blog entry rcIn a previous blog entry, I discussed the issue of accessibility to amusement park rides. Well, it is back in the news again. This time from the District Court of New Jersey in an unpublished decision dated December 31, 2014, entitled Masci v. Six Flags Theme Park, Inc., 2014 U.S. Dist. LEXIS 178666 (D. NJ December 31, 2014). As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

By the way, I want to thank Richard Hunt for explaining to me how I might use a picture in a blog entry. I did it!!!!!!!!

I
Facts

The plaintiff, then 14, attempted to ride a certain ride at Six Flags great adventure only to find out that he no longer fit the ridership requirements for the ride. Further, he found out that he was no longer permitted to ride on any of the rides at the park except for two of them due to new ridership requirements at Six Flags, which for the vast majority of the rides, required a person to have at least one fully formed arm and one fully formed leg. The changes to the ridership requirements were the result of what arose out of an accident occurring at another amusement park where a passenger missing both legs fell out of the roller coaster and died when the person was lifted out of his seat and the safety restraints at an amusement park outside of Buffalo, New York. As a result of that accident, Six Flags parks started to receive service bulletins from the manufacturers of certain rides, which include the manufacturer’s determination of what ridership restrictions were warranted to make the ride safe for all customers. The manufacturer of the nitro roller coaster, Superman ultimate flight roller coaster, the bizarro roller coaster, the Batman the ride roller coaster, and the Green Lantern roller coaster changed the ridership restrictions so as to allow a rider was one amputated foot or two amputated feet to ride providing they had the ability to hold on with two functioning hands and to allow a rider with one missing arm or hand to ride providing the rider had the ability to hold on with one functioning hand and brace himself or herself with two functioning legs. Six Flags then instituted an audit of ridership requirements on its rides and assembled an executive committee to review the ridership requirements currently in place at the various parks. The committee reviewed manufacturer guidelines, manufacturer service bulletins, engineering reports from the engineering team, standards developed by the American Society for testing and materials F24 committee on amusement rides and devices, and collective knowledge of the committee members. They also looked to manufacture requirement for similar rides in any amusement park and consulted with their engineering team to decide if the ridership requirements being proposed by the executive committee were appropriate from an engineering perspective. As a result of the audit, the executive committee changed ridership requirements for all the rides except for the flat nonrotating rides so that: 1) for rides which the manufacturer had recent service bulletins, the restrictions listed by that manufacturer would be the restrictions for the amusement park ride; and 2) for rides where the manufacturer was no longer in business or had not otherwise issued current guidelines, a rider had to possess at least one fully formed and functioning leg absent a prosthetic device and at least one fully formed and functioning arm absent a prosthetic device. They also changed the ridership requirements to further restrict the use of prosthetic devices on its rides due to the risk of a prosthetic device falling off during the ride. With respect to the plaintiff, the plaintiff had two full legs but was missing the upper sections of both feet. He wore lower limb prosthetic devices but could ambulate independently indoors and outdoors and could do some modest running and jumping activities. He was also missing his right arm above the elbow and had a short left forearm with four digits in the thumb. He did have some pinch ability with his left hand when he brought the fingers against his forearm for pinching or hooking objects but had relatively little mobility with his thumb. He also utilized a right arm prosthetic device. Six Flags defended on two different grounds. First, New Jersey law required them to follow and implement ridership restrictions mandated by ride manufacturers. Second, in the alternative, the ridership requirements were necessary for the safe operation of the rides and therefore, did not violate the ADA or the New Jersey Law against discrimination. Everybody moved for summary judgment and the court denied all motions.

II
Court’s Reasoning

1. Proof of ridership requirements mandated by the manufacturer, whom are the experts for the ride, can be relied upon by Six Flags as proof of a legitimate safety requirement under the ADA. The court, relying on the California case mentioned in the blog entry referenced above, felt that it was only logical that the ride manufacturers are in the best position to determine what ridership requirements are warranted and necessary to make the ride safe for all guests.

When you think about it, this is the same concept that I discussed in my blog entry talking about using negligence per se as a way to increase accessibility. However, in this case, the manufacturer’s ride restrictions are being used as the safety standard rather than the ADAAG.

2. The court specifically quoting from the California decision said that: defendants should not be required to second-guess the manufacturer’s safety requirements; if plaintiff believed the restrictions are overprotective he or she is free to initiate an action against the manufacturer; and that New Jersey law requires Six Flags to implement the ridership safety requirements of the manufacturer.

With respect to this particular reasoning, I get the idea that a court would not want to require an amusement park operator to second-guess the manufacturer’s safety requirements. I also get how the court could say that state law required amusement park operator to implement manufacturers safety restrictions on the amusement park rides. What I find a bit harder to deal with is the assertion that the manufacturer could be sued directly for violating the ADA if it was felt that the safety restrictions somehow violated the ADA. The reason I am struggling with this concept is that the ADA is an accessibility statute not a product accessibility statute (see this article of mine for example).

3. With respect to the rides that did not have specific manufacturer’s restriction, Six Flags failed to meet its burden that those ridership requirements were legitimate safety requirement per the ADA. In particular, they failed to provide any evidence supporting why those ridership requirements were established. The ridership requirements that were established had not been shown to be necessary for the safe operation of each ride. Further, the ridership requirements failed to establish what actual risks the safety requirements were based on.

4. A blanket approach to ridership requirements of rides with varying levels of risk creates the implication that those requirements were based upon mere speculation, stereotypes, or generalizations about individuals with disabilities rather than actual risk, all of which violate the ADA (citing to the Texas case discussed in a comment to the blog entry mentioned above).

5. The burden is on the amusement park operator to establish that its ridership requirements are for legitimate safety reasons rather than based upon the plaintiff being a person with a disability.

6. Even assuming that Six Flags ridership requirements were appropriate under the ADA, it simply wasn’t clear if the plaintiff nevertheless qualified for the rides under those ridership requirements. In particular, it wasn’t clear whether the plaintiff had a functioning arm to qualify for the vast majority of the rides since the medical report submitted by the defendant only described the plaintiff’s ability to pinch and did not mention the extent to which the plaintiff could grip with his left hand.

7. The ADA requires that an individualized assessment must be made concerning whether a guest actually meets the safety requirements of a ride. In other words, Six Flags should have an employee on hand who could determine or otherwise assess if a guest meets the ridership requirements for the ride in question. That is, if you are going to create eligibility criteria, it logically follows that it includes the right to ask if an individual meets the criteria. The record was unclear whether the plaintiff was tested to see if he met the safety requirements of the various rides. Rather, it seems that the plaintiff was prevented from being on the ride based on the appearance of a disability rather than on his actual failure to meet the ridership requirements.

I get what the court is saying here too. However, it is interesting that with respect to the employee that Six Flags should use to make the assessment whether a person with a disability is qualified to go on the ride, the language the court uses is, “assumedly the ride operator.” If you have been to an amusement park, you know the ride operators are generally teenagers and certainly not people qualified to assess a person’s medical condition so as to determine whether they could safely be on a particular ride. It seems to me that you would almost need a medical professional, such as a doctor, to make that assessment. Then, what if the Doctor gets it wrong? Would the doctor and/or the amusement park, under apparent authority, somehow find a way to be protected from liability in that event?

8. If Six Flags did discriminate against the plaintiff based upon his appearance of disability, rather than any legitimate safety concerns, the safety defenses wind up being irrelevant.

III
Takeaways:

1. If you are an amusement park operator, this case and the California case allow you to rely on the manufacturer’s restrictions for the ride.

2. If you do not have manufacturer restrictions for the ride, an individual analysis of the person with a disability must be performed to see if that person could ride the ride safely. The problem here is just what employee is going to have the ability to determine that. It is hard to believe that it could be a teenager with no medical training.

3. Regardless of whether manufacturer’s restrictions exist, each ride is going to need essential eligibility requirements. Those requirements need to be based upon legitimate safety concerns. The system that Six Flags set up to figure that out simply wasn’t good enough. This decision requires an amusement park operators to first figure out the very nature of the particular ride. Then, have scientific experts and medical experts get together to figure out just what physical capabilities a person needs to be able to safely perform the ride. It probably wouldn’t hurt to have a statistical person as well to number crunch the probabilities based upon the various physical characteristics that the experts come up with.

4. I still don’t understand how the manufacturer can be sued for their product being inaccessible as the manufacturer would not be an employer, governmental entity, or a place of public accommodation with respect to riding the ride.

5. Amusement park operators need to remember that the burden is on them with respect to establishing that the ridership requirements are for legitimate safety reasons.

6. If states have not already done so, look for each one to put in place a law saying that amusement park operators must comply with manufacturer recommendations with respect to ridership requirements.

7. If you are plaintiff, this case gives you the ability to allege both actual disability and regarded as having a disability.

12 Responses to Roller coasters and the ADA: It’s baaaaaaaaaaaaaaaaaaack!

Great article, Bill. I wrote a piece on this case on my blog as well, and would encourage you to check it out. The link is http://www.legalrollercoaster.com/2015/01/six-flags-just-earned-win-in-ada-case.html.

I hear what you are saying on the issue of individualized assessment. It seems questionable (at best) to rely on a ride operator to make the ultimate determination. But I don’t necessarily think that the assessment inquiry requires a doctor either. There was, for example, a case involving a paintball attraction in Maryland where the court found that the individualized assessment requirement was satisfied by the owner of the attraction taking into account all the facts and circumstances presently known to him when making the decision. The court rejected the need for a doctor to make the determination given the circumstances. Likewise, I think that in this type of situation, given the necessary immediacy of a decision, an “on the ground” decision is necessary – a decision that can’t practically be made by a doctor. But that leaves the question of whether an 18 year old ride operator should be the final arbiter of admission. I don’t think he should. I think a defensible position can be made that ride operators need to be given guidelines on the legitimate safety requirements for those rides, and training on how to assess whether someone either falls squarely within those guidelines or presents a “grey area.” If a grey area exists, the question gets elevated to a more senior person in management that is more qualified to make the final access decision. For example, if the ride admission guideline calls for two functioning hands (functioning defined as the ability to grip) (and setting aside whether that requirement is legitimate or not), and a guest arrives without arms at all, the ride operator should be able to assess that this is a person that falls squarely within the guidelines. But if the guest has underdeveloped hands, or prosthetics that can grip, then I think a ride operator can (and should) recognize that this situation may or may not be allowed and elevate that question to someone reasonably qualified under the circumstances to make that call. The problem is, of course, that this approach flies in the face of decades of park operating policies requiring very black-and-white rules with no wiggle room due to safety. That is inconsistent though with what the ADA requires.

After I wrote the blog entry, I emailed Erik knowing that he would be interested in it. He informed me that he had already beaten me to the punch and encourage me to read his blog entry. I did read his blog entry, and I think it is absolutely fabulous! I agree with Erik that a system can be set up where with proper training the ride operators, generally teenagers, can make a decision. However, I also agree that for those decisions in the gray area, it would need to be bumped up to a higher level to someone that is reasonably qualified. The problem will be figuring out what individual would be reasonably qualified to make the calls in the gray area. I still think in that case preventive law would demand medical qualifications.

Thanks Erik!

Seems to me that at least 1 space, seat or whatever space that is on the ride, can be modified with either a safety harness or such to accommodate riders with limb impairments. If you think about the G forces in a fighter plane, impossible to lift arm or leg during that time. Same principle. If manufacturers are going to be sued, then I bet they find a way to accommodate.

Steve

A small number of manufacturers have in fact made harnesses available for just this purpose. However, they are far from universal at the moment and require special training and modifications to coaster trains to use properly. Moreover, a much larger number of manufacturers have not approved accessibility modifications to their equipment. My feeling is that, for now at least, manufacturers are going to continue to push compliance obligations on the parks because there is a comfort level that the manufacturers are outside the bounds of the ADA (regardless of what the Castelan and Masci courts have suggested to the contrary). Additionally, a large number of manufacturers are European and, increasingly, Asian, and thus not subject to U.S. law at all. To those manufacturers, compliance with the ADA is an extra expense that gets them very little return on investment. They see little reason to design coasters and flat rides with special accommodations when the U.S. is only one segment of their market and the rest of the world has not followed suit.

I’m conflicted with regard to this issue. On the one hand, a place of public accommodation should be accessable to all–including the disabled. On the other hand, there are some activities which even certain non-disabled persons should not participate in. Roller coasters have traditionally been a ride where risk is part of the thrill. It is dangerous for persons below or above certain height and weight requirements to ride them because of the laws of physics. It is not advisable for persons below a cdertain age, or who are older to ride them because of coordination issues. (They may not be able to grip straps or handholds with enough force to keep the laws of physics in check.) There are many disabilities that are not readily apparent to a layperson that put persons at risk when riding a roller coaster, among them: traumatic brain injury, epilepsy, partial paralysis of hands or arms, circulatory issues such as Von Willebrant’s or hemophilia, certain inner ear/balance issues that accompany some causes of deafness, and the sedative or narcotic effects of many medications–just to name a few. Ultimately, it may be best to classify these rides as “inherently dangerous” and treat then as such for legal purposes such as access or negligence suits.

I would love to weigh in on this issue. I am a T6 paraplegic – paralyzed by birth defect. I am 44 years old and I have been disabled my whole life. I’m an avid coaster junkie and have been “off and on” my whole life. The main reason for the “off and on” is because of the shift in guidelines over the years. I remember as a youngster not being allowed to ride much of anything at Six Flags (some likely because I wasn’t tall enough – some early on likely because of my disability – and the lack of the ADA altogether). I then remember a shift, not sure when, probably sometime around 1983 or 84 when all of a sudden, not only was I allowed to ride everything in the park, but didn’t have to pay to get in. From the early 80s until just a few years ago, I had ridden all the big rides at Six Flags Fiesta Texas and Six Flags over Texas in Arlington. To say that I’d ridden them all 50 times would not likely be an understatement. To say that I’d ridden them safely is and should also be “obvious”. I actually came VERY close to a lawsuit a few years ago – about the same scenario as Mr. Bench happened to me – I thought it was 2013, but it might have been 2012. I have a wife and 2 children. I have a successful life by “worldly” accounts. My kids were getting bigger and my daughter was nearing the height that would allow her to ride the larger rides that I’d been enjoying with my wife and son for years. In that particular spring, we purchased our season passes from Fiesta Texas but that spring break, my daughter wasn’t quite big enough to ride Goliath and a few others – though she desperately wanted to ride, she couldn’t. During that trip, per rider restriction guidelines, I was allowed to still ride such a ride as Goliath and other larger “Thrill Rides”. A few months later, she’d actually grown and was now finally tall enough to get on, it was that summer, only 3 1/2 months later, on the same season pass I’d purchased and ridden everything in the park on, all of a sudden, they dismiss me from the ride – to be my first ride on Goliath with my daughter. A ride I’d ridden at least 20 times, likely more, and now all of a sudden, I’m not allowed to ride – it’s not “safe” for me. I calmly explained to the attendant that I’d ridden the ride in March and many seasons before but he would not budge. I went to Guest Services where they also would not budge. They also refused a refund of my season pass. I was left with little choice – just deal with it. The sad part is that this is a pastime that my family had enjoyed for years and now, all of a sudden it’s no longer available to me. I can think of several things off the top of my head that are certainly more “dangerous” than any roller coaster I’ve ridden or would ride (again – the results of successful rides should speak for themselves). It’s doubtful I’ll die or get injured on any amusement park ride, unless everyone else on the ride dies too (disabled or not). I snow ski on a regular basis. I drive an automobile and have a license to do so. I’ve done zip lines. The absurdity of not being allowed to ride roller coasters that I’ve ridden hundreds of times is mind boggling. A question I have among so many is: How many disabled people are on their damn committee’s? Doubtful any! Generally speaking, there needs to be a change in their assessment practices – among those should certainly be “have you successfully ridden this ride before? How many times?” Able bodied people are allowed to assess themselves and ride at their own risk – many of whom should probably not be riding WAY before I should be disallowed. That said, just like you, all these years, I ride at my own risk. As the lady above mentioned, there are other conditions that should also keep people off of rides, but because they can’t “see” them, they can’t keep those people off. They’ve made a knee jerk reaction to a very tragic incident that was VERY isolated and had a ton of different factors in play as to it’s cause – by my personal assessment, some by the fault of the rider, which from my research, was also stated by the rider’s family. I realize this is a difficult issue but not all disabled people are the same. Not even all T6 paraplegics are the same. Therefore, to make a blanket statement that because one amputee flew off of a ride, no disabled person should be allowed to ride most “thrill rides” anymore is beyond absurd! I’m a T6, para with GREAT body control. I’m in good condition and am able to push myself throughout theme parks with great ease in my ultralight wheelchair. I’m FANTASTIC at transferring to ride seats. In some cases, I can get on and off a ride in almost the same amount of time it takes an “able” rider. From the research I’ve done, off all of the deaths on “thrill rides”, only one was related to someone’s disability. It’s clear to me, based on many criteria (obviously including 30+ years of experience), that these new guidelines need to change and need to allow for possibilities such as mine. Eventually if they don’t, there will be more suits and absolutely should…I’m still weighing out whether it might be me…

An idea that I had is one that I think it’s perfectly plausible. Based on my personal experience over the years at theme parks such as Six Flags, Disney, & Universal Studios, it would be perfectly plausible and possible to require disabled people to go through a brief assessment when they come in the gate. This assessment would include questions as well as some type of physical assessment that could ensure their ability to safely ride coasters. Are they physically strong enough, with or without the use of their legs, to maintain a proper position on the ride, etc…Once the assessment is done, the rider then receives a colored wristband. That wristband, depending on the color, then allows them access certain level rides. Those levels are based on detailed assessments and considered factors, certainly among those assessments would be questions like how many times someone has already ridden any of the rides in question.

The problem with the current scenario is that the new rider guidelines and clearly not determined based on actual risk – if it was, wouldn’t there be more incidents of disabled people being hurt or killed on rides? The answer is and can only be that this is a knee-jerk reaction to a terrible incident.

Again, this is personal for me on so many levels since I’m a paraplegic. My “actual risk” for injury or death on a ride is generally the same as that of any able bodied rider. Obviously, there are outlier scenarios (i.e.: a ride where a rider is required to stand).

These parks need to get proper representation and do a LITTLE bit of work and come up with a solution that doesn’t generalize “every disabled person” as being the same. Until they do, they’re liable and should be.

I’d be happy to consult and participate with manufacturers and parks to help them adequately determine these factors. If not me, fine, but there better be someone in the assessment loop that is disabled – otherwise, all this does is smack of discrimination and ignorance – in which case, they should get whatever litigation comes their way…

You make some very interesting points. This particular post is similar to one That Erik Beard, who represents amusement parks as part of his practice, and I have talked about (it may have been in the back channels). If memory serves, he did not feel that it would be necessary in every case to have such a detailed assessment. In many situations, an accurate preliminary assessment could be made by the people manning the rides. For the closer calls, the park would need to have someone on staff to make a detailed assessment. I think it is a fair point that such an assessment should include a person’s history of having ridden the rides before as well as their history of athletic achievement. Your approach is interesting, but I do wonder if it would lead to unnecessary segregation and stereotyping. I would love for EriK to weigh in here, and I will drop him an email.

Thanks Bill for the email. Greg’s post brings up a plethora of issues, and I can’t address them all. But I will say that I believe that parks would, as a very general matter, be quite amenable to the kind of up-front evaluation that Greg suggests. But right now, they can’t do it because they would be singling out disabled guests at entry based on their disability. That’s a big no-no under Title III. In fact, I know of one major park that used to do exactly this, but had to stop due to the ADA.

Because of this, the parks I have worked with primarily have a set of physical requirements (i.e. “legitimate safety requirements” in ADA parlance) that are enforced at the ride location. How those requirements are arrived at is something that is not as uniform as it probably could or should be and, I freely admit, some parks probably need to do a better job both as a matter of legal compliance and legal defense. If the legitimate safety requirements are inconclusive to a particular situation or a guest simply wants to talk to someone about his individualized situation, then a more senior person can come to the ride to do the evaluation. The evaluative process though is tricky. Most ADA cases that look at “direct threat” consider it in terms of a medical issue and thus the case law is full of references to seeking medical opinions about the condition. But obviously that is not practical in an amusement park setting – doctors trained in biomechanics are simply not around. So, the park has to reasonably consider other things – and surely history of the rider’s experience should be one, but it is not the only one. I would say it should not even be a major one necessarily (more on that below). The nature of the restraints, the nature of the ride, the physics involved, and – perhaps most importantly – whether reasonable alternatives to mitigate the risk are available must also be considered. The question that all of this is aimed at determining if whether there is an increased “actual risk, that is neither speculative nor generalized, to the rider or others caused by the disability that is not otherwise present for a non-disabled guest. Not an easy question to answer, I know, but if parks can reasonably demonstrate that there is an actual increased risk, they are justified in excluding under the ADA.

The reason that I’m not a fan of relying too much on past ridership experience is that, frankly, it is completely unverifiable and subjective. Please don’t misunderstand me, Greg, I have no reason to doubt your story. But, from the park’s perspective, almost every guest that I have ever had this discussion with (I was a park manager for 10 years before becoming an attorney – so I have had hundreds of these conversations) has said that he or she has ridden before. We hear the same thing about short kids all the time. But there is just no way of knowing whether that is true or not in most cases. And, even assuming it is true, there is no way of knowing whether a prior safe ride was a matter of luck, despite the increased risk. Remember, the law does not require that the park prove that you WILL be injured or that you WILL die on the ride if you have a particular disability, only that there is an increased risk of those occurrences as compared to the general public. So it is perfectly plausible that a guest could ride any number of times safely – DESPITE the fact that there is an actual increased risk on every ride. The park does not have to roll the dice every time and bet that a guest with a disability will beat the odds again. Instead, the park has to rely on the objective reasonable information available to make its determination of an actual risk on the spot. Which tends to focus on the physics involved and the objective nature of the disability and does not put as much weight on past ridership.

I personally know of three deaths on amusement rides of disabled guests. The trouble for the park is that while every park I know truly wants to maximize access (its much better for their bottom line not to have negative media about disability issues), they are very sensitive to their liability concerns. Its a balance the safety exceptions in the ADA try to address. The same people who will condemn a park for refusing entry to a disabled guest will award millions of dollars to his family if he is killed on that ride – after hearing a plaintiff’s attorney argue emphatically that the park should never have allowed him to be there in the first place. Park are very sensitive to that and thus have tightened their ridership requirements. Have some gone too far? Probably. But the reality is that when facing a choice between a potential wrongful death or injury suit and a potential ADA claim – most will choose the ADA claim. And, while I am all for maximizing access and preach it to the industry all the time, I cannot fault that logic from a legal liability perspective.

https://www.sixflags.com/greatadventure/plan-your-visit/guests-with-disabilities?utm_source=park-newsletter&utm_medium=email&utm_campaign=SFGAd&utm_content=2015-10-07

I just came across this from Six Flags. I printed out the guest with disabilities policy as well as the safety and accessibility guide. What Six Flags is doing is that they are requiring a Doctor’s note for an attraction accessibility pass. That pass enables a qualified guest to access an attraction through an alternate entrance without waiting in the regular ride line, though the wait is the same as the regular line. That is, upon arriving at the attraction, an attraction guest participating in the program gets a ride reservation time comparable to the current wait time for the same rides as guests lacking the pass. As I read it, a doctor’s note is only being required for a person who needs an attraction access pass. However, if there is a person with a disability that does not need an attraction access pass, a doctor’s note is not being required (a person who is not capable of standing in lines for a long period of time would probably need such a pass). Also, what is very strange is that the Doctor’s note, which clearly must be from a doctor as they are requiring all kinds of proof that a doctor is writing the note, must NOT specify the disability. That strikes me as strange since they are requiring a Doctor’s signature in the first place. Not sure why they are doing it this way. Two possibilities: 1) They are worried about keeping the information confidential and figure that doing it this way might ease record-keeping requirements; or 2) they don’t want to be explicitly requiring disability-related information to be disclosed. The worry over 2 makes sense because most certainly many people with disabilities will not want to certify through a doctor that they have a disability for fear of what information may be shared (it is the same reason why persons with disabilities are often reluctant to participate in wellness plans). Accordingly, it would not surprise me if the Doctor’s note requirement acts to discourage persons with disabilities from getting an access pass in the first place. Finally, with respect to the safety and accessibility guide (physical requirements for specific rides), the rules most certainly screen out persons with disabilities (I don’t see any indication that an individual analysis is being done), and then it will come down to which line of cases, as we have discussed in our blog entries, the jurisdiction winds up following.

So, between the Doctor’s note, the actual requirements for the ride, and the lack of individual analysis, I would expect litigation to ensue in the future.

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