About Me

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I am a consultant and general counsel to International Ride Training LLC as well as a practicing attorney in Avon, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Monday, November 7, 2011

The Strong Arm Of The Law: How Judges Use Appeal-Proof Decisions To Push Settlements

One of the most frustrating things about litigation for a client to understand is that sometimes, especially early in a case, you can be 100% right on the law and 100% right on the facts, and still lose – and there’s really nothing you can do about it.  Why?  Because judges, generally, are quite practical and they know precisely how and when to flex some judicial muscle to pressure you into a settlement that will bring the entire case to a close quickly and finally.  No difficult legal questions to answer.  No long trials taking up the Court’s time and costing a lot of money for the client.  No appeal and (more importantly from the judge’s perspective) risk of reversal on appeal.  The whole case just goes away.  And if all it takes to make all this a reality is a decision on a preliminary issue that might not be in line with controlling law and that will never be appealed, from the judge’s perspective, its worth it every time. 

I recently saw a perfect example of this in a recent case involving Cedar Fair’s soon-to-be-former property, California’s Great America in Santa Clara, California. The case is called Griffin v. Cedar Fair L.P., and it involves allegations that the park is in violation of the Americans With Disabilities Act.  The decision mostly concerns a rather ordinary pleading issue that normally would not warrant much attention, however, the end of the case contains a prime example of a judge ignoring the facts and the law in an attempt to induce a quick settlement by, effectively, forcing Cedar Fair to air its dirty laundry in front of all its guests. 

The plaintiff in Griffin is a quadriplegic who requires a wheelchair for mobility.  During a visit to California’s Great America in 2009, he allegedly attempted to use a public restroom in the park, but was unable to do so because his wheelchair would not fit into any of the stalls.  According to the complaint, he ultimately “suffered a humiliating bodily functions accident, soiled himself and his clothing, and was forced to leave the park.”  He is now suing Cedar Fair alleging numerous violations of the Americans With Disabilities Act relating to allegedly inaccessible restroom, food counter, pathways and parking facilities, as well as challenging Cedar Fair’s policy of requiring management clearance before a disabled guest may ride a ride.  (The challenge to the ride admission policy is not implicated in this decision, but certainly warrants attention.  I’ve previously posted somethoughts on ride admission policy issues in light of the ADA.). 

The interesting issue in this decision involves so-called “General Order 56,” a standing order of the California federal court that requires, as relevant to this case, the parties and their experts to conduct a site inspection of the park, looking for and assessing potential ADA violations, within 100 days of the filing of the complaint, followed by a mandatory conference between the parties to try to work out a settlement.  Now, in theory, I don’t have any problem with this procedure.  It seems like a reasonable way to get the parties talking to one another about the issues in the case and could well lead to an expeditious and mutually satisfactory settlement of the litigation – an outcome everyone should strive for before legal bills really start to add up.  What I don’t like, however, is that the judge in the case ordered that this inspection take place while Great America was open to the public, rather than waiting a few days or weeks until the park was closed and this inspection could be carried out without the public watching.  As discussed more below, neither the plaintiff’s arguments in favor of this public inspection nor the judge’s resulting order stands up to much scrutiny and so the only plausible explanation for this result is that the judge, consistent with the point of General Order 56, saw a unique opportunity to exert settlement pressure on Cedar Fair, an opportunity that simply could not be passed up.

The plaintiff claimed that the only way to asses Great America’s ADA compliance is to do the inspection while the park was open to the public because once it closes, “the facilities will be boarded up, tables removed for storage, paths of travel closed or changed from when the park is open, etc.  The physical conditions will not be the same.”  Moreover, the plaintiff included a declaration from its ADA compliance expert who stated that

It is important to investigate the facility while it is operating under normal conditions in order to assess how traffic patterns and crowds affect usability by people in wheelchairs. ... In addition I often need to observe crowd control measures such as cue [sic] lines; operational measures such as disabled entrances and exists; live shows to determine how lines of sight work from the disabled seating; and parking trams and rides.  The location and utility of signs and paths of travel also needs to be assessed while the property is open.  Moveable elements such as garbage cans, mobile concessions, temporary parking, and temporary attractions may be stored out of the way when the park is closed, but when the park is open they may be placed in ways which create barriers to access.

Now, while on the surface, all of this might sound like a reasonable argument for forcing a park to undertake an invasive court-mandated ADA assessment in full view of its guests, in reality this is, to use a legal term, a load of hooey.  First, and most obviously, the argument that the physical state of the park (i.e. location of trash cans, food carts, etc.) will change upon closure of the park for the season is frankly ridiculous.  The court could have simply ordered Cedar Fair to delay its end-of-season cleanup and storage for a few days until the inspection was complete.  Such an order could have required Cedar Fair to leave everything exactly as it is on normal operating days under penalty of severe sanctions if it didn’t.  A reputable company like Cedar Fair would surely have complied with this order to the letter, thereby eliminating any concern the plaintiff might have about these “movable elements.” 

Second, the notion that an effective inspection must occur during operation so that the plaintiff can assess ADA compliance based on crowd levels, ignores the fact that, to the best of my knowledge, ADA compliance requirements are no different in a public accommodation (including an amusement park) when there are one hundred guests there than when there are twenty thousand guests there.  Presumably, when the Access Board created the physical infrastructure rules on queue lines, public restrooms and walkways, it took into account the fact that these public facilities are used by both the disabled and the general public simultaneously and built that consideration into the objective requirements.  Also, this argument effectively means that a disabled plaintiff with an ADA claim against a seasonal park in California cannot comply with General Order 56 if his claim is filed during the off-season.  In those instances, based on this argument, the litigants would have to wait for the park to re-open for the year before complying with this order.  My bet is that isn’t the way it really works.

Whether the park is full of guests or not will not affect how wide the queues are or how many wheelchair accessible stalls are in the restrooms.  However, if the park is full of guests, it will be necessary for a team of lawyers, experts, and park officials (all probably dressed in business attire so that no one mistakes how important they are) to move some of those guests out of the way to measure the queue or temporarily close a restroom to assess its compliance.  This won’t go unnoticed by the guests that witness it or are inconvenienced by it.  It also won’t go unnoticed by the front line employees who may have no reason or need to know about the litigation.  An inspection like this could, at a minimum, get some press in the media or on the blogosphere (guilty as charged, I guess) or could get filmed on a cell phone camera and posted to You Tube.  None of this is good for the park’s PR machine.  And that is just what the plaintiff and the judge intend will happen since it could push Cedar Fair into settlement.

Now, don’t misunderstand me.  I’m not saying that judges always reach the wrong decision just to push a settlement.  Most judges, on the big issues in a case (i.e. ones that will make or break a case), do the right thing and follow the law as they see it (which may not be how you see the law, of course).  All I’m saying is that, on preliminary issues in a case, judges often look for ways to exert pressure on the parties (and, more often, on defendants) to settle a case before time and expense become exorbitant.  In those instances, they can make a decision that does not exactly comply with the law or facts because these issues are virtually appeal-proof.  And you have no choice but to live with it. 

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