In the ever-constant battle for the scariest rides, amusement park risk managers have their work cut out for them.

Owners constantly push the envelope in ride design to create an atmosphere of heightened risk to attract thrill-seeking patrons. That risk is only supposed to be an illusion, but it can become all-too-real thanks to the subjective decisions of park owners, ride operators and patrons themselves.

Case in point: In 2013, Rosa Esparza, a heavyset woman was allowed to ride a roller coaster at Six Flags Over Texas, but then fell out of the car and to her death when the ride turned upside down. Esparza’s family is now suing Six Flags and its parent companies, as well as the ride’s manufacturer, Gerstlauer Amusement Rides in Münsterhausen, Germany.

Video: ABC News reports on the deadly accident on the ‘Texas Giant’ roller coaster ride at Six Flags amusement park in July 2013.

Roughly 297 million people visit the 400 U.S. amusement parks annually and take 1.7 billion safe rides, according to the 2011 Fixed-Site Amusement Ride Injury Survey of the Association of Amusement Parks and Attractions. The chance of being seriously injured on a ride at a fixed-site park in the U.S is 1 in 24 million, and 61 of the 1,415 ride-related injuries, or less than 5 percent, required some form of overnight treatment at a hospital.

Most parks design and operate rides with the utmost safety in mind, but the tricky part is making sure the rides seem like they’re very risky, said Robert Murphy, global entertainment and events practice leader at Marsh in Philadelphia.

“If a park is marketing itself for thrill-seekers, they are typically pushing the big coaster speed rides,” Murphy said. “Then it becomes the battle for the most advanced ride – the fastest, tallest, most loops. There’s this constant competition to upgrade.”

Loss of public trust may be a park’s greatest exposure. “That’s what will kill your company.” — Jim Petersen, attorney specializing in risk management litigation

Likewise, risk managers of water parks have to contend with their own set of challenging risks, particularly patron drowning, or water-borne illnesses that may affect not just one or two patrons, but hundreds, he said.

The risks assumed by a park can rarely be transferred, but they can be shared by patrons and “designer engineers,” said Boyd F. Jensen II, owner of Garrett & Jensen law firm in Riverside, Calif., who sits on the safety and ASTM executive committee of the International Association of Amusement Parks and Attractions.

Personal injury lawsuits against park owners can be more easily defended if the owners provide documentation that their rides have been operated in a safe manner by trained employees, maintained routinely, complied with accepted safety standards and passed periodic inspections, Jensen said.

Park owners should document incidents as specifically and thoroughly as possible, ideally accompanied with photos and statements, he said. Owners should also demonstrate that they have posted signs and audible warning of known risks, and have ensured that patrons can witness a ride’s characteristics prior to boarding.

Impact on Reputation

But lawsuits can still be challenging because of the resulting perception that the park is not safe, Jensen said. Parks often settle to avoid additional public scrutiny, even though sometimes they could have shown that the patrons did not heed warnings, such as if they had existing heart or back trouble.

“Substantial sums of money can be wasted in settlements and jury verdicts due almost entirely because of inexperienced advisers,” he said.

Jim Petersen, a Chicago attorney specializing in risk management litigation

Indeed, loss of public trust can often be the greatest exposure for a park, said Jim Petersen, a Chicago attorney specializing in risk management litigation. “That’s what will kill your company.”

When theme parks are under pressure to build the next biggest, fastest, tallest rides, certain biases can enter into the risk assessment process, Petersen said.

There is the bias of confidence based on the fact that ride designers have been good at what they’ve done up until this point, so park owners and managers assume they’re going to be good at whatever they do in the future.

Moreover, park managers tend to assume that that the scale of risk rises in a linear way – for example, if they build a ride that’s 10 percent bigger, that means a 10 percent increase in risk, Petersen said. However, increases in risk are typically exponential, so park managers need to prepare instead for greatly elevated risk levels.

“If theme parks are under pressure to get it done … to start the revenue stream, they may be hurt by these biases and build something far more risky — or move too quickly in disregard of the need for a higher degree of prudence,” Petersen said. “They need to slow down and be careful enough to not only think of the risks they do know, but conceive of things they might not know.”

“A theme park can only transfer the monetary loss to insurers, but not the legal liability and loss of reputation if they are sued.” — Frankie Hau, risk and environmental manager, Ocean Park, Hong Kong

Frankie Hau, risk and environmental manager, Ocean Park, Hong Kong

Frankie Hau, risk and environmental manager at Ocean Park in Hong Kong, said that too few parks focus on enterprise risk management, and many risk managers tend to focus more on the insurance program for high-risk rides than managing risks across the entire enterprise.

“A theme park can only transfer the monetary loss to insurers, but not the legal liability and loss of reputation if they are sued,” Hau said. “If there is gross negligence that results in worst-case scenarios such as a fatality, then directors can go to jail.”

Ride manufacturers are generally responsible for the mechanics for the life of the ride, but parks must strictly follow procedures outlined in the manufacturers’ operations and maintenance manuals, or they will be found liable in court, he said.

In the current Six Flags case, Gerstlauer has filed a cross-complaint against the Texas park for not using a “test seat” that the manufacturer provided to test weight loads on the restraint system. Attorneys for Six Flags, Gerstlauer and the Esparza family did not return phone calls seeking comment.

Typically local authorities require that parks load test each of their rides with dummies, sand bags or concrete buckets per the manufacturer’s test weight recommendations, said Michael Greear, director of risk control services with Aon Risk Solutions’ entertainment practice in Denver.

Many manufacturers have training sessions on their rides for park mechanics, and completion of courses should be documented and presented in court cases.

Safety Screenings

But the weight of patrons can be a very challenging issue for parks, Murphy said.

“You can’t put a scale at the ride entrance and require people to stand on it — it has to be by sight, and so basically the park has to say to the operator to use their best judgment,” he said.

Patrons should be able to fit into the seat and have the safety bar closed, locked and fully supporting them, Murphy said. Moreover, if the ride malfunctions, operators have to be able to help the heavy person out of the car and down steps.

It helps to have another employee there to maintain “zero tolerance,” and if there is a disagreement, the other operator can call the supervisor, he said. Many parks try to screen for height and weight at the beginning of the ride’s line, so the person doesn’t have to wait in line or face even greater embarrassment.

For water parks, lifeguards must routinely patrol pools not only to watch for drownings, but also floating debris that could contaminate the pool, Hau said. Then, they must clear the pool, retrieve the substance, sanitize the water with a suitable dose of chlorine and then test the condition of the pool.

In the event of a claim for sickness, parks need to provide documentation to the court that they constantly tested the water’s quality, making sure chlorine, acidity and turbidity levels conform to international standards.

Risks increase on busy days when operators take shortcuts about cleaning testing, treating and then reopening pools, Greear said. “Many times, a business decision is a risk acceptance decision.”

From an insurance perspective, park risk managers can avoid some headaches if they understand what their policy covers and doesn’t cover — understanding the exclusions, coverage limits and requirements for reporting a claim if an event occurs, he said.

Risk managers should also work with their carriers and brokers as partners, because they have a great deal of expertise in loss control within their health and safety groups.

“By doing so, an operator could either avoid an incident or claim altogether or be in a position, through training and documentation, to show that they took the reasonable steps to reduce or eliminate a risk,” Greear said.