"Cause" for Alarm: 3 Ways To Reduce The Chance Of A Public Interest Lawsuit

Two news items that, on the surface at least, do not seem to have much in common caught my eye this week.  First, USA Today reported that Cedar Point has decided to change the names of two of its Halloween attractions, apparently due to complaints from the National Alliance on Mental Illness (“NAMI”).  According to media reports, NAMI took issue with a haunted house called “Dr. D. Menteds Asylum for the Criminally Insane” and a musical show entitled “The Edge of Madness:  Still Crazy,” claiming that they promoted false stereotypes of the mentally ill.   

Second came news yesterday about the temporary closure of Rye Playland due to a disturbance that occurred when a Muslim woman wearing a head scarf, or hijab, was not allowed to board a ride due to a rule prohibiting any kind of headwear while riding.  The park reportedly had many Muslim guests in attendance celebrating Eid-ul-Fitr -  the holiday marking the end of the Islamic holy month of Ramadan.  While some guests at the park, not to mention the president of the Council on American-Islamic Relations - New York, believe this to be an example of Islamic intolerance, the park maintains (quite reasonably I believe) that this is a safety issue of general applicability to prevent hats and other headwear from becoming projectiles that could presumably hit other guests, become entangled in machinery, or cause shutdowns. 

Was Cedar Point right to change the names of its attractions to placate the protestations from NAMI?  Should Rye Playland have altered its headwear policy after hearing claims of perceived religious intolerance?  The answers to these questions highlight the fine line an amusement facility must walk when dealing with a “cause.”  Whether they be social, religious, human rights, animal rights, or any other “cause,” the legal, financial, and public relations impact of these interactions must be handled appropriately to avoid potentially disastrous results.

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.

Curing The Crisis Of Credibility And Kicking The "Carnie" Connotation

 A few days ago, my friend and former colleague, Matt Heller, posted some interesting and spot-on thoughts on professionalism on his excellent leadership blog.  Matt makes the point that “the perception of safety is largely determined by what we see and experience,” and to support this point he attached this photo capture from a travel channel program on amusement parks, asking the question, “is this really how you want your facility portrayed on TV, or at all?”  

Matt’s point is very well taken.  Appearance and professionalism matter when it comes to the perception of safety. However, it doesn’t just stop at the perception of safety.  Rather, these same issues – appearance, cleanliness, and professionalism - also have a real impact on the perception of credibility – and this is a crucial issue to getting the best result possible in every form of legal proceeding.

Why Our Founding Fathers Would Have Been Against Federal Amusement Ride Regulation (Had They Known What Amusement Rides Were)

This morning, upon returning to my office from a few days off to visit with long-lost friends at my twenty-year high school reunion, I came across an article in USA Today with the rather misleading headline “Carnival Ride Safety Varies By State.”  I note that the headline is misleading because it erroneously implies that the article will discuss varying levels of ride safety itself in various states, i.e. that rides located in one state are inherently “more safe” than the same ride located in another state or that ride injuries or deaths are higher or lower in one state than another.  However, that is not at all what the article is about.  Really, the article focuses not on safety per se, but on the now familiar and oft discussed “patchwork” of state amusement ride regulations that consequently result in varying levels of inspections and oversight between the various states when it comes to inflatable and amusement ride regulation.  The article, as others have before, implies that this lack of regulatory uniformity somehow means that amusement rides in states with higher levels of oversight are more safe than rides with lesser inspection or reporting requirements.  Of course, no data is cited that would show that to be true.  Moreover, after reading this article, I had to wonder why the amusement industry so often is singled out for its “patchwork” regulatory oversight when, in reality, state-by-state regulation is, by design of our founding fathers, the rule rather than the exception in the United States.

Similar Cases, Dissimilar Outcomes: How Politics Shapes A State Amusement Ride Investigation

This week we learned of two state sanctions related to two high-profile amusement ride fatalities this summer:   the death of three year old Jason Dansby while riding the Python Pit roller coaster at Go Bananas family entertainment center in Illinois and the death of Sgt. James Hackemer while riding the Ride of Steel roller coaster at Darien Lake.  While the cases are quite similar in many respects, the sanctions imposed are quite different.  With respect to Go Bananas, the owner of the facility has been charged criminally with violation of the state’s amusement ride safety law and faces a potential jail term of up to a year and / or a fine of up to $2,500 while in the case of Darien Lake no criminal charges were filed and the facility was merely ordered to re-train ride operators and post better signage warning guests about ride safety requirements. 

So why the difference?  After all, Illinois and New York have similar ride safety laws (at least in this respect) and these two cases were quite similar in both the severity of the event and the conclusions reached by the state following the investigation.  It could reasonably be expected, therefore, that these states would impose similar sanctions or at least similarly serious sanctions at the end of the investigations.  After all, in a court of law similar cases tend to be treated similarly.  But these cases clearly weren't treated similarly.  Why not?  Was it that the state found one facility or ride to be “less safe” than the other?  Was it that the state found one operator better than the other?  I think the answer to both these questions, at least on the state of the current record, is no.  Rather, I think its likely that the difference in legal sanctions in these two cases can be attributed, as much as anything else, to political pressure exerted on state officials.

What The Mother Of A Two Year Old Can Teach Us About Avoiding Litigation

Yesterday, a Pennsylvania television station ran a story about Isabella Prescott, a 2-year old little girl with Downs Syndrome that was not permitted to ride the "Road Rally" ride at Dorney Park's Planet Snoopy.  According to the story, the ride attendant informed Isabella's mother that Isabella could not ride because she was "an infant" and because she couldn't walk (an assessment Isabella's mother, and the television reporter, dispute).  Isabella's mother believes that Dorney Park discriminated against her daughter and, according to the story, she plans to pursue legal action against the park.

But it wasn't the potential discrimination or the intention to pursue legal action that caught my eye.  It was this:

"Prescott said she is taking legal action against the park, but said she really just wants an apology."

I don't know if she really means it, but this request for a simple apology underscores the often discounted importance of guest service in preventing costly litigation.

A Look At Lawful Discrimination Under The ADA In Light Of The Darien Lake Tragedy

The news this week in the amusement industry was dominated by the tragic death of Iraq War Vet Sgt. James Hackemer after being ejected from the Ride of Steel at Darien Lake.  Sgt. Hackemer was a double amputee, having lost both legs at (or near) the hip as a result of an explosive during his tour in Iraq.  While he had prosthetic legs, there seems to be no dispute that he was not wearing them at the time he boarded the Ride of Steel.

Over the last week, many of us, myself included, have asked why this guest was permitted to board this ride, a 200 foot tall hypercoaster, renowned among enthusiasts for its negative g's.  Some have suggested that the ride operators felt pressure to allow a war hero to ride regardless of his physical condition.  Others have suggested that the ride operators (and perhaps the park) felt that the ADA required the park to allow Sgt. Hackemer access to the ride regardless of his disability.  Others may believe that allowing Sgt. Hackemer to board this coaster was, at the time, in the interest of guest service.  I feel compelled to address these suggestions from both a legal and operations perspective to dispel a common mistaken understanding of the ADA and to clarify the legal ramifications of refusing admission to a guest on the basis of a disability.

Why Prove Your Case When You Don't Need To? How The Court In the Disney Class Action Was The Plaintiffs' Best Lawyer

Yesterday, I looked at a potentially huge (and overlooked) win for Disney in the recent California Class Action decision in Shields v. Walt Disney Parks &Resorts US, Inc..  While a potential liability savings of $44 million or more is great, the rest of of the decision, in which the District Court certified a nationwide class consisting of, at least, 36,000 visually impaired guests of Disneyland and Disney World, is not the stuff of blue birds and sing-songs.  In fact, after spending some time looking at the decision and the judge's analysis, I have to conclude that the best lawyer that plaintiffs had working on their side in the courtroom was not the one they were paying, but the court itself.

44 Million Ways Disney Won In The Recent California Class Action Ruling

On June 29, the US District Court for the Central District of California issued an important class certification decision in the case of Shields v. Wald Disney Parks and Resorts US, Inc..  The decision can be found here.  The decision can be seen as both a big win for Disney and as a disappointing loss based on some shaky legal analysis by the judge.  I'll be looking at the decision from both angles, but I'll start by looking at the positive end of the decision.   

Connecticut's New Paid Sick Leave Act : Who Wants The Weekend Off?

Connecticut's General Assembly recently passed a new paid sick leave act, requiring most employers to give their employees paid sick days after certain requirements are met.  Unfortunately, as with a lot of legislation, the effect of this new law on Connecticut's seasonal employers is anything but clear. If you want the thrill of reading the new legislation in all its scintillating glory, you can find it here.