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.

Legal Disclaimer (because, you know, I'm a lawyer)

This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice (or any legal advice). By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher and / or author nor can such a relationship be created by use of his Blog / Web Site. By using thisBlog / Web Site you understand that any statement on the blog site are solely those of the author and do not reflect the views of Wiggin and Dana LLP or International Ride Training LLC. By using this blog site you understand that the Blog/Web Site is not affiliated with or approved by Wiggin and Dana LLP or International Ride Training LLC. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction. This blog is not published for advertising or solicitation purposes. Regardless, the hiring of a lawyer is an important decision that should not be based solely upon advertisements.

Sunday, December 29, 2013

Blackfish / White Lies? (An Epilogue): Responding To Your Comments


I lied.  I said my last post was my last foray into Blackfish.  But, I have been inundated with so many emails and comments that I thought I should write one last piece to address some of these points raised either publicly or privately.  First, let me say how grateful I am for most of the comments, even those that clearly think that I have missed the point of Blackfish (and, not surprisingly, there are quite a few of you out there).  The point of this blog is to generate discussion and debate and to provide information and opinion about the amusement industry to those that are interested, and those goals seem to have been achieved in this series.  But, having read hundreds of emails, comments, tweets, and Facebook posts about these pieces, I have seen some common themes emerging that deserve to be addressed - I just don't have time to address them individually.  So I thought it made more sense to post one last piece.  I wouldn't, after all, want anyone to think I was ignoring them.

Saturday, December 21, 2013

Blackfish / White Lies? (Pt. 3): Undisclosed Facts & Muddled Messages

So here we are (a little later than originally planned), the final piece of this series, and my last foray into Blackfish until, perhaps, the DC Circuit Court of Appeals rules on SeaWorld's OSHA appeal sometime in the coming months.  In the time since the first two pieces of this series hit the blogosphere, Blackfish has moved from near-nightly airings on CNN to on-demand availability on Netflix.  Additionally, the film has stayed in the headlines due, in no small part, to the recent media attention surrounding the decision of several musical acts to cancel their appearances at SeaWorld in an apparent act of protest.  It is clear that the “Blackfish effect” is powerful both in its message and its longevity.  But what is its message exactly?  And do the facts presented in Blackfish support that message in a fashion that lives up to the claim of its director, Gabriala Cowperthwaite, that the film is nothing more than a “truthful, fact driven narrative” that errs “on the side of the journalistic approach”and is, in fact, “not at all advocating for anything.”  My belief is that Blackfish itself plainly belies any contention that the film is anything other than a piece of animal-rights advocacy – one sided in both fact and presentation.   

In the first two pieces in this series I looked at the people involved in Blackfish, many of whom have undisclosed (and sometimes radical) animal-rights agendas, and the filmmaking techniques used to steer the viewer toward one, and only one, position.   To finish, I thought we should take a closer look at Blackfish’s substance - the claims it makes and its overall message. 

Remember, Blackfish is being passed off by its director as erring “on the side of the journalistic approach.”  That means that its statements should comply with journalistic standards:  they should be fact checked, unambiguous, and not misleading.  Why is that important?  Because if the film conveys a false factual impression or is inaccurate or untruthful as to even a single point, it can (and does) degrade the credibility of the film as a whole.  To continue the analogy from Part 1 of this series, this film is, in essence, the star witness in the Court of Public Opinion's trial of SeaWorld.  The audience must, therefore, assess its credibility as to the facts presented, just as it would any other witness.  A falsehood, even a little white lie, calls into question the rest of what the film says.  If the film lies about little things, the audience - the jury in the Court of Public Opinion - has a right to wonder whether the film is lying about bigger things too.  

Saturday, November 9, 2013

Blackfish / White Lies? (Pt. 2): The Art Of Advocacy Film-Making

I had to decide that my structure was going to be to tell the truthful, fact-driven narrative from beginning to end, following Tilikum’s trajectory through the eyes of the former trainers, that I can just tell the truth and lay out the facts.  Someone said that if you try too hard to do “on the one hand, but then on the other hand,” you may become faithless to the truth.  And so, if I just promise myself that I would not sensationalize, not shoehorn information in there that will manipulate people into feeling things and stick to the fact-driven story, then that is a story that people need to hear.“
Gabriela Cowperthwaite, describing Blackfish (available at http://collider.com/gabriela-cowperthwaite-jeffrey-ventre-blackfish-interview/).  

Is this accurate?  Is Blackfish really just an un-sensationalized piece of documentary film-making that doesn’t try to “manipulate people into feeling things?”  Does Blackfish simply “stick to a fact-driven story?”  That’s the question and the point of this series.  Ms. Cowperthwaite has given interviews to at least two media outlets claiming that Blackfish is just a straightforward presentation of “fact driven narrative,” without advocacy.  I do not see how that can be a credible claim given the inherent bias of the people involved (the discussion of my last entry), the structure and film-making tricks used seemingly for the sole purpose of “manipulate[ing] people” into considering only one side (the subject of this piece), and the inconsistent and sometimes demonstrably incorrect statements presented in the film (the subject of the next, and last, piece).  

Wednesday, November 6, 2013

Blackfish / White Lies? (Pt. 1): Sorry, I Forgot To Mention, They're All Activists

“Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.”

United States v. Abel, 469 U.S. 45, 52 (1984). 

Former Chief Justice of the United States Supreme Court William Rhenquist wrote these words nearly 30 years ago.  They are as true in the Court of Public Opinion as they are in a court of law.  Blackfish has a lot of “testimony” that is presented without any hint of potential bias – quite the opposite actually.  Director Gabriela Cowperthwaite strongly suggests the outright credibility of most of the people who appear in the film.  After all, who better to speak about what is going on with SeaWorld’s whales than a bunch of ex-trainers who spent years working with them?  Who better to explain the science behind orca behavior and biology than experts in the field and a neuroscientist who has studied the brain of a killer whale up close?  Since Blackfish provides no background on any of these individuals, other than what is necessary to establish their credibility, the “jury” in the Court of Public Opinion is left with nothing to assess the true credibility of their “testimony.”  In a court of law, questions of bias are raised through cross examination.  Similarly, in true journalistic pieces, the journalist “cross examines” his or her source by, for example, playing the “devil’s advocate” and challenging them to explain, debunk, or address potential sources of bias.  Cross examination and journalistic honesty are vital tools that allow the audience to decide for themselves whether what is being said is “the truth, the whole truth, and nothing but the truth.”  But in Blackfish, there is no “cross examination” of the "witnesses" the "jury" is expected to believe.  Consequently, it is easy to view Blackfish as telling its story though an objective lens.  But that’s just not the case.

Monday, November 4, 2013

Blackfish / White Lies? (A Prologue)

Click here to read Blackfish / White Lies (An Epilogue):  Responding To Your Comments

In Blackfish, director Gabriela Cowperthwaite has given the world a very effective and compelling piece of film-making.  While I was not able to catch this documentary in the theaters during its limited release last summer, I was able to catch it on CNN earlier this week and, as a lawyer, I am compelled to admit to some appreciation for the work that was done.  Blackfish is disturbing and, at times, difficult to watch.   It makes a compelling visceral argument against killer whale captivity in general and against SeaWorld in particular.  It is a film that stays with you after you watch it.  It is one of the better pieces of advocacy that I’ve seen in recent years, and, particularly given my interest and involvement in this industry, it made me want to read a bit more.  And that’s when I came across this quote from a recent interview given by Ms.Cowperthwaite:

[T]he film is not at all advocating for anything. That’s what some people have a hard time with. [They ask], “Where’s the 1-800 number at the end of the film?” You know, where you need to prescribe something we can do. I deliberately chose not to do that. What I did choose to do was to tell the story, and that’s all I was really equipped to do. … So I really truly believe that I err on the side of the journalistic approach, not the advocacy approach. I think that for me, I had to come to my conclusions by really reviewing the facts.  I kept everybody at bay because [I] didn’t want to be influence[d] by any kind of agenda and I just kind of stuck with the story.

(More after the jump)

Sunday, October 6, 2013

The One Thing No One Is Telling You About Disney's New Disabled Guest Access Policy

As most of you probably already know, Disney has made some waves recently with the announcement of its new access policy for guests with disabilities  Although the change to the policy was announced a couple of weeks ago, I decided not to comment on it until I could see something official from Disney itself explaining how the new policy would work.  Until such an announcement, I simply could not be sure that the media and blogosphere reporting was accurate (imagine that?).  Well, Disney has now officially unveiled its new access policy and published an F.A.Q. on the ins-and-outs of its mechanics.  And having taken a look at Disney's official materials, I am left wondering why a critical component of the policy has been almost completely overlooked by both the national media and, it seems, by the people expressing dismay and anger about the new system.  Contrary to what you may have read in news reports or online petitions, Disney's new policy appears to simultaneously curtail the abuses it encountered under its prior system while still maintaining enough flexibility to address the individual needs of its disabled guests. That's good, right?  Read on to find out more...

Friday, September 13, 2013

Massachusetts Bill Would Criminalize Enforcement of Amusement Ride Safety Requirements (Really ... It's True).

In Massachusetts, this sign could soon be illegal.
On May 16, 1999, a 37 year old man was ejected and injured while riding the Superman Ride of Steel roller coaster at Darien Lake.  "Park officials say that the passenger restraint system was working properly, and that the weight of the rider, which was in excess of 300 pounds, could have been a factor." 

On September 21, 2002, a 40 year old woman fell to her death at Knotts Berry Farm while riding the Perilous Plunge.  According to the coroner's report, "the woman weighed 292 pounds, had a 58-inch abdomen, and ... her hips were about 50 inches around." The seat belts on the ride only extended 50 inches.

On May 1, 2004, a man was ejected from Six Flag's New England's Superman roller coaster and killed.  Investigators found that a contributing factor to his death was that the "girth of the victim's lower torso was incompatible with the "T" bar restraint" on the ride."

And just a few weeks ago, on July 19, 2013, Rosy Esparza, a 52 year old woman, was ejected from the Texas Giant and fell to her death.  Her weight may have been a factor in her death.  While Six Flags has not released the findings of its investigation due to pending litigation, a statement issued by Six Flags on September 10 states that the ride was being reopened with modified restraints and a test seat at the entrance because "as with other rides in the park, guests with unique body shapes or sizes may not fit into the restraint system." 

Meet the man trying hard to make your next amusement ride more dangerous.

Weight clearly can be a problem on some amusement rides.  The fact is that rides are simply not designed to safely accommodate everyone of every size.  That's the reason manufacturers establish height requirements and, less frequently, weight requirements for amusement rides.  And while every operator has faced, on numerous occasions, the wrath of a parent who vociferously insists that his child be allowed to ride notwithstanding the height requirement or the guest that only JUUUUUUUST fits into the restraint but steadfastly insists on riding, whenever anyone is injured or killed a central theme in the inevitable ensuing lawsuit is that the operator should not have allowed the rider to board if the ride could not safely accommodate him.  But what if it was actually against the law for an operator to enforce height requirements?  What if it was actually a crime to turn someone away from a ride due to their weight?  Well, if State Representative Byron Rushing (D., Boston) has his way, that might soon be the case in the fine Commonwealth of Massachusetts. (Thanks to my colleague Paul Cavanaugh, of Daly Cavanaugh LLP for bringing this one to my attention!).   

Click "read more" for the rest of the story....

Friday, September 6, 2013

In Favor Of Federal Amusement Oversight? Why Pennsylvania Proves It Won't Work

In the weeks following the tragic death of Rosy Esparza on the Texas Giant at Six Flags Over Texas, there has been a great deal of debate and scrutiny of amusement regulation, or lack thereof, at the state and federal level in United States.  One state, though, has emerged as the poster-child for "what's wrong with amusement regulation" in this country - Pennsylvania.  Research conducted by Pittsburgh-based PublicSource has revealed holes and systemic weaknesses in Pennsylvania's amusement industry oversight - holes and systemic weaknesses that should be fixed.  But beyond the obvious issues raised by the PublicSource investigation, I think the experience in Pennsylvania must be viewed as a microcosm for the problems that would certainly be encountered if federal oversight of the amusement industry were to become a reality.

Sunday, July 21, 2013

Special Report - Tragedy On The Texas Giant: A Call For Focus Amid Distraction

Its been a bad weekend for the amusement industry.  First, an incident on Friday evening at Cedar Point's Shoot the Rapids ride resulted in several minor injuries, with one guest treated and later released from a local hospital.  Luckily, all indications at this point in time are that this incident looked worse than it actually was.  Unfortunately, the same can not be said for the incident at Six Flags Over Texas, occurring just a couple of hours later, that tragically ended the life of Rosy Esparza after a fall from The Texas Giant roller coaster.  Understandably, these incidents, particularly the death of Ms. Esparza, have garnered a huge amount of attention from the local and national media, not to mention social media, over the last 36 hours.  That's to be expected when an event like this occurs.  Over the next few days, there will be a plethora of media reports, tweets, Facebook posts, and editorials opining about what happened in Texas, how it could have been prevented, and what is "wrong" with the amusement industry that such an event could occur.  In the midst of this maelstrom, I think it's important to keep some perspective and to keep a few things in mind so that the important work ahead of us can get done and get done right:

Friday, July 19, 2013

Planes, Trains, & Waterslides? Missouri Imposes Heightened Liability Standard On Amusement And Water Parks

The Missouri Court of Appeals this week issued a stunning decision in Chavez v. Cedar Fair L.P. holding that a water slide operator (or, in that case, a family raft ride operator) owes the same duty of care as a so-called “common carrier,” i.e. operators of mass transportation – airplanes, trains, ships, etc., to safeguard guest safety.  In so holding, Missouri has become the first state in the country to impose this heightened standard of liability on water park operators.  The Court’s analysis is fundamentally flawed both in its application to the allegations in this case and in providing guidance to future courts in future cases.  Even accepting the Court’s suspect legal analysis, the result ignores the plaintiff’s own allegations of liability – allegations which should have resulted in a lower standard of care than that which the Court imposed.  Moreover, and more importantly, the Court failed to undertake the case-by-case analysis the court claims is required to reach the result it did, thus sending the wrong message to future courts.  If permitted to stand, this decision will increase liability exposure to Missouri amusement operators (both water park and otherwise) and sets a dangerous precedent for amusement industry cases filed in other jurisdictions.  More on all of this after the jump.**

Wednesday, May 1, 2013

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:

Friday, April 12, 2013

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?

Monday, March 4, 2013

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.

Tuesday, February 26, 2013

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. 

Tuesday, January 15, 2013

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)

Wednesday, January 2, 2013

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.