Spring 1999

Spring is in the air and soon amusement parks and traveling carnivals will be in full swing. As your roller coaster makes its way up another incline and you are screaming at the top of your lungs, the last thing you'll probably be thinking about is when the ride was last inspected. Just how safe are you on that roller coaster, ferris wheel or water slide?

According to the National Consumer Product Safety Commission, more than 270 million people visit American amusement parks each year. A very small number, less than one percent, are injured in accidents.

The New Jersey Legislature believes even this number is too high and has passed legislation to toughen the laws governing carnivals and amusement parks.

"1997 was a very bad year in terms of amusement park safety," said New Jersey Assemblyman George F. Geist of Gloucester County, who sponsored the legislation which Governor Christie Whitman signed into law last year.

The law increases the fines for amusement park violations, makes riders accountable for their behavior and increases the number of mandatory ride inspections. When an accident occurred with a bungee-type ride at the Steel Pier Amusement Park in Atlantic City last year, the new law required the closure of two similar rides in Seaside and Wildwood.

Assemblyman Geist was prompted to propose the legislation after reading of a young boy in his district who was badly injured while riding a roller coaster at the shore. The father of two young sons, Geist took a personal interest in the issue of amusement park safety.

New Jersey Takes Amusements a Step Further

Except for minor revisions in 1983, prior to the enactment of the Carnival-Amusement Ride Safety Act, park safety laws had not been revised since 1975.

Even with the improvements made last year, state legislators are still trying to strengthen laws on amusement park safety and have looked to other states such as Connecticut, Delaware, Florida and New York, for additional revisions to the statutes.

Currently, a carnival-amusement park operator must have $100,000 worth of liability insurance coverage for each ride. This limits the amount of money you may effectively recover from the owner if you are injured and decide to sue. Several organizations, along with the Department of Community Affairs and legislators, including Assemblyman Geist, are working together to increase this amount to $1 million per ride. This increased fine is intended as a deterrent to operators, encouraging them to be more aware of the safety of their rides.

Recently, the Department of Community Affairs amended its regulations to require that park owners notify the department of all injuries that occur on amusement rides, which will help monitor an operator's safety record more effectively.

Other proposed changes to the current law include mandatory inspections when an injury occurs, the preservation of an accident scene for investigation by state authorities and requiring that minor malfunctions or ride defects be reported to the Department of Community Affairs, who are authorized to shut down an operation with numerous safety violations. Currently only major mechanical part breakdowns must be reported, overlooking the possibility that repeated minor breakdowns could later contribute to a larger mechanical malfunction that could cause injuries.

Common Sense Is the Key to Safety

While mechanical failure accounts for many amusement park ride injuries, 75 to 80 percent of all amusement park accidents are actually the result of rider misconduct, according to the National Consumer Product Safety Commission. The Commission believes that this number could be reduced if more park-goers were safety conscious.

It is possible to keep safe and still enjoy the carnival or park by using a little common sense. The Commission strongly urges riders not to dodge safety harnesses or stand up on any ride while it is in motion. These two errors are the leading causes of death on amusement park rides. Other common sense suggestions would be to read all warning signs, listen to the ride operator and be aware of the behavior of other riders. If you see another rider acting improperly, you should tell a security person or the ride operator.

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Six Flags, owners of Great Adventure and many other theme parks around the country, has had its share of trouble with amusement park accidents over the years, most recently with a casualty in a Texas park on the Roaring Rapids attraction.

According to Kristin Kocher, a spokesperson for Six Flags Great Adventure in Jackson, the park is committed to the safety of its guests and has a four-phase inspection process. Three of the phases are yearly, independent inspections by an insurance carrier, a corporate engineer and a ride inspection firm. These inspections take place once a year and must be accomplished before the park opens for the season.

The fourth phase is a daily in-house maintenance and operational inspection. The park uses high-tech evaluation techniques developed by the aerospace and aeronautical industry. Kocher said that on high stress rides such as the Chiller, Batman the Ride, the Great American Scream Machine and the newest roller coaster, Medusa, the park uses an accelerometer and G-Force testing to determine that the rides are secure.

Rides operated by computer, such as the steel roller coasters, are put through their paces by the computer and operators before a park guest is allowed on them. Park employees go out on the tracks of these roller coasters and simulate a situation such as wedging an object under the wheels to make sure the computer is picking up these problems. The law does not require these complex inspections.

In terms of what park-goers can do to ensure their own safety and a good time at the park, Kocher advised that parents and kids "watch one full cycle of a ride before deciding to get on so that they understand what to expect."

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On dark and stormy nights more than 250 years ago, the vicious pirates Captain Kidd and Blackbeard often guided their ships along the New Jersey coast. Anchoring close to the shore, they would order their men ashore to bury wooden chests full of gold and jewels stolen from the ships they had attacked at sea. Sometimes those beaten-up ships would sink slowly in the Atlantic Ocean, just in view of the shore.

Some people say the pirates' treasure chests still lie buried around Long Beach Island, and the ships they sunk still sit at the bottom of the ocean, littered with the belt buckles, plates, mugs and other valuables the pirates left behind.

If you were lucky enough to dig up one of Blackbeard's buried chests tomorrow, you might be able to walk away with the treasure. But what would happen if you spotted one of those sunken ships peeking out from the waves and took a boat out to the wreck to claim it for yourself?

Would the ship and everything on it belong to you?

The answer is - maybe.

"Who owns a shipwreck and the treasure found on it is a very complicated question," said Paul Hofmann, a lawyer who handles maritime law cases. "Every case is different, but there are certain things that you have to look at."

One question would be whether there was an insurance company involved at the time the ship sank. When an insured ship sinks, the insurance company pays the boat's owner for the lost property. As time goes on, the insurance company closes some shipwreck cases, assuming the boat will not be discovered later. Other cases remain open in hope that the wreck is located. The amount of time that has passed since the wreck can also lead an insurance company to close a case.

"If a shipwreck case is abandoned by the insurance company, or there never was insurance on the ship or its contents, someone who discovers it could have a right to the wreck and everything on it," Hofmann explained. "Then again, it depends on where the wreck is found."

When it comes to a shipwreck like the Titanic, which rests far from land, federal law pretty much says whoever finds the wreck has a right to the treasure. But if a wreck is located in "state territorial waters," which usually means within 12 miles of land, the state owns the property, Hofmann explained.

"Anything past that point would follow salvage rights, which is pretty much a finders' keepers situation where the first person to find the wreck has a right to it," he said.

Plenty of shipwrecks have been reported along the New Jersey shore, from the victims of pirate attacks to oil tankers torpedoed by German submarines during World War II. The real challenge for anyone hoping to gain "salvage rights" to a wreck isn't determining who owns the treasure, it's finding it and figuring out how to remove it from the ocean floor.

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You just found out that one of your classmates is spreading nasty rumors about you at school. You're angry and upset, especially because the rumors are totally untrue. What do you do?

Rather than turning to violence, many New Jersey students are now using skills in conflict resolution to resolve disputes such as these cooperatively and peacefully. Primarily, this involves communication, or talking things out. The end result, in most cases, is a mutual agreement achieved without intervention from teachers and school administrators, and more importantly, without fists.

"We live in such a complex world," said Paula Eisen, an eighth-grade language arts teacher at Carl Sandburg Middle School in Old Bridge. "Half the time, we're not really listening. We're just hearing each other."

Express Yourself

Among the communication skills stressed in conflict resolution, according to Eisen, are "I messages." For example, a student might say, "I felt hurt that you would spread untrue rumors about me." In this way, the student is communicating his or her feelings without blaming the other person. A blaming statement, in contrast, might sound something like, "You're being mean to me by spreading nasty rumors."

Another component of conflict resolution, Eisen noted, is active listening. Students are encouraged to ask open-ended questions, such as, "What am I doing that is making you so mad?" Restating is also emphasized. For example, during a discussion about a dispute, a student might say, "So you felt hurt when you thought I was talking behind your back."

When disagreements become intense, anger management may be needed so individuals can "cool off" before engaging in a discussion. Some possible ways this may be achieved include walking away from the problem for a while, exercising, writing down how you feel or listening to music.

Turning to Your Peers to Mediate

Despite the best efforts, sometimes conflict resolution alone is simply not enough to resolve a dispute. In these instances, students may turn to peer mediation, where a neutral student or group of students help the disputing parties work out their disagreement.

Unlike conflict resolution, which is typically informal and takes place between two individuals, peer mediation is an actual process, explained Eisen, who conducts peer mediation training for school personnel throughout the state. Peer mediation, which is generally taught to only a limited number of students, should only be addressed after conflict resolution has been well established among the entire student body, she added.

At Carl Sandburg, Eisen trains about 60 students per year in peer mediation. These students - who represent a diverse cross-section of the student body and are not just the academically elite - are called upon as needed to assist peers in resolving disagreements. To promote privacy and encourage discussion, teachers in most cases are not present during mediations. But they are close by and available to serve as facilitators should the need arise.

"It really solves fights," said Ruby Singh who served as a peer mediator while at Carl Sandburg. "There are so many kids who use it."

Now a tenth-grader at Old Bridge High School, Singh said the peer mediation program largely addressed problems dealing with rumors and boyfriend/girlfriend issues. Singh currently assists Eisen in peer mediation training for the New Jersey State Bar Foundation and plans to serve as a peer mediator in a new program being formed at her high school. She said that one of the biggest challenges of mediating disputes is not giving advice. Her role, she said, is to remain neutral and encourage the disputants to come up with a solution on their own.

"When you take ownership of your own resolution, you can live with it," said Eisen. This, she noted, is one of the cornerstones of the conflict resolution and peer mediation program, and one of the main reasons for its success.

Barbara DeVictor, a resource teacher at the Constable School, an elementary school in South Brunswick, shares Eisen's enthusiasm for this approach to problem solving. According to DeVictor, Constable School, which includes grades K-4, has had a conflict resolution and peer mediation program in place for about four to five years.

"It has made our building a much more friendly, peaceful place," DeVictor said. "Students learn that it's okay to have a conflict. It's not a bad thing. It's how you handle it that counts."

While conflict resolution and peer mediation programs do not exist in all New Jersey schools, they are attracting increased attention, particularly as concerns about violence among students escalate.

According to a report, Violence, Vandalism and Substance Abuse in New Jersey Schools, released in January 1999 by the New Jersey State Department of Education, there was a total of 14,147 incidents of violence in New Jersey schools in 1997-98. This number increased from 13,217 in 1996-97.

"Fighting is a really big thing in middle school and high school," conceded Singh. "Violence is not the answer," she said. "Talking it out is the best way. If everyone had the skills of talking and listening, people wouldn't have to fight."

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Committed to the promotion of violence prevention, the New Jersey State Bar Foundation would like to help interested educators establish Conflict Resolution and Peer Mediation Programs in their schools.

The Foundation offers free Conflict Resolution and Peer Mediation guides and free training sessions for elementary, middle and high school teachers. Foundation staff is also available to conduct free in-service training programs for teachers or students at interested schools.

For copies of the guides, information about in-services or future training sessions, call the Foundation at 1-800-FREE-LAW.

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The following is a case written by Mary A. Betancourt and Jean (Nina) Hoover's former 7th grade class at William W. Allen Middle School in Moorestown. This case was written in conjunction with the New Jersey State Bar Foundation's Law Adventure Competition and was among the winning cases of 1998.

Jim Teacher was employed as a police officer in Toontown. While apprehending a bank robber, he was critically wounded and required surgery. Although he recovered from his injuries, he decided not to return to law enforcement. Instead Jim returned to college and received a degree in education.

Hired by the Toontown Board of Education as a physical education and health teacher, Jim became a well-respected member of the faculty, and the Board of Education granted him tenure.

In May 1995, Jim received a letter from the hospital advising him that the blood he received during his surgery may have been exposed to the HIV virus. Jim contacted Dr. Hal Practice, the school's physician. Jim had his blood tested and then left Toontown for the summer to operate a sports camp.

While Jim was gone, Dr. Practice received his test results. He had tested positive for the HIV virus, and Dr. Practice had a dilemma. He had a duty to protect the confidentiality of Jim's medical condition, but Dr. Practice also believed that he had a legal and moral duty to warn the school.

When Jim returned to work at Toontown High School, he was told to report immediately to the principal's office. With the principal, superintendent and president of the school board present, Dr. Practice informed Jim of his HIV status. Izzy Liable, the president of the Toontown Board of Education, advised Jim that after thorough discussions, the Board of Education had decided to terminate Jim's employment immediately. Dr. Practice and the school's attorney recommended the dismissal since they felt Jim posed a risk to other teachers, staff and students.

Faced with a life-threatening medical condition and unemployment, Jim consulted Dr. Ima Mercenary, a specialist in the field. Dr. Mercenary confirmed the test results but believed that with medication Jim could lead a meaningful life and return to work since the risks of harm and infection to teachers, staff and students were negligible.

Jim consulted an attorney who filed suit against the Toontown School District alleging employment discrimination.

THE LAW

To establish discrimination under New Jersey's Law Against Discrimination, Jim must prove that his medical condition is considered a handicap; that at the time of his discharge, he was performing the job at a level that met the school district's expectations; and that he can continue to do his work without posing a serious threat to the health and safety of other teachers, staff or students. The Rehabilitation Act of 1973 states that "no otherwise qualified individual with a disability shall by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." The Americans With Disabilities Act provides that a "qualified individual with a disability" means an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position."

THE ISSUES

Can Jim Teacher's medical condition be considered a handicap? Was he discharged unlawfully? Can he continue to perform his job without posing a serious threat of injury to the health and safety of other teachers, staff or students? Did Dr. Practice have an obligation to inform the school about Jim's condition? If he didn't tell the school, could he be held liable if Jim transmitted the HIV virus to an unknowing student or teacher?

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Q: What is the difference between a misdemeanor and a felony? - Lindsay Martineau

A: Carol M. Henderson, New Jersey Division of Criminal Justice, Trenton - New Jersey does not classify criminal offenses as misdemeanors or felonies. An offense is classified as a petty disorderly persons offense, a disorderly persons offense or a crime. Petty disorderly persons offenses are the least serious and include such offenses as loitering or trespassing. Conviction of a petty disorderly persons offense can carry a term of up to 30 days in jail. An example of a disorderly persons offense is simple assault and can carry a sentence of up to six months in jail. A crime such as murder or robbery can carry a sentence up to the maximum allowed - anywhere from a year in jail to life in prison. A person charged with a crime is entitled to a jury trial. Petty disorderly and disorderly persons offenses are brought before a judge, usually in municipal court.

Q: If the jury in a Superior Court cannot reach a verdict for a robbery/murder case, how is the final decision made? - Hinda Eisen

A: Carol M. Henderson, New Jersey Division of Criminal Justice, Trenton - That is what is known as a hung jury. In that case, the jury would be dismissed and the case goes back to the beginning with a new trial and a new jury. The prosecutor would make the decision of whether or not to try the case again. After two or three times of trying a case and not receiving a verdict, the judge may decide to dismiss the case.

Q: Why can't we curse in school if we have freedom of speech? - Joseph Smith

A: Stephen Latimer, Loughlin & Latimer, Hackensack - Although freedom of speech is constitutionally protected, certain kinds of speech are not. Government or schools can put reasonable time, place and manner restrictions on speech. If the speech is disruptive to the school environment or classroom where there should be a certain amount of decorum, the school can put a stop to the behavior and punish the student.

Q: If a man was put to death and it was later discovered that the man was innocent, would the family be able to sue the government? - Kari Turner

A: Louis Miron, Attorney at Law, Westfield - New Jersey recently passed a law stating that a person may bring a suit against the state for wrongful conviction. The person must firmly establish that he or she was convicted of a crime and sentenced to a term of imprisonment, served part of that time, did not commit the crime for which he or she was convicted, and did not confess or plead guilty to the crime. The statute says that if a person proves the above, he or she may recover up to $20,000 a year for every year wrongfully imprisoned. The statute was intended for persons still living. In the case of the death penalty, it is likely that the person's family could sue on his or her behalf and recover some damages.

Send your questions to: The Legal Eagle Editor, NJSBF, One Constitution Square, New Brunswick, NJ 08901.

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active listening - using nonverbal behaviors such as tone of voice, eye contact and gestures to indicate understanding.

anger management - in conflict resolution, techniques for controlling anger such as deep breathing, walking away and cooling off.

discrimination - unfair treatment of someone based on their race, religion, age, sex, nationality or disability.

legislation - a proposed law.

liability insurance coverage - a certain amount of insurance that one must carry.

maritime - anything having to do with the commerce of the sea, ocean, Great Lakes etc.

statute - legislation that has been signed into law.

tenure - in academics, the permanence of a position after a certain number of years.

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