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.  

A Safer Ride? (Pt. 3) - Is State Amusement Regulation The Problem?

            The amusement season is quickly winding down as daily operation (for seasonal parks) comes to a close and schools go back into session.  Like schools, legislatures around the country will also be heading into session shortly and, given the tragic and unfortunate incidents in the amusement industry recently, it is likely that at least some of these – maybe even at the federal level – will consider new regulation of the industry.  As I’ve detailed before in my last two pieces, the siren song of federal regulation is almost impossible to ignore in the wake of an amusement ride-related death or serious injury.  But the only real reason to look seriously at replacing the current system with a new federal oversight program is if the states' regulatory programs are not working.  So, for my final piece in this series I thought it would make sense to look at the evidence, or lack thereof, that state regulation is failing. 

A Safer Ride? (Pt. 2) - What Would Federal Amusement Ride Regulation Cost & Do Regulators Even Want It?

            The question of federal oversight of amusement ride safety is one that comes up every summer in the wake of an unfortunate, sometimes tragic, incident in the industry.  But while many in politics and the media are quick to speak out in favor of federal ride safety oversight, this rhetoric is typically devoid of any detail.  What would a federal ride safety program look like?  What would it cost?  And does the agency that would be charged with administering it share the view that it would be a good idea?  In my last post, I made my case for why I just do not see the federal government being any better (and perhaps it would be worse) than the states when it comes to ride safety oversight.  But even setting that aside, it is important to think about the details here and consider whether this program might be not enough bang and too much buck. 

A Safer Ride? (Pt. 1): Is The Federal Government A Better Regulator Than The States?

To state the obvious (and to understate the matter significantly), this has been an extremely bad week in the amusement industry. The week began with news of the death of 10-year old Caleb Schwab at Schlitterbahn waterpark in Kansas City, Kansas.  Just days later, news broke of an accident at a carnival in Tennessee involving a Ferris wheel and resulting in injury and hospitalization to three guests.  And the week ended with news that a three-year old was thrown from a roller coaster at Idlewild amusement park in Pennsylvania.  As the public has learned more about these incidents, and especially the reportedly gruesome nature of Caleb’s death, the outcry for answers has been immediate and unmistakable.  The media, in particular, has repeatedly focused on the so-called “patchwork” of state regulations in the amusement industry and, more specifically, the fact that there is no federal regulatory body overseeing ride safety in the United States.  

None of these criticisms are particularly new – indeed they arise whenever a tragedy strikes our industry.  But this time, faced with the unbearably tragic death of a young boy at a family-friendly waterpark, these criticisms seem to have gained more traction in the public consciousness.  It is simply impossible to look at a picture of Caleb Schwab and to not feel the greatest empathy for his family and to not want to make changes to ensure that no other family has to ever go through this again.  It is easy to argue, as Jake Tapper recently did on CNN, that the system failed Caleb, and that the answer is federal oversight. 

But, even after this week, one of the worst I can remember in the nearly 25 years I’ve been involved in the industry, I still maintain that federal ride safety regulation is not the answer.  And I think it’s time, after all these years writing this blog, that I explain exactly why I feel that way.  As I’ve done with other important issues in the industry, I’m going to look at this in three parts:  In this piece, I’m going to look at the question of whether the federal government is somehow inherently “better” than the states at regulating.  The next piece will look at what a potential federal ride safety program might actually look like and, critically, how much it might cost U.S. taxpayers.  The third will look at the question of whether there is any actual evidence that state regulation is not working.  The media has made their case.  It’s time for me to make mine.

IAAPA’s First Virtual Advocacy Day Is Here! And We Need Your Support!

This week, IAAPA’s North American Government Relations Subcomittee will be on Capitol Hill for its annual Advocacy Day (the name is actually something of a misnomer, since it actually takes place over two days).  On Tuesday and Wednesday, March 24-25, twenty-three members of the committee (including me) as well as invited guests from other IAAPA committees and members of the industry, will be meeting with elected officials in the House and Senate, their staffs, the Commissioner of the Consumer Product Safety Commission, and other government officials to communicate the industry’s interests to those that shape federal policy.  In all, we have scheduled thirty-six legislative meetings, including meetings with seventeen members of Congress, in only two days. 

This year, IAAPA’s Government Relations Department, as well as the North American Government Relations Subcommittee, is asking for your help to make Advocacy Day 2015 an even bigger success than it usually is.  In addition to our physical presence on the Hill this week, we are asking you to take part in the first-ever Virtual Advocacy Day!  What’s that, you ask?  Well, while we are meeting face-to-face with members of Congress and other policy-makers in Washington, we want you to take to social media with the hashtag “#IAAPAVAD” to amplify the messages that Advocacy Day attendees are bringing to DC.  Tweet your Senators!  Tweet your Representatives!  Tweet the CPSC, the State Department, the Transportation Department, the FAA!  Show them that you care about the industry and the issues that affect it. 

So, what are the issues that we will be addressing over the next few days and how can you help?  Well, keep reading to find out more about our priority issues and how you can contact your representatives and policy makers.  

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.  

IAAPA Is Over, So What's Next? How Does A Couple Of Days In New Orleans In February Sound?

IAAPA 2014 in Orlando was a huge success!   From talking to my clients and peers that were there, I think all agree that the quality of the educational sessions and networking opportunities was, as usual, consistently fantastic.  But what now?  Well I have a suggestion.  How about a trip to New Orleans in the dead of winter?  Sound good?
 
Recently, the American Conference Institute reached out to me about being a media partner for an upcoming, and first of its kind, conference on Recreation, Leisure, and Amusement Park Compliance and Litigation.  Now, over the years, I've had a few whispers from various people about setting something like this up, but nothing that has either been backed by someone like ACI, who has A LOT of experience with quality business conferences on a variety of topics, or that I thought would be of interest to a broad swath of the industry.  Well, that's all about to change.

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. 

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)

3 Things We Learned From Yesterday's Hearing On AB2140, The So-Called "Blackfish Bill"

Yesterday, April 8, 2014, the California State Assembly's Committee on Water, Parks, and Wildlilfe held its public hearing on AB2140, also known as the "Blackfish Bill."  The proposed bill would, prohibit the possession or use of killer whales for entertainment purposes in the State of California, would generally prohibit breeding of killer whales in California, and would require owners of killer whales to return them to the wild "where possible" - more on that in a minute - and where not possible to move them to sea pens.  Yesterday's hearing, which lasted about ninety minutes, featured prepared testimony from the bill's sponsor, Assembly Member Richard Bloom, three witnesses in support of the bill, and five witnesses in opposition to the bill.

As a purely practical matter, the end result of the hearing was not a clear victory for either the bill's supporters or its detractors.  The Committee decided to refer the bill for "interim study," which requires preparation of a comprehensive report on the proposed bill.  Once that study is complete, which is expected to take more than a year, another hearing will be convened to consider the bill again.  Thus, the bill is not dead, but it was not passed out of committee either. 

Aside from the bottom line result to defer a vote, the hearing offered some valuable insight into both side's positions, the legal merit of the bill, and the considerations that are likely to resonate with the Committee members when the next hearing occurs.  Although I could spend hours writing about any number of issues that were raised, I've decided to narrow it down to the three that resonated most with me from a legal perspective.   

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.

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....

In Favor Of Federal Amusement Oversight? Why Pennsylvania Proves It Won't Work

In the weeks following the tragic death of Rosy Esparza on the Texas Giant at Six Flags Over Texas, there has been a great deal of debate and scrutiny of amusement regulation, or lack thereof, at the state and federal level in United States.  One state, though, has emerged as the poster-child for "what's wrong with amusement regulation" in this country - Pennsylvania.  Research conducted by Pittsburgh-based PublicSource has revealed holes and systemic weaknesses in Pennsylvania's amusement industry oversight - holes and systemic weaknesses that should be fixed.  But beyond the obvious issues raised by the PublicSource investigation, I think the experience in Pennsylvania must be viewed as a microcosm for the problems that would certainly be encountered if federal oversight of the amusement industry were to become a reality.

Special Report - Tragedy On The Texas Giant: A Call For Focus Amid Distraction

Its been a bad weekend for the amusement industry.  First, an incident on Friday evening at Cedar Point's Shoot the Rapids ride resulted in several minor injuries, with one guest treated and later released from a local hospital.  Luckily, all indications at this point in time are that this incident looked worse than it actually was.  Unfortunately, the same can not be said for the incident at Six Flags Over Texas, occurring just a couple of hours later, that tragically ended the life of Rosy Esparza after a fall from The Texas Giant roller coaster.  Understandably, these incidents, particularly the death of Ms. Esparza, have garnered a huge amount of attention from the local and national media, not to mention social media, over the last 36 hours.  That's to be expected when an event like this occurs.  Over the next few days, there will be a plethora of media reports, tweets, Facebook posts, and editorials opining about what happened in Texas, how it could have been prevented, and what is "wrong" with the amusement industry that such an event could occur.  In the midst of this maelstrom, I think it's important to keep some perspective and to keep a few things in mind so that the important work ahead of us can get done and get done right:

New Study Confirms That Children Are Safe On Amusement Rides (You Didn't Hear?)

So, did you hear about the new amusement ride safety report published today in the journal Clinical Pediatrics that actually demonstrates scientifically that amusement ride injuries to children under the age of 17 are exceptionally rare?  How about the scientific study that shows that amusement ride related injuries to this population dropped by an estimated 50% between 1991 and 2003?  Well, surely you must have seen the study, which received institutional review board approval at The Research Institute at Nationwide Children's Hospital, showing that, of those extremely few guests under the age of 17 that are injured on amusement rides, 97.8% are either treated and released or examined and released without treatment?  No?  You didn't see that either?  Yeah ... me neither.  But here's what I did see today:

A Response To Consumers Digest's Waterslide Safety Report (a belated Part 2): Federal Oversight Is No Answer

My last post was a response to a recent article in Consumers Digest magazine that suggested that waterpark injuries were on a sharp rise and that the best solution to solving that problem was implementing new federal regulation that would require reporting of waterpark injuries to federal authorities.  My initial response took on the factual underpinnings of this article, showing that even the very injury-data Consumers Digest relied upon failed to support the central thesis that waterparks were dangerous and becoming more so.  Now it’s time for the second issue raised both in the Consumers Digest piece and, more generally, in the media every time an unfortunate incident occurs:  Is federal regulation the answer?

A Response To Consumers Digest's Waterslide Safety Report (Part 1): The Numbers Don't Lie

A story was published today in Consumers Digest entitled “Waterparks:  Is Public Safety Going Down the Tubes” that paints an extremely unflattering and misleading picture of the safety of the waterpark industry as a whole.  Authored by Sara Bongiorni, the piece makes a number of disturbing assertions to suggest that injuries at waterparks in the United States are increasing at an alarming rate and that the best solution to countering this trend is federal regulation of the fixed site amusement industry.  The piece takes great issue with the so-called “patchwork” of state regulations governing the amusement industry and even goes so far as to portray the industry as expending hundreds of thousands of dollars per year specifically to avoid federal regulation.  I’ve seen other pieces like this – usually in the wake of a tragic accident at a park or carnival.  Rarely, though, have I seen a piece that goes to the extent that this piece does in mis-characterizing the facts and ignoring gaping holes in the logic and reasoning underlying its conclusions.  I thus feel compelled to address some of the more troubling aspects of Ms. Bongiorni’s piece.  The article though is rather lengthy, so I thought the best way to address it was in two parts.  Today, I’ll discuss the problems with Ms. Bongiorni’s injury statistics, and how they were manipulated to paint a far direr picture than exists in reality.  In Part 2, I’ll address her contention that federal regulation is the answer to all the industry’s problems.

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.