Why Six Flags' Loss In A Recent ADA Decision Might Ultimately Be Good For The Amusement Industry As A Whole

Over the last couple of years, I have told you about a very important case in our industry called Castelan v. Universal Studios.  Castelan was the first decision of its kind to shed some light on the standards applicable to amusement rides under the Americans With Disabilities Act.  I won’t re-hash what I said about the Castelan case again (you can click here and here to read my coverage of that case), but suffice it to say that a big takeaway from Castelan was its holding that, in states that required operators to follow ride manufacturer recommendations, the Americans With Disabilities Act allowed amusement ride owners and operators to use a ride manufacturer’s accessibility restrictions as, in effect, a proxy for proof that allowing disabled guests to ride created an “actual risk” of injury to that guest that satisfied the “legitimate safety requirements” exception to the ADA.   (If you didn’t understand that sentence, I highly recommend reading this for some clarification.)  Well, a federal court in Texas has recently weighed in on the issue and has reached a very different result – ruling against Six Flags Over Texas in a nearly identical case to Castelan and, in fact, rejecting much of the Castelan decision in the process.  The decision is certainly a bad result for Six Flags in that case, but is it a bad decision for the industry as a whole?  Many will undoubtedly say it is.  I don’t necessarily agree. 

Bench v. Six Flags Over Texas

Before we get into why this may not actually be a bad decision for our industry, give me just a minute or two to summarize the decision.  The case is called Clint Bench v. Six Flags Over Texas, Inc..  According to the facts summarized in the case, Mr. Bench has a physical condition that prevented him from developing fully formed hands.  After visiting Six Flags Over Texas on previous occasions without issue with regard to ride access, he returned to the park in May 2012 and was told, after boarding, that he could not ride the Aquaman Splashdown attraction (an O.D. Hopkins manufactured shoot-the-chutes ride) because he did not have fully formed hands for grasping.  Six Flags provided him with a brochure explaining the ride access policy, which apparently did not list the Aquaman Splashdown attraction as being restricted based on this disability.  He sued under the Americans With Disabilities Act and Texas’s state law analog.  As relevant to this article, the crux of his complaint was that Six Flags excluded him based on unlawful eligibility criteria.  Six Flags moved for summary judgment, essentially asking the court to rule in its favor without a trial because it’s access criteria fell within the ADA’s “legitimate safety requirements” exception, which allows operators to lawfully discriminate on the basis of a disability where there is an “actual risk” of harm to the disabled guest.  The court disagreed.

Importantly, the court did agree with Six Flags that the ADA allows operators to exclude disabled guests for legitimate safety reasons.  There was no question that the ADA allowed such an exception – the problem was in the proof needed to fall within it.  Six Flags argued that its eligibility criteria arose from two primary sources:  1) the ride manufacturer, assuming the manufacturer exists and provides access recommendations, and 2) for those rides where no manufacturer guidance was available, on the recommendations of a corporate committee that “looked to manufacturer requirements for similar rides, … and / or industry standards to determine what enhanced ridership requirements were warranted, if any.  The committee “also used engineering reports from Six Flags’ engineering team [and] standards developed by the ASTM F24 Committee on Amusement Rides and Devices.”  But the court zeroed in on the regulatory language explaining this exception and found that Six Flags had not proven that its eligibility criteria, resulting from either source, were based on “actual risks” as opposed to “mere speculation, stereotypes, or generalizations about individuals with disabilities.” 

Can You REALLY Just Rely On Manufacturer Recommendations?

As for following the ride manufacturer’s recommendations, Six Flags relied largely on Castelan, and argued that, like California, Texas state law requires operators of amusement rides to follow manufacturer recommendations, and thus they could not modify those recommendations to accommodate disabled guests that were excluded because of them.  But the court, while sympathetic to the park’s position, disagreed that the manufacturer’s recommendations could, on their own, satisfy Six Flags’ burden of proving that its access rules were based on an “actual risk.”  

Characterizing this defense as “The State Made Me Do It,” the court ruled that the state law obligation to comply with manufacturers’ recommendations could not be relied upon for two reasons.  

First, and perhaps most importantly under the facts of the case, the Court found that only one of the rides at Six Flags Over Texas, Batman – The Ride, had manufacturer’s access restrictions at all.  The rest of the rides, including Aquaman’s Splashdown, had no guidance and thus state law did not even come into play for those rides.  

Second, the Court found that, even if manufacturer’s guidance existed, to the extent that the manufacturer’s recommendations did not satisfy the standards of the ADA, the ADA, as federal law, would preempt the state law ride safety regulations and access would be required.  In other words, the manufacturer’s recommendations are only as good to an ADA defense as the reasons behind them.  If the manufacturer based its access restrictions on something other than “actual risks,” that would not suffice to satisfy the legitimate safety requirements exception in the ADA.  In the words of the Court, “defendants to these suits still bear the burden of proving their defense on the merits, not by simply stating they are required to do it under state law.”  

That is a significant departure from Castelan.  Just a few months ago, the court in that case said it was the plaintiff’s job to challenge the manufacturer’s requirements because it was not the “Defendants’ responsibility to challenge the manufacturer’s operating manual and ensure these requirements are in fact necessary for the safe operation of the ride.”  The judge in that case believed that “if Plaintiffs believe the restrictions are overprotective, they are free to initiate an action against the manufacturer.”  But the Court in Bench disagreed:

States are passing the buck to ASTM and ASTM is passing the buck to manufacturers.  The Castelan court suggested they, the manufacturers are the ones who should be held accountable, … but this Court is not so sure that is possible.  The prohibition on discrimination applies to “any person who owns, leases (or leases to), or operates a place of public accommodation.”  Among the institutions setting criteria about who can ride a roller coaster – amusement parks, manufacturers, ASTM, and the state – amusement parks are the only ones who “operate a place of public accommodation.”  That means ultimately they are the ones who must answer for discriminatory criteria that they impose on their rides.  If they are concerned about their compliance with state law, the appropriate method is to file a suit to be released from their state law obligations – not discriminate now, deflect later.

That is powerful stuff.  And, although many in the industry probably won’t like it, it is, in my opinion, a reasonable legal interpretation of the statutory and regulatory language in the ADA.  Castelan told parks that they could accept the manufacturer’s requirements at face value, and that any challenge to those requirements would need to be brought by affected plaintiffs against the manufacturers directly.  But the ADA does not apply to manufacturers – it doesn’t require a manufacturer to do anything.  So any ADA lawsuit brought against the manufacturer stands a pretty good chance of being dismissed almost immediately.  It is the operators of public accommodations, like amusement parks, that have statutory obligations and thus, according to the Bench court, it is up to them to be able to back up the manufacturer’s recommendations with proof of an “actual risk.”  

If Not The Manufacturer, Then Who?

So what about the second source of ride access policy – the corporate committee I mentioned earlier.  To put it rather bluntly, the Court was unimpressed.

Six Flags Over Texas cites various items of evidence which mostly say the same thing:  the committee charged with auditing the rider qualifications considered manufacturer guidelines and service bulletins, the ASTM standards (which, by the way, point back to the manufacturer guidelines and bulletins), reports from the Six Flags engineering team, and the collective knowledge of the committee.  The evidence could be summarized in two sentences:  “Trust us on this one.  Somebody said we needed to do it.”  None of it shows what “actual risk” the criteria was based on.  … At best, it shows they bluntly compared a wide class of rides and imposed uniform requirements.  That broad approach is commendable in terms of cost.  But it also leaves Bench without an answer as to why his disability prevents him from safely riding roller coasters, and it does not satisfy the ADA’s requirements.

Unfortunately, the Court’s view of this committee – a committee undoubtedly composed of people with decades of experience in the operation and maintenance of Six Flags’ rides – is not entirely unexpected, at least to me.  The analysis that seems to be demanded under the “legitimate safety requirements” standard is one that begs for data and empirical proof over conclusions based on practical experience.  Nor does it matter if, at the end of the day, Six Flags’ committee’s conclusions were entirely correct (and they probably were, at least with respect to a large number of rides).  In the ADA, how those conclusions are reached are more important than what those conclusions are.  And, in the court’s view, a committee’s conclusions, without backup data to support them, are insufficient to prove the existence of an “actual risk.”  

It also does not matter to the court if the analysis demanded under the ADA is expensive to undertake – and there can be no doubt that providing the data the Bench court is looking for will be expensive.  There is no “cost” exception to the ADA in this regard.  The law simply does not allow a court to waive the applicable legal standards because it costs too much for a defendant to satisfy them.  Even in barrier removal situations where cost can enter into the calculus, it is the rare case where the cost of providing access will trump the intent of the ADA to provide the broadest access possible.  Congress has correctly recognized that there may be safety reasons to deny access to a disabled guest, but, to avoid abuse, it has purposefully made it difficult for owners and operators of public accommodations to fall within this exception.  

So Is This A Bad Decision For The Amusement Industry?

So, getting back to my initial question – is this a bad decision for the industry?  There are going to be a lot of people who think it is.  There will be those in the industry that will say that this judge didn’t respect the collective knowledge of the people who know these rides best or the expertise and careful consideration that went into the ASTM standards.  There are going to people who think that the decision makes it virtually impossible for a small operator, who may not have the resources necessary to do an exacting analysis of every ride to determine ridership criteria, to successfully defend an ADA lawsuit (and, by the way, that is a real concern to be drawn from this ruling). 

But here’s why I actually don’t think this is a bad decision for the industry:  I think the court’s legal analysis of the “legitimate safety requirements” exception is probably correct insofar as it requires submission of proof of an "actual risk" rather than reliance on manufacturer's recommendations as a stand-in for such proof (although I do disagree with another issue or two in the ruling, but that’s a topic for another day).   And, much more importantly, I think other courts will likely agree.  And so, to that extent, this decision gives us information and knowledge – which is exceptionally valuable given the scarcity of cases on this issue.   Knowledge is vital when it comes to the crafting a legal defense.  Bench should give the industry some warning about what may be looming in our future so that the next policy, the next case, and the policies and cases after those, are tailored to standards that the courts may well apply.  

Of course, there remains a significant, and unanswered question, as to what proof will suffice to satisfy the court under Bench's analysis.  Is in-house engineering data enough?  Does a park have to undertake a complete independent biomechanical engineering analysis to satisfy its burden of proving "actual risks"?  Or is there some reasonable middle ground between the committee / blanket rule approach rejected in Bench and an expensive analysis that is financially infeasible for many operators?  I think there probably is, but that's something to be addressed some other day, and it certainly isn't addressed in this case.    

And, largely due to this uncertainty, none of this should be read to suggest that Six Flags did a single thing wrong here.  Six Flags did what anyone would do – it relied on the legal authority available at the time and presented a defense that fit well within it.  Some may have thought that Castelan’s analysis was imperfect, heck – even I thought it had some problems, but it was the only case on point and thus was the best authority for Six Flags to rely upon at the time.  And, at the end of the day, it is certainly possible that future courts will agree with its practicality even if not its reasoning.  But, Castelan was only the first case in an area of the law that is still being developed and, in those circumstances, it can be difficult to predict how persuasive it will be to another court in the the second case.  Six Flags did the best it could do with the only legal authority available at the time.  This Court simply disagreed with that authority.

And that is why, while the result is not good for Six Flags, the Bench case, in the long run, likely is good for the industry.  The worst thing to happen in any lawsuit is to get blindsided by either the facts or the law.  At least as to the law, this case helps prevent that from happening to the next operator in the future.  And that is why I think Bench is a very important case and a “good” decision for the industry.