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I am an attorney practicing in Hartford, 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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Wednesday, May 28, 2014

Here & Now (Pt. 2): Is Immediate, On-Demand Ride Access For Autistic Guests Reasonable?




Click here for Here & Now (Prologue): The Question Of Autism In Amusement Parks Under The ADA

Click here for Here & Now (Pt. 1): Is Immediate Ride Boarding For Autistic Guests Really Necessary?
Click here for Here & Now (Pt. 3):  Isn't Standing In Line An Essential Rule Of The Park ... Even For Autistic Guests?


A recent lawsuit filed against the Walt Disney Company has put before a Federal Court in California the question of whether amusement parks have a legal obligation under the ADA to allow autistic guests to skip the line and board rides immediately upon arrival.  It’s a question that the industry has struggled with for years without much guidance in the legal literature.  This series is taking a closer look at that question.  Last time, I looked at the question of whether it was “necessary,” in ADA parlance, for anautistic guest to have immediate boarding privileges.  Today, I’m tackling what I believe to be the central question raised in the Walt Disney lawsuit:  Is it reasonable to allow guests with disabilities to have on-demand, immediate boarding on amusement rides?  Put another way, is it reasonable to provide guests with disabilities with an appointment time at which immediate boarding will be granted?

As I mentioned in the first piece in this series, public accommodations, like amusement parks, are only required to make “reasonable modifications” under the Americans With  Disabilities Act.  But what does "reasonable" mean in the context of an amusement park? 


No court has yet weighed in on this question in the amusement industry (thus the import of the Walt Disney litigation), but a recent decision involving cruise ships from a federal court in Florida may provide some guidance.  Last December, the Southern District of Florida rendered a decision in a case called Alumni Cruises LLC v. Carnival Corporation, 2013WL 3511737 that addressed an issue very similar to that confronting the amusement industry today.  Alumni Cruises was an ADA lawsuit brought by a group going by the trade name “Autism on the Seas” or “AOTS,” a group that “works with multiple cruise lines in order to provide vacation opportunities for developmentally disabled adults and families of children living with autism, Down Syndrome, cerebral palsy, Asperger’s Syndrome, and other cognitive, intellectual and developmental disabilities.”  AOTS, which, on average, organizes trips for groups of ten special-needs children per cruise, sued Carnival Cruise Lines claiming violations of the ADA arising from Carnival’s alleged unwillingness to make certain accommodations for its clients.  Among the eleven accommodations sought in the complaint, which ranged from increasing staffing at Carnival’s “Camp Carnival” children’s program to free private use of the on-board disco to better publicity of services available to developmentally disabled passengers, were a couple that caught my eye immediately, including this one:

Port check-in:  Families of developmentally disabled individuals should be permitted to either check-in via an expedited check-in counter or by an expedited process designed for families with a developmentally disabled guest[.]

Looks familiar, doesn’t it?  Assuming (but not deciding) that this modification was “necessary,” the Court focused its inquiry on whether it was “reasonable” under the ADA.  It found it was not.

As in the amusement context, the two sides essentially disagreed over whether Carnival could set boarding appointments for disabled guests or whether it had to allow expedited boarding whenever the guest wanted to board.  Carnival argued that it had already made a reasonable accommodation for autistic guests that could not wait in the regular embarkation line.

Carnival has responded to this request by providing AOTS with the name of a Carnival employee to contact when the AOTS group arrives at the ship, so individuals with autism and other developmental disabilities, who lack the ability to remain focused and engage in generally accepted conduct while in a crowd or a line for extended periods of time, may receive expedited check-in.  As Carnival explains, it can expedite check in of groups with special needs when they arrive at one time, but it is unable to do so when they board at scattered times throughout the day.

AOTS, however, found this modification unacceptable.

AOTS complains that this accommodation is not sufficient since its clients do not all arrive at the port at the same time because the nature of their disabilities causes outbursts and other circumstances that may draw families with children with developmental disabilities off schedule and may prevent them from being able to ensure arrival at a specific time.

Faced with these two choices, the Court found not only that Carnival’s appointment-based system was reasonable, but that immediate boarding was unreasonable as a matter of law. 

Carnival’s proposed modification is reasonable and accommodates the behavioral issues that families with children with developmental disabilities such as autism may experience when required to stay in one place without outlets for their children for extended periods. … While the Court is not unsympathetic to the sometimes-challenging circumstances that families with children with developmental disabilities may face, particularly when traveling, in order to participate in a Carnival cruise, AOTS has provided no evidence that its clients are unable to arrive at a designated time for check in other than [the] bald assertion to that effect.  Particularly in light of the fact that, to participate in a Carnival Cruise, AOTS’s clients must find a way to get to the port on time to board the ship before it departs, and further, that AOTS is able to gather its clients all at the same time for dining, photograph opportunities, and tender departures, [AOTS’s] naked claim that the proposed modification is not sufficient does not suffice.  It is not unreasonable for Carnival to expect AOTS clients to find a way to arrive on time to enjoy expedited check in if that is important to them. 

Not only has AOTS failed to demonstrate that Carnival’s proposed modification is insufficient, but a reasonable jury could not find that AOTS’s counterproposal is reasonable.  Carnival conducts its embarkation process over several hours.  AOTS’s proposed modification would require Carnival either to have designated staff for that entire period who check in only those relatively few passengers traveling with guests with developmental disabilities or to have its general check-in staff drop everything – including their accommodation of other guests – to check in passengers traveling with guests with developmental disabilities whenever they happen to arrive throughout the multiple hour period.  Quite simply, that is not reasonable when Carnival is willing to provide guests with developmental disabilities with an expedited check-in process that requires only that such patrons arrive at a designated time.

I hope the cruise is worth this wait.
Now, while the analogy to the theme park context is admittedly imperfect, it is nonetheless informative with respect to ride access.  A cruise ship embarkation line is, as anyone who has ever cruised before can attest, one of the few lines that can rival the most popular theme park attractions.  Like a new attraction, cruise ship lines can entail more than an hour of waiting in close quarters with other guests with little to no distraction or freedom of movement.  In short, both environments are undoubtedly less than ideal for many autistic guests and their families. 

In my opinion, the Carnival Cruise case supports the reasonableness of Disney’s appointment-based access policy under the ADA.  Just as in the cruise ship context, to participate in a Disney-park experience (or any amusement park experience for that matter), guests must adhere to certain schedules:  they must arrive at a certain times to enter the park, they must arrive at certain times for shows, they may make dining reservations.  It seems reasonable, therefore, for guests who cannot wait in attraction lines to be given an appointment for expedited boarding.  Perhaps it is even unreasonable to expect parks to “drop everything  - including their accommodation of other guests” to board guests “traveling with guests with developmental disabilities whenever they happen to arrive.”   

Of course, the Carnival case only brings the question so far.  Importantly, it does not seem to address a central argument in the Disney case:  the impossibility of explaining to a developmentally disabled guest that, although they have arrived at the ride location, the guest cannot immediately board.  But isn’t that something that the Disney policy has already reasonably addressed?  According to its policy, boarding appointments are not given at the rides themselves but at Guest Relations kiosks located throughout the park.  Guests with disabilities do not need to be present at the kiosk to get the boarding time either.  Under Disney’s policy, therefore, there is no need for an autistic guest to go to a specific ride until the boarding appointment arrives.  Thus, assuming proper planning, from the perspective of an autistic guest, not much has changed – boarding is still immediate.  Appointment times are given somewhere besides the ride itself and, assuming a parent keeps their autistic child away from the attraction until the boarding time arrives, the child will have waited without even knowing that he / she did. 

While there can be no doubt that Disney’s policy, and other similar policies, puts additional responsibility on parents and guardians to plan the day to minimize the possibility of meltdowns, as noted in the Carnival case, planning and appointments are part of life for everyone – including families with autistic children.  Perhaps because amusement parks are an escape from everyday life, families of autistic guests would obviously prefer the convenience of immediate boarding on amusement rides.  And, for some operators, that may be reason enough to offer immediate boarding in the interest of providing a guest service.   But, as a purely legal matter, the fact that immediate boarding is preferred or more convenient does not make an appointment-based boarding system like Disney’s or Cedar Fair’s unreasonable under the ADA.  

Next time, I'll wrap this discussion up by looking at the question of whether not waiting in line fundamentally alters the theme park experience.  Until then... 


Click here for Here & Now (Pt. 1): Is Immediate Ride Boarding For Autistic Guests Really Necessary?


3 comments:

  1. I thought waiting impatiently in unbearably long lines was an integral part of the theme park experience!

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  2. It seems that the fundamental difference between what the plaintiffs sought from Carnival Cruise Lines and what the plaintiffs seem to be seeking from Disney is that Disney already has a dedicated line & staff for express access: FastPass+.

    It appears that Carnival's primary opposition to the lawsuit was one of cost. I suspect that if what the plaintiffs sought from Carnival was a less expensive solution, Carnival would have embraced it.

    Arguably, Disney's new DAS is more expensive for Disney to operate since it involves additional work on the part of Disney's Cast Members, who must check the ride's current wait time, fill out the card, and then inspect the DAS card once again when the patron returns.

    In Carnival's case, the Court essentially ruled that requiring Carnival to maintain extra staff was an unreasonable modification.

    Disney cannot make such an argument since it already has the facilities and staff dedicated to the FastPass+ line.

    Forcing guests with disabilities to artificially return some time later for an "appointment" saves Disney nothing. Therefore, it's difficult to see the parallels between the Carnival and Disney cases.

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  3. This comment has been removed by a blog administrator.

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