He Said / She Said: A Conversation About The ADA’s Applicability To The Amusement Industry

A week or so ago, news broke of another ride-related ADA lawsuit alleging that a park’s disabled guest access policy is unlawfully discriminatory.  As those of you who read the blog or who know me can attest, I think these kinds of lawsuits are going to be more frequent and more important to our industry for a host of reasons, most of which are discussed below.  After hearing about this latest filing, I took the opportunity to run some thoughts through a fellow lawyer, Julie Mills, of Columbus, Ohio.  Julie has a mobility disability after a vehicle accident, and more than a decade of experience “living and lawyering” the barriers and accessibility portions of the ADA.  She authors a blog, The ADA:Titles II and III.  

Given her background and experience, I was very interested to get her take on the recent lawsuits and the ADA’s application to the amusement industry.  Our conversation raised some interesting issues that I thought would be worthwhile to share. 

EB:  This week news broke of another lawsuit alleging ADA violations due to ride access.  This one involves a ride at Six Flags over Texas, and there are two other lawsuits involving Six Flags Great Adventure (I believe) and Universal Studios that are already being litigated.  Each of these lawsuits seems to have a common story:  a guest has allegedly been permitted to ride a particular ride at some point (or points) in the past, but when the guest returned to the park more recently, he or she is denied access because of his or her disability.  I think these cases have the potential to be quite important to the industry because, currently, there is no law on the books that specifically explains how Title III applies to things like a roller coaster.  There have been proposed regulations in the past that would have made the answer more clear, but those proposed regulations (i.e., requiring operators to strap wheelchairs to roller coasters) were misguided given the physics involved, ultimately scrapped, and never replaced with any real guidance for the industry.  These cases might be the only way we get that guidance.

My chief concern about these cases is the commonality of their stories.  Each seems to present the view that a facility is not permitted to change its policies or, perhaps more accurately, strengthen its enforcement of existing policies, if doing so would result in less access.  While I have no special knowledge on any of these cases, I think it’s safe to assume that the changed policies involved in each may well have come about as a result of thedeath of Sgt. Hackemer at Darien Lake in 2011.  That incident undoubtedly caused a lot of reevaluation of current operating and access policies in an effort to make sure nothing like that ever happened again.  But now that the reevaluation has resulted in either changed policies or better enforcement, the parks that made those changes (again, in the name of safety) are facing liability.  What a Catch-22!  If they allow a disabled guest to ride a ride and something happens, the park faces liability.  If they restrict access to that same guest, they face liability.

My view is that, in and of itself, the change in access policy is largely irrelevant - what matters is the new policy and whether it falls beyond the scope of any exception to access.  I see nothing in the ADA that prevents an operator from revisiting its policies and making adjustments from time to time - so long as those adjustments remain within the letter of the law.  While the former policy might have some relevance in demonstrating that a claimed exception for the new policy does not exist (i.e. how can a park argue that two hands are necessary when no one was injured before), I think the legal question as to the new policy is largely unaffected by the mere fact of the change.
 

JM:  This topic of revisiting and tightening park policies in light of a more broadening law is more difficult.  Restricting access will likely lead to attempts to attach liability (see the Six Flags example, where the guest with a disability rode numerous times before).  I would focus my attention for the defendant amusement park on 1) the requirements for riding, 2) safety exceptions under the law, and 3) having a response prepared for someone who might assert a customary use argument (“I've been permitted to ride this ride for years”), such as "In light of the new regulations for amusement parks under ADAAG, we have undertaken a thorough review and assessment of our rides and the requirements necessary to participate."

I've read about Darien Lake and Six Flags’[ lawsuit].  … [T]hese incidents show that a case-by-case assessment is required and that blanket "no disabled riders" rules won't survive.  Even Six Flags' rule requiring [guests to have an] arm down to fingers might not survive unless actual finger dexterity is required (i.e. he can probably hold on tight with his fist). … I could see with the newer coasters (& chest restraints) that he likely would be able to hold on. 

No legs--I can hardly think of a ride where safety would not be a concern.  You'd be akin to a sack of potatoes on the ride, with nothing to anchor you down.  I do remember hearing about Darien Lake and remember wondering what would anchor him in.  In older coasters with just a lap bar, he'd definitely be unstable; in new coasters with the bar that comes down over your chest, there would still be nothing to prevent him from slipping out under the chest restraint. 

[T]he blanket prohibitions will likely not only cause lawsuits (as they already have) but might not survive legal attack under the ADA.  … Defendant would need to show specifics with an "exception defense".   For example, regarding Six Flags, how would lack of fingers create a safety hazard?  With old lap-bar coasters, it'd be easier to show than chest-bar coasters.  This will be decided case-by-case.  Amusement parks will lose, even the safety exception argument, if it is a general or blanket prohibition on riding. 

EB:   As for the "case by case" analysis, I think the amusement industry largely complies with this directive.  The people who are making the call on ride access must be given some kind of direction on how to make that call, and that is where the ride access guidelines come into play.  The manufacturers, working with the operator of a particular ride and, usually, a biodynamic engineer, have determined what physical attributes are necessary to safely ride a particular ride and those determinations are set forth in a ride access policy.  In my experience (both as a lawyer and as an operator) there is science and engineering data to back up these determinations.  The people who are making the call on access (typically, but not always, a lead or supervisor at a particular ride) must apply those determinations on a case-by-case basis to assess whether a particular guest that seeks access may safely experience the attraction.  I don't see that the existence of a policy to provide guidance on how to accomplish the case-by-case determination violates the ADA's prohibition on blanket policies.  

I agree that the ADA requires the operator to prove the applicability of an exception to the general rule of access.  The problem is that amusement rides are unlike many other public accommodations, due to the physics involved, and the existing statutory and regulatory framework does not squarely take this into account.  For example, Title I of the ADA (the employment provisions) has a specific exception for access when the health or safety of the worker would be endangered.  There is no such express exception in Title III.  To deny access under Title III to an amusement ride, an operator would have to prove either that certain physical characteristics are "necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered," or that a disabled guest's presence on the ride poses "a direct threat to the health or safety of others."  Ride access guidelines seem to expressly contemplate the former, while many (if not most) operators and ride engineers will point also to the latter as justification for excluding a disabled guest from a ride.  For example, if a guest without legs (and thus a much higher center of gravity) could be ejected from a coaster equipped only with lap bars / belts, isn't it a direct threat to the safety of others on the ride if he hit someone after being ejected?

JM:  The ADA's overarching premise of inclusion (a focus of the DOJ since 2008 amendments, and 2010 standards) is going to run smack into the face of safety, with amusement parks (ride safety) and sports (schools mandated to allow students with disabilities play sports).  To a lesser degree, I see the same issue/problem with fixed pool lifts, use of "Other Power Mobility Devices" such as Segways at resorts/malls, etc.  Title III provides enough, in my opinion, for an amusement park to rely upon a policy disallowing guests with disabilities on some rides.  As you mention, the first prong can be established by data, i.e., biodynamic engineer.  The direct threat is also not a stretch--Darien Lake could have resulted in a bystander being hit.  Or, if disabled rider dislodged but not killed, then the safety of workers in a rescue might be a defense.  I would argue that "if the disabled rider is unstable [due to lack of limbs, etc.], the possible scenarios of danger to him/herself or others are varied and numerous, and possible."  I would have no hesitation defending an amusement park policy restricting ridership, even in light of expanding ADA, precisely because of unique features of amusement rides.

Another thought: pregnant women are not "supposed" to ride many rides.  Are they prohibited?  Obviously you can't always tell a pregnant woman by sight, and I doubt pregnancy tests are required before riding, and that safety hazard has the potential of devastating effects.  That situation is assumption of risk, right?  My belief is that the same should hold with people with disabilities.  Posted signs should warn, workers trained to "counsel" (this ride is very unsafe for a person who uses a wheelchair or does not have legs or arms, and we recommend that you not ride, but we cannot prevent you from riding).  Obviously, if ADA prevails then parks need statutory protection, not just signed releases.

EB:  You raise a good point re: pregnant guests.  It’s one I've thought about before.  Most operators do not absolutely prohibit a pregnant guest from riding - unless there is a safety reason not to do so (i.e. the lap bar or seat belt won't engage due to the pregnancy).  That said, I think there are a couple of differences between a pregnant guest and disabled guest.  First, and in my book most importantly, a pregnant guest is truly only endangering her own pregnancy by taking part on a ride.  This is not to suggest that the safety of the unborn child is unimportant (it most certainly is, but that is a political / moral argument for another forum), but only to point out that, so long as all the safety devices are engaged properly, there is no greater risk to any other guests from the pregnant guest's presence on the ride.  As mentioned above, the same often cannot be said with respect to disabled guests that lack the physical attributes necessary to ride safely.  Second, a pregnancy is not, as far as I know, considered a "disability" for purposes of the ADA.  Thus, there is no presumption of access and no requirement to fit "pregnancy policies" within an exclusion under the ADA.  This gives operators much more freedom in deciding how or if a pregnant guest should be accommodated.

I'm rather intrigued by your suggestion about statutory immunity for operators when a disabled guest is fully informed of the risks and choses nonetheless to ride.  This would have been the situation with Sgt. Hackemer at Darien Lake as I believe it is undisputed that he received a copy of the park’s guidebook on ride access and discussed his disability with park personnel before ever reaching the ride.  The question I have is whether that would really provide enough legal shelter so that operators could actually avoid significant liability.  For example, this kind of legislative immunity would seem to do little to protect against bystander liability for claims stemming from the emotional distress of losing a family member or witnessing a traumatic incident.  This is exactly the kind of claim that was raised against Go Bananas, an FEC located in Illinois, last year where a child was killed on a small roller coaster and the operator was sued by another guest who witnessed the incident.  Might such immunity simply be trading one form of liability for another? 

JM:  I'd say the biggest thorn in my side with all of this is that it pushes more liability onto entities without adding protection for complying.  I do not see any federal preemption language in the ADA thwarting state law tort claims.  Lay people often dismiss liability arguments, but they matter--no more McDonald's playgrounds, some smaller municipal swimming pools/pools owned by small businesses might choose to close rather than pay for, and maintaining, a fixed lift.  Additionally, liability/immunity is mostly a state issue that isn't uniform, so complying--and its effects--will differ from state to state.  …. As you mention, there isn't a liability umbrella big enough to encompass everyone.  Releases mean very little.  Result?  Higher insurance premiums, higher admission prices, among other things.

I think Julie’s last point is one well worth keeping in mind (particularly as new legislation on the state and federal levels is always a possibility).  The bottom line is this:  laws matter not just to the intended beneficiaries, but to very existence of the regulated industries.  While a law or regulation may provide a benefit to a certain portion of the population, regulators must not forget about the impact that law will have on those that must comply.  The amusement industry is one that is dominated not by the Disneys and Cedar Fairs of the world, but by small businesses that have owned and operated family run parks, independent family entertainment centers, or travelling shows and concessionaires for generations.  These are the kinds of businesses that are ill-equipped to whether the storm of regulation that, in the interest of providing access or benefits to more guests, may impose high costs in terms of compliance and potential liability.  Access is a laudable goal and one that few in the industry have any quarrel with, but when that access carries with it a heightened risk of liability, the danger exists that we will lose the very backbone of our industry.