
Bench v. Six Flags Over Texas
Before we get into why this may not actually be a bad
decision for our industry, give me just a minute or two to summarize the
decision. The case is called Clint
Bench v. Six Flags Over Texas, Inc..
According to the facts summarized in the case, Mr. Bench has a physical
condition that prevented him from developing fully formed hands. After visiting Six Flags Over Texas on
previous occasions without issue with regard to ride access, he returned to the
park in May 2012 and was told, after boarding, that he could not ride the
Aquaman Splashdown attraction (an O.D. Hopkins manufactured shoot-the-chutes
ride) because he did not have fully formed hands for grasping. Six Flags provided him with a brochure
explaining the ride access policy, which apparently did not list the Aquaman
Splashdown attraction as being restricted based on this disability. He sued under the Americans With Disabilities
Act and Texas’s state law analog. As
relevant to this article, the crux of his complaint was that Six Flags excluded
him based on unlawful eligibility criteria.
Six Flags moved for summary judgment, essentially asking the court to
rule in its favor without a trial because it’s access criteria fell within the
ADA’s “legitimate safety requirements” exception, which allows operators to
lawfully discriminate on the basis of a disability where there is an “actual
risk” of harm to the disabled guest. The
court disagreed.
Importantly, the court did agree with Six Flags that the ADA
allows operators to exclude disabled guests for legitimate safety reasons. There was no question that the ADA allowed
such an exception – the problem was in the proof needed to fall within it. Six Flags argued that its eligibility
criteria arose from two primary sources:
1) the ride manufacturer, assuming the manufacturer exists and provides
access recommendations, and 2) for those rides where no manufacturer guidance
was available, on the recommendations of a corporate committee that “looked to
manufacturer requirements for similar rides, … and / or industry standards to
determine what enhanced ridership requirements were warranted, if any. The committee “also used engineering reports
from Six Flags’ engineering team [and] standards developed by the ASTM F24
Committee on Amusement Rides and Devices.” But the court zeroed in on the regulatory
language explaining this exception and found that Six Flags had not proven that
its eligibility criteria, resulting from either source, were based on “actual
risks” as opposed to “mere speculation, stereotypes, or generalizations about
individuals with disabilities.”
Can You REALLY Just Rely On Manufacturer Recommendations?
As for following the ride manufacturer’s recommendations,
Six Flags relied largely on Castelan, and argued that, like California,
Texas state law requires operators of amusement rides to follow manufacturer
recommendations, and thus they could not modify those recommendations to
accommodate disabled guests that were excluded because of them. But the court, while sympathetic to the
park’s position, disagreed that the manufacturer’s recommendations could, on
their own, satisfy Six Flags’ burden of proving that its access rules were
based on an “actual risk.”

First, and perhaps most importantly under the facts of the
case, the Court found that only one of the rides at Six Flags Over Texas,
Batman – The Ride, had manufacturer’s access restrictions at all. The rest of the rides, including Aquaman’s
Splashdown, had no guidance and thus state law did not even come into play for
those rides.
Second, the Court found that, even if manufacturer’s
guidance existed, to the extent that the manufacturer’s recommendations did not
satisfy the standards of the ADA, the ADA, as federal law, would preempt the
state law ride safety regulations and access would be required. In other words, the manufacturer’s
recommendations are only as good to an ADA defense as the reasons behind them. If the manufacturer based its access
restrictions on something other than “actual risks,” that would not suffice to
satisfy the legitimate safety requirements exception in the ADA. In the words of the Court, “defendants
to these suits still bear the burden of proving their defense on the merits,
not by simply stating they are required to do it under state law.”
That is a significant departure from Castelan. Just a few months ago, the court in that case
said it was the plaintiff’s job to challenge the manufacturer’s
requirements because it was not the “Defendants’ responsibility to challenge
the manufacturer’s operating manual and ensure these requirements are in fact
necessary for the safe operation of the ride.”
The judge in that case believed that “if Plaintiffs believe the
restrictions are overprotective, they are free to initiate an action against
the manufacturer.” But the Court in Bench
disagreed:
States are passing the buck to ASTM and ASTM is passing the
buck to manufacturers. The Castelan court suggested they, the
manufacturers are the ones who should be held accountable, … but this Court is
not so sure that is possible. The
prohibition on discrimination applies to “any person who owns, leases (or leases
to), or operates a place of public accommodation.” Among the institutions setting criteria about
who can ride a roller coaster – amusement parks, manufacturers, ASTM, and the
state – amusement parks are the only ones who “operate a place of public
accommodation.” That means
ultimately they are the ones who must answer for discriminatory criteria that
they impose on their rides. If they are
concerned about their compliance with state law, the appropriate method is to
file a suit to be released from their state law obligations – not discriminate
now, deflect later.
That is powerful stuff.
And, although many in the industry probably won’t like it, it is, in my
opinion, a reasonable legal interpretation of the statutory and regulatory
language in the ADA. Castelan told parks that they could
accept the manufacturer’s requirements at face value, and that any challenge
to those requirements would need to be brought by affected plaintiffs against the manufacturers directly. But the ADA does not apply to manufacturers –
it doesn’t require a manufacturer to do anything. So any ADA lawsuit brought against the
manufacturer stands a pretty good chance of being dismissed almost
immediately. It is the operators of
public accommodations, like amusement parks, that have statutory obligations
and thus, according to the Bench court, it is up to them to be able to
back up the manufacturer’s recommendations with proof of an “actual risk.”
If Not The Manufacturer, Then Who?
So what about the second source of ride access policy – the
corporate committee I mentioned earlier.
To put it rather bluntly, the Court was unimpressed.
Six Flags Over Texas cites various items of evidence which
mostly say the same thing: the committee
charged with auditing the rider qualifications considered manufacturer
guidelines and service bulletins, the ASTM standards (which, by the way, point
back to the manufacturer guidelines and bulletins), reports from the Six Flags
engineering team, and the collective knowledge of the committee. The evidence could be summarized in two
sentences: “Trust us on this one. Somebody said we needed to do it.” None of it shows what “actual risk” the
criteria was based on. … At best, it
shows they bluntly compared a wide class of rides and imposed uniform
requirements. That broad approach is
commendable in terms of cost. But it
also leaves Bench without an answer as to why his disability prevents him from
safely riding roller coasters, and it does not satisfy the ADA’s requirements.
Unfortunately, the Court’s view of this committee – a
committee undoubtedly composed of people with decades of experience in the
operation and maintenance of Six Flags’ rides – is not entirely unexpected, at
least to me. The analysis that seems to
be demanded under the “legitimate safety requirements” standard is one that
begs for data and empirical proof over conclusions based on practical experience. Nor does it matter if, at the end of the day,
Six Flags’ committee’s conclusions were entirely correct (and they probably
were, at least with respect to a large number of rides). In the ADA, how those conclusions are reached
are more important than what those conclusions are. And, in the court’s view, a committee’s conclusions,
without backup data to support them, are insufficient to prove the existence of
an “actual risk.”
It also does not matter to the court if the analysis
demanded under the ADA is expensive to undertake – and there can be no doubt
that providing the data the Bench court is looking for will be
expensive. There is no “cost” exception
to the ADA in this regard. The law
simply does not allow a court to waive the applicable legal standards because
it costs too much for a defendant to satisfy them. Even in barrier removal situations where cost
can enter into the calculus, it is the rare case where the cost of providing
access will trump the intent of the ADA to provide the broadest access
possible. Congress has correctly
recognized that there may be safety reasons to deny access to a disabled guest,
but, to avoid abuse, it has purposefully made it difficult for owners and
operators of public accommodations to fall within this exception.
So Is This A Bad Decision For The Amusement Industry?
So, getting back to my initial question – is this a bad
decision for the industry? There are
going to be a lot of people who think it is.
There will be those in the industry that will say that this judge didn’t
respect the collective knowledge of the people who know these rides best or the
expertise and careful consideration that went into the ASTM standards. There are going to people who think that the
decision makes it virtually impossible for a small operator, who may not have
the resources necessary to do an exacting analysis of every ride to determine
ridership criteria, to successfully defend an ADA lawsuit (and, by the way,
that is a real concern to be drawn from this ruling).

Of course, there remains a significant, and unanswered question, as to what proof will suffice to satisfy the court under Bench's analysis. Is in-house engineering data enough? Does a park have to undertake a complete independent biomechanical engineering analysis to satisfy its burden of proving "actual risks"? Or is there some reasonable middle ground between the committee / blanket rule approach rejected in Bench and an expensive analysis that is financially infeasible for many operators? I think there probably is, but that's something to be addressed some other day, and it certainly isn't addressed in this case.
And, largely due to this uncertainty, none of this should be read to suggest that Six
Flags did a single thing wrong here. Six
Flags did what anyone would do – it relied on the legal authority available at
the time and presented a defense that fit well within it. Some may have thought that Castelan’s
analysis was imperfect, heck – even I thought it had some problems, but it was
the only case on point and thus was the best authority for Six Flags to rely
upon at the time. And, at the end of the day, it is certainly possible that future courts will agree with its practicality even if not its reasoning. But, Castelan was only the first case in an area of the law that is still
being developed and, in those circumstances, it can be difficult to predict how
persuasive it will be to another court in the the second case. Six Flags did the best it could do with the only legal authority available at the time. This Court simply disagreed with that authority.
And that is why, while the result is not good for Six Flags,
the Bench case, in the long run, likely is good for the industry. The worst thing to happen in any lawsuit is
to get blindsided by either the facts or the law. At least as to the law, this case helps
prevent that from happening to the next operator in the future. And that is why I think Bench is a
very important case and a “good” decision for the industry.
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