Six Flags Just Earned A Win In An ADA Case - And No One Seems To Have Noticed

Forest or Trees?

Last week, as I was toiling away on a big case I’m working on, my email inbox blew up with news of an ADA case out of a federal court in New Jersey involving Six Flags Great Adventure.  As many of you know, I usually pay close attention to such things, and the news I was hearing was uniformly bad:  “Six Flags lost another ADA decision,” some told me.  “The judge in New Jersey got it dead wrong, just like the judge in Texas,” said others.  “These judges are starting a war between parks and manufacturers,” someone else suggested.  The newspaper headlines seemed to uniformly focus on the “victory” for the disabled plaintiff.  Unfortunately, it took me a few days to get around to actually reading the decision, and guess what?  Much to my surprise, I disagree with much of the reaction I had encountered.  In fact, while it is not a home run for Six Flags, there is much in the decision that is extremely good for the industry in terms of ADA compliance.  Yes, at the end of the day Six Flags lost this particular ruling, but focusing on that is a mistake as it overlooks two very positive aspects of this ruling for the industry, and the strong chance I believe Six Flags will have to win this case should it go to trial.  

The facts of the case, called Masci v. Six Flags Theme Park, Inc., are similar to both the Castelan and Bench decisions I’ve written about before (and I suggest you read those pieces before reading this one if you are not familiar with the ADA), and therefore do not require much explanation.  The plaintiff, a fourteen year old boy at the time of the events described in the Complaint, visited Six Flags Great Adventure in 2012.  While there apparently is some dispute about the extent of the Plaintiff’s disability, it seems pretty clear from the opinion that he is missing part of both legs, his right arm above the elbow and has a shortened left forearm with four “digits” and a thumb.  He uses prosthetics on his legs and his arm.  He alleges that he was turned away from most of the rides at Six Flags because he did not meet enhanced ride safety criteria Six Flags implemented after the Darien Lake tragedy in 2011.  The Plaintiff claims that Six Flags violated the ADA and its New Jersey state analog.  Six Flags essentially asserted three defenses:  1) that it was required to follow manufacturers recommendations under state law and therefore was not in violation of the ADA, 2) that its ridership criteria were permissible “legitimate safety requirements” under the ADA, and 3) that allowing the Plaintiff to ride with his prosthetics would cause a “direct threat” to the safety of others should they become detached while the ride was in motion.  Both parties moved for summary judgment – arguing that a trial was unnecessary because, each claimed, it was entitled to judgment as a matter of law.   Ultimately, the court disagreed with both parties, and ordered the case to proceed to trial.  And while that is not an ideal result for Six Flags – after all, who wouldn’t want to avoid the burden and expense of trial – the court’s opinion is generally quite good for both Six Flags and the industry as a whole. 

Castelan Revisited (And Adopted)

Lost in the headlines proclaiming Six Flags’ loss in this motion, is the fact that it actually won part of the case and, in so doing, the Court endorsed the Castelan decision decided last year in California.  The Castelan decision was remarkable in holding, for the first time, that an amusement park that is required by state law to follow manufacturers’ accessibility recommendations does not violate the ADA by complying with this obligation.  Whether this holding would be adopted by other courts was thrown into doubt when a Texas court, in another case against Six Flags, summarily rejected it.  Thus, before the Masci case, the score was 1-1:  one court says it is acceptable to rely on manufacturer’s recommendations, and one court says it is not.  

Masci changes that.  

The Court … does believe that … proof of ridership requirements mandated by the manufacturer … can be relied upon by Six Flags as proof of a legitimate safety requirement under the ADA.  As discussed, an entity is allowed to “impose legitimate safety requirements that are necessary for safe operation.”  28 C.F.R. § 36.301(b).  While Plaintiffs attempt to create a factual issue by arguing that Defendant has failed to show that the ridership requirements are indeed necessary, the Court believes that Six Flags can reasonably rely upon the ridership restrictions created by the ride experts – the manufacturers.  It is only logical that the ride manufacturers, as the manufacturer of the ride, are in the best position to determine what ridership requirements are warranted and necessary to make the ride safe for all guests.

[T]he Court does not believe that the ADA places additional requirements on Six Flags to reevaluate the ridership requirements to find out if they are, in fact, necessary.  Rather, the ridership requirements of the manufacturer establish certain safety requirements that have been found necessary for the safe operation of the rides.  New Jersey law requires Six Flags to follow and implement the ridership safety requirements of the manufacturer, an indication of its belief that the manufacturer should be responsible for determining what constitutes a necessary safety measure.  If these requirements work to exclude [the plaintiff] from certain rides due to his disability, Six Flags has satisfied their burden in demonstrating that such exclusion from the rides it has provide the service bulletins for does not violate the ADA.

Say what you want about the rest of this ruling, this is a big deal.  Before Masci, with the score 1-1, there was little predictability for amusement operators and no majority view for a future court to consider.  The score is now 2-1.  And this latest win came after the court fully considered both Castelan and Bench.  Weighing both, it went with Castelan.  That’s a good win.

Now, what does this mean for the industry?  Well, it might be easier to say what it doesn’t mean.  It doesn’t mean that no case will ever decide to go with Bench again.  And it doesn’t mean that a future court won’t try to chart out some other position not encapsulated in Castelan, Bench, or Masci.  And it doesn’t mean that this holding might not, eventually, get reversed on appeal.  But it does establish, at least for the time being, a majority view on the question of reliance on a manufacturer’s recommendation for purposes of ADA compliance.  True, its only two cases out of three, but that’s still a much stronger position to be in than when it was 1 to 1 or, worse, had Masci sided with Bench to make it 1-2. 

Now some of you may be asking, “If this is so good, why did Six Flags lose this motion?”  Simple.  Not all of its rides have manufacture’s recommendations and, as to those rides, the Court found this line of reasoning inapplicable.  But for those rides that did, which encompassed numerous large coasters, Six Flags won not only this part of the case, but also scored a victory for the industry as a whole.  But wait, didn’t Six Flags lose the rest of this ruling?  Isn’t that bad?  Well … yes, but …

A Judicial Vote Of Confidence?

I have serious doubt that Six Flags will lose at trial.  And I think the judge agrees with me.  I mentioned above that, faced with a conflict between Bench and Castelan on the issue of manufacturers’ recommendations, the court rejected Bench.  But interestingly, it did not completely reject it.  With respect to those rides that did not have manufacturer’s recommendations on accessibility, the Court found that Six Flags had not proven that its ridership criteria were based on “actual risks” as opposed to “speculation, generalizations, or stereotypes” about disabled guests.  And, to that extent, Masci is consistent with the earlier Bench decision.  But this judge departed from Bench in one critical respect that, I believe, signals a likely positive outcome for Six Flags if this case goes to trial.

Reading the Bench decision, it is clear that Six Flags didn’t just lose that motion, the judge was very antagonistic to its position.  Underlying the opinion is virtual dismissiveness of Six Flags’ arguments.  The judge appeared to be predisposed against Six Flags and effectively conveyed the message that Six Flags was going to have a rough time winning its case at trial in that judge’s courtroom. 

But the Masci decision is different.  While Judge Pisano finds that, for purposes of this particular motion, Six Flags had not submitted sufficient evidence to satisfy the standards under the ADA, the judge appears to be impressed with the work that went into the eligibility requirements.  Gone from this opinion are the flip characterizations of Six Flags’ arguments that were impossible to miss in Bench.  Instead, the Court appears to have taken the process Six Flags employed and the expertise of its witnesses quite seriously.  The only thing lacking in Six Flags’ evidence was an answer to the question “why?”  Why does the work Six Flags undertook lead to the conclusion that allowing the plaintiff to ride would cause an “actual risk” of harm?  And, while that question is not answered in this ruling, the Court recognized that, at trial, “Six Flags may very well be able to prove that such ridership requirements are necessary.”

Often times lawyers advise clients to file motions for summary judgment even if the chances of winning are remote.  Why?  To educate the judge.  To get the judge thinking about your client’s position and to understand the sometimes complex issues that are going to be presented at trial.  Even if you don’t win the motion now, the logic goes, educating the judge about your position may ultimately lead to a win down the road.  And that, I think, is what the Masci decision signals.  No, the court didn’t rule in favor of the park on this particular motion, but it is obvious that Six Flags has the judge thinking positively about its arguments and their merit.  And that is a very good sign for the next iteration, if there is one, of this case. 

Yes, You Can Talk To Disabled Guests About Their Disabilities

The Masci decision also contained another positive, and largely overlooked, aspect:  guidance on the extent to which ride operators may discuss a guest’s disability without violating the ADA.  As a general matter, the ADA prohibits owners or operators of public accommodations from proactively discussing the details of a particular disability with a disabled guest.  From this, many have concluded, and sometimes advised their employees, that it is unlawful to ever discuss the particulars of a disability – regardless of the circumstances.  Needless to say, this gives rise to a bit of a quandary when it comes to the “legitimate safety requirements” exception to access – how do you know if a guest meets a ride’s legitimate safety requirements without discussing the guest’s disability with him or her?  

Masci answers that question for the first time in the amusement context.  

Six Flags should have an employee on hand (assumedly the ride operator) who can determine or otherwise assess if a guest meets the ridership requirements for the ride in question.  Indeed, implicit in that right to create eligibility criteria is the right to ask if an individual meets the criteria.

Indeed, not only is such communication permissible, but according to Masci, it is actually necessary to avoid potential liability.  It is the difference between unlawfully discriminating on the basis of the appearance of a disability and of permissibly enforcing legitimate safety requirements.    

This should give the industry some degree of comfort when it comes to assessing compliance with a ride’s legitimate safety requirements.  While employees should be trained to ask only enough to ascertain compliance with the eligibility requirements, and no more, employees may engage in that conversation without undue fear of violating the law.

Additionally, this necessary “testing” (to use the court’s word) may have the side-effect of providing additional ammo for a defense in the event of an injury to a disabled guest.  If a guest misrepresents the extent of his abilities to the individual charged with making the access decision and is subsequently injured on that ride, that misrepresentation will be difficult to overcome.

So yes, Six Flags technically lost this particular ruling.  But that really should not be the takeaway from the Masci decision.  This decision represents a strong step forward for the industry as it struggles to reconcile the interplay between state ride safety law and federal accessibility law.  The judge appears educated, thoughtful, and impressed with Six Flags position, which bodes well for trial (and, likely, for settlement too).  And the decision gives much needed guidance on the level of communication about a disability that a ride operator may have when tasked with enforcing ride safety requirements.  That’s a lot of good stuff.  Not too shabby for a case no one seems happy about.