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Are Coasters Common Carriers? · Apr 9, 11:33 AM

(Originally posted 4/9/05)

Disney is challenging a lower court’s ruling that California law mandates applying the common carrier standard of liability to amusement rides. This is a potentially big deal, as it would require “the utmost care and diligence” (the standard applied to things like planes, trains, etc.) rather than the familiar reasonable care of ordinary tort law.

The core question in deciding whether common carrier status should be assigned to amusement rides, it seems to me, is whether one focuses on the form or the function of the rides. By most definitions, amusement rides aren’t created as a transportation device (though query how such an argument would apply to park train rides, sky rides, and the like, that are frequently pitched as an easy way to get around the park).


Accordingly, if I were sitting down to write a common carrier statute, I probably would exclude amusement rides from it, along with various other things that might look like common carriers but really aren’t in the heartland of what the statute is trying to do. That’s probably trickier than it sounds—are (as one article references) the San Francisco cable cars for amusement or for transportation?


And again, what do you do with in-park transportation? Disney has a section of its Disneyland ride listing called Getting Around, featuring the monorail (two stops) (“Well, sir, there’s nothing on earth like a genuine, bona fide, electrified, six-car monorail!”), and, of course, its steam train: “Great way to get from one place to another or take in a scenic overview of the Park.”


It seems to me that Disney has provided the best argument against providing an across-the-board common-carrier exception to amusement rides right on its website. If it’s for “get[ting] from one place to another,” it’s exactly the kind of device intended to be treated differently by the legislature (heck, it’s even the same kind of train as the legislature probably had in mind). If it’s for getting a “scenic overview of the Park,” it’s less clear.


But you don’t really have to get to the question of form versus function to reach the result that the intermediate appellate court reached. That question really goes to whether the statute should be amended.


The 1872 statute in question provides that “Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.” (Cal. Code 2168.) The intermediate appellate court’s decision (Gomez v. Superior Court, 1 Cal.Rptr.3d 860 (Cal.App. 2 Dist. 2003)) is pretty straightforward: the language of the statute is broad, a couple of prior decisions (including a relatively recent one involving the Pirates of the Caribbean attraction) have applied it to amusement rides, and the legislature has not chosen to amend it.


(The opinion also fairly sensibly rejects the Disney argument that the statute shouldn’t apply to technologies that didn’t exist at the time of its adoption. The statute was likely passed specifically to provide a level of comfort to the public considering new transportation technologies, and the California courts have rejected such an argument previously.)


Perhaps the statute should be amended—indeed, such an amendment seems like a pretty good idea to me, if you can figure out how to resolve the monorail/train challenge. But the intermediate court’s rationale tracks traditional notions of statutory interpretation quite solidly.


Marge: According to this book, the monorail goes over 150 miles an hour! What if something goes wrong?


Homer: “What if.’’ What if I stepped in the shower and slipped on a bar of soap? ... Oh, my God! I’d get killed!

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