Is the Fox Guarding the Henhouse When it Comes to Safety at Traveling Carnivals?
The American traveling carnival was born from the reckless entrepreneurship at the turn of the 20th century with traveling medicine shows and circus midways and has since evolved into the highlight of summer in many American towns.
Traveling carnivals have become big business. There are many traveling carnival companies with many different companies operating the amusements and midways at traveling carnivals. Unfortunately the safety of traveling rides varies from state to state. It is intrinsic to the appeal of carnival attractions that patrons trust that they are in no actual jeopardy for their safety. Yet in the case of traveling carnivals, it is often difficult, if not impossible, for patrons to evaluate the actual safety level. It is estimated that close to 2 billion riders will entertain themselves on the amusement attractions in America each year. The question arises as to who makes sure that traveling amusement rides and rentals are properly maintained, set up, and operated?
Lack of Federal Regulations may put your Safety at Risk
Unfortunately the answer depends on what state you are in as there are no federal regulations or oversight on how the rides are set up, maintained, or operated. That job is left to the individual states and the rules vary widely. Many states have no regulations on carnival rides whatsoever and leave oversight to the private sector. There have been spates of accidents involving carnival rides and with particularity inflatable rides which have prompted calls for tighter regulation across the United States. To date very little or nothing has been done to resolve this important concern.
In 1981, Congress limited the authority of the Consumer Product Safety Commission (CPSC) to monitor rides “not permanently fixed to a site”. In just a few sentences in a 600 page agricultural bill, Congress deregulated the $10 billion dollar amusement park industry without insuring that state or local governments would fill the gap.
Often times, ride manufacturers, owners, operators, and insurers may handle safety as they choose and often have the right to keep such safety information private. It is estimated that less than 7% of all carnivals or facilities provide injury or accident data. Yet despite this minimal data reporting, it was estimated that carnival accident injuries are rising 11 to 12% each year with approximately 5% of the injuries in the serious to catastrophic category requiring hospitalization. More than likely the actual figures far exceed these numbers.
While the International Association of Amusement Parks and Attractions (IAAPA), a trade association for fixed amusement parks representing more than 4,000 facilities, suppliers, and individuals from more than 90 countries including parks and attractions in the United States contends there is no safer form of recreation and advocate the regulation of safety by “self-policing”, many traveling fairs and carnivals around the nation are not within the IAAPA umbrella.
Has that Carnival Ride been Inspected?
Although many states issue amusement and carnival permits, in fact a state employee may never inspect the amusement machinery at carnivals. Instead they leave it to the insurance company for the ride operators or owners to give each ride a “look over” by a person who may not be properly trained or possess the necessary qualifications. There has been a continuous debate in the amusement industry concerning the safety of fixed site amusement parks and carnivals. Namely, fixed site amusement parks routinely claim to be safer than traveling carnivals because they do not move the amusement ride on a regular basis requiring the constant assembly and disassembly of the machinery. Carnival owners and operators claim they are safer than fixed site amusement parks because of the regular assembly and disassembly of the ride and the constant inspection.
One issue that remains and is seldom addressed is that when carnivals assemble and disassemble the rides, it is often done by unskilled laborers who are frequently turned-over. Many times temporary day laborers are employed and since they do not travel with the carnival, they have very little training, and do not possess a level of expertise as employees of fixed park amusements. Typically, the assembly and disassembly is guided by a foreman who travels with the show and directs temporary local workers or laborers. Many times there is little regulation other than the laborers are given a 15 to 20 minute spiel. Many carnivals hire people from foreign countries on a part-time basis with minimal education or lack of understanding the English language and there are often communication issues that arise if there is a problem.
In some states, where the regulations are stricter than others, inspectors may inspect each setup or delegate a daily inspection to the owner and operator. However, if no one is supervising or checking the owner or operator, there are really no sites checks and balances.
Is the Fox Guarding the Hen House in the Amusements Industry?
A recent review of the website of a large American carnival ride operator indicated that the carnival amusement operator was founded in the 1920’s, operating in 10 states with over 50 rides. The carnival operator took pride in “operating safety” and stressed that the carnival was evaluated by a quality assessment team that met regular standards required for the “entry into the prestigious circle of excellence”. Interestingly enough further background investigation revealed that the national trade group was founded by the President of the same carnival. This scenario suspiciously made me think of the “fox guarding the hen house.”
In at least 6 states in America, the laws and regulations are relatively silent with regard to safety regulations. Montana regulations state that the Legislature finds that:
- amusement rides are used by a large number of Montana citizens and attract a large base of non-residents, significantly contributing to Montana’s tourism industry and tax base;
- the safety of the public using American rides is an important matter of public policy;
- there are inherent risks associated with the machinery, equipment, or animals that are impractical or impossible for an amusement ride owner or operator to eliminate with all reasonable safety precautions;
- an informed patron is in the best position to avoid the risks inherent to amusement rides; and
- the safety of amusement rides will be greatly improved at minimal cost if riders are subject to minimal safety standards for their own protection and the protection of others.
Basically, these regulations seem to assert the position that if injured on an amusement ride, the victim assumes the risk and that he or she has recognized the dangers inherent in the activity.
The public has little information or data to assess the safety level of amusement activities. Many times carnivals set up individual thrill rides and maintenance companies and independent corporations to forestall litigation. As these rides are often operated in varied weather conditions such as coastal shore environments, the ravages of weather, sea spray, and salt air can corrode metal and may affect electrical components and safety.
Understanding How Carnivals Explain Away Accidents
A common defense after an amusement accident is for the carnival operator or park to argue that local inspectors found no flaws and tell jurors about the carnival or parks “unblemished” safety record and emphasize charitable relationships and the entertainment value brought to the community.
Many times, the rides are operated by part-time summer help normally high school or college students. In many cases, carnivals hire foreign exchange students with rudimentary English skills to work at or below minimum wages. You can imagine that many of the young workers operating these rides have insufficient experience or training and often succumb to distractions such as chatting or texting on cell phones at the expense of safety checks or warnings.
In almost every amusement park or carnival accident case that our firm has litigated, the defendant has asserted that the victim assumed the risk and the he or she recognized the dangers inherent in the activity. Riders are imputed to understand that there are some risks involved in amusement parks. However, this defense requires that the victim know about the injury causing defect and appreciate the resultant risk. One cannot assume concealed risks or those of which he or she is unaware. The risks must be known to fully comprehend or perfectly obvious to plaintiff.
Many carnivals seem to focus more on profitability than safety and until state and federal governments close existing safety loopholes and properly address the current patchwork of regulations, it will be left to lawyers to protect the rights of individuals who seek fun not misery when they visit carnivals.