Erik Beard, an attorney with the law firm of Wiggin and Dana and who has a blog on legal issues affecting amusement parks , has been talking for some time about a case out of the central district of California that squarely presents the issue of whether amusement park rides must be accessible to persons with disabilities. That case is Castelan v. Universal Studios Inc. out of the central district of California. Erik graciously shared with me the summary judgment decision in favor of Universal Studios Inc., which was rendered by the court, Judge O’Connell, on January 10, 2014. Erik does a fabulous job in his blog of talking about this case and analyzing it, but I thought I would offer my own perspective.
The case involved two plaintiffs with disabilities. One of the plaintiffs has no arms or hands while the other plaintiff has no legs. Universal Studios Inc. is the owner and operator of a major amusement park, whose attractions, among others, includes roller coasters. One of the roller coasters, “the mummy,” requires that a person must have a minimum of one functioning arm and hand and at least one leg. The plaintiffs were precluded from riding that particular roller coaster and believing they were wrongfully discriminated against on the basis of disability, they filed suit.
In granting the motion for summary judgment on behalf of Universal Studios Inc., the court reasoned as follows:
1. § 3195.3 of the California Code of Regulations requires the owner and operator of a permanent amusement park ride to maintain procedures for implementing patron safety measures necessary to ensure the operation of the ride in a manner safe for everybody. Those safety measures according to that regulation, must at a minimum implement all specific manufacturer recommendations. The restrictions for the mummy roller coaster issued by the manufacturer includes that a rider must have one functioning arm/hand and be capable of grasping handle points and maintaining safe posture. Those restrictions also include that the rider have at least one leg that can be placed behind the shin pad and at least one foot placed flat on the floor.
2. Interestingly enough, the court noted in a footnote that the manufacturer restriction didn’t actually say that a rider must have at least one leg and foot. That said, the court believed that the manufacturer restriction required it implicitly because the manufacturer’s restriction required that guests must place their leg or legs behind the shin pad and where possible place his or her feet flat on the floor. The manufacturer restriction also said that it would be unacceptable to have a cast on the foot preventing the foot from getting under the shin pad.
3. Very importantly, the court noted that the issues before it had evolved over time. The latest evolution, which was before the court, was that plaintiffs were contending that the defendant violated by the ADA by failing to design a ride without rider eligibility criteria that excludes patrons with disabilities. That is, did the defendant discriminate against persons with disabilities in the ride, design, alteration and procurement process, which occurs way before the operations manual for the ride is even put together by the manufacturer.
To my mind, placing the case in this way was a critical strategic decision, and one which backfired on the plaintiffs. That is, it one thing to say that title III prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. It is quite another to say that the ride itself must be accessible to persons with disabilities.
4. California law requires enforcement of the manufacturer’s recommendation.
5. Citing to Weyer v. 20th Century Fox Film Corp. 198 F.3d 1104 (9th Cir. 2000), a case that I discussed in my book, the court said that the ADA does not require the provisions of different goods or services, rather it requires the nondiscriminatory enjoyment of the services that are provided.
That is true. However, it is hard for me to understand how a person could enjoy the full and equal enjoyment of the goods, services, facilities, privileges, advantages, of an amusement park unless the ride was accessible. But again, the critical piece is that the plaintiff focused on ride accessibility and not on the full and equal enjoyment of the amusement park.
6. While title III does not govern the goods and services that a place of public accommodation offers, it does govern how the place of public accommodation provides them. Accordingly, Universal Studios was under the obligation to ensure that the goods, services, and roller coasters are physically accessible to persons with disabilities even if those persons were not able to actually ride the ride itself due to the ride’s design and safety requirements.
7. The court also went on to say that the Code of Federal Regulations implementing the ADA allows for an amusement park to exclude persons with disabilities due to safety concerns. In particular, the court cited 28 C.F.R. § 36.301(a)-(b), which states that a public accommodation may impose legitimate safety requirements that are necessary for safe operation. The court also cited to the Federal Register (the Court in the opinion on Pacer uses a CFR reference here but in actuality it should be a federal register cite), for talking about two examples DOJ gives for what might be safety requirements (height requirements for certain amusement park rides and a swimming requirement with respect to recreational rafting expeditions).
All true enough. However, there is a second sentence of 28 CFR § 36.301(b) that is not cited by the court. In particular, that section says, “safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” That sentence seems very analogous to the concept of “direct threat,” which is found in title II of the ADA at 42 U.S.C. § 12182(b)(3) and in title I of the ADA at 42 U.S.C. § 12111 (3). “Direct threat,” is not a concept that you see in title III of the ADA , but nevertheless the second sentence of 28 C.F.R. § 36.301(b) arguably seems to be referring to Chevron, U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), where the court said that any direct threat defense has to be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Of course, if this is what the Department of Justice is referring to, it would place an impossible burden on the operator of the amusement park’s as the park’s personnel would have no way of evaluating whether the particular person with a disability was indeed a direct threat. I suppose it is theoretically possible that some kind of advanced system could be set up where the amusement park would evaluate each person with a disability on an individual basis in advance. However, that would put a tremendous burden on the amusement park operator and it would also eliminate any spontaneity by the person with a disability. Nevertheless, it does seem to suggest that any ride restrictions need to be based upon actual risks, however that might be determined.
8. The court said that they were unwilling to second-guess the manufacturer’s safety requirements and that California law requires enforcement of the manufacturer’s safety requirements. The problem with this is that if there is an actual conflict between federal law and state law, federal law prevails. Even so, in this situation, it is extremely complicated. First, there is the issue of whether the federal regulation talking about actual risks is clearly consistent with the ADA (it well could be). Second, there may not even be a conflict. It is not necessarily a conflict for the federal regulation to insist upon actual risks and for California law to insist upon following manufacturer’s restrictions, which are presumably based on actual risks. That said, the answer could well be different if the manufacturer’s restrictions are not based on actual risks, but rather are based upon speculation, stereotypes, or generalizations about individuals with disabilities.
9. With respect to the manufacturer’s restrictions, if the plaintiff believed that the restrictions are overprotective, the court said that the plaintiffs were free to initiate an action against a manufacturer.
10. The court said that the restrictions themselves are such that a person in a wheelchair may still satisfy the requirement for riding the roller coaster at issue. In particular, someone who is confined to a wheelchair may indeed have a functioning arm or hand or even more. They also may have legs. As an aside, it is unclear from the case as to whether the leg requirement means that the legs has to be functional (the court seem to believe that the leg does not have to be functional, otherwise just about all persons in wheelchairs would be excluded from the ride.
Does this case mean that amusement parks have carte blanche to have their rides do whatever they need to do regardless of whether the ride is accessible to persons with disabilities? The answer is complicated because:
1. The court did not cite to the second sentence of the federal regulation, which says that safety requirements must be based upon actual risks. Therefore, it is an open question as to what actual risks means. Also, is that standard the same as the Chevron standard or is it something else?
2. This case was styled as a failure to design a ride problem, rather than a full and equal enjoyment issue. To my mind, the full and equal enjoyment issue could well change the direction of the case completely.
3. The effect of the court’s decision is to shift the burden of ADA compliance with respect to the rides from the amusement park to the manufacturer of the rides themselves. That raises the issue of whether the court is in essence delegating a non-delegable duty.