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.

On a Roll: Cedar Fair Wins A Major Victory For The Industry In The Missouri Supreme Court

Cedar Fair has done it again.  In 2011, Cedar Fair came out on the losing end of a surprising California Court of Appeals decision, Nalwa v. Cedar Fair, L.P., a case that stunningly held that guests riding a bumper car ride do not assume the risk of injury caused when the cars bump.  In 2013, the California Supreme Court reversed that decision in a decision that represented a major victory for the entire industry.  In November 2013, Cedar Fair again suffered defeat in a case called Chavez v. Cedar Fair, L.P. (“Chavez I”), this time in the Missouri Court of Appeals.  That case broadly expanded the standard of care applied in negligence cases against amusement parks, likening their operation of amusement rides to the operation of airplanes, explosives or firearms.  I strongly criticized the Chavez I decision as not only bad in result, but bad in the flawed reasoning required to reach that result.  Well, the Missouri Supreme Court seems to have agreed (although I won’t go so far as to surmise that any of the justices read this blog necessarily).  In a decision issued on November 12 called Chavez v. Cedar Fair, L.P. (“Chavez II”), the highest court in Missouri not only overruled the Court of Appeals ruling in Chavez I, but also took the remarkable step of undoing more than sixty years of case law defining the negligence standards applied to amusement parks in Missouri.  Whereas, before Chavez II, it could safely be said that some, not all, amusement operators would be held to a heightened degree of “utmost care” in preventing injuries to their guests, after Chavez II, the law in Missouri is the more appropriate “ordinary care” standard in every amusement case.  This is a big win for the industry.  And once again, we have Cedar Fair to thank for it.

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.

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.