented and, as the ones arguing for change, it would seem to be your burden to present reliable transparent data regarding why the current regulatory framework needs revamping.

Posted by: Chad Emerson | Jun 20, 2008 8:44:31 PM

My statement that you quoted was ambiguous; I intended it to anticipate your statements elsewhere that fixed site rides have a lower rate of accidents than carnival rides. Thanks for bringing the ambiguity to my attention. I did not intend to suggest that there's no basis for saying the CPSC has been effective in the mobile context, though I'd certainly prefer a better sense of the overall incidence rates of various types of injuries and causes. Kathy does a nice job describing what the CPSC has done in the mobile context, but I'd certainly agree that it's less than perfect. Perfect ought not to be allowed to be the enemy of good or better, though.

I don't know what "reliable transparent data" would even mean to support the concept of restructuring fixed-site ride incidents; it's a term that relates to comparing incident data, and your use of it in this context doesn't quite make sense to me. I can, however, point to incidents that should not have occurred and that federal oversight could plausibly have prevented -- SFKK, SFNE's S:ROS incident, etc. I can't tell you what the rate of accidents is on fixed site rides because there's no entity that collects those data that provides access to them. The term refers to the ability to have a real sense of what the risks are of the rides -- a sense we can't get now precisely because of the regulatory framework. For me, showing an ability to avoid avoidable injuries that are occurring is a pretty good basis for the change, as well as the ability to provide data to consumers, industry, and regulators that are not presently available.

Also, it's worth noting that giving the CPSC oversight would be restoring a power they previously had, treating generally similar actors similarly. Given that, I'm not sure it's entirely accurate to say that arguing for federal oversight is arguing for change. It's certainly a change from what it is now, but it's not like it's something that's been in place since time immemorial.

Posted by: Bill Childs | Jun 21, 2008 8:01:39 PM

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