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The California Supreme Court's Ruling on the "Indiana Jones" Ride: Was the Court Mistaken When It Treated the Ride Like a City Bus?

Monday, Jun. 27, 2005

Last week, the California Supreme Court decided that the "Indiana Jones" amusement park ride at Disneyland was like a city bus. It therefore held that Disneyland owed the duty of "utmost care" of a common carrier to the passengers on the ride.

As I will argue below, the majority opinion in the case is a telling example of bad common law reasoning.

The Facts of the Case, the Plaintiff's Allegations, and Disney's Position.

The case, Johana Gomez, as administrator v. The Walt Disney Company, et. al., began with a tragedy.

In June, 2000, twenty-three-year-old Cristina Moreno traveled from Spain to California on her honeymoon and visited Disneyland. After riding the Indiana Jones ride, she felt ill.

Due to a hemorrhage in her brain, Moreno then required multiple brain surgeries. Nonetheless, she died in September, 2000.

Her estate sued Disneyland, alleging that the Indiana Jones ride "shakes and whipsaws riders with such fury that many passengers are forced to seek first aid and in some cases hospitalization." The complaint alleged that Moreno's injury was "similar to what happens in 'shaken-baby syndrome.'" Its theory was that the ride either caused, or exacerbated, Moreno's hemorrhage.

Moreno's attorney, Barry Novack, had settled two previous suits against Disney, brought on behalf of individuals who claimed they had suffered brain injuries on the Indiana Jones ride.

Disney has vigorously denied that there is anything wrong with the Indiana Jones ride.

The California Supreme Court Deems the Ride A "Common Carrier"

Moreno's suit was based on a number of causes of action: premises liability, products liability, unfair business practices, and claims based on California Civil Code Sections 2100 and 2101 -- which relate to the special duties of "common carriers" to their passengers.

These last claims seem to have most rankled Disneyland. It asked for these claims to be dismissed by the trial court. And the trial court did dismiss the claims.

However, the Court of Appeals reversed the trial court holding. Disney then appealed, but last week, the Supreme Court of California rejected Disney's appeal. That means that the "common carrier" claims will stand.

The Difference the "Common Carrier" Label Makes

What difference does the "common carrier" label make? A great deal of difference, it turns out.

Even without the "common carrier" statutes, Disney could be held liable for the Indiana Jones ride if it were negligently operated or defectively designed. But these terms have a very specific meaning in California tort law. And it is not clear that Moreno's lawyer will be able to prove either negligence or design defect.

To win a suit in negligence, Novack would have to show that Disney failed to exercise reasonable care in the operation of the ride, and that this failure caused Moreno's injuries. This kind of case is always difficult to win because it requires the plaintiff to establish what the standard of care was in the industry, in addition to showing that the defendant breached that standard.

What about the design defect claim? California would require Moreno to show that there was some reasonable alternative design to the Indiana Jones ride's current configuration, in order to establish that it was defectively designed. This too, might be difficult to prove.

Why "Common Carrier" Claims Are Seen As Easier for Plaintiffs to Prove

Suits under Sections 2100 and 2101 are viewed, in California, as much easier for a plaintiff to win. That's because these statutes impose a duty of heightened care on the defendant.

Section 2100 requires common carriers to exercise a "duty of "utmost care and diligence." Meanwhile, Section 2101 holds common carriers strictly liable for losses or injuries which result from a vehicle provided by a common carrier that is not "safe and fit for transportation."

Did the Ride Provide Transportation to the Public? And Was Moreno a "Passenger"?

Disney denied that it was a common carrier, and argued that, therefore, these two statutes did not apply.

Disney argued that it was not providing transportation to the "public," in the sense that a common carrier does. It also argued that Moreno not a "passenger," as the term is used within the meaning of the law of common carriers.

But a majority of the California Supreme Court disagreed. It deemed the jeep used by Disney in the Indiana Jones ride a vehicle that carries passengers. And it remarked that "there is an unbroken line of authority in California classifying recreational rides as common carriers."

The Court also noted the broad application of the "common carrier" statutes - which have been previously interpreted to apply to mule trains that offered rides to tourists; a scenic railway at an amusement park; a Disneyland stagecoach ride; and the boat in Disneyland's "Pirates of the Caribbean."

Under the statutes, the Court noted, the word "vehicle," too was also broad - applying to, for instance, escalators, elevators, and chairlifts.

The Dissenters' Point: Pay Attention to Legislative Intent

The dissent -- written by Justice Chin and joined by two other justices -- criticized the majority for failing to look at the legislative intent behind Sections 2100 and 2101, which were adopted by the California legislature in 1872.

Justice Chin argued that evidence from the other code sections that were passed at the time -- as well as contemporaneous materials such as treatises -- indicate that the legislature wanted to impose the heightened common carrier duty on businesses that offered transportation services to the public, such as railways, ferries, and commercial stagecoaches.

In contrast, Chin argued, the legislature never intended to reach businesses that were, instead, offering entertainment services - such as amusement parks -- that happened to utilize transportation devices such as railways, ferries, and stagecoaches.

Chen made a strong legislative intent argument, but his contentions flew in the face of the many California precedents that had already, in the past, interpreted the statutes to apply to entertainment services. These precedents simply did not comport with the principle he articulated: that a vehicle employed by a common carrier should be identified according to the purpose it use. For example, in what sense is the primary purpose of a chairlift "transportation," as opposed to "entertainment"?

Another Strong Argument for the Dissent: The Rationale for the "Common Carrier" Duty

Legislative intent wasn't the only strong argument for Chin's position; statutory purpose also supported his point of view. Indeed, looking to the reasons why, in general, the duty of "utmost care" has been imposed on common carriers strongly supports Chin's point of view.

Common carriers were once viewed as performing a function "infected with the public interest." Indeed, these carriers were vital: In the late Eighteenth and early Nineteenth Centuries -- when the rules heightening the duties of common carriers were first developed -- the general public was highly dependent on a handful of carriage, ferry, and rail lines not only for its own transportation, but also for that of the goods it needed.

For similar reasons, we still find buses, freight trains, cargo ships, and trucks to be vital to our lives: We still depend on them. But amusement parks hardly perform the same role. No wonder, then, that the majority of state courts that have had to decide whether to apply the common carrier doctrine to amusement parks have declined to do so.

The Difference Between Real Jeeps, and Amusement Park Jeeps

In the end, Gomez teaches us a lesson about the dangers of formalism - here, about saying "a jeep is a jeep is a jeep."

The jeep in the Indiana Jones ride was not, in fact, just like a passenger car in a scenic train ride, or the carriage used in Disneyland. In each of these cases, the vehicle in question had an identical twin that was covered by the "common carrier" statutes.

A train operates the same regardless of whether it is taking passengers to work or around a large canyon. The same can be said of a horse-drawn carriage--its operation is identical regardless of whether it is hauling workers or children.

Not so, however, with the jeep. The jeep in the Indiana Jones ride has not real-world doppelganger. It isn't a real jeep. It is not supposed to move like other jeeps--indeed, it is designed deliberately so that it behaves like no vehicle in which the passenger has (hopefully) ever been a passenger.

In fact, if you think about it, that is exactly why someone at Disneyland would get into the jeep. A ride that utilized a jeep that drove like a regular jeep would be lame.

"Common Carriers" Should Be Defined By Function, Not Appearance

Once we view the "vehicle" in the Gomez case from the perspective of how it functions, not what it resembles, it is easy to see why its function is different from the function served by the vehicles covered by the "common carrier" statutes.

True "common carriers" have to take the utmost care to insure that the vehicles they provide function exactly as expected. That is the way they can - and must -- minimize the risks imposed upon the public, the members of which are (it is presumed) at the mercy of those who own and operate the transportation network that they have little choice but to use.

The opposite is true of a ride which is designed to be thrilling precisely because it is unpredictable and shocking. It is one thing to say that a ride like that should be reasonably safe--which is a matter for negligence law. It is another thing to say that, because what it does is of vital importance to the public, that it should be operated with the utmost safety.

Given the nature of the Indiana Jones ride, it is hard to know how Disney could satisfy that standard of "utmost safety"--other than trying to make the ride reasonably safe, or simply giving up and watering the experience of the ride down, so that it loses any attraction: Should it expected to render the ride lame, in order to render it legal?

And more importantly, it is not clear why entertainment is so important to society that a standard of heightened duty is justified.

Anthony J. Sebok, a FindLaw columnist, is a Professor at Brooklyn Law School. His other columns on tort issues may be found in the archive of his columns on this site.

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