The SeaWorld / OSHA Ruling: How It Happened & What It Means (UPDATED 4/14/14)

SeaWorld’s killer whale trainers are out of the water, at least for performance purposes, seemingly for good.  So says the Court of Appeals for the D.C. Circuit in SeaWorld of Florida, LLC (see update below) v. Perez – the SeaWorld OSHA appeal that I have written about previously and that featured prominently in Blackfish.  As you may recall, following the death of trainer Dawn Brancheau at SeaWorld Orlando, the Occupational Health & Safety Administration (“OSHA”) investigated and issued citations requiring, as relevant to this case, that SeaWorld immediately stop allowing its trainers into the water with orcas during performances.  Pursuant to OSHA’s ruling, SeaWorld’s trainers could only interact with the whales during performances if separated by a physical barrier that would, in effect, prevent a whale from dragging a trainer into the pool as had occurred with Ms. Brancheau.

(more after the jump)

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. 

Happy New Year From The California Supreme Court! A Home Run Ruling In Nalwa v. Cedar Fair

In the law, there aren’t many things that can rightfully be called a home run.  The vast majority of “big” decisions out there are not total wins for one side, but are judged to be “big” because, in the main, their result effects a shift in the law or undoes a prior bad result even while, in some modest measure, containing a small victory for the “loser.”  The recent Supreme Court Obama-care decision is a perfect illustration: the Court upheld the individual mandate (the big win for liberals all over the country) while making clear that the individual mandate is, in reality, a tax (a small victory for conservatives).  On New Year’s Eve, though, the California Supreme Court issued a rare home run opinion in Nalwa v. Cedar Fair – an opinion that eviscerates the prior poorly-reasoned decision of the California Court of Appeals and unambiguously establishes the right of amusement and recreation facilities to assert the primary assumption of the risk defense to avoid costly and uncertain trial practice.  Even more remarkable, although the decision was a 6-1 majority (a strong victory to be sure), the Court of Appeals reasoning – that California’s public policy precludes the applicability of the assumption of the risk doctrine to the recreation industry entirely – was unanimously rejected.  There is simply no way to view this decision as anything but a complete home run for both Cedar Fair and the amusement industry in general.

3 Reasons To Be Optimistic For A Reversal In Nalwa v. Cedar Fair

Yesterday, October 3, 2012, the California Supreme Court heard argument in Nalwa v. Cedar Fair - a case I've already written about on a few occasions (like here, here, and here) and one the most closely-watched amusement industry cases in years.  Due to the miracle of modern technology, I was able to observe the argument over the Internet and, while we will not know for about three months which way the Court is going to go, I am cautiously optimistic that the Supreme Court may reverse the Court of Appeals and hold that the primary assumption of risk doctrine may, in fact, be applicable to amusement park rides in California.

A Photo Is Worth A Thousand Words, But Then What?

A really cool video produced by Coke has been flying around the internet recently.  It's a good-natured spin on hidden camera stories that is supposed to demonstrate that bad things are not the only thing captured on hidden cameras. Hidden cameras are just as likely to catch all of us at our best as at our worst.  Its a pretty entertaining little video that admittedly makes you feel all warm and fuzzy.  If you haven't seen it yet, here it is.

 

My reaction to this video was two-fold.  First, I was pretty darned impressed and a little moved.  Assuming its genuine (and heck, even if its not), the video did a nice job at making me feel good about humanity - and  strangely I am suddenly thirsty for a Coke too.  But then the lawyer in me kicked in and I wondered:  What happened just before and after each of those little snippets?  How do we know that all of these heartwarming moments really were heartwarming moments?  While it's true that, today more than ever, someone is always watching.  And taping.  And posting.  Are they really getting the whole story?  I don't think so.

How To Give Your Lawyer A Cardiac Arrest .... Brought To You By The Reading Phillies

Hi everyone!  Miss me?  Its been crazy the last few weeks as I have been working on a very large case that is going to trial next month in Oregon state court.  Unfortunately, this has occupied so much of my time that I was unavoidably forced to neglect my duties to The Legal Roller Coaster.  Well that stops here and now because I’ve just seen something that practically screams out for some attention.  And, given that this is my first post of the New Year, I thought it would be fun to start off with something a bit on the lighter side.  Ladies and Gentleman, I give you, “The Defense Lawyer’s Nightmare” a/k/a “The Worst Idea For A Promotional Event In History”  Seriously, you have to check this out – but please, PLEASE, don’t try anything you are about to see at your facility:

 

UPDATE: Wallace v. SeaWorld's Roadmap For Reversing Nalwa v. Cedar Fair

Last week I attended IAAPA Expo 2011 in beautiful (and much warmer than Connecticut) Orlando, Florida.  I think all who attended can agree that it was a great time and a fantastic networking opportunity.  To all of you who I met there, I hope to see you soon.  To all of you who I didn't, I hope to meet you soon.

While at IAAPA, I had the opportunity to speak with several of my colleagues, both in and out of any one of the kazillion educational sessions IAAPA offers, and specifically to speak with some of them about last summer's decision from the California federal court in Wallace v. Busch Entertainment.  I've previously written about this case to express my belief that it could contain a subtle signal that at least one federal judge in California does not believe that the Nalwa decision is long for this world.  (I've also written on the Nalwa decision previously - you can find that here).  I continue to believe that the absence of any mention of the Nalwa ruling in Wallace may speak volumes about its perceived persuasiveness.  However a colleague of mine, who practices in California, was not as convinced that there was any message or implication in the Wallace ruling.  According to my colleague, the absence of Nalwa in the Wallace decision is not attributable to the federal court's potential belief that Nalwa is a poor decision, but is simply a product of a California appellate rule that prohibits any court from citing the Nalwa decision once the California Supreme Court has agreed to review the decision.  Well - not being versed in California appellate rules (remember folks, I practice in Connecticut and the two states are PRETTY different), this stopped me in my tracks ... momentarily.  After all, if the Wallace court didn't cite to Nalwa because it wasn't allowed to - where does that leave my entire premise.  Well, I'm happy to report that my premise is safe and sound, and in fact, even assuming my colleague is correct about this rule, even stronger than it was before I knew about the rule.  Keep reading after the jump if you want to know why. 

Are California Courts Already Signaling Doubt About The Future Of The Nalwa Decision?

On Tuesday (8/16/11), the United States District Court for the Southern District of California issued an interesting decision in Wallace v. Busch Entertainment Corporation (now Seaworld Parks & Entertainment).  The factual background of the case is not especially remarkable - it is a rather run-of-the-mill personal injury lawsuit.  The plaintiff purchased a ticket to use the bungee trampoline in Seaworlds "Xtreme Zone," read and signed a liability waiver, followed the directions of the attendant, and was injured (a torn tendon in his left bicep).  The plaintiff sued alleging theories of negligence, negligence per se, gross negligence, breach of warranty, and products liability.  The court ultimately found that the plaintiff's breach of warranty and products liability claims were meritless and granted judgment in Seaworld's favor as to those counts.  Additionally, the court held that the plaintiff's negligence claim was foreclosed by the liability waiver he had signed, and therefore found in Seaworld's favor on that count as well. 

However, despite these victories, Seaworld did not prevail on plaintiff's negligence per se, and gross negligence claims, and it is in this respect that the case is really interesting - not because of anything the Court said, but because of what it didn't.

Controversial California Ruling On Assumption of Risk

This week the California Court of Appeals, Sixth District, issued its ruling in Nalwa v. Cedar Fair, LP., holding that a California amusement park operator cannot rely on the doctrine of assumption of risk to defend against a negligence lawsuit because 1) doing so would undermine California's policy of strict regulation of amusement rides and 2) because, even putting aside public policy, the doctrine of assumption of risk simply does not apply to amusement rides in California.  The decision is potentially a game changer in California, and will undoubtedly be influential in other ride related cases around the country.