Day on Torts
I grew up in Spencer, Wisconsin, a village of about 1000 (less in the 1960 census, more in the 1970 census) in North Central Wisconsin. The closest city was Marshfield, at eight miles to the south on Highway 13, which at the time had about 15,000 people, a J.C. Penny store, a mail order-only Sears store and, by the time I was a senior in high school in 1973-74, a McDonald’s. My home county had more dairy cows than people. When I tease my wife about her hometown (Karns, Tennessee), she quickly reminds me that at least her birthplace had a red light and a Hardee’s. We had neither, although from time to time in some summers we had a local family run a root beer stand that we referred to as the "ringworm stand" because of a physical affliction suffered by several employees.
You get the picture.
Every June we had a three-day festival called "Spencerama," which provided not only a parade, a Spencerama Queen, and a carnival but, most importantly, a three-day excuse to drink beer to excess in an outdoor public place (as opposed to a indoor public place offered by one of the six bars in town). This extravaganza was held in the Spencer Village Park, just across the parking lot from the fire station. The carnival surrounded a wooden pavilion built to house (you guessed it) the beer garden.
To say that Spencerama was the highlight of the year in this little town would be a gross understatement. The Lions Club and the Jaycees worked like dogs to plan for this event. Who would work the beer garden when? Who would cook the brats and burgers when? Who would run the tractor pull? Who would run the mini-tractor pull? Who would supply the pigs for the greased pig contest?
The town was abuzz with questions for months preceding Spencerama Days. Would Mike Engle be willing to take on the wrestling bear again this year? You know he’s over 70! (That’s no BS, Mike was as agile and tough as hell and used to wrestle a bear when he ((not the bear)) was over 70.) Would the Spencer Volunteer Fire Department beat the jerks from Loyal in the water barrel fight? Would the Woodkey boys beat the hell out of someone else or each other this year at bar time? Would the greasers from Colby start a big fight on Saturday night just like they did last year?
Of course, for most of the kids the carnival was the big deal. We had a Ferris wheel, an octopus ride, a mixer ride, and an assortment of kiddy rides. We had the obligatory games – floating ducks, knock-over-the-cats-with-a-baseball, pitch-the-penny-into-the-glass-dish, etc. And, we had the dunking machine, occupied by local dignitaries who were willing to take a cold bath in public if a citizen could hit the bull’s-eye.
But for me it was all about the carnies. You see, we had poor people back home – you don’t make a lot of money milking 35 cows on an 80-acre farm. And we had a fair number of losers, most of whom were plagued by an greater-than-usual addiction to alcohol and were completely harmless, drunk or sober.
But when the carnies came to town a whole new world was opened to the honest souls of Spencer. Carnies were different. They had all dropped out of high school, a rarity in my hometown. They had unshaven faces and greasy long hair. They were really, really skinny but had muscular arms. They had tattoos. (In the old days, the only men who had tattoos were guys who either had been in the Navy or were carnies.) Even the female carnies had tattoos. (No women had tattoos in Northern Wisconsin in the 60s and 70s.) Carnies had fingers stained yellow from chain-smoking Lucky Strikes. They had bad teeth. To the kids in Spencer the carnies were like the gypsies that roamed Wisconsin in the 1930s and 40s, the horrible people who would steal food and property and even children. At least that what our parents told us, and we believed it.
The carnies moved into town on Tuesday night or Wednesday morning, a parade of old cars and trucks pulling ancient, small travel trailers in decrepit condition. They smoked and they drank and they did drugs and they ogled the local girls and one of them stole my brother’s bicycle. (He really did – one of those damn carnies stole my brother Tom’s bicycle.) And they put up rides, old rides comprised of rusty metal, rides that made an awful racket when they were working and an eerie silence when they did not. Rides that shook and shimmered and broke down, leaving teenage girls screaming at the top of their lungs at the top of the Ferris wheel. These screams could be heard over the rock ‘n roll music blaring from carney 8-track tape players amplified through huge speakers, bass turned to "10," which competed with the accordion player and the tuba player and the rest of the polka band playing at the Beer Barrel Polka at the beer garden.
I observed this. All of this. Carefully. For hours at a time. Year after year. And eventually, at the age of 13 or 14, I thought "why in heaven’s name would I risk my life by getting on an amusement ride of undeterminable age assembled and disassembled every single week by a bunch of skinny, uneducated, chain-smoking, drug-taking, tattoo-bearing, local girl-ogling, bicycle-stealing carnies? So I didn’t.
And to this day I won’t. Now, deep down inside I know that the folks that design, assemble and maintain the rides at Disneyland, Six Flags and the like probably have more education than I do. And I know that if they smoked any dope they did it a long time ago and they didn’t inhale. But every time I look at an amusement ride I think of those carnies in Spencer, Wisconsin over 35 years ago and I just say "No."
So, my thirteen year-old son thinks I am a wimp and my seventeen year-old daughter refuses to understand why I will not get on a ride with her at Six Flags. My daughter Kate, just eighteen months old, will assume that it is fear of a broken hip secondary to osteoporosis that causes me to avoid the wooden roller coasters at Wisconsin Dells when she becomes of age. But my children have never seen a carnie, and I have, and I cannot erase the image forever burned in my mind: that skinny, greasy chain-smoking carney, a naked woman tattooed on his arm, maniacally laughing into the warm wind on a June night in America’s Heartland as he rides off on my brother’s green Schwinn across Clark Street and into the alley behind Minerva’s Bar, secreting it amide the mass of metal that, in just a few days, will be the Ferris wheel at the Hodag Country Festival. Sorry kids, there ain’t no way.
So, patient reader, you might ask "what this has to do with torts?" Well, Bill Childs at Torts Prof advised me of a story in the Tennessean that reminded me that Tennessee passed a law a couple years ago that mandates that amusement ride operators have a $1M in liability insurance. T.C.A. Sec. 58-36-101 et seq. A second statute just came into effect that mandates a system of inspection for rides. T.C.A. Sec. 68-121-120.
That’s what.