About Me

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I am a consultant and general counsel to International Ride Training LLC as well as a practicing attorney in Avon, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Friday, September 13, 2013

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....

Representative Rushing and four other Massachusetts state legislators introduced House Bill 1758 in January 2013.  Since then it has been working its way through the legislative process.  According to the bill summary at the top of the bill, if adopted, the bill would make it  "unlawful to discriminate on the basis of height and weight in compensation or in terms, conditions or privileges of employment." And for the most part, that is exactly what the bill does:  it prevents employers from taking adverse discriminatory action against applicants or employees on the basis of height and weight.  It effectively elevates height and weight to the same level as other protected classes such as "race, color, religious creed, national origin, sex, [and] sexual orientation."  But then, tacked on at the end of the bill, is this (in relevant part):

Whoever makes any distinction, discrimination or restriction on account of race, color, religious creed, national origin, sex, height, weight, sexual orientation, ...  deafness, blindness or any physical or mental disability or ancestry relative to the admission of any person to, or his treatment in any place of public accommodation, resort or amusement, ... or whoever aids or incites such distinction, discrimination or restriction, shall be punished by a fine of not more than twenty-five hundred dollars or by imprisonment for not more than one year, or both, and shall be liable to any person aggrieved thereby for such damages as are enumerated in section five of chapter one hundred and fifty-one B[.] ... All persons shall have the right to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, resort or amusement subject only to the conditions and limitations established by law and applicable to all persons. This right is recognized and declared to be a civil right.

Let's pull that apart for a minute.  According to this bill, which is currently pending in the Massachusetts legislature, if the owner of a "place of public accommodation, resort or amusement" refuses to allow anyone "full and equal" access due to their height or weight that operator, and anyone who works on the ride, can be arrested, fined $2500, and imprisoned for a year.  THEN, they can be brought before a state discrimination commission and, if found to have discriminated on the basis of height or weight, the state can assess civil penalties starting at $10,000 for the first offense and going up to $50,000 depending on the number of discriminatory offenses proven (that's what's in "section five of chapter one hundred and fifty-one B").  That's some serious stuff.

Do I even need to point out the lunacy of this proposed legislation?  If passed, Six Flags New England had better get the check book out because every time they turn away a child from Goliath, they could conceivably be hit with a criminal fine and a civil penalty.  Not to mention jail time for the whole ride crew (for "aiding or inciting" this discrimination).  If the Commonwealth is looking for a way to increase revenue to the state, this would do the trick.  Any given day at Six Flags could result in exposure to millions of dollars in civil and criminal penalties.

But, let's set aside the ridiculous penal aspects of this proposed legislation, and let's talk about what's really important here:  safety.  Massachusetts is well known in the country for taking an aggressive stance on ride safety regulation.  Massachusetts law requires operators to follow a ride manufacturer's guidelines for maintenance and operation - including height and weight requirements.  This bill would actually make it a crime to comply with that regulatory requirement.  Operators basically would have to choose which law to violate, because they couldn't comply with both.  More significantly, this law would make it a crime for an operator to step in and, potentially, save a guest's life by excluding them from a ride that cannot safely accommodate the guest.  Child too short to safely ride?  Better let her or face jail time.  Guest's weight prevent the restraint from working?  Too bad, let him ride.  Is this really the culture of safety that Massachusetts professes to embrace through its ride safety regulations?

And note, the law contains no exceptions.  None.  There is no exception for the health or safety of the guest.  There is no exception for guests that would cause a direct threat to others.   Even the Americans With Disabilities Act contain provisions allowing discrimination for these reasons.  But not in Massachusetts.  There is not even a carve out specifying that, where a conflict exists, the Massachusetts ride regulations trump this law in the interest of safety.  This proposed legislation would impose a blanket prohibition on enforcing height and weight safety requirements on an amusement ride.  Period.  No ifs, ands, or buts.

Representative Rushing seems to be a smart man.  According to his legislative bio, he is a graduate of M.I.T. and Harvard.  But this is not smart legislation.  Discriminating against someone on the basis of height and weight in an employment situation rarely implicates issues of life or death.  But that very discrimination is necessary to keep guests visiting Massachusetts' amusement parks, carnivals, fairs, and family entertainment centers safe.  I urge Representative Byron and his fellow sponsors to withdraw this portion of the bill or to amend it to carve out exceptions for the safe operation of amusement rides.  To allow this bill to pass as-is is, quite simply, legislatively irresponsible.   

To email the sponsors of the bill and urge them to withdraw or amend it, follow these links:

Representative Byron Rushing (D., Boston):  Byron.Rushing@mahouse.gov
Representative Kay Khan (D., Newton):  Kay.Khan@mahouse.gov
Representative Gloria Fox (D., Roxbury):  Gloria.Fox@mahouse.gov

Representative Denise Andrews (D., Orange):  Denise.Andrews@mahouse.gov


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