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. 

The Most Important Amusement Industry Lawsuit In Years May Have Just Been Filed In California

Do disabled guests have an absolute right to ride amusement rides under the Americans with Disabilities Act?  That's the question posed in what could be one of the most significant amusement-related lawsuits to be filed in years.  Assuming this suit does not settle, and this is the kind of suit that might not, the result of this lawsuit could have significant ramifications on our industry from both a liability perspective and a guest-service perspective.  It could affect the way rides are designed and manufactured.  It could affect operational protocols and procedures.  In short, I do not believe it is an understatement to say that this is a lawsuit that every member of our industry needs to watch.  It is one of the rare legal decisions that could equally impact the day-to-day operations of a small FEC and a huge multi-park resort.  It is potentially that big.

A Photo Is Worth A Thousand Words, But Then What?

A really cool video produced by Coke has been flying around the internet recently.  It's a good-natured spin on hidden camera stories that is supposed to demonstrate that bad things are not the only thing captured on hidden cameras. Hidden cameras are just as likely to catch all of us at our best as at our worst.  Its a pretty entertaining little video that admittedly makes you feel all warm and fuzzy.  If you haven't seen it yet, here it is.

 

My reaction to this video was two-fold.  First, I was pretty darned impressed and a little moved.  Assuming its genuine (and heck, even if its not), the video did a nice job at making me feel good about humanity - and  strangely I am suddenly thirsty for a Coke too.  But then the lawyer in me kicked in and I wondered:  What happened just before and after each of those little snippets?  How do we know that all of these heartwarming moments really were heartwarming moments?  While it's true that, today more than ever, someone is always watching.  And taping.  And posting.  Are they really getting the whole story?  I don't think so.

Happy Birthday! Celebrate by "Liking" The Legal Roller Coaster on Facebook!

The cake is NOT a lie.  The Legal Roller Coaster really is one year old!

This weekend marks the first birthday of The Legal Roller Coaster!  In honor of the momentous occasion, The Legal Roller Coaster is expanding.  Yes, the blog will still be here, but I have recently opened a new Facebook page.  Check it out here!  The new Facebook page features:

• Links to all blog content from The Legal Roller Coaster;
• Copies of documents referenced on the blog so you can see it for yourself if you just don't believe what I'm telling you;
• More frequent updates with daily news content on the legal side of the industry; and
• A more convenient informal way to communicate with all of you about blog content, the news of the day, or topics of interest in the industry.

If you like what you see on Facebook and you like what you see here, then by all means click "Like" on the Facebook page so that you will stay informed through your news feed.

The SeaWorld OSHA Decision And The Dangers Of Captive Animals: A Reasoned Response To Media Distortion

Last week, Administrative Law Judge Ken S. Welch in Orlando issued the long awaited opinion in Secretary of Labor v. SeaWorld of Florida, LLC, more commonly known as the Dawn Brancheau case.  As most of you probably know, on February 24, 2010, Dawn Brancheau, a seasoned and respected trainer at SeaWorld, was killed by a killer whale that dragged her into the water, fatally injuring her.  Following Ms. Brancheau’s tragic death, OSHA investigated and assessed a $75,000 fine and issued two citations.  OSHA also ordered that SeaWorld abate the hazard by not allowing trainers to have contact with killer whales during shows unless they are protected by a physical barrier or a minimum safe distance of dry land.  SeaWorld appealed the violations to the OSHA Review Commission, which largely, but not totally, affirmed the OSHA investigator’s findings. 

Now I’m not going to try to pick apart Judge Welch’s decision – I don’t know the evidence, I wasn’t there for the testimony, and I don’t have significant experience with OSHA regulations and law.  The decision is quite long and very detailed and, absent greater familiarity with the underlying facts and arguments, I would not purport to challenge Judge Welch’s factual and legal determinations intelligently.  However, what does warrant comment is the treatment the decision has received in the days following its issuance and, in particular, a recent piece I read in the Huffington Post authored by David Kirby entitled “Labor Department Fires Warning Shot At Animal Entertainment Industry.”  Mr. Kirby’s piece omits key facts of the case, wrongly implies that Judge Welch found SeaWorld to be irresponsible and unconcerned with employee safety, and relies on inaccurate and misleading “statistics” and information sources to unfairly depict the frequency and severity of incidents involving animals held in captivity.

A Slippery Slope? Massachusetts Just It Made It Easier For New England Waterpark Operators To Lose A Lawsuit

If you’re operating a water park in New England (or, most likely, any other amusement facility for that matter), a recent decision from the Massachusetts Appeals Court just made it easier for you to lose a law suit.  Even when I try hard to set aside any "pro-industry" bias I may occasionally have and look at this from a purely objective legal viewpoint, I can only reach one conclusion:  Massachusetts got this one wrong.  The case’s potential impact on the New England amusement industry really cannot be overstated.  So what is the issue?  Read on to find out....

Don't Forget: What We Do Matters ... A Lot.

Greeting everyone!  As you can see by my last post, its been a while since I've updated The Legal Roller Coaster.  My apologies to those who have noticed.  My last piece was posted February 8, and was written while I was on a plane to Portland, Oregon to try a very large case in Oregon State Court.  I returned to my home, my job, and my life about two and a half weeks ago.  Over the last two months or so, I have worked harder than I ever have before on a long and exhausting trial, didn't see my wife or kids for almost seven  weeks, flew to Phoenix to say my final farewell to my grandmother who had been sick for years and finally just couldn't go on any longer, and, just a few weeks later, went to DC to bury one of my best friends from law school who passed away incredibly suddenly at the age of only 35, leaving behind her husband and three children.  I also took some time to attend the New England Association of Amusement Parks and Attractions Annual Meeting and present a short seminar to those fine folks.  That's a lot to take on in the span of two months - particularly in the middle of a multi-million dollar trial.  And all of that, particularly the death of my friend, got me thinking hard about what I do, what I like to do, and why I am doing it.  So, for my first post back after a couple of months, I've decided to go in a somewhat uncharacteristic non-legal direction (and don't worry - this is probably a one-shot thing since I've got a lot of other things to talk about soon), and talk a little bit about why our industry is so important and why the work that we do really does matter to people.

PETA’s Frivolous Suit Against SeaWorld Alleging Orca Slavery: It Doesn’t Get Much More Black and White Than This (UPDATED 2/9/12)

On Monday, a federal magistrate judge heard argument on whether to dismiss a relatively recent lawsuit brought against SeaWorld by People for the Ethical Treatment of Animals (“PETA”) that raises an unprecedented and patently frivolous claim – even for an organization known for taking some pretty unreasonable positions.  The lawsuit is captioned Tilikum v. SeaWorld Parks & Entertainment, Inc. and it is pending in the U.S. District Court for the Southern District of California before Magistrate Judge William McCurine, Jr..  Now, I suspect many of you who read my blog (and thus, presumably have an interest in the amusement industry) will immediately recognize the named plaintiff despite the fact that he is not, in fact, a human being.  Tilikum is an orca – the very orca that killed SeaWorld trainer Dawn Brancheau last year after a performance at SeaWorld in Orlando.  Tilikum and four other orcas, speaking (not surprisingly) through actual human beings (a procedure that I won’t get into in this article), “claim” that they are being held against their will and subjected to slavery and involuntary servitude in violation of the 13^th Amendment to the United States.  The basis of such a claim?  The 13^th Amendment never specifically says that it only applies to “people” so, naturally, it must also apply to orcas.  The breadth of the Plaintiffs’ argument is as utterly astounding as it is facially foolhardy and frivolous.  This is the very definition of a lawsuit brought for no other purpose than to bring publicity to the plaintiff and to harass SeaWorld.   

How To Give Your Lawyer A Cardiac Arrest .... Brought To You By The Reading Phillies

Hi everyone!  Miss me?  Its been crazy the last few weeks as I have been working on a very large case that is going to trial next month in Oregon state court.  Unfortunately, this has occupied so much of my time that I was unavoidably forced to neglect my duties to The Legal Roller Coaster.  Well that stops here and now because I’ve just seen something that practically screams out for some attention.  And, given that this is my first post of the New Year, I thought it would be fun to start off with something a bit on the lighter side.  Ladies and Gentleman, I give you, “The Defense Lawyer’s Nightmare” a/k/a “The Worst Idea For A Promotional Event In History”  Seriously, you have to check this out – but please, PLEASE, don’t try anything you are about to see at your facility: