GameChanger? (Part 2) - Can Ride Owners Rely On Manufacturer's Recommendations To Satisfy The ADA?

In my last piece, I told you about a recent ruling from the District Court for the Central District of California in a case called Castelan v. Universal Studios which granted judgment in Universal’s favor in a case alleging violation of the ADA brought by two disabled guests that were not permitted to ride The Mummy because they did not meet the minimum ride requirements of one functioning arm / hand and one functioning leg.  The court premised its ruling on two independent grounds.  The first, which was the subject of my last piece, was that the ADA did not require amusement ride access to guests with disabilities.  That part of the ruling is, in my opinion, as questionable as it potentially game-changing and should be taken with the proverbial grain of salt for the time being.  But the second basis for the court’s judgment was both exactly what I would have argued in Universal’s place and finally gives us some long awaited guidance.  So, let’s talk about that one and what it could mean for the industry moving forward.  A little preview – This holding might not be perfect, but I think it has a lot more legs than the first one.

GameChanger? California Court Holds Disabled Access To Amusement Rides Not Required By The Americans With Disabilities Act

In July 2012, I told you about a lawsuit filed against Universal Studios Hollywood that I described at the time as “the most important industry lawsuit in years” and “one of the rare legal decisions that could equally impact the day-to-day operations of a small FEC and a huge multi-park resort.”  The case was Castelan v. Universal Studios, filed in the U.S. District Court for the Central District of California.  Why was it such a big deal?  Because it was poised to be the first case to squarely put at issue the extent to which the Americans With Disabilities Act requires amusement facilities to allow ride access to disabled guests.  The ADA has been around for more than two decades, but surprisingly there are no cases that have spoken to this particular issue.  On January 10, the court issued a ruling granting judgment in favor of Universal Studios finding, essentially, that an operator of an amusement ride may exclude disabled guests for virtually any reason without violating the ADA.  The decision is remarkable in that it flies in the face of long standing consensus belief  – even in the amusement industry – about the ADA.  Is it a game changer for the amusement industry?  Could be.  But don’t everyone get too excited just yet.    

Blackfish / White Lies? (An Epilogue): Responding To Your Comments

Click here to read Blackfish / White Lies? (A Prologue)

Click here to read Blackfish / White Lies (Pt. 1):  Sorry, I Forgot to Mention, They’re All Activists

Click here to read Blackfish / White Lies (Pt. 2):  The Art of Advocacy Film-making

Click here to read Blackfish / White Lies (Pt. 3): Undisclosed Facts & Muddled Messages

 

I lied.  I said my last post was my last foray into Blackfish.  But, I have been inundated with so many emails and comments that I thought I should write one last piece to address some of these points raised either publicly or privately.  First, let me say how grateful I am for most of the comments, even those that clearly think that I have missed the point of Blackfish (and, not surprisingly, there are quite a few of you out there).  The point of this blog is to generate discussion and debate and to provide information and opinion about the amusement industry to those that are interested, and those goals seem to have been achieved in this series.  But, having read hundreds of emails, comments, tweets, and Facebook posts about these pieces, I have seen some common themes emerging that deserve to be addressed - I just don't have time to address them individually.  So I thought it made more sense to post one last piece.  I wouldn't, after all, want anyone to think I was ignoring them.

Blackfish / White Lies? (Pt. 3): Undisclosed Facts & Muddled Messages

Click here to read Blackfish / White Lies? (A Prologue)

Click here to read Blackfish / White Lies (Pt. 1):  Sorry, I Forgot to Mention, They’re All Activists

Click here to read Blackfish / White Lies (Pt. 2):  The Art of Advocacy Film-making

Click here to read Blackfish / White Lies (An Epilogue):  Responding To Your Comments

So here we are (a little later than originally planned), the final piece of this series, and my last foray into Blackfish until, perhaps, the DC Circuit Court of Appeals rules on SeaWorld's OSHA appeal sometime in the coming months.  In the time since the first two pieces of this series hit the blogosphere, Blackfish has moved from near-nightly airings on CNN to on-demand availability on Netflix.  Additionally, the film has stayed in the headlines due, in no small part, to the recent media attention surrounding the decision of several musical acts to cancel their appearances at SeaWorld in an apparent act of protest.  It is clear that the “Blackfish effect” is powerful both in its message and its longevity.  But what is its message exactly?  And do the facts presented in Blackfish support that message in a fashion that lives up to the claim of its director, Gabriala Cowperthwaite, that the film is nothing more than a “truthful, fact driven narrative” that errs “on the side of the journalistic approach”and is, in fact, “not at all advocating for anything.”  My belief is that Blackfish itself plainly belies any contention that the film is anything other than a piece of animal-rights advocacy – one sided in both fact and presentation.   

In the first two pieces in this series I looked at the people involved in Blackfish, many of whom have undisclosed (and sometimes radical) animal-rights agendas, and the filmmaking techniques used to steer the viewer toward one, and only one, position.   To finish, I thought we should take a closer look at Blackfish’s substance - the claims it makes and its overall message. 

Remember, Blackfish is being passed off by its director as erring “on the side of the journalistic approach.”  That means that its statements should comply with journalistic standards:  they should be fact checked, unambiguous, and not misleading.  Why is that important?  Because if the film conveys a false factual impression or is inaccurate or untruthful as to even a single point, it can (and does) degrade the credibility of the film as a whole.  To continue the analogy from Part 1 of this series, this film is, in essence, the star witness in the Court of Public Opinion's trial of SeaWorld.  The audience must, therefore, assess its credibility as to the facts presented, just as it would any other witness.  A falsehood, even a little white lie, calls into question the rest of what the film says.  If the film lies about little things, the audience - the jury in the Court of Public Opinion - has a right to wonder whether the film is lying about bigger things too.  

Blackfish / White Lies? (Pt. 2): The Art Of Advocacy Film-Making

Click here to read Blackfish / White Lies? (A Prologue)

Click here to read Blackfish / White Lies (Pt. 1):  Sorry, I Forgot to Mention, They’re All Activists

Click here to read Blackfish / White Lies (Pt. 3): Undisclosed Facts & Muddled Messages

Click here to read Blackfish / White Lies (An Epilogue):  Responding To Your Comments

“I had to decide that my structure was going to be to tell the truthful, fact-driven narrative from beginning to end, following Tilikum’s trajectory through the eyes of the former trainers, that I can just tell the truth and lay out the facts.  Someone said that if you try too hard to do “on the one hand, but then on the other hand,” you may become faithless to the truth.  And so, if I just promise myself that I would not sensationalize, not shoehorn information in there that will manipulate people into feeling things and stick to the fact-driven story, then that is a story that people need to hear.“

Gabriela Cowperthwaite, describing Blackfish (available at http://collider.com/gabriela-cowperthwaite-jeffrey-ventre-blackfish-interview/).  

Is this accurate?  Is Blackfish really just an un-sensationalized piece of documentary film-making that doesn’t try to “manipulate people into feeling things?”  Does Blackfish simply “stick to a fact-driven story?”  That’s the question and the point of this series.  Ms. Cowperthwaite has given interviews to at least two media outlets claiming that Blackfish is just a straightforward presentation of “fact driven narrative,” without advocacy.  I do not see how that can be a credible claim given the inherent bias of the people involved (the discussion of my last entry), the structure and film-making tricks used seemingly for the sole purpose of “manipulate[ing] people” into considering only one side (the subject of this piece), and the inconsistent and sometimes demonstrably incorrect statements presented in the film (the subject of the next, and last, piece).  

Blackfish / White Lies? (Pt. 1): Sorry, I Forgot To Mention, They're All Activists

Click here to read Blackfish / White Lies? (A Prologue)

Click here to read Blackfish / White Lies (Pt. 2):  The Art of Advocacy Film-making

Click here to read Blackfish / White Lies (Pt. 3): Undisclosed Facts & Muddled Messages

Click here to read Blackfish / White Lies (An Epilogue):  Responding To Your Comments

“Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.”

United States v. Abel, 469 U.S. 45, 52 (1984). 

Former Chief Justice of the United States Supreme Court William Rhenquist wrote these words nearly 30 years ago.  They are as true in the Court of Public Opinion as they are in a court of law.  Blackfish has a lot of “testimony” that is presented without any hint of potential bias – quite the opposite actually.  Director Gabriela Cowperthwaite strongly suggests the outright credibility of most of the people who appear in the film.  After all, who better to speak about what is going on with SeaWorld’s whales than a bunch of ex-trainers who spent years working with them?  Who better to explain the science behind orca behavior and biology than experts in the field and a neuroscientist who has studied the brain of a killer whale up close?  Since Blackfish provides no background on any of these individuals, other than what is necessary to establish their credibility, the “jury” in the Court of Public Opinion is left with nothing to assess the true credibility of their “testimony.”  In a court of law, questions of bias are raised through cross examination.  Similarly, in true journalistic pieces, the journalist “cross examines” his or her source by, for example, playing the “devil’s advocate” and challenging them to explain, debunk, or address potential sources of bias.  Cross examination and journalistic honesty are vital tools that allow the audience to decide for themselves whether what is being said is “the truth, the whole truth, and nothing but the truth.”  But in Blackfish, there is no “cross examination” of the "witnesses" the "jury" is expected to believe.  Consequently, it is easy to view Blackfish as telling its story though an objective lens.  But that’s just not the case.

Blackfish / White Lies? (A Prologue)

Click here to read Blackfish / White Lies (Pt. 1):  Sorry, I Forgot to Mention, They’re All Activists

Click here to read Blackfish / White Lies (Pt. 2):  The Art of Advocacy Film-making

Click here to read Blackfish / White Lies (Pt. 3): Undisclosed Facts & Muddled Messages

Click here to read Blackfish / White Lies (An Epilogue):  Responding To Your Comments

In Blackfish, director Gabriela Cowperthwaite has given the world a very effective and compelling piece of film-making.  While I was not able to catch this documentary in the theaters during its limited release last summer, I was able to catch it on CNN earlier this week and, as a lawyer, I am compelled to admit to some appreciation for the work that was done.  Blackfish is disturbing and, at times, difficult to watch.   It makes a compelling visceral argument against killer whale captivity in general and against SeaWorld in particular.  It is a film that stays with you after you watch it.  It is one of the better pieces of advocacy that I’ve seen in recent years, and, particularly given my interest and involvement in this industry, it made me want to read a bit more.  And that’s when I came across this quote from a recent interview given by Ms.Cowperthwaite:

[T]he film is not at all advocating for anything. That’s what some people have a hard time with. [They ask], “Where’s the 1-800 number at the end of the film?” You know, where you need to prescribe something we can do. I deliberately chose not to do that. What I did choose to do was to tell the story, and that’s all I was really equipped to do. … So I really truly believe that I err on the side of the journalistic approach, not the advocacy approach. I think that for me, I had to come to my conclusions by really reviewing the facts.  I kept everybody at bay because [I] didn’t want to be influence[d] by any kind of agenda and I just kind of stuck with the story.

(More after the jump)

The One Thing No One Is Telling You About Disney's New Disabled Guest Access Policy

As most of you probably already know, Disney has made some waves recently with the announcement of its new access policy for guests with disabilities  Although the change to the policy was announced a couple of weeks ago, I decided not to comment on it until I could see something official from Disney itself explaining how the new policy would work.  Until such an announcement, I simply could not be sure that the media and blogosphere reporting was accurate (imagine that?).  Well, Disney has now officially unveiled its new access policy and published an F.A.Q. on the ins-and-outs of its mechanics.  And having taken a look at Disney's official materials, I am left wondering why a critical component of the policy has been almost completely overlooked by both the national media and, it seems, by the people expressing dismay and anger about the new system.  Contrary to what you may have read in news reports or online petitions, Disney's new policy appears to simultaneously curtail the abuses it encountered under its prior system while still maintaining enough flexibility to address the individual needs of its disabled guests. That's good, right?  Read on to find out more...

Massachusetts Bill Would Criminalize Enforcement of Amusement Ride Safety Requirements (Really ... It's True).

In Massachusetts, this sign could soon be illegal.

On May 16, 1999, a 37 year old man was ejected and injured while riding the Superman Ride of Steel roller coaster at Darien Lake.  "Park officials say that the passenger restraint system was working properly, and that the weight of the rider, which was in excess of 300 pounds, could have been a factor." 

On September 21, 2002, a 40 year old woman fell to her death at Knotts Berry Farm while riding the Perilous Plunge.  According to the coroner's report, "the woman weighed 292 pounds, had a 58-inch abdomen, and ... her hips were about 50 inches around." The seat belts on the ride only extended 50 inches.



On May 1, 2004, a man was ejected from Six Flag's New England's Superman roller coaster and killed.  Investigators found that a contributing factor to his death was that the "girth of the victim's lower torso was incompatible with the "T" bar restraint" on the ride."

And just a few weeks ago, on July 19, 2013, Rosy Esparza, a 52 year old woman, was ejected from the Texas Giant and fell to her death.  Her weight may have been a factor in her death.  While Six Flags has not released the findings of its investigation due to pending litigation, a statement issued by Six Flags on September 10 states that the ride was being reopened with modified restraints and a test seat at the entrance because "as with other rides in the park, guests with unique body shapes or sizes may not fit into the restraint system." 

Meet the man trying hard to make your next amusement ride more dangerous.

Weight clearly can be a problem on some amusement rides.  The fact is that rides are simply not designed to safely accommodate everyone of every size.  That's the reason manufacturers establish height requirements and, less frequently, weight requirements for amusement rides.  And while every operator has faced, on numerous occasions, the wrath of a parent who vociferously insists that his child be allowed to ride notwithstanding the height requirement or the guest that only JUUUUUUUST fits into the restraint but steadfastly insists on riding, whenever anyone is injured or killed a central theme in the inevitable ensuing lawsuit is that the operator should not have allowed the rider to board if the ride could not safely accommodate him.  But what if it was actually against the law for an operator to enforce height requirements?  What if it was actually a crime to turn someone away from a ride due to their weight?  Well, if State Representative Byron Rushing (D., Boston) has his way, that might soon be the case in the fine Commonwealth of Massachusetts. (Thanks to my colleague Paul Cavanaugh, of Daly Cavanaugh LLP for bringing this one to my attention!).   

Click "read more" for the rest of the story....

In Favor Of Federal Amusement Oversight? Why Pennsylvania Proves It Won't Work

In the weeks following the tragic death of Rosy Esparza on the Texas Giant at Six Flags Over Texas, there has been a great deal of debate and scrutiny of amusement regulation, or lack thereof, at the state and federal level in United States.  One state, though, has emerged as the poster-child for "what's wrong with amusement regulation" in this country - Pennsylvania.  Research conducted by Pittsburgh-based PublicSource has revealed holes and systemic weaknesses in Pennsylvania's amusement industry oversight - holes and systemic weaknesses that should be fixed.  But beyond the obvious issues raised by the PublicSource investigation, I think the experience in Pennsylvania must be viewed as a microcosm for the problems that would certainly be encountered if federal oversight of the amusement industry were to become a reality.