After Zanesville: A Plea For Legislative Reason And Deliberation Instead Of Reflexive Reaction

A result of exotic animal ownership or an irresponsible owner?

Now that the threat caused by yesterday's mass release of dozens of wild exotic animals onto the streets of Zanesville, Ohio has ended, unfortunately bringing with it the tragic (but necessary) shooting deaths of most of the animals in the name of public safety, we are already hearing the reflexive cries for legislation banning exotic animal ownership outright in Ohio as well as in other states where regulation of exotic animals is lax or, in some cases, nonexistent.  Heck, even Ted Nugent has waded into the issue.  While I don't think that regulation of exotic animals is a bad thing in concept, I fear that, as is almost always the case when bad things happen, the loudest voices and most unreasonable minds will charge fearlessly toward the most restrictive regulation possible in an effort to placate the masses and achieve political favor as "the person who did something" for his constituents.  Too often, though, this kind of reactionary legislation, while looking good in the moment, reveals itself over time to be ill-suited to solving the real problem at issue.  This is a plea, therefore, to state legislators, in Ohio and elsewhere, already working on an immediate legislative remedy, to stop drafting the law now, take the time to examine this incident and others like it, understand the underlying issues, listen to the experts, and then, AND ONLY THEN, draft meaningful regulation that addresses the problem effectively. 

A Picture Ruins A Thousand Warnings: How Marketing Makes Liability More Likely

I saw a particularly troublesome example of the collision between marketing and operations yesterday when I read a newspaper article on the Internet concerning ride safety at a large amusement park.  In the interest of not drawing any negative attention, I’m going to use an alias for the park, Happy Funland, and I’m not going to link to the article, so you’ll have to trust me on what it said.  At the top of the article was a photograph of a roller coaster descending down a drop.  Sitting in the car were two people, both clearly wearing name tags of the facility, both obviously enjoying their ride screaming and smiling, and both with their hands flailing about up in the air.  Under the picture was a caption reading, to paraphrase, “Employees test riding the WonderCoaster at Happy Funland Amusement Park.”  As if this wasn’t bad enough was this paraphrased quote from a park official:

“Our staff is extremely knowledgeable in what is required to run our rides incredibly safely and safety is our top priority when it comes to operating any ride in the park.”

Really?  ‘Cause the picture of the employees violating the safety rules sure doesn’t indicate to me that at least these employees are “extremely knowledgeable in what is required to run” this ride “incredibly safely.”  Worse, if someone ever gets injured on this ride because they weren’t holding on, this is exactly the kind of thing that plaintiff’s lawyers will jump on and that makes my job defending the facility a whole lot tougher.  This one highly publicized picture or other similar shots in marketing brochures or television commercials can (and will) come back to bite you (in that place that’s supposed to remain in the seat the whole ride) in the event of a lawsuit.  “Do As I Say, Not As I Do” is simply not a ticket to guarding against legal liability or building a solid liability defense.

Contrary To Media Reports, Video Of Dawn Brancheau's Death Is Not About To Go Public (UPDATED 9/20/11)

Yesterday (9/15/11), Judge Gregory Presnell of the United States District Court for the Middle District of Florida in Orlando denied a preliminary injunction sought by the family of the deceased SeaWorld trainer, Dawn Bancheau, to prevent video showing the events of Ms. Brancheau's death from being shown publicly at an OSHA hearing looking into potential OSHA violations by SeaWorld scheduled for September 19.  Having spent some time today looking at the media reports and the ruling itself, I am disturbed (although not overly surprised) at the extent to which the media has missed the point of Judge Presnell's ruling and has characterized at something it is not.

An Associated Press report, picked up by many news outlets around the country, leads with this sentence:

"A federal judge says there is no legal reason images of a SeaWorld trainer's death should be kept from the public."

To many (maybe most) readers, this suggests that Judge Presnell ruled that the video depicting Ms. Brancheau's death should be public or that he believes that the public interest would be best served if the video were to be released.  But that's not what he said in the ruling, and, in fact, there's every reason to believe that despite Judge Presnell's ruling, the graphic video of Ms. Brancheau's death will never be made publicly available at all.

So You Think A Deaf Person Can't Be A Lifeguard? You Might Be Right...Or Wrong.

We spend a lot of time in this industry talking about the ADA when it comes to guests.   The recent death of Sgt. James Hackemer atDarien Lake has kept this issue at the forefront for most of the summer.  But one issue we spend a lot less time talking about is the ADA as applied to our employees.  Lucky for us, a federal court judge in Michigan has given us the opportunity to think about it now.  In Keith v. Oakland County, issued September 1, the Court ruled against a deaf lifeguard in an ADA employment discrimination case finding that his disability precluded him from performing the “essential” duties of a wave-pool lifeguard and that no reasonable accommodation was possible.

"Cause" for Alarm: 3 Ways To Reduce The Chance Of A Public Interest Lawsuit

Two news items that, on the surface at least, do not seem to have much in common caught my eye this week.  First, USA Today reported that Cedar Point has decided to change the names of two of its Halloween attractions, apparently due to complaints from the National Alliance on Mental Illness (“NAMI”).  According to media reports, NAMI took issue with a haunted house called “Dr. D. Menteds Asylum for the Criminally Insane” and a musical show entitled “The Edge of Madness:  Still Crazy,” claiming that they promoted false stereotypes of the mentally ill.   

Second came news yesterday about the temporary closure of Rye Playland due to a disturbance that occurred when a Muslim woman wearing a head scarf, or hijab, was not allowed to board a ride due to a rule prohibiting any kind of headwear while riding.  The park reportedly had many Muslim guests in attendance celebrating Eid-ul-Fitr -  the holiday marking the end of the Islamic holy month of Ramadan.  While some guests at the park, not to mention the president of the Council on American-Islamic Relations - New York, believe this to be an example of Islamic intolerance, the park maintains (quite reasonably I believe) that this is a safety issue of general applicability to prevent hats and other headwear from becoming projectiles that could presumably hit other guests, become entangled in machinery, or cause shutdowns. 

Was Cedar Point right to change the names of its attractions to placate the protestations from NAMI?  Should Rye Playland have altered its headwear policy after hearing claims of perceived religious intolerance?  The answers to these questions highlight the fine line an amusement facility must walk when dealing with a “cause.”  Whether they be social, religious, human rights, animal rights, or any other “cause,” the legal, financial, and public relations impact of these interactions must be handled appropriately to avoid potentially disastrous results.

Are California Courts Already Signaling Doubt About The Future Of The Nalwa Decision?

On Tuesday (8/16/11), the United States District Court for the Southern District of California issued an interesting decision in Wallace v. Busch Entertainment Corporation (now Seaworld Parks & Entertainment).  The factual background of the case is not especially remarkable - it is a rather run-of-the-mill personal injury lawsuit.  The plaintiff purchased a ticket to use the bungee trampoline in Seaworlds "Xtreme Zone," read and signed a liability waiver, followed the directions of the attendant, and was injured (a torn tendon in his left bicep).  The plaintiff sued alleging theories of negligence, negligence per se, gross negligence, breach of warranty, and products liability.  The court ultimately found that the plaintiff's breach of warranty and products liability claims were meritless and granted judgment in Seaworld's favor as to those counts.  Additionally, the court held that the plaintiff's negligence claim was foreclosed by the liability waiver he had signed, and therefore found in Seaworld's favor on that count as well. 

However, despite these victories, Seaworld did not prevail on plaintiff's negligence per se, and gross negligence claims, and it is in this respect that the case is really interesting - not because of anything the Court said, but because of what it didn't.

Curing The Crisis Of Credibility And Kicking The "Carnie" Connotation

 A few days ago, my friend and former colleague, Matt Heller, posted some interesting and spot-on thoughts on professionalism on his excellent leadership blog.  Matt makes the point that “the perception of safety is largely determined by what we see and experience,” and to support this point he attached this photo capture from a travel channel program on amusement parks, asking the question, “is this really how you want your facility portrayed on TV, or at all?”  

Matt’s point is very well taken.  Appearance and professionalism matter when it comes to the perception of safety. However, it doesn’t just stop at the perception of safety.  Rather, these same issues – appearance, cleanliness, and professionalism - also have a real impact on the perception of credibility – and this is a crucial issue to getting the best result possible in every form of legal proceeding.

Why Our Founding Fathers Would Have Been Against Federal Amusement Ride Regulation (Had They Known What Amusement Rides Were)

This morning, upon returning to my office from a few days off to visit with long-lost friends at my twenty-year high school reunion, I came across an article in USA Today with the rather misleading headline “Carnival Ride Safety Varies By State.”  I note that the headline is misleading because it erroneously implies that the article will discuss varying levels of ride safety itself in various states, i.e. that rides located in one state are inherently “more safe” than the same ride located in another state or that ride injuries or deaths are higher or lower in one state than another.  However, that is not at all what the article is about.  Really, the article focuses not on safety per se, but on the now familiar and oft discussed “patchwork” of state amusement ride regulations that consequently result in varying levels of inspections and oversight between the various states when it comes to inflatable and amusement ride regulation.  The article, as others have before, implies that this lack of regulatory uniformity somehow means that amusement rides in states with higher levels of oversight are more safe than rides with lesser inspection or reporting requirements.  Of course, no data is cited that would show that to be true.  Moreover, after reading this article, I had to wonder why the amusement industry so often is singled out for its “patchwork” regulatory oversight when, in reality, state-by-state regulation is, by design of our founding fathers, the rule rather than the exception in the United States.

Similar Cases, Dissimilar Outcomes: How Politics Shapes A State Amusement Ride Investigation

This week we learned of two state sanctions related to two high-profile amusement ride fatalities this summer:   the death of three year old Jason Dansby while riding the Python Pit roller coaster at Go Bananas family entertainment center in Illinois and the death of Sgt. James Hackemer while riding the Ride of Steel roller coaster at Darien Lake.  While the cases are quite similar in many respects, the sanctions imposed are quite different.  With respect to Go Bananas, the owner of the facility has been charged criminally with violation of the state’s amusement ride safety law and faces a potential jail term of up to a year and / or a fine of up to $2,500 while in the case of Darien Lake no criminal charges were filed and the facility was merely ordered to re-train ride operators and post better signage warning guests about ride safety requirements. 

So why the difference?  After all, Illinois and New York have similar ride safety laws (at least in this respect) and these two cases were quite similar in both the severity of the event and the conclusions reached by the state following the investigation.  It could reasonably be expected, therefore, that these states would impose similar sanctions or at least similarly serious sanctions at the end of the investigations.  After all, in a court of law similar cases tend to be treated similarly.  But these cases clearly weren't treated similarly.  Why not?  Was it that the state found one facility or ride to be “less safe” than the other?  Was it that the state found one operator better than the other?  I think the answer to both these questions, at least on the state of the current record, is no.  Rather, I think its likely that the difference in legal sanctions in these two cases can be attributed, as much as anything else, to political pressure exerted on state officials.

What The Mother Of A Two Year Old Can Teach Us About Avoiding Litigation

Yesterday, a Pennsylvania television station ran a story about Isabella Prescott, a 2-year old little girl with Downs Syndrome that was not permitted to ride the "Road Rally" ride at Dorney Park's Planet Snoopy.  According to the story, the ride attendant informed Isabella's mother that Isabella could not ride because she was "an infant" and because she couldn't walk (an assessment Isabella's mother, and the television reporter, dispute).  Isabella's mother believes that Dorney Park discriminated against her daughter and, according to the story, she plans to pursue legal action against the park.

But it wasn't the potential discrimination or the intention to pursue legal action that caught my eye.  It was this:

"Prescott said she is taking legal action against the park, but said she really just wants an apology."

I don't know if she really means it, but this request for a simple apology underscores the often discounted importance of guest service in preventing costly litigation.