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 SaferParks.org 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.