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, July 16, 2012

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.

The case is called Castelan v. Universal Studios, Inc. and it is pending in the U.S. District Court for the Central District of California.  I've posted a marked up copy of the complaint on my Facebook page under "Interesting Documents" if you would like a look (scroll to the bottom to see it).  The case has been brought by two plaintiffs, Angel Castelan and Marvin Huezo, both of whom are physically disabled and both of whom claim that Universal Studios Hollywood's ride admission policy violates the ADA.

Mr. Castelan is a double amputee at the forearm.  The complaint makes clear that while he owns prosthetic arms, "he does not use them in his daily life, as he has more function and control in the use of his stumps."  Mr. Castelan alleges that he frequently visited Universal Studios between 2000 and 2010 and that, beginning in 2004 (the year it opened), he rode The Revenge of the Mummy five or six times on each visit without incident.  He alleges that in October 2010, he boarded the train, buckled in, but, before dispatch, was "pulled off " and told that he could not ride "because he did not have arms and hands."  Mr. Castelan says that he complained to a supervisor who "informed [him] that Universal Studios now required individuals riding the Mummy to be able to grab onto the safety bar throughout the course of the ride."

The Complaint then alleges that a year later, in October 2011, Mr. Castelan returned to Universal Studios with Mr. Huezo, both of whose "legs were amputated after he was hit by a car while stopping to help a stranded motorist on the freeway" and who "cannot independently stand or walk without the use of prosthetic and / or a wheelchair at all times for mobility."  The two plaintiffs attempted to ride the Revenge of the Mummy, but were allegedly prevented from doing so, this time before being able to get into the cars.  According to the Complaint, Universal Studios staff informed Mr. Castelan that "he could not ride the roller coaster because he did not have hands and arms and, therefore, was unable to grab the safety bar."  Similarly, Mr. Huezo was allegedly told that he was ineligible to ride  because "Universal Studios' 'new policy' required all riders to have 'at least one arm and one leg' in order to ride The Mummy."  Importantly, in addition to the allegations regarding ride access, Mr. Huezo also claims to have gone over Universal Studios with the proverbial fine tooth comb and to have encountered sixty-two other physical barriers to access, each constituting its own violation of the ADA and of California's state-law equivalent, the Unruh Act.

Now, before going any further, I think its important to note that, while this case is an important one to watch, this might have been completely accidental.   In fact, this case was probably intended to be nothing more than the latest in a string of serial ADA claims made in California intended to "catch" businesses in technical violations of the ADA's access rules and extract a sizable settlement. The proliferation of these cases has been well-documented in the media.  They are routinely filed in California because, unlike the ADA, the Unruh Act allows for statutory damages to the Plaintiff of up to $4,000 per violation.  In terms of this case, assuming Mr. Huezo could prove each of his violations occurred just once, Universal Studios could face exposure of up to $248,000 plus the cost of removing each of the supposed violations.  It should come as no surprise therefore that a quick check of federal court filings in the Central District of California shows that over the last few years Mr. Huezo has brought ADA lawsuits against Sizzler, the Los Angeles Community College District, Woodbury University, California Pizza Kitchen, and, now, Universal Studios, and that each time he was represented by lawyers from Barbosa, Metz, & Harrison, LLP - a law firm that touts on its website that it "specializes in the protection of the rights of individuals with disabilities by seeking the removal of access barriers in places of public accommodations" and that its lawyers have "been responsible for the recovery of significant damages for our clients from both private and public entities."

But if the plaintiffs in this case intended this to be a quick, plain-vanilla lawsuit just like countless other "barrier removal" claims brought in the past, they might be in for a rude awakening.  Why?  Because this case is not about barrier removal in the traditional sense encountered by any number of other businesses.  It goes to the core tenants of the amusement industry itself and thereby raises issues that have never been litigated in the reported case law before.  The issues implicated, the intersection of guest safety and guest service, are so central to the industry that it is one of those rare cases that could actually proceed "on principle" rather than to a a quick settlement.       

 I have previously opined that amusement operators could legally discriminate against disabled people under the ADA if certain physical characteristics were "necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered" or if the disabled guest posed a "direct threat to the health or safety of others" on board.  This lawsuit will put both of these provisions of the ADA to the test.  Moreover, this case could clarify what level of "individual assessment" of a disabled person an operator needs to make before deciding whether a direct threat to safety exists.  Is it really the case that two people, both double amputees at the legs, could (or should) be treated differently when it comes to ride access?  How does an operator draw the line?  Last summer, Sgt. James Hackemer, an Iraq war vet who was a double amputee at the hip, was thrown off a roller coaster at Darien Lake and tragically perished.  Could it really be that the ADA requires Darien Lake to allow similarly disabled persons to ride in the future if an operator decides, based on an individual assessment of the guest, that he or she has a better chance of safely riding than Sgt. Hackemer did?  What kind of evidence does an operator have to show to substantiate a decision on access?  Or to show that there is a "direct threat" to other guests?  Or to establish the risks associated with riding with a disability?  These are all questions this case could answer for the first time.     

Obviously the case is still in its infancy.  It was only filed in late June, Universal Studios has yet to respond, and there are a lot of unknowns.  Could Universal settle leaving these issues still unresolved?  Sure, but, for the sake of the industry, I hope it doesn't.  These are incredibly important unresovled legal questions and we frankly couldn't have hand picked a better company to litigate them than Universal.  As one of the "big boys," Universal has plenty of resources to throw behind this litigation.  With an in-house legal team and undoubtedly sophisticated lawyers, Universal won't be as susceptible to pressure from aggressive plaintiffs' lawyers as a small "mom and pop" operation might be.  Universal has the brains, the money, and the motivation to see this through to the end.  I hope it does.

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