IAAPA Is Over, So What's Next? How Does A Couple Of Days In New Orleans In February Sound?

IAAPA 2014 in Orlando was a huge success!   From talking to my clients and peers that were there, I think all agree that the quality of the educational sessions and networking opportunities was, as usual, consistently fantastic.  But what now?  Well I have a suggestion.  How about a trip to New Orleans in the dead of winter?  Sound good?
 
Recently, the American Conference Institute reached out to me about being a media partner for an upcoming, and first of its kind, conference on Recreation, Leisure, and Amusement Park Compliance and Litigation.  Now, over the years, I've had a few whispers from various people about setting something like this up, but nothing that has either been backed by someone like ACI, who has A LOT of experience with quality business conferences on a variety of topics, or that I thought would be of interest to a broad swath of the industry.  Well, that's all about to change.

On a Roll: Cedar Fair Wins A Major Victory For The Industry In The Missouri Supreme Court

Cedar Fair has done it again.  In 2011, Cedar Fair came out on the losing end of a surprising California Court of Appeals decision, Nalwa v. Cedar Fair, L.P., a case that stunningly held that guests riding a bumper car ride do not assume the risk of injury caused when the cars bump.  In 2013, the California Supreme Court reversed that decision in a decision that represented a major victory for the entire industry.  In November 2013, Cedar Fair again suffered defeat in a case called Chavez v. Cedar Fair, L.P. (“Chavez I”), this time in the Missouri Court of Appeals.  That case broadly expanded the standard of care applied in negligence cases against amusement parks, likening their operation of amusement rides to the operation of airplanes, explosives or firearms.  I strongly criticized the Chavez I decision as not only bad in result, but bad in the flawed reasoning required to reach that result.  Well, the Missouri Supreme Court seems to have agreed (although I won’t go so far as to surmise that any of the justices read this blog necessarily).  In a decision issued on November 12 called Chavez v. Cedar Fair, L.P. (“Chavez II”), the highest court in Missouri not only overruled the Court of Appeals ruling in Chavez I, but also took the remarkable step of undoing more than sixty years of case law defining the negligence standards applied to amusement parks in Missouri.  Whereas, before Chavez II, it could safely be said that some, not all, amusement operators would be held to a heightened degree of “utmost care” in preventing injuries to their guests, after Chavez II, the law in Missouri is the more appropriate “ordinary care” standard in every amusement case.  This is a big win for the industry.  And once again, we have Cedar Fair to thank for it.

Here & Now (Pt. 3): Isn't Standing In Line An Essential Rule Of The Park .. Even For Autistic Guests?

Click here to read 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. 2): Is Immediate, On-Demand Ride Access For Autistic Guests Reasonable?

What does this ...

have to do with this?

A recent lawsuit brought against the Walt Disney Company has brought into the public spotlight an issue that the amusement industry has struggled with for years:  what accommodations are legally required for autistic guests and other guests with cognitive disabilities that cannot wait in line.  Last year, Disney’s parks (along with several others, including the Cedar Fair parks) instituted a policy that dramatically changed the procedure for these guests.  Rather than being granted on-demand, immediate boarding privileges upon arrival at a ride (as had been the practice for years), guests at these parks must now check-in, either at the ride or at a guest relations location (depending on the park), and make an appointment to return, at which time the guest and his party will be immediately boarded.  The appointment time corresponds to the length of the line.  So is this procedure acceptable under the Americans With Disabilities Act?  The plaintiffs in the recent Disney lawsuit say it is not – that immediate, on-demand boarding is a required accommodation under the law.  But is it?   

The first two pieces of this series have looked at the questions of whether immediate, on-demand boarding on amusement rides is necessary (giventhat front-of-the-line access does not seem to be requested in any other publicaccommodation) and / or reasonable (given prior case law in the cruise shipcontext finding it is not).  I’m ending this series by considering the third element of an ADA claim of this sort:  Does allowing on-demand, immediate boarding “fundamentally alter the nature of” the amusement park experience?  I believe it does – in dramatic fashion.

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.**

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.

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.

UPDATE: Wallace v. SeaWorld's Roadmap For Reversing Nalwa v. Cedar Fair

Last week I attended IAAPA Expo 2011 in beautiful (and much warmer than Connecticut) Orlando, Florida.  I think all who attended can agree that it was a great time and a fantastic networking opportunity.  To all of you who I met there, I hope to see you soon.  To all of you who I didn't, I hope to meet you soon.

While at IAAPA, I had the opportunity to speak with several of my colleagues, both in and out of any one of the kazillion educational sessions IAAPA offers, and specifically to speak with some of them about last summer's decision from the California federal court in Wallace v. Busch Entertainment.  I've previously written about this case to express my belief that it could contain a subtle signal that at least one federal judge in California does not believe that the Nalwa decision is long for this world.  (I've also written on the Nalwa decision previously - you can find that here).  I continue to believe that the absence of any mention of the Nalwa ruling in Wallace may speak volumes about its perceived persuasiveness.  However a colleague of mine, who practices in California, was not as convinced that there was any message or implication in the Wallace ruling.  According to my colleague, the absence of Nalwa in the Wallace decision is not attributable to the federal court's potential belief that Nalwa is a poor decision, but is simply a product of a California appellate rule that prohibits any court from citing the Nalwa decision once the California Supreme Court has agreed to review the decision.  Well - not being versed in California appellate rules (remember folks, I practice in Connecticut and the two states are PRETTY different), this stopped me in my tracks ... momentarily.  After all, if the Wallace court didn't cite to Nalwa because it wasn't allowed to - where does that leave my entire premise.  Well, I'm happy to report that my premise is safe and sound, and in fact, even assuming my colleague is correct about this rule, even stronger than it was before I knew about the rule.  Keep reading after the jump if you want to know why. 

The Strong Arm Of The Law: How Judges Use Appeal-Proof Decisions To Push Settlements

One of the most frustrating things about litigation for a client to understand is that sometimes, especially early in a case, you can be 100% right on the law and 100% right on the facts, and still lose – and there’s really nothing you can do about it.  Why?  Because judges, generally, are quite practical and they know precisely how and when to flex some judicial muscle to pressure you into a settlement that will bring the entire case to a close quickly and finally.  No difficult legal questions to answer.  No long trials taking up the Court’s time and costing a lot of money for the client.  No appeal and (more importantly from the judge’s perspective) risk of reversal on appeal.  The whole case just goes away.  And if all it takes to make all this a reality is a decision on a preliminary issue that might not be in line with controlling law and that will never be appealed, from the judge’s perspective, its worth it every time. 

I recently saw a perfect example of this in a recent case involving Cedar Fair’s soon-to-be-former property, California’s Great America in Santa Clara, California. The case is called Griffin v. Cedar Fair L.P., and it involves allegations that the park is in violation of the Americans With Disabilities Act.  The decision mostly concerns a rather ordinary pleading issue that normally would not warrant much attention, however, the end of the case contains a prime example of a judge ignoring the facts and the law in an attempt to induce a quick settlement by, effectively, forcing Cedar Fair to air its dirty laundry in front of all its guests. 

Controversial California Ruling On Assumption of Risk

This week the California Court of Appeals, Sixth District, issued its ruling in Nalwa v. Cedar Fair, LP., holding that a California amusement park operator cannot rely on the doctrine of assumption of risk to defend against a negligence lawsuit because 1) doing so would undermine California's policy of strict regulation of amusement rides and 2) because, even putting aside public policy, the doctrine of assumption of risk simply does not apply to amusement rides in California.  The decision is potentially a game changer in California, and will undoubtedly be influential in other ride related cases around the country.