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CONSUMER PROD. SAFETY COMMN. v. CHANCE MFG. CO.

November 23, 1977

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



The opinion of the court was delivered by: PRATT

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 441 F. Supp.]

 ORDER

 Upon consideration of the Motion to Dismiss of defendant Chance Manufacturing Co., Inc., points and authorities in support thereof, and the opposition thereto, and it appearing that this Court has jurisdiction of the subject matter of this action, it is by the Court this 23rd day of November, 1977,

 ORDERED, that plaintiff's Motion for Partial Summary Judgment be granted, and that defendant's Motion to Dismiss be denied.

 John H. Pratt United States 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). *fn1" 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 degrees 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 degrees 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 ...


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