Innovate and Improve Through One Simple Change In How You Ask Legal Questions

As I write this, I’m sitting in the United Club at Orlando International Airport (a perk of the constant travel I seem to do) and am reflecting back on a truly fantastic week at the IAAPA Expo 2018.  This year, for the first time, International Ride Training exhibited and had a booth in the Exploration Station – to the left of the ninjas and across from the dinosaur (you have GOT to love this industry).  The booth was a monumental success as it gave us the opportunity to meet with countless clients, potential clients, and new friends just discovering us for the first time.  I was also privileged to be a featured speaker for two seminars on the Americans With Disabilities Act and to actively participate in other sessions and meetings. In short, I met A LOT of people and, being a lawyer, got a lot of questions about compliance and best practices, whether it be with respect to the ADA or ride operations safety or business issues.  Most often, these questions started with a familiar clause:  “Do I have to ….”  Now, in reflecting back on these conversations, I’m wondering if that’s not exactly the right question.  Maybe the better question is “How do I ….” Or “What’s the most reasonable way to ….”  What’s the difference?  Read on, friends.  

The Eleventh Circuit Ruling That Calls Autism Policies Across The Industry Into Question

Well, it has now been just over two years since my last entry on The Legal Roller Coaster.  Much has happened since then, and I’ll tell you about a lot of it very soon, but suffice it to say that it has never been my intention that The Legal Roller Coaster would be shelved permanently.  A brief (or not so brief, depending on your perspective) hiatus was, however, required.  Nonetheless, I’m pleased to say that I’m back and that there will be some changes (for the better) coming soon.  But in the meantime, a new long-awaited decision has been issued that makes now the best time in two years to return to the blogosphere. 

In mid-August, the 11^th Circuit Court of Appeals issued its ruling in A.L. v. Walt Disney Parks and Resorts US, Inc..  A copy of the decision can be found here in case you are interested in reading it.  I wrote about this case before on a number of occasions (and I encourage you to read at least this piece before you read the rest of this one as it contains a much more fulsome explanation of the lower court ruling than I’m going to provide here), and I’ve been waiting for quite some time for the Court of Appeals’ ruling.  And now, having read it, I regret that I’m not sure its much help to the industry.  Why?  Let’s get into it.

A Safer Ride? (Pt. 3) - Is State Amusement Regulation The Problem?

            The amusement season is quickly winding down as daily operation (for seasonal parks) comes to a close and schools go back into session.  Like schools, legislatures around the country will also be heading into session shortly and, given the tragic and unfortunate incidents in the amusement industry recently, it is likely that at least some of these – maybe even at the federal level – will consider new regulation of the industry.  As I’ve detailed before in my last two pieces, the siren song of federal regulation is almost impossible to ignore in the wake of an amusement ride-related death or serious injury.  But the only real reason to look seriously at replacing the current system with a new federal oversight program is if the states' regulatory programs are not working.  So, for my final piece in this series I thought it would make sense to look at the evidence, or lack thereof, that state regulation is failing. 

A Safer Ride? (Pt. 2) - What Would Federal Amusement Ride Regulation Cost & Do Regulators Even Want It?

            The question of federal oversight of amusement ride safety is one that comes up every summer in the wake of an unfortunate, sometimes tragic, incident in the industry.  But while many in politics and the media are quick to speak out in favor of federal ride safety oversight, this rhetoric is typically devoid of any detail.  What would a federal ride safety program look like?  What would it cost?  And does the agency that would be charged with administering it share the view that it would be a good idea?  In my last post, I made my case for why I just do not see the federal government being any better (and perhaps it would be worse) than the states when it comes to ride safety oversight.  But even setting that aside, it is important to think about the details here and consider whether this program might be not enough bang and too much buck. 

A Safer Ride? (Pt. 1): Is The Federal Government A Better Regulator Than The States?

To state the obvious (and to understate the matter significantly), this has been an extremely bad week in the amusement industry. The week began with news of the death of 10-year old Caleb Schwab at Schlitterbahn waterpark in Kansas City, Kansas.  Just days later, news broke of an accident at a carnival in Tennessee involving a Ferris wheel and resulting in injury and hospitalization to three guests.  And the week ended with news that a three-year old was thrown from a roller coaster at Idlewild amusement park in Pennsylvania.  As the public has learned more about these incidents, and especially the reportedly gruesome nature of Caleb’s death, the outcry for answers has been immediate and unmistakable.  The media, in particular, has repeatedly focused on the so-called “patchwork” of state regulations in the amusement industry and, more specifically, the fact that there is no federal regulatory body overseeing ride safety in the United States.  

None of these criticisms are particularly new – indeed they arise whenever a tragedy strikes our industry.  But this time, faced with the unbearably tragic death of a young boy at a family-friendly waterpark, these criticisms seem to have gained more traction in the public consciousness.  It is simply impossible to look at a picture of Caleb Schwab and to not feel the greatest empathy for his family and to not want to make changes to ensure that no other family has to ever go through this again.  It is easy to argue, as Jake Tapper recently did on CNN, that the system failed Caleb, and that the answer is federal oversight. 

But, even after this week, one of the worst I can remember in the nearly 25 years I’ve been involved in the industry, I still maintain that federal ride safety regulation is not the answer.  And I think it’s time, after all these years writing this blog, that I explain exactly why I feel that way.  As I’ve done with other important issues in the industry, I’m going to look at this in three parts:  In this piece, I’m going to look at the question of whether the federal government is somehow inherently “better” than the states at regulating.  The next piece will look at what a potential federal ride safety program might actually look like and, critically, how much it might cost U.S. taxpayers.  The third will look at the question of whether there is any actual evidence that state regulation is not working.  The media has made their case.  It’s time for me to make mine.

Interaction Reaction: The Impact of Interactivity On An Amusement Operator's Liability Exposure

A few days ago, I read an interesting article on LinkedIn about the

rise of interactivity in the attractions industry and something it said got my lawyer-brain thinking.  Here’s what it was:

Interactivity doesn’t stop with great-looking, immersive technology.  There is a still a need for pure physical interaction. 

“Pure physical interaction.”  As a fan of amusements, that phrase puts a grin on my face and starts the adrenaline pumping.  As a former operator, that phrase equals “repeat business” and additional revenue - something that the article emphasized.  But as a lawyer, that phrase made me pause for a minute and think about whether the rising popularity of interactivity could change the liability calculus for owners and operators of these attractions.  I thought that question deserved a closer look.

Disney's Autism Policy Passes ADA Muster - But What Does That Mean For The Rest Of The Industry?

Does the ADA require immediate, on-demand boarding for guests with cognitive disabilities such as autism?  It is among the questions most frequently asked of me and one for which there has been no judicial guidance … until now.  Late last week, the United States District Court for the Middle District of Florida issued a first-of-its-kind ruling on the issue in a case called A.L. v. Walt Disney Parks and Resorts U.S., Inc.  In the decision, Judge Anne Conway ruled in Disney’s favor essentially finding that immediate, on-demand boarding was not “necessary,” as that term is used in the ADA, and thus that Disney was not obligated to provide it to autistic guests.  While there may be a couple of small areas in the court’s analysis that some could quibble with, on the whole the decision is well-reasoned, reasonable, and practical.  But what does it mean in the broader context?  What affect, if any, will this case have on future cases in the industry?  Those are the questions that I think warrant a little discussion – and thus have drawn me back to blogging after an extended absence (which I hope you can all forgive).

IAAPA’s First Virtual Advocacy Day Is Here! And We Need Your Support!

This week, IAAPA’s North American Government Relations Subcomittee will be on Capitol Hill for its annual Advocacy Day (the name is actually something of a misnomer, since it actually takes place over two days).  On Tuesday and Wednesday, March 24-25, twenty-three members of the committee (including me) as well as invited guests from other IAAPA committees and members of the industry, will be meeting with elected officials in the House and Senate, their staffs, the Commissioner of the Consumer Product Safety Commission, and other government officials to communicate the industry’s interests to those that shape federal policy.  In all, we have scheduled thirty-six legislative meetings, including meetings with seventeen members of Congress, in only two days. 

This year, IAAPA’s Government Relations Department, as well as the North American Government Relations Subcommittee, is asking for your help to make Advocacy Day 2015 an even bigger success than it usually is.  In addition to our physical presence on the Hill this week, we are asking you to take part in the first-ever Virtual Advocacy Day!  What’s that, you ask?  Well, while we are meeting face-to-face with members of Congress and other policy-makers in Washington, we want you to take to social media with the hashtag “#IAAPAVAD” to amplify the messages that Advocacy Day attendees are bringing to DC.  Tweet your Senators!  Tweet your Representatives!  Tweet the CPSC, the State Department, the Transportation Department, the FAA!  Show them that you care about the industry and the issues that affect it. 

So, what are the issues that we will be addressing over the next few days and how can you help?  Well, keep reading to find out more about our priority issues and how you can contact your representatives and policy makers.  

Do Height Requirements On Rides Violate The ADA?

A couple of weeks ago, I had the privilege of spending a couple days with a highly talented group of amusement professionals at the iROC Safety School in Las Vegas.  This is the second year that I have been invited to speak at the event, and it is quickly becoming a highlight of the year.  The topic of both this year’s and last year’s presentations was the Americans With Disabilities Act which, as faithful readers of this blog know, is a particular passion of mine.  After a 90 minute seminar on ride access last year, much of the Q&A session revolved around the issue of autism which, coupled with the filing of the lawsuit against Disney, prompted me to take a closer look at the issue in the “Here & Now” series.  This year, I came to iROC ready to go on the issue of autism, but interestingly a new issue reared its head that I hadn’t thought a whole lot about before: The question of height requirements and, specifically, whether enforcing a height requirement against a guest with a disability violates the ADA.  So, as with the autism issue last year, I thought this deserved a little more thought and some attention here. 

Six Flags Just Earned A Win In An ADA Case - And No One Seems To Have Noticed

Forest or Trees?

Last week, as I was toiling away on a big case I’m working on, my email inbox blew up with news of an ADA case out of a federal court in New Jersey involving Six Flags Great Adventure.  As many of you know, I usually pay close attention to such things, and the news I was hearing was uniformly bad:  “Six Flags lost another ADA decision,” some told me.  “The judge in New Jersey got it dead wrong, just like the judge in Texas,” said others.  “These judges are starting a war between parks and manufacturers,” someone else suggested.  The newspaper headlines seemed to uniformly focus on the “victory” for the disabled plaintiff.  Unfortunately, it took me a few days to get around to actually reading the decision, and guess what?  Much to my surprise, I disagree with much of the reaction I had encountered.  In fact, while it is not a home run for Six Flags, there is much in the decision that is extremely good for the industry in terms of ADA compliance.  Yes, at the end of the day Six Flags lost this particular ruling, but focusing on that is a mistake as it overlooks two very positive aspects of this ruling for the industry, and the strong chance I believe Six Flags will have to win this case should it go to trial.