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Wednesday, July 13, 2011

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.

While I'm not going to comment too much on the first suggestion, I will note that I can't see this as a reason for the ride ops to have allowed Sgt. Hackemer to board.  Even assuming that the crew knew of his military background (which isn't clear to me), as a member of the military, Sgt. Hackemer understood rules and regulations, and undoubtedly knew how to follow them to the letter.  Had the ride crew explained to him that park policy would not permit him to ride due to the safety risk involved, I have no doubt in my mind that he would have abided by that policy - regardless of his personal disappointment.   

I think the second suggestion, that the ADA requires parks to allow the disabled onto rides in all circumstances, deserves a bit of discussion because (in my personal opinion - see my disclaimer to the left) it is simply not true and is a dangerous belief that needs to be extinguished.  The ADA states that "no individual shall be discriminated against 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."  Based on this general language, it is understandable that many believe that amusement facilities, which are undoubtedly "places of public accommodation" under the ADA, must allow admission of disabled guests onto rides regardless of their particular disability.  Those that foster this belief, however, need to keep reading.

After this general rule, the ADA sets forth a number of exceptions; situations and circumstances where an owner of a public accommodation can legally discriminate on the basis of a disability.  Without getting into too much minutiae, two of these exceptions are directly relevant to amusement rides:

1).  An amusement facility may discriminate on the basis of a disability if it can show that certain criteria, i.e. physical attributes, are "necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered."

2)  An amusement facility may also discriminate on the basis of a disability if allowing a disabled guest to participate would pose "a direct threat to the health or safety of others."

These two exceptions provide more than enough basis for a well-designed disabled-guest access policy to be formulated and enforced at amusement facilities. Simply put, there is no absolute prohibition on discrimination in the ADA that would force a park to allow a disabled guest on a ride when that guest did not meet the physical criteria required to ride or would endanger the safety of other guests.  

Keep in mind, though, that the ability to discriminate legally based on a disability does not mean (1) that a court will always agree that your assessment is right, or (2) that everyone else understands these exceptions so you won't get sued by a particularly upset disabled guest who just does not believe your position.  There is certainly room for argument on a case-by-case basis as to whether certain physical characteristics are "necessary" for the ride experience, or whether a particular guest would pose a "direct threat" to the safety of other guests.  After all, every ride is different as are guests with disabilities.  But, as both a lawyer and a former ride operations manager, I can assure you that I would much rather engage in a legal battle over the scope of the ADA and whether a guest should have been allowed to ride but wasn't, than about whether the park is liable for a death or serious injury to a disabled guest that should never have been on the ride in the first place.  Not only is the liability exposure and public relations damage from an ADA violation likely far less than a wrongful death action, I suspect we can all sleep better knowing that the most we have to do in court is justify a ride admission policy rather than spend months or years litigating with a grieving family or seriously injured guest.

As to the third potential belief, that allowing Sgt. Hackemer to ride was in the interest of guest service, I can only say that this is just wrong.  Years ago, I spoke with people in the amusement industry, some in pretty high ranking positions, who told me that they have allowed or would allow a disabled guest on a ride even when doing so would violate the park's ride admission policy because "the guest is always right."  In those individuals' minds, if a guest was informed of the risks and chose to ride anyway, the park should allow it in the interest of providing great guest service.  I sincerely hope that these people are either out of the industry now or (since I know some are still around) have changed their views on the issue.  I can assure you that a judge or jury will not see it that way.  We are the experts on what our rides to do our guests and what abilities a guest must have to ride.  The law requires that, having such knowledge, we act accordingly.  A court of law is not going to take seriously the claim that, even though we really didn't think a particular guest could safely ride, we allowed the guest to do so in the interest of avoiding a guest complaint.  Not to mention that potential risk to other guests that may be injured or traumatized if anything happens to a guest with a disability sharing their ride.  How does allowing this disabled guest on the ride advance the interest of guest service to the other 20-odd guests riding with him?  This is simply not an issue of guest service, at least not in the traditional "the guest is always right" formulation.  It is a higher guest service: one of looking out for the guest's long term safety even at the expense of short term disappointment or anger.

Which brings me back to the question that started this whole piece:  Why did the ride operators allow Sgt. Hackemer onto this ride in the first place?  Word came today that investigators determined (contrary to some earlier reports) that Darien Lake had a policy requiring guests to have two legs to ride the coaster, and yet, for some reason this policy was not enforced when Sgt. Hackemer arrived on the ride platform.  Were the ride operators unaware of the policy?  Was there an "unwritten" policy of non-enforcement on this particular ride (or others in the park)?  Was the crew indeed intimidated by the presence of a war hero?  Did they believe they had to allow the Sergeant to board in the interest of guest service and / or avoiding a discrimination claim under the ADA?  In all likelihood we'll never know for sure.  Maybe it was a combination of some of these reasons.  Maybe it was something altogether different.  However, to the extent this tragedy shines a light on the obligations of operators under the ADA, it is important - even vital - to know the scope and extent of the law so that a similar tragedy might be averted in the future.


  1. How are ride operators suppose to know if you have fake legs and where they start? Assuming the ride only had a lap harness I think he should have realized the only thing holding him in was the strap to his legs

  2. Very well said. I am going to use parts of this for discussion in my Hospitality & Event Risk Management class.

  3. RedCoat, Thanks for the comment. There are undoubtedly times it will be tough to tell that a guest has a disability. Those are much harder questions that will need to be addressed on a case by case basis. But the point I'm making is that we, as an industry, need to be comfortable and confident that we can, indeed must, make the call rather than simply operating under a mistaken conception of the scope of the ADA or relying on notions of guest service that will not stand up in court. The death at Darien Lake is a perfect illustration of the point only because it wasn't really a close call. Sgt. Hackemer was not wearing prosthetics and, from the photos I've seen of him, the extent of his disability should have obvious to anyone.

  4. Erik,

    Yes this was an unfortunate accident. Your post is timely but I would hope that it may also be a catalyst for the Amusement Industry to spark conversations with Industry Lobbyists & Legal Counsel particularly Paragraph 2:


    My belief is that the words "or themselves" need to be added to Paragraph 2.

    "a direct threat to the health or safety of others or themselves."

  5. Gordon,

    To your point, I tend to agree that the ADA should have an exclusion for personal safety, but the legislative concern for not having it is probably that it would be too easy to take advantage of and thus would end up swallowing the general rule of accessibility.

    Also, this weekend a blog entry on the Pittsburgh Post Gazette's website was appropos of this discuussion. http://communityvoices.sites.post-gazette.com/index.php/news/ipso-facto/29450-panic-street-lawyer-farewell-adventureland
    The author notes that there is no exclusion in Title III of the ADA for personal safety, but also notes that there is such an exclusion in the employment context (Title I). I still maintain, however, that the exception allowing discrimination if the guest lacks criteria "necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered" is sufficient to apply in situations where the guest's participation would cause a direct threat to his / her safety.

    I disagree, though, with the author's implied message that the ADA requires access in all circumstances. While the new recreational facility guidelines do make accessibility the general rule, and we should strive to make attractions as accessible as possible, there are limits that need to be observed - even under the ADA.

  6. Life isn't fair and people have to accept it. Some visitors to amusement parks are not going to be able to ride the coasters. Sorry, but that's the way it is.

  7. I have a son who has congenital limb loss....and of course LOVES ROLLER COASTERS! We have had season passes to Six Flags for the last 6 years. But last week we went to the park during spring break and we were told that he was not allowed to ride ANY OF THE ROLLER COASTERS!!! In fact he could only ride 2 rides....the Syk Ride (cars that go over park on wires) and the Big Wheel (Ferris wheel).....that's it! Not even the merry go round!!!! WOW!!! Due to new guidelines supplied by the ride manufacturers. We were told you have to have a FULL leg and a Full arm...my son has all four limbs affected but he does have both legs down to his ankles and one arm and hand (but the hand is small)....he also has a prosthetic arm that straps securely to his torso....if you view Universal Orlando's guide for people with disabilities, he would be allowed on the rides because they are very specific on how much limb you need...enough natural leg to form a lap and hang down from the seat. Each person with limb loss is very individual...to just say no was very cruel. REGARDLESS OF HOW MUCH LIMB A PERSON HAS....HOW ABOUT THIS FOR A SOLUTION.....With over 2 million people in the US with limb loss, wouldn't one seat on each roller coaster equipped with a five point harness system be a win-win solution for all parties involved? THINK ABOUT IT.....I mean really, let's work together!

