New Study Confirms That Children Are Safe On Amusement Rides (You Didn't Hear?)

So, did you hear about the new amusement ride safety report published today in the journal Clinical Pediatrics that actually demonstrates scientifically that amusement ride injuries to children under the age of 17 are exceptionally rare?  How about the scientific study that shows that amusement ride related injuries to this population dropped by an estimated 50% between 1991 and 2003?  Well, surely you must have seen the study, which received institutional review board approval at The Research Institute at Nationwide Children's Hospital, showing that, of those extremely few guests under the age of 17 that are injured on amusement rides, 97.8% are either treated and released or examined and released without treatment?  No?  You didn't see that either?  Yeah ... me neither.  But here's what I did see today:

A Response To Consumers Digest's Waterslide Safety Report (a belated Part 2): Federal Oversight Is No Answer

My last post was a response to a recent article in Consumers Digest magazine that suggested that waterpark injuries were on a sharp rise and that the best solution to solving that problem was implementing new federal regulation that would require reporting of waterpark injuries to federal authorities.  My initial response took on the factual underpinnings of this article, showing that even the very injury-data Consumers Digest relied upon failed to support the central thesis that waterparks were dangerous and becoming more so.  Now it’s time for the second issue raised both in the Consumers Digest piece and, more generally, in the media every time an unfortunate incident occurs:  Is federal regulation the answer?

A Response To Consumers Digest's Waterslide Safety Report (Part 1): The Numbers Don't Lie

A story was published today in Consumers Digest entitled “Waterparks:  Is Public Safety Going Down the Tubes” that paints an extremely unflattering and misleading picture of the safety of the waterpark industry as a whole.  Authored by Sara Bongiorni, the piece makes a number of disturbing assertions to suggest that injuries at waterparks in the United States are increasing at an alarming rate and that the best solution to countering this trend is federal regulation of the fixed site amusement industry.  The piece takes great issue with the so-called “patchwork” of state regulations governing the amusement industry and even goes so far as to portray the industry as expending hundreds of thousands of dollars per year specifically to avoid federal regulation.  I’ve seen other pieces like this – usually in the wake of a tragic accident at a park or carnival.  Rarely, though, have I seen a piece that goes to the extent that this piece does in mis-characterizing the facts and ignoring gaping holes in the logic and reasoning underlying its conclusions.  I thus feel compelled to address some of the more troubling aspects of Ms. Bongiorni’s piece.  The article though is rather lengthy, so I thought the best way to address it was in two parts.  Today, I’ll discuss the problems with Ms. Bongiorni’s injury statistics, and how they were manipulated to paint a far direr picture than exists in reality.  In Part 2, I’ll address her contention that federal regulation is the answer to all the industry’s problems.

He Said / She Said: A Conversation About The ADA’s Applicability To The Amusement Industry

A week or so ago, news broke of another ride-related ADA lawsuit alleging that a park’s disabled guest access policy is unlawfully discriminatory.  As those of you who read the blog or who know me can attest, I think these kinds of lawsuits are going to be more frequent and more important to our industry for a host of reasons, most of which are discussed below.  After hearing about this latest filing, I took the opportunity to run some thoughts through a fellow lawyer, Julie Mills, of Columbus, Ohio.  Julie has a mobility disability after a vehicle accident, and more than a decade of experience “living and lawyering” the barriers and accessibility portions of the ADA.  She authors a blog, The ADA:Titles II and III.  

Given her background and experience, I was very interested to get her take on the recent lawsuits and the ADA’s application to the amusement industry.  Our conversation raised some interesting issues that I thought would be worthwhile to share. 

New ADA Regs Proposed That Would Allow Temporary Lifts In Pools (Courtesy of Julie Mills)

Julie Mills, an attorney and blogger who writes about ADA issues in the hospitality industry, wrote a piece this week on HR 203 - a new bill that has been introduced in Congress that, if passed, would permit pools to use temporary lifts instead of incurring the expense and potential safety issues that arise from the ADA's current requirement for fixed lifts in most pools.  Julie does a nice job of summing up the issue so, with her permission, I've reprinted her piece below.  Julie's Blog, "The ADA:  Titles II and III," can be found here.  
(read her piece and my thoughts after the jump)

Happy New Year From The California Supreme Court! A Home Run Ruling In Nalwa v. Cedar Fair

In the law, there aren’t many things that can rightfully be called a home run.  The vast majority of “big” decisions out there are not total wins for one side, but are judged to be “big” because, in the main, their result effects a shift in the law or undoes a prior bad result even while, in some modest measure, containing a small victory for the “loser.”  The recent Supreme Court Obama-care decision is a perfect illustration: the Court upheld the individual mandate (the big win for liberals all over the country) while making clear that the individual mandate is, in reality, a tax (a small victory for conservatives).  On New Year’s Eve, though, the California Supreme Court issued a rare home run opinion in Nalwa v. Cedar Fair – an opinion that eviscerates the prior poorly-reasoned decision of the California Court of Appeals and unambiguously establishes the right of amusement and recreation facilities to assert the primary assumption of the risk defense to avoid costly and uncertain trial practice.  Even more remarkable, although the decision was a 6-1 majority (a strong victory to be sure), the Court of Appeals reasoning – that California’s public policy precludes the applicability of the assumption of the risk doctrine to the recreation industry entirely – was unanimously rejected.  There is simply no way to view this decision as anything but a complete home run for both Cedar Fair and the amusement industry in general.

3 Reasons To Be Optimistic For A Reversal In Nalwa v. Cedar Fair

Yesterday, October 3, 2012, the California Supreme Court heard argument in Nalwa v. Cedar Fair - a case I've already written about on a few occasions (like here, here, and here) and one the most closely-watched amusement industry cases in years.  Due to the miracle of modern technology, I was able to observe the argument over the Internet and, while we will not know for about three months which way the Court is going to go, I am cautiously optimistic that the Supreme Court may reverse the Court of Appeals and hold that the primary assumption of risk doctrine may, in fact, be applicable to amusement park rides in California.

Could the Disney Segway Issue Be Headed To The Supreme Court?

In my last post, I discussed Ault v. Walt Disney World Co., a class-action lawsuit in Florida challenging Disney's "no Segways" policy in its Florida properties.  To quickly recap, the judge in Florida approved a settlement in the case finding that that Disney was likely to prevail under the ADA if the case actually went to trial because it could probably prove that Segways constituted an actual safety hazard in its parks.  

Yesterday, the U.S. Court of Appeals for the Eleventh Circuit affirmed the trial court's ruling.  Read more after the jump. 

Disney Probably Won't Have To Allow Segways ... But What About Other Parks & FEC's?

The Ninth Circuit's decision in Baughman v. Walt Disney World, Inc., has gotten a lot of attention over the last couple of weeks. Disability advocacy groups are touting it as a big win for accessibility.  However, I do not really see it that way.  In fact, as I've already written, I think this was the WRONG case for the Ninth Circuit to have even reached the issue, given that Ms. Baughman can't seem to decide whether she uses a wheelchair because she cannot stand or uses a Segway because she cannot sit.  But, putting that aside, I also do not think the case will ultimately result in Disney being required to allow Segways in its parks.  The bigger question is what, if any, effect the decision might have on other parks and family entertainment centers - particularly those that lack the seemingly limitless resources of Disney.

The Outrageous Reason The Disneyland Segway Ruling Should Never Have Occurred

On Wednesday, the Ninth Circuit Court of Appeals in California issued a ruling in a case called Baughman v. Walt Disney World ordering Disney to study the use of Segways at Disneyland.  The opinion is rather glib from start to finish.  Its opening line:  “Segways at Disneyland?  Could happen.”  Its ending line:  a quote from Walt Disney himself, “Disneyland will never be completed as long as there is imagination left in the world.”  While I seriously doubt that Walt was talking about the possibility of never-ending accessibility modifications under federal regulations, the bottom line is that the Court ordered Disney to determine whether “Segways can’t be operated safely in its parks.”  Whether Disney, the industry, or I agree with the Court’s legal analysis of the ADA or not is, at this point, largely irrelevant – in all likelihood, it is not going to change.  However, I did want to address a genuine and disturbing issue that this case raises; one that I have seen no coverage about or commentary on in any of the media reporting on this story:  the fact that, in issuing this decision, the Ninth Circuit essentially condoned the practice of abusive ADA litigation brought by plaintiffs who may, or may not, actually have the disability they claim.