Not for the Timorous
From the end of the nineteenth century until the 1950s, the most famous amusement park destination in the U.S. was undoubtedly Coney Island. Although it had started out as a barrier island at the south end of Brooklyn (and the extreme southwest tip of Long Island), by the late nineteenth century it had become a peninsula thanks to shifting tides and placement of fill. The first amusement park was built around 1880, and by the 1920s, several of them dotted the area, along with beach resorts and a boardwalk that turned Coney Island into a vacation Mecca.
One of Coney Island’s amusement parks was operated by Steeplechase Amusement Co., and one of its attractions was a contraption one likely would not find at Disneyland or Six Flags today, but was apparently popular in the 1920s. It was known as “The Flopper,” and involved a moving belt running upward at angle, on which passengers sat or stood. Many were unable to keep their feet because the belt’s movement threw riders backward or to the side — hence the name “Flopper.” The belt ran in a groove, with four-foot padded walls on either side and padded flooring beyond the walls at the same angle as the belt.
One can almost imagine someone at a Ford assembly line watching the conveyor belt zip by and thinking, “You know, this could make a great amusement park ride!”
On Aug. 28, 1925, James Murphy and six of his friends visited Steeplechase’s Coney Island park. Although some of his companions had been there before, this was Murphy’s first visit. Some time after midnight, they decided to give “The Flopper” a try. The evidence is disputed at this point — Murphy claimed that just as he and his friends got onto the Flopper, it gave a sudden, unexpected jerk; Steeplechase denied this. Murphy claimed he was thrown off the Flopper onto surrounding hard surface, landing on his left knee. No one else was harmed, but Murphy suffered a broken kneecap. His friends had to abandon the rest of their evening to get him medical care; he required surgery and spent a month in the hospital. He ended up with a permanent limp, lost his job, and was out of work for more than a year.
Murphy sued Steeplechase for $20,000, claiming that the Flopper was a dangerous device as it was operated. The case went to trial in December, 1927, and the jury awarded Murphy $5,000. The intermediate appellate court upheld the verdict, leading Steeplechase to appeal to New York’s highest court. And there, in 1929, the case was resolved with a somewhat legendary opinion written by its Chief Judge, and future U. S. Supreme Court member, Benjamin Cardozo.
Cardozo was known both for his occasionally forward-looking opinions and for his florid writing style; some commentators have suggested that, had he lived in an earlier era, Cardozo might have gotten a job writing the Bible. In Murphy, he came down squarely on the side of protecting business against the little guy, applying a doctrine known as “assumption of the risk” that, especially in recent years, has been applied more and more to cases involving recreational activities.
“Assumption of the risk” was not a new legal principle in 1929, but this was one of the first cases applying it to an amusement park ride. Cardozo’s opinion drips with illdisguised contempt for Murphy’s (to that point successful) pursuit of compensation. In a typical passage, Cardozo intoned: “One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary . . . . The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.”
New York’s highest court, as one might expect, is headquartered in Albany. But that’s not too far from New York. And one does get the impression that Judge Cardozo enjoyed the occasional sojourn in New York City.
Where perhaps he liked to visit Coney Island himself.