Innovate and Improve Through One Simple Change In How You Ask Legal Questions

As I write this, I’m sitting in the United Club at Orlando International Airport (a perk of the constant travel I seem to do) and am reflecting back on a truly fantastic week at the IAAPA Expo 2018.  This year, for the first time, International Ride Training exhibited and had a booth in the Exploration Station – to the left of the ninjas and across from the dinosaur (you have GOT to love this industry).  The booth was a monumental success as it gave us the opportunity to meet with countless clients, potential clients, and new friends just discovering us for the first time.  I was also privileged to be a featured speaker for two seminars on the Americans With Disabilities Act and to actively participate in other sessions and meetings. In short, I met A LOT of people and, being a lawyer, got a lot of questions about compliance and best practices, whether it be with respect to the ADA or ride operations safety or business issues.  Most often, these questions started with a familiar clause:  “Do I have to ….”  Now, in reflecting back on these conversations, I’m wondering if that’s not exactly the right question.  Maybe the better question is “How do I ….” Or “What’s the most reasonable way to ….”  What’s the difference?  Read on, friends.  

The Eleventh Circuit Ruling That Calls Autism Policies Across The Industry Into Question

Well, it has now been just over two years since my last entry on The Legal Roller Coaster.  Much has happened since then, and I’ll tell you about a lot of it very soon, but suffice it to say that it has never been my intention that The Legal Roller Coaster would be shelved permanently.  A brief (or not so brief, depending on your perspective) hiatus was, however, required.  Nonetheless, I’m pleased to say that I’m back and that there will be some changes (for the better) coming soon.  But in the meantime, a new long-awaited decision has been issued that makes now the best time in two years to return to the blogosphere. 

In mid-August, the 11^th Circuit Court of Appeals issued its ruling in A.L. v. Walt Disney Parks and Resorts US, Inc..  A copy of the decision can be found here in case you are interested in reading it.  I wrote about this case before on a number of occasions (and I encourage you to read at least this piece before you read the rest of this one as it contains a much more fulsome explanation of the lower court ruling than I’m going to provide here), and I’ve been waiting for quite some time for the Court of Appeals’ ruling.  And now, having read it, I regret that I’m not sure its much help to the industry.  Why?  Let’s get into it.

Disney's Autism Policy Passes ADA Muster - But What Does That Mean For The Rest Of The Industry?

Does the ADA require immediate, on-demand boarding for guests with cognitive disabilities such as autism?  It is among the questions most frequently asked of me and one for which there has been no judicial guidance … until now.  Late last week, the United States District Court for the Middle District of Florida issued a first-of-its-kind ruling on the issue in a case called A.L. v. Walt Disney Parks and Resorts U.S., Inc.  In the decision, Judge Anne Conway ruled in Disney’s favor essentially finding that immediate, on-demand boarding was not “necessary,” as that term is used in the ADA, and thus that Disney was not obligated to provide it to autistic guests.  While there may be a couple of small areas in the court’s analysis that some could quibble with, on the whole the decision is well-reasoned, reasonable, and practical.  But what does it mean in the broader context?  What affect, if any, will this case have on future cases in the industry?  Those are the questions that I think warrant a little discussion – and thus have drawn me back to blogging after an extended absence (which I hope you can all forgive).

Do Height Requirements On Rides Violate The ADA?

A couple of weeks ago, I had the privilege of spending a couple days with a highly talented group of amusement professionals at the iROC Safety School in Las Vegas.  This is the second year that I have been invited to speak at the event, and it is quickly becoming a highlight of the year.  The topic of both this year’s and last year’s presentations was the Americans With Disabilities Act which, as faithful readers of this blog know, is a particular passion of mine.  After a 90 minute seminar on ride access last year, much of the Q&A session revolved around the issue of autism which, coupled with the filing of the lawsuit against Disney, prompted me to take a closer look at the issue in the “Here & Now” series.  This year, I came to iROC ready to go on the issue of autism, but interestingly a new issue reared its head that I hadn’t thought a whole lot about before: The question of height requirements and, specifically, whether enforcing a height requirement against a guest with a disability violates the ADA.  So, as with the autism issue last year, I thought this deserved a little more thought and some attention here. 

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.  

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. 

Here & Now (Pt. 3): Isn't Standing In Line An Essential Rule Of The Park .. Even For Autistic Guests?

Click here to read Here & Now (Prologue): The Question of Autism In Amusement Parks Under the ADA
Click here for Here & Now (Pt. 1): Is Immediate Ride Boarding For Autistic Guests Really Necessary? 
Click here for Here & Now (Pt. 2): Is Immediate, On-Demand Ride Access For Autistic Guests Reasonable?

What does this ...

have to do with this?

A recent lawsuit brought against the Walt Disney Company has brought into the public spotlight an issue that the amusement industry has struggled with for years:  what accommodations are legally required for autistic guests and other guests with cognitive disabilities that cannot wait in line.  Last year, Disney’s parks (along with several others, including the Cedar Fair parks) instituted a policy that dramatically changed the procedure for these guests.  Rather than being granted on-demand, immediate boarding privileges upon arrival at a ride (as had been the practice for years), guests at these parks must now check-in, either at the ride or at a guest relations location (depending on the park), and make an appointment to return, at which time the guest and his party will be immediately boarded.  The appointment time corresponds to the length of the line.  So is this procedure acceptable under the Americans With Disabilities Act?  The plaintiffs in the recent Disney lawsuit say it is not – that immediate, on-demand boarding is a required accommodation under the law.  But is it?   

The first two pieces of this series have looked at the questions of whether immediate, on-demand boarding on amusement rides is necessary (giventhat front-of-the-line access does not seem to be requested in any other publicaccommodation) and / or reasonable (given prior case law in the cruise shipcontext finding it is not).  I’m ending this series by considering the third element of an ADA claim of this sort:  Does allowing on-demand, immediate boarding “fundamentally alter the nature of” the amusement park experience?  I believe it does – in dramatic fashion.

Here & Now (Pt. 2): Is Immediate, On-Demand Ride Access For Autistic Guests Reasonable?

Click here for Here & Now (Prologue): The Question Of Autism In Amusement Parks Under The ADA
Click here for Here & Now (Pt. 1): Is Immediate Ride Boarding For Autistic Guests Really Necessary?
Click here for Here & Now (Pt. 3):  Isn't Standing In Line An Essential Rule Of The Park ... Even For Autistic Guests?

A recent lawsuit filed against the Walt Disney Company has put before a Federal Court in California the question of whether amusement parks have a legal obligation under the ADA to allow autistic guests to skip the line and board rides immediately upon arrival.  It’s a question that the industry has struggled with for years without much guidance in the legal literature.  This series is taking a closer look at that question.  Last time, I looked at the question of whether it was “necessary,” in ADA parlance, for anautistic guest to have immediate boarding privileges.  Today, I’m tackling what I believe to be the central question raised in the Walt Disney lawsuit:  Is it reasonable to allow guests with disabilities to have on-demand, immediate boarding on amusement rides?  Put another way, is it reasonable to provide guests with disabilities with an appointment time at which immediate boarding will be granted?

As I mentioned in the first piece in this series, public accommodations, like amusement parks, are only required to make “reasonable modifications” under the Americans With  Disabilities Act.  But what does "reasonable" mean in the context of an amusement park? 

Here & Now (Pt. 1): Is Immediate Ride Boarding For Autistic Guests Really Necessary?

Click here to read Here & Now (Prologue): The Question of Autism In Amusement Parks Under the ADA
Click here for Here & Now (Pt. 2): Is Immediate, On-Demand Ride Access For Autistic Guests Reasonable?
Click here for Here & Now (Pt. 3):  Isn't Standing In Line An Essential Rule Of The Park ... Even For Autistic Guests?

Is it really necessary for autistic guests to have immediate access to rides?  It’s a question that really has two meanings depending upon your point of view.   From a lay-person’s perspective, the question of necessity is a loaded one, potentially involving overtones of insensitivity or intolerance.  To even question necessity is itself socially taboo.  After all, who are we, as guests without disabilities and their consequent life challenges, to question whether an autistic person or his family really “needs” something that will, regardless of literal necessity, make lives easier and a day in the park more pleasant?  Given the challenges inherent in being the parent of an autistic child, who would be so callous as to deny, or even question, an additional convenience during a day in the park?

Here & Now (Prologue): The Question Of Autism In Amusement Parks Under The ADA

Click here to read Here & Now (Pt. 1): Is Immediate Ride Boarding For Autistic Guests Really Necessary?
Click here for Here & Now (Pt. 2): Is Immediate, On-Demand Ride Access For Autistic Guests Reasonable?
Click here for Here & Now (Pt. 3):  Isn't Standing In Line An Essential Rule Of The Park ... Even For Autistic Guests?

I don’t think it’s an exaggeration to say that the issue of autistic guests and, more specifically, what services must be extended to autistic guests under the Americans With Disability Act, is one of the hottest topics in the amusement industry today.  To illustrate, I spoke about the Americans With Disabilities Act at an amusement industry event in Las Vegas in February and, while my comments were not directed at the legal requirements surrounding autism specifically, virtually all the questions from the attendees were.  I spent a good portion of two days talking, in one way or another, about one repeated question:  Does an amusement park have a legal obligation to allow autistic guests (and, by extension, their families) immediate boarding on rides?  It’s a question with very little answer in the existing law.  

Well, that may be changing.  As many of you undoubtedly know, a recent lawsuit against Disney called A.L. v. Walt Disney Parks & Resorts US,Inc., has put this question directly to a federal court in California.  It’s a first-of-its-kind lawsuit against an amusement park operator with the know-how and resources to litigate this issue to a ruling.  It’s a case the entire amusement industry needs to watch, and an issue that is very worthy of some discussion – particularly as we approach summer and the height of the amusement industry’s operating season.

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.    

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....

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. 

New ADA Regs Proposed That Would Allow Temporary Lifts In Pools (Courtesy of Julie Mills)

Julie Mills, an attorney and blogger who writes about ADA issues in the hospitality industry, wrote a piece this week on HR 203 - a new bill that has been introduced in Congress that, if passed, would permit pools to use temporary lifts instead of incurring the expense and potential safety issues that arise from the ADA's current requirement for fixed lifts in most pools.  Julie does a nice job of summing up the issue so, with her permission, I've reprinted her piece below.  Julie's Blog, "The ADA:  Titles II and III," can be found here.  
(read her piece and my thoughts after the jump)

Could the Disney Segway Issue Be Headed To The Supreme Court?

In my last post, I discussed Ault v. Walt Disney World Co., a class-action lawsuit in Florida challenging Disney's "no Segways" policy in its Florida properties.  To quickly recap, the judge in Florida approved a settlement in the case finding that that Disney was likely to prevail under the ADA if the case actually went to trial because it could probably prove that Segways constituted an actual safety hazard in its parks.  

Yesterday, the U.S. Court of Appeals for the Eleventh Circuit affirmed the trial court's ruling.  Read more after the jump. 

Disney Probably Won't Have To Allow Segways ... But What About Other Parks & FEC's?

The Ninth Circuit's decision in Baughman v. Walt Disney World, Inc., has gotten a lot of attention over the last couple of weeks. Disability advocacy groups are touting it as a big win for accessibility.  However, I do not really see it that way.  In fact, as I've already written, I think this was the WRONG case for the Ninth Circuit to have even reached the issue, given that Ms. Baughman can't seem to decide whether she uses a wheelchair because she cannot stand or uses a Segway because she cannot sit.  But, putting that aside, I also do not think the case will ultimately result in Disney being required to allow Segways in its parks.  The bigger question is what, if any, effect the decision might have on other parks and family entertainment centers - particularly those that lack the seemingly limitless resources of Disney.

The Outrageous Reason The Disneyland Segway Ruling Should Never Have Occurred

On Wednesday, the Ninth Circuit Court of Appeals in California issued a ruling in a case called Baughman v. Walt Disney World ordering Disney to study the use of Segways at Disneyland.  The opinion is rather glib from start to finish.  Its opening line:  “Segways at Disneyland?  Could happen.”  Its ending line:  a quote from Walt Disney himself, “Disneyland will never be completed as long as there is imagination left in the world.”  While I seriously doubt that Walt was talking about the possibility of never-ending accessibility modifications under federal regulations, the bottom line is that the Court ordered Disney to determine whether “Segways can’t be operated safely in its parks.”  Whether Disney, the industry, or I agree with the Court’s legal analysis of the ADA or not is, at this point, largely irrelevant – in all likelihood, it is not going to change.  However, I did want to address a genuine and disturbing issue that this case raises; one that I have seen no coverage about or commentary on in any of the media reporting on this story:  the fact that, in issuing this decision, the Ninth Circuit essentially condoned the practice of abusive ADA litigation brought by plaintiffs who may, or may not, actually have the disability they claim. 

The Most Important Amusement Industry Lawsuit In Years May Have Just Been Filed In California

Do disabled guests have an absolute right to ride amusement rides under the Americans with Disabilities Act?  That's the question posed in what could be one of the most significant amusement-related lawsuits to be filed in years.  Assuming this suit does not settle, and this is the kind of suit that might not, the result of this lawsuit could have significant ramifications on our industry from both a liability perspective and a guest-service perspective.  It could affect the way rides are designed and manufactured.  It could affect operational protocols and procedures.  In short, I do not believe it is an understatement to say that this is a lawsuit that every member of our industry needs to watch.  It is 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.  It is potentially that big.