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As one of the most popular tourist destinations in the United States, it should be no surprise that Sevier County is a favored location for various types of thrilling attractions such as roller coasters, alpine slides, mountain coasters and bumper-to-bumper traffic. In fact, Sevier County has 173 amusement park rides and plays host to the vast majority of amusement rides located in the State of Tennessee. So, who makes sure these amusement park rides are safe? Before we get into how Tennessee regulates (or doesn’t) the safety of these rides, it’s important to look at a little history.
Despite the fact that Congress has the power to regulate anything that takes place on American soil that even indirectly affects commerce, amusement parks are immune to federal investigation and are not subject to federal regulation. The Consumer Product Safety Commission lost its power to oversee parks in 1981, when Congress passed its so-called “roller coaster loophole.” The legislation said fixed site amusement parks—the kind at one permanent location—do not count as consumer products, and therefore are not the federal government’s business. The Consumer Product Safety Commission is only authorized to investigate inflatable rides and so-called “mobile parks,” such as small fairs and carnivals that pop up for a few days. This is, of course, nothing more than a fancy way of saying that the amusement industry donated enough money to political campaigns to convince Congress to de-regulate the industry and keep it that way, but what it means for you as a potential accident victim is that amusement park rides are regulated state by state, with no federal agency responsible for setting or enforcing uniform safety standards.
So how are amusement park rides regulated in Tennessee?
The Tennessee Department of Labor and Workforce Development (TDLWD) is responsible for overseeing amusement devices throughout the state. However, the Tennessee Department of Labor and Workforce Development has decided that the amount of oversight it actually provides will be minimal. Tennessee is one of about 10 states that have almost no state oversight of amusement attractions, preferring instead to leave inspections up to private inspectors who are paid and hired by the amusement park ride owners themselves. Rather than having a neutral inspector who works for a government agency come in to inspect the amusement and ensure its safety for the guests who ride it, Tennessee law allows amusement device owners and operators to hire their own inspectors to perform annual inspections, and to also inspect rides after someone is seriously injured. Simply put, after you are injured on an amusement ride in the State of Tennessee, the law allows the amusement park or business that injured you to pay its own inspector to come by and say the ride was safe for your use, despite the fact that it caused injury to you, and help the amusement park avoid liability for your injuries.
So what qualifications do third-party inspectors of amusement rides have to have in Tennessee?
Third-party inspectors must be certified by one of three certifying agencies: (1) the National Association of Amusement Ride Safety Officials (NAARSO), (2) the Amusement Industry Manufacturing and Suppliers (AIMS), and (3) the Association for Challenged Course Technology (ACCT). All third-party inspectors are supposed to apply the latest version of the American Society for Testing and Materials (ASTM) standard to Tennessee inspections.
According to the NAARSO website, applicants must meet the following requirements:
- Have 3 years of employment within the past 5 years in the design, manufacture, repair, operation or inspection of amusement rides and devices. Or a high school diploma (or the equivalent), plus 1 year employment within the past 3 years in the design, manufacture, repair, operation or inspection of amusement rides and devices. Applicant must provide verification from employer, or a qualified sponsor, that all information provided is true and correct.
- Be able to read, write, and comprehend the English language.
- Pass a written exam which shall cover general basic knowledge, mechanical, electrical, hydraulic, and ride safety knowledge.
- With each renewal application (every two years), provide evidence of appropriate hours of training or education units prior to March 31 of the year of certification expiration. Within the past two years, the applicant must have acquired 32 hours of formal training, which shall consist of amusement ride seminars, conferences, and/or local training on related subjects such as welding, hydraulic, electrical or mechanical systems. Failure to submit required evidence could result in the delay or revocation of a certification. NAARSO shall maintain a file on each member and retain copies of all training documentation. The applicant must attain a minimum grade of 75% in each section of the examination to become certified.
NAARSO makes it clear that an inspector’s certification only signifies that the holder has met certain requirements as set forth in the National Association of Amusement Ride Safety Officials rules. NAARSO neither employs nor supervises the commission holder. Proper performance of the inspection duties assigned to an inspector is the sole responsibility of the inspector’s employer.
So, who exactly do these third-party inspectors in Tennessee work for? According to the list of qualified inspectors on the State of Tennessee government’s website, inspectors are employed by Dollywood and The Island in Pigeon Forge, just to name a couple. Essentially, these “inspectors” spend years working on behalf of amusement parks and businesses, where they are trained by the parks themselves as to how to perform the inspections. Then, when someone is injured on an amusement, the park calls the “inspector” in to use the training they have provided them in order to certify that the amusement is still safe for use.
From July 1, 2016, to August 4, 2016, there were four incidents of serious injuries occurring on amusement park rides in Tennessee. In response, there was a public outcry for stricter safety regulations, which led to a brief effort by the state to oversee third-party inspections of amusement park rides. The state hired a safety compliance officer for each main region of Tennessee—East, Middle and West. According to Kim Jefferson, Assistant Commissioner for the TDLWD Workplace Regulations and Compliance Division, Safety consultants will be placed throughout the State. We’ll have one in each grand division, and those people will provide oversight to third-party inspectors that will continue to service the entire state, because, of course, three people are not sufficient to inspect all the amusement devices throughout the state of Tennessee. (Tennessee Elevator and Amusement Safety Board Meeting Minutes.)
Oddly enough, these safety compliance officers hired by the state to oversee the third-party inspections were not required to be certified by NAARSO, AIMS or the ACCT.
Even that minimal effort—hiring three uncertified safety compliance officers for the whole state—proved too much. Because of a lack of funding, the three safety compliance officer positions were eliminated, and third-party inspections are now back to being regulated by the amusement ride owners without oversight from the state. When an amusement says “ride at your own risk,” such is true in the purest sense of the phrase, as nobody from any governmental or regulatory entity is ensuring your safety once you buckle in.
The existence of a duty owed to a plaintiff by a defendant in a Tennessee personal injury case is a necessary ingredient in every negligence action.
The existence and scope of a defendant’s duty are questions of law to be determined by the court (Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 [Tenn. 2000]).
In Tennessee, business owners are held only to an ordinary duty of care in premise liability actions. However, if the defendant is an amusement ride operator in Tennessee, then the defendant will be held to the heightened standard of care that common carriers owe to their passengers (Lyons v. Wagers, 55 Tenn. App. 667, 675, 404 S.W.2d 270, 274 [1966]).
An amusement park operator is subject to a heightened standard of care in Tennessee, which is the standard that is applied to common carriers who have full physical control over their passengers for a time. The operator of an amusement ride owes his patrons the same degree of care owed by a common carrier to its passengers, which the Tennessee Court of Appeals has held is “the highest degree of care—that care which the most prudent man would be expected to exercise under circumstances similar to those shown in evidence, in the design, construction, maintenance, inspection, and repair of his vehicle and its approaches and exits. The rationale underlying the heightened standard of care is that unusual risks are inherent in mechanical amusement park rides and, therefore, that amusement ride operators should make their rides as safe as possible with proper inspection, maintenance and repair.” Tennessee State Fair Ass’n v. Hartman, 134 Tenn. at 163, 183 S.W. at 736; Lyons v. Wagers, 55 Tenn. App. at 676, 404 S.W.2d at 274; Banner v. Winton, 28 Tenn. App. at 73, 186 S.W.2d at 223.
The Tennessee Court of Appeals has also held that common carriers are bound to the utmost diligence which human skill and foresight can effect, and if injury occurs by reason of the slightest omission in regard to the highest perfection of all the appliances of transportation…the carrier is responsible (Louisville & Nashville R.R. Co. v. Hutcherson, 8 Tenn. App. 235, 1928 WL 2015, at *6 [Tenn. Ct. App. 1928]).
Under the heightened standard of care applicable to amusement ride operators, evidence of mere compliance with safety regulations does not relieve one of tort liability for failure to exercise the highest degree of care (City of Elizabethton v. Sluder, 534 S.W.2d 115, 117 [Tenn. 1976]).
This heightened duty not only applies when an individual is actually riding on an amusement device, but also when they are entering or exiting the amusement device (Schindler v. Southern Coach Lines, 217 S.W.2d 775 [Tenn. 1949] at 779). In Schindler, the plaintiff was injured when she was attempting to enter a bus. The plaintiff was hurrying to catch a bus and the doors were closed. She requested that they be opened. The bus driver opened the doors but when they opened they knocked the plaintiff to the ground, causing serious injury. The plaintiff alleged that the bus driver had a duty to make certain that she would not be hit by the bus doors as they opened and that the bus driver’s failure to perform this duty resulted in the plaintiff’s injuries. The Tennessee Supreme Court held: the defendant owed to the plaintiff the highest degree of care for her safety consistent with the general practical conduct of its business (Greyhound Lines, Inc. v. Patterson, 14 Tenn. App. 651, 656, 657; Tennessee Coach Co. v. Young, [80 S.W.2d 107]). ‘There would seem to be general accord upon the proposition that the same high degree of care is required of the carrier as to passengers when entering or leaving the vehicle as when being transported therein.’ ([10 Am. Jur. § 1348, 924], Id. at 779).
Our award-winning Amusement Park Accident Attorneys at Green, Waters Ogle and McCarter have successfully litigated amusement park cases throughout East Tennessee, and we would love to help you navigate your injury case.
