TortsProf Blog

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Widener Commonwealth Law School

Tuesday, January 9, 2007

Statutes of Repose

A while back, I posted about a carnival ride called the Sizzler.  There have been a few incidents, including one in 2005 in Austin, Texas, where young riders have been thrown from the ride and injured or killed when they have failed to keep themselves in the designated seating position.  In addition to being tragic, they're interesting cases in how they raise issues of comparative fault in the context of young riders and their parents, of design obligations as to foreseeable misconduct, and so on.

But, as Kathy Fackler of points out to me in an e-mail, no court will evaluate those questions, at least as to that rider and that ride. 

You see, the ride is over fifteen years old.  And part of Texas's 2003 tort reform legislation creates a limitations period [PDF] of fifteen years from the date of sale of the product by the defendant.

Perhaps that's okay in the big picture.  But it's worth considering the impact in small pictures too.  I think most people looking at the design of the ride and the height restriction issues would concede that there's at least enough evidence of design defect to get to a jury.  (The manual describes the ride on the one hand as being appropriate for 11 year olds to ride alone, but then permits people who are 52" or up to ride alone.  The average 52" person is significantly younger than 11.) 

There's probably also a claim for negligent operation, even with the apparent fact that the operator followed the instructions (mostly).  Given the history, one could no doubt argue that the height restrictions in the manual were comparable to the absent radios in TJ Hooper.

But carnival operators are, as a group, generally very low-assets (many rides are leased or heavily leveraged) and most states' insurance requirements are relatively low (I believe Texas requires $1 million, which isn't pocket change, but still).

And, as I noted, this isn't the first time something like this has happened.  It's not an annual occurrence, I don't think, but without mandatory reporting, it's hard to be sure.

So there are dozens or hundreds of Sizzlers in operation (it is, I have read, the most popular carnival ride in existence), with the same restraint system.  But due solely to its age, its manufacturer is immune from suit, and the operators will generally be effectively immune from suit.  Where's the appropriate deterrence and motivation to (for instance) urge ride owners to update the restraints?

Again, perhaps that's a fine outcome in the end -- there are lots of good reasons to at least consider giving manufacturers some date certain after which no claims will be brought.  But if you're looking for a good basis for pushing students to consider the issue more carefully, it might be worth thinking about.

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If the Sizzler is really defective, shouldn't that defect have resulted in some injuries during the first 15 years it was in use at each park? (Which would have resulted in lawsuits and, presumably, the Sizzler being shut down for fear of more such lawsuits.)

If no one gets injured on a Sizzler that is less than 15 years old, maybe the fault lies not with the Sizzler but with park operators who don't maintain it. (Nothing in the Texas law would bar such a suit against the park owner for failure to maintain; only the manufacturer gets the benefit of the 15-year statute of repose.)

Now, maybe the operator is only good for $1 million, but why should the manufacturer be liable for something that's not its fault?

Posted by: Elliot | Jan 17, 2007 11:22:06 AM

I of course agree that the manufacturer should not be liable for something that is not its fault. That's not just based on my practice experience as a defense lawyer, but as a matter of fundamental tort law. Here's why I think that's not what's happening here.

Certainly, you would expect such incidents to take place earlier in the product's life as well, and indeed those incidents (as I understand it) took place, though not, for reasons I believe to be just good fortune, with deaths that I know of prior to 1997 or so. One problem is that the height restrictions were changed over time (as I understand it, with the manufacturer's blessing) to allow smaller children to ride, and so, no big surprise, more incidents occurred after that time period.

To give you a purely anecdotal and thus perhaps useless view, you can see a sampling of accident reports at, but note that the database doesn't go back terribly far. reflects a very similar death in 1997, which brings you back ten years, and probably just about fifteen years at most from manufacture, since I think the Sizzler was first built in its present incarnation in around 1980. I believe there was a lawsuit and settlement, and the rides kept operating.

You certainly can't leap from earlier lawsuits existing to the same lawsuits "presumably . . . shut[ting] down" the ride. Many companies continue selling products alleged to be defective. It can be entirely appropriate. Manufacturers are often sued for products they believe are nondefective and appropriately leave the products on the market. Conversely, manufacturers may leave products on the market, even when they believe them to be defective, because the profits outweigh the litigation costs. If they know there's a time window beyond which the litigation costs will be zero (because of a statute of repose), it makes even more sense.

As for the maintenance issue, the potential defect I'm talking about here is entirely separate from maintenance. The death on a Sizzler here in Massachusetts a couple of years ago resulted from maintenance issues.

Not so these deaths. The deaths I'm talking about here are caused -- if there's a defect at all -- by a design defect, a restraint that doesn't restrain people who are not sitting down as expected. It's easy to characterize that as rider error except when you remember that the riders are little kids. You could recharacterize it as negligence by the operator ("You should have modified the restraint, etc."), but I think it's better put at the feet of the manufacturer.

It very well may be that a jury would not conclude that it's a defective design. With a greater height restriction, I would certainly conclude that it's not. But a Texas jury won't make that determination because of the statute of repose. As I noted above, that can be a justifiable policy outcome, but it's worth making sure we understand the implications of it.


Posted by: Bill Childs | Jan 17, 2007 1:30:34 PM

It occurs to me that, on the particular question of carnival rides, we should also consider the different physical characteristics of today's riders. After all, we're told that this generation of kids is bigger, taller and heavier than any before. A ride designed for young people of the 1950s (the Sizzler was patented in 1963, I believe) probably made different assumptions about height, weight and (perhaps most importantly) weight distribution of riders.

Posted by: Wes Morgan | Jun 16, 2007 9:36:44 AM

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