For the month of August, Econ Extra Credit invites you to view the film “Class Action Park,” which is available to stream on HBO Max with a subscription. We hope you’ll watch and then send us your thoughts, questions and stories. Reach us by email at extracredit@marketplace.org.
Despite the name’s catchiness, people who described the New Jersey-based amusement park Action Park as “Class Action Park” were not necessarily doing due diligence to learn whether it was factual. While there were over 100 lawsuits related to the park, there’s no evidence, that we’ve found, anyway, that any class action suits were linked to the park. Once you understand the basics of tort law, you’ll understand why.
For a primer, “Marketplace Morning Report” host David Brancaccio reached out to Bill Childs, an adjunct professor at Mitchell Hamline School of Law in Minnesota, who teaches a tort law class about amusement parks, including Action Park.
The following is an edited excerpt of their conversation. You can also listen to the audio version here.
David Brancaccio: What is tort law?
Bill Childs: It’s basically a civil action where somebody believes they’ve been injured by somebody else acting negligently, [which means] failing to act with reasonable care under the circumstances.
Brancaccio: And it exists so that regular people can stand the chance of redress from a bigger organization that they think wronged them?
Childs: Right. Basically, if you think you’ve been injured and you think you should get some sort of remedy in civil law, [with] nobody going to prison, then it’s probably going to be in the category of a tort.
Brancaccio: Planners of future water parks might watch this film and learn what not to do, based on Action Park’s terrifying safety record. But what can law school students learn from watching this film with you?
Childs: I think [what] is most interesting about Action Park is how different it is from basically anything that exists today, where the rider, the patron, was at — and this was actually Action Park’s motto — “the center of the action.” They had so much control over their own experience, which was, on the one hand, presumably superfun, but on the other hand, made it so there were lots of ways that they [could] encounter risk.
Brancaccio: One might have thought that bad press, the ugly publicity of people getting hurt or dying in the waterpark, might have helped to apply market pressure for either making the park safer or shutting it down. But it didn’t happen in this case.
Childs: Yeah, I don’t want to suggest that the owners and operators of Action Park wanted their patrons to get injured, but the market pressures seemed to be a little bit askew because at Action Park, the real risks seemed to be an attraction … knowing that there was actual, literal danger, I think was considered a positive.
Brancaccio: Many of us may not want to live in a world where we can’t be allowed to take on what you might describe as “reasonable risks.”
Childs: Yeah, so there’s a couple of different ideas there. There’s the idea of “inherent risks,” the kinds most prominently seen in the area of skiing. If you end up getting injured from an inherent risk of skiing, then generally speaking, as long as the ski resort didn’t do something to make that risk worse, it doesn’t have a duty to you to prevent you from running into other skiers or into trees or whatever.
And then there also can be contractual ways to limit the liability. Some amusement parks have some express waivers, but it’s more common in things like high ropes courses or the more extreme haunted houses.
And just there’s the general doctrine of “you knew what the risk was when you got onto this ride. And you assumed that risk.”
Brancaccio: Now, the film is called “Class Action Park.” It was one of the ironically dark nicknames for the place. “Traction Park” was another one because you might need to be put in traction in the hospital after a visit. You’re a man of the law. “Class Action Park” seems like a misnomer, really.
Childs: Class actions are generally when a large group of people have been harmed in some way that they can really recover the same thing all together. So if the park had been sneaking an extra 10 cent charge on every credit card transaction without telling you about it, that might be a class action. But class action is almost never applicable in the context of physical injury.
Brancaccio: And that’s because it’s hard to create a “class” when the injuries would have been, you know, different in many cases.
Childs: Yeah. And everybody’s got different preexisting conditions and levels of their own fault in the situations. It’s just too much variability for a “class” to be the right way to go about it.
In “Class Action Park,” there were countless examples of teenagers and young adults engaging in risky, stupid behavior at the park that led to minor and serious accidents. But even when patrons acted like knuckleheads Action Park’s owners could still be on the line to pay damages for injuries that occurred at the park.
That’s because New Jersey state law allows for judges and juries to compare, for example, an individual’s failure to take proper care going down a water slide as instructed against the park’s failure to take proper care to design a safe water slide that wouldn’t knock out riders’ teeth. In tort law, this doctrine is known as “comparative negligence” or “comparative fault.”
But in other states, the laws are stricter, because they follow a legal doctrine called “contributory negligence,” which bars someone from collecting damages if their actions contributed to the injury in any way. This type of law would prevent, for example, a person who gets injured in a car accident from getting damages if it was discovered that the person was recklessly speeding at the time of the accident or they weren’t wearing their seatbelt.
“To put in a non-technical way, [if you are] horsing around too much … a court might find you guilty of contributory negligence,” Boston University law professor Keith Hylton told David Brancaccio on “Marketplace Morning Report.”
“You’re allowed to make mistakes, but there’s a certain point at which you can take it too far.”
For a better understanding on how different states factor fault into tort, check out this map of the U.S.
