CONSUMER PRODUCT SAFETY COM'N v. Chance Mfg. Co.

• Decision Date: 23 November 1977
• Docket Number: Civ. A. No. 77-1581.
• Citation: 441 F. Supp. 228
• Parties: CONSUMER PRODUCT SAFETY COMMISSION, Plaintiff, v. CHANCE MANUFACTURING CO., INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

441 F. Supp. 228

CONSUMER PRODUCT SAFETY COMMISSION, Plaintiff, v. CHANCE MANUFACTURING CO., INC., et al., Defendants.

Civ. A. No. 77-1581.

United States District Court, District of Columbia.

November 23, 1977.

Mana L. Jennings, Eric L. Stone, Product Defect Correction Division, Compliance & Enforcement, Consumer Product Safety Commission, Washington, D. C., for plaintiff.

Richard H. Gimer, Washington, D. C., Douglas Norris, Cambridge City, Ind., Olin H. Mabry, pro se, John A. Borsari, Jeffrey R. Whieldon, Washington, D. C., B. G. Stephenson, Arlington, Va., for defendants.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

The Consumer Product Safety Commission (CPSC) has filed this action against the manufacturer and commercial operators of an amusement park ride known as the Zipper, on the ground that the Zipper is an "imminently hazardous consumer product" within the meaning of Section 12(a) of the Consumer Product Safety Act of 1972, 15 U.S.C. § 2061(a) (Supp. III, 1973). Section 12(b)(1) empowers the District Court in which the CPSC files such an action to declare the product in question "imminently hazardous" and issue such temporary and permanent relief as the Court deems necessary to protect the public from the risks associated with the product. 15 U.S.C. § 2061(b)(1).

Defendant Chance Manufacturing Company has moved for dismissal on the ground that the Zipper is not a "consumer product" within the meaning of the Act, and hence that the Court lacks jurisdiction over the subject matter. The CPSC, on the other hand, has moved for partial summary judgment on the issue of subject matter jurisdiction. Because the parties agree on the nature and qualities of the Zipper machine, and the uses to which it is put, the jurisdictional issue is exclusively one of law. Kaiser Aluminum & Chemical Corp. v. CPSC, 414 F.Supp. 1047, 1056 (D.Del.1976).

1. Background.

The Consumer Product Safety Commission came into being October 27, 1972, with the passage of the Consumer Product Safety Act. Pub.L. No. 92-573, 86 Stat. 1207 (codified at 15 U.S.C. §§ 2051-81 (Supp. III 1973)), amended by Consumer Products Safety Commission Improvements Act of 1976, Pub.L. No. 94-284, 90 Stat. 503).¹ Among the congressional findings upon which the legislation rests are that "an unacceptable number of consumer products which present unreasonable risks of injury are distributed in commerce" and that "the public should be protected against unreasonable risks of injury associated with consumer products . . ." Id. § 2(a)(1), (3), 86 Stat. 1207, 15 U.S.C. § 2051(a)(1), (3). The Commission's mandate under the 1972 Act extends to conducting research and investigations on the safety of consumer products, id. § 5(b), 86 Stat. 1211, 15 U.S.C. § 2054(b); promulgating safety standards for consumer products, id. §§ 7, 9-11, 86 Stat. 1212, 1215-18, 15 U.S.C. §§ 2056, 2058-60, and proceeding in court against imminently hazardous consumer products, and those who manufacture, distribute and retail them. Id. § 12, 86 Stat. 1218, 15 U.S.C. § 2061. The prime substantive delimitation of the CPSC's jurisdiction derives from the Act's definition of the term "consumer product":

The term "consumer product" means any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise . . . 15 U.S.C. § 2052(a)(1).

The Act incorporates numerous exclusions from the definition, some of which are defined in terms of particular products, such as tobacco, motor vehicles, aircraft, boats, drugs, and food, 15 U.S.C. § 2052(a)(1)(B), (C), (F) to (I), and others of which are defined in terms of other regulatory legislation. Id. § 2080. Under the latter type of exclusion, therefore, if the risk associated with a consumer product could be eliminated or sufficiently reduced by action taken under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq., the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq., or the Clean Air Act, 42 U.S.C. §§ 1857 et seq., the CPSC lacks authority to regulate the risk. 15 U.S.C. § 2080. Other provisions of the Act define "manufacturer" as one who manufactures or imports a consumer product, including production and assembly, 15 U.S.C. § 2052(a)(4), (8), and a "retailer" as one "to whom a consumer product is delivered or sold for purposes of sale or distribution by such persons to a consumer" Id. § 2052(a)(6). The term "consumer" is nowhere defined in the Act.

Against this statutory backdrop the CPSC brought this action pursuant to 15 U.S.C. § 2061(b)(1) against Chance Manufacturing Company, manufacturer of the Zipper ride, and a group of persons and enterprises alleged to be distributors and retailers, within the meaning of the Act, of the Zipper ride. The Zipper itself has been designed and manufactured solely by the Chance company, which since 1968 has sold 93 Zippers, 80 of which remain in operation. Affidavit of Richard G. Chance, Vice President and General Manager, Chance Manufacturing Co., Inc., at 2 (Oct. 7, 1977) (hereinafter Chance Affidavit). Weighing a total of 42,000 pounds, the Zipper consists primarily of a boom which rotates in a 360° arc when the machine is operating. Id. at 3. Affixed to the boom at equidistant points are 12 cars, each accommodating 2-3 persons, which move along the boom and themselves rotate through the 360° arc. The Zipper is loaded with passengers by one or more operators, who rotate the cars one by one to the loading platform, open the door on each car, and assist the passengers inside the cars. Id. When the operator closes the door, a padded lap bar comes into place across the laps of the riders. Id. Each car has two external latching systems to keep the car door closed during the ride. Id. Once inside the cars, the riders have no control over the operation of the ride. Id. All 93 Zipper sales to date were made to commercial enterprises for operation at amusement parks, fairs and carnivals. Id. at 2. The "imminent hazard" alleged by CPSC to be presented by the Zipper ride is the occasional failure of some door latching systems during operation. The Commission alleges that at least four Zipper riders have died, and two have sustained serious injury, in falls which occurred when the doors of the Zipper cars in which they were riding opened in mid-air. The CPSC asks the Court to declare the Zipper an "imminently hazardous consumer product," 15 U.S.C. § 2061(a), and to enjoin operation of any Zipper until corrective action satisfactory to the CPSC has been taken. The CPSC seeks also the costs of its investigation and this action.

The Chance company and those of the other defendants which have responded formally to date have addressed only the question of the Commission's jurisdiction. Their assertion is simply that the Zipper is not a "consumer product" within the meaning of the Act, and hence that the defendants are not manufacturers, distributors, or retailers subject to the Act. Our discussion accordingly is confined to that issue.

2. Jurisdiction.

Because the Zipper ride has never been sold to individual consumers nor used except in recreation, the operative portion of the Act's definition of "consumer product" is that which covers articles produced or distributed "for the personal use, consumption or enjoyment of a consumer . . . in recreation, or otherwise . . ." 15 U.S.C. § 2052(a)(1)(ii). The ambiguity of the definition impels us, as it has other courts, to resort to such extrinsic sources as the Act's legislative history and judicial applications of the Act for aid in determining whether the statutory definition of "consumer product" comprehends the Zipper ride. See United States v. The Anaconda Co., Misc. No. 77-24, at 5-6 (D.D.C.June 15, 1977), appeal docketed, No. 77-1628 (D.C. Cir. July 18, 1977) (hereinafter "Anaconda"); Kaiser Aluminum & Chem. Corp. v. CPSC, 428 F.Supp. 177, 181 (D.Del.1977) (hereinafter "Kaiser II"); Kaiser Aluminum & Chem. Corp. v. CPSC, 414 F.Supp. 1047, 1059 (D.Del.1976) (hereinafter "Kaiser I").

The most unequivocal expression of congressional intent to be gleaned from the legislative history of the Act is that the definition of "consumer product" be construed broadly to advance the Act's articulated purpose of protecting consumers from hazardous products. The report of the Senate Committee on Commerce, for example, points out that, rather than attempting "to catalogue those items included within the concept of `consumer product,'" the Act's drafters chose to delineate the concept by excluding particular items from its range. S.Rep. No. 749, 92d Cong., 2d Sess. 12 (1972). Similarly, the report of the House Committee on Interstate and Foreign Commerce observes that the breadth of the definition reflects the purpose of Congress "to vest omnibus product safety authority in a single Federal agency." H.Rep. No. 1153, 92d Cong., 2d Sess. 27 (1972); see also Kaiser I, supra at 1059 (Congress contemplated that CPSC-approved standards would preempt the field). An additional factor in favor of an expansive interpretation of the Act generally is the Act's character as remedial legislation directed at a widespread, specifically identified threat to the public safety. See United States v. An Article of Drug . . . Bacto-Unidisk, 394 U.S. 784, 798, 89 S.Ct. 1410, 22 L.Ed.2d 726 (1969). To insure that the Commission remained fully capable of acting against evolving and unforeseen risks associated with consumer products, Congress provided that the Commission's jurisdiction as to a particular product would depend directly on the extent to which consumers were exposed to the risks associated with the product.

"Products which are primarily or exclusively sold to

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