In 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 This time from the District Court of New Jersey in an unpublished decision dated December 31, 2014, entitled Masci v. Six Flags Theme Park, Inc., 2014 U.S. Dist.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!!!!!!!!
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.
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.
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.