American Conference Institute’s inaugural forum on Recreation, Leisure, and Amusement Park Compliance and Litigation

Expanding Nationwide: Overcoming the Patchwork State Regulations to Develop Nationally Compliant Recreation and Leisure Facilities

While several states do not have any regulations governing recreation and leisure facilities, many states do regulate the industry quite heavily. To complicate matters, these states have implemented different types of regulations at varying levels of stringency, and there is no conformity in the 50 states. This pre-conference workshop is designed to provide recreation and leisure facilities the necessary tools to comprehend the requirements involved in operating in any of the states. Speakers will discuss important regulatory and judicial updates for each of the 50 states, including the following topics on a state-by-state basis:

• Overview of the top regulated states:
• California
• Florida
• New Jersey
• Pennsylvania
• Texas
• Determining which agency has jurisdiction over the facility
• Compiling and maintaining the documentary evidence to establish compliance with state regulations in case of an accident
• Establishing conformance to ASTM industry standards and manufacturer’s manuals when there are no state regulations
• Exploring the circumstances where investigations are required
• Analyzing the parties responsible for conducting an investigation
• Understanding reporting requirements in the event of an accident and comprehending how such reports are treated by the state

9:00 am – 12:00 pm (registration with continental breakfast begins at 8:15 am)

Networking Luncheon for Workshop Attendees

Main Conference Registration Begins

Co-Chair’s Opening Remarks

Managing Workforce Legal Risks: Identifying and Minimizing Employer Liability While Ensuring Employees Are Your Best Advocates

Employers and employees at recreation, leisure, and amusement facilities must work closely together to ensure the safety of the employees and the patrons. An employee’s actions have the potential to translate into liability for the employer, or contribute towards a positive brand building campaign. Therefore, strong employment policies are paramount in order to identify the hidden dangers and minimize the risks of being found liable for an employee’s wayward actions. This panel shall explore:

• Understanding the impact of social media in the workplace and how it can go awry
• Analyzing the implications of alcohol and drug use in the workplace
• Comprehending the legal issues when hiring with an eye towards promoting your company’s brand
• Supporting cultural exchange and understanding the benefits and risks of hiring exchange visitors (J-1 visa students)
• Working with the sponsoring organization on the hiring and visa application process
• Hiring temporary seasonal employees under the H-2B temporary worker visa when not enough U.S. workers can be found
• Understanding the 66,000 cap per fiscal year on H-2B visas
• Analyzing the limitations of stay in the United States for H-2B visas
• Identifying foreign investors under the EB-5 visa program to build a new recreation or leisure facility
• Distinguishing between when a $500,000 versus $1 million investment must be made by a foreign investor

Afternoon Refreshment Break

Recognizing Risk and Navigating the Legal Minefields Associated with Safety, Training, and Education

• Building a culture of safety for your entire team
• Delving into operations and maintenance manuals to construct training sessions for the employees
• Analyzing updates to the ASTM F24 standards
• Establishing compliance with ASTM F24 standards
• Examining the types of documentation of training needed as a defense mechanism and documenting employee’s training in the event of litigation
• Compiling live video clips of training sessions for the jury
• Balancing the public’s increasing expectations for a more extreme and thrilling experience with the facility’s need to maintain safety
• Mitigating the liability of food-borne and water-related illnesses at recreation and leisure facilities

Exploring the Benefits and Risks of Using Technology as a Defense Tool

Technology is everywhere in today’s recreation and leisure facilities. Parks use security cameras, ride photo systems, mobile apps, wristbands with RFID chips and electronic ticket cards to ensure safety and enhance patron enjoyment. Guests and their families and friends use smartphones, iPads and other devices to record their experiences and then post comments, pictures and video to their social media accounts. The information captured by these technologies can serve as a valuable tool to defend against claims if properly secured but can be highly detrimental if not handled appropriately. This program will explore:

• Identifying valuable information that park-based technologies can yield
• Exploring the use of social media to assess patron conduct before, during, and after an incident
• Examining privacy issues that arise when patron activities are tracked
• Understanding the doctrine of “spoliation” and the importance of properly preserving electronic information
• Developing policies for when patrons and employees use technology to document incidents
• Introducing into evidence at trial of technology-based information

Conference Adjourns to Day 2

Registration and Continental Breakfast

Co-Chairs’ Opening Remarks and Recap of Day One

Developing Best Practices for Complying with the ADA and Minimizing Legal Risk

In January 2014, the U.S. District Court for the Central District of California issued a ruling in Castelan v. Universal Studios, Inc. which discussed the implications of the ADA as it relates to amusement parks and its interaction with state ride safety regulation. A few months later, the U.S. District Court for the Northern District of Texas issued a ruling in Bench v. Six Flags Over Texas, Inc. which came to virtually an opposite conclusion than the one reached by the Castelan court. This panel shall address the intricacies of complying with the ADA and defending suits raised under the Americans with Disabilities Act in a recreation, leisure, entertainment, or amusement facility.

• Understanding the tension between the ADA’s presumption of inclusion and access with the need to ensure safety of guests and patrons
• Preparing for liability due to amended policies prohibiting a patron’s access to a ride where access was previously granted
• Training employees on the ADA accessibility guidelines to help them make informed decisions on denying or granting access to patrons
• Determining whether to permit a guest onto a ride when the manufacturer’s manual written prior to 1992 does not provide any guidance
• Compiling documentary evidence to establish that a patron was denied access due to safety reasons in the event of litigation
• Examining the impact of A.L. v. Walt Disney Parks and Resorts U.S., Inc. and whether recreation and leisure facilities have a legal obligation to provide disabled guests with immediate access

Defining Litigation Strategies and Minimizing Public Relations Challenges for High Profile Accident Cases Involving Catastrophic Accidents

• Examining best practices for defending against severe injuries occurring at recreation or leisure facilities
• Exploring the interplay between the causation of injuries and extreme thrill rides
• Distinguishing the role of the manufacturer versus the facility in the event of a catastrophic accident
• Investigating accidents immediately and preserving the evidence in the event of a trial
• Identifying the interested parties in investigating the accident
• e.g., state regulators, OSHA, facility employees, third-party investigators
• Understanding when criminal charges may be filed due to severe injury or death
• When to settle: Balancing the need to defend versus mitigating the reputational harm

Morning Refreshment Break

State Regulators’ PanelA View From the States: Obtaining Regulatory Insights on Operating a Recreation or Leisure Facility

Hear about the latest developments in state regulations impacting recreation, leisure, or entertainment facilities and amusement parks. Formulate your business and legal strategies based upon the insights of prominent regulators who will share their thoughts on pressing matters, including inspections, investigations, and adherence to ASTM F24 industry standards.

The Assumption of Risk Defense: When is the Risk Really Assumed?

Networking Luncheon

Insuring Fun: Comprehending the Subtle Nuances of Liability Insurance Policies

• Determining the types of documentation that the insurance carrier needs in order to be able to accurately underwrite the policy
• Clarifying the factors that impact how premiums are calculated for the policy
• Evaluating self-insured retention (“SIR”) as an option to strategically lower insurance premiums
• Understanding the exclusions and coverage limitations in the insurance policies to minimize the financial liabilities
• Establishing protocols to report claims when an incident occurs at your facility
• Deciphering how insurers assess claims to make sure your claim will be covered under the policy
• Exploring why it matters when your guests and patrons have their own insurance policies

Afternoon Refreshment Break

Juggling Liability and Drafting Waivers Based on State Regulations and Enforceability Standards

• Implementing best practices for drafting waivers and tackling common errors
• Avoiding language that is overly broad
• Clearly delineating the scope of negligence
• Comprehending when waivers are not enforceable against minors
• Outlining relevant case law and conflicting judicial opinions with respect to waivers of liability
• Donahue v. Ledgends, Inc., Supreme Court Nos. S-14910/14929 (Ala. Aug. 1, 2014).
• Gillette v. All Pro Sports LLC, 135 So.3d 369 (Fla. Dist. Ct. App. 2014).
• Identifying the states where waivers are not enforceable
• Analyzing the terms and conditions that are necessary for a waiver to be enforceable
• Exploring best practices when dealing with minors and parental waivers of liability
• Examining when a waiver violates public policy
• Formulating a plan of action when the waiver is not enforceable
• Evaluating examples where the waiver was ultimately deemed unenforceable
• Capri v. L.A. Fitness International, LLC, 136 Cal.App. 1078 (Cal. Ct. App. 2006).
• Vanderlei v. Heideman, 403 N.E.2d 756 (Ill. App. Ct. 1980).

In-House RoundtableAnything That Can Happen Will Happen: Overcoming the Most Unexpected Hurdles

Recreation, leisure, and entertainment facilities, including amusement parks, attract hundreds of millions of people per year. Despite the challenges of ensuring the safety of so many people, the chance of being severely injured is 1 in 750 million, according to IAAPA. However, while many issues remain out of the facility’s control, plans must still be made in the event of an unforeseen and unpredictable obstacle, such as terrorist threats, sudden environmental disasters, and power outages. Speakers will share their wars stories and discuss how they overcame unexpected difficulties.

Conference Adjourns