Braille Monitor February 1985
In the November, 1984, issue of the Monitor we carried an article concerning the Americana Amusement Park near Cincinnati. Paul Dressell and a number of other blind persons were denied the right to ride on the Screaming Eagle roller coaster. The denial was based on an allegation by park management that the ride was dangerous for blind persons because they could not see the twists and turns which the roller coaster would make.
Absurd as this contention is, it has been taken seriously by officials of the Ohio Civil Rights Commission. We reported in the November Monitor that park management backed down and permitted blind persons to ride on the Screaming Eagle but that they insisted on reading a disclaimer to every blind rider, stating that the roller coaster was hazardous for the blind and that park management would assume no responsibility in case of injury. We also reported that Paul Dressell intended to file charges with the Ohio Civil Rights Commission on the grounds that the disclaimer was, in itself, discriminatory and unlawful.
There have now been further developments. The Civil Rights Commission has given its decision, and Paul Dressell has asked for a reconsideration. Our problem has never been the physical fact of blindness. Rather, it has been (and continues to be) ignorance and misunderstanding--on the part of the general public, sometimes on the part of those of us who are blind, and frequently on the part of the very people who supposedly have expertise and are working to help us achieve equal rights and first-class status. The saga of the Screaming Eagle is a case in point. Let those who have any question as to why we must have a National Federation of the Blind read and ponder. Incidentally, perhaps you would like to conduct a test. If you have any sighted acquaintances who enjoy going to amusement parks, ask them whether they close their eyes when they are on particularly fast or bumpy rides. The answers should be both interesting and revealing:
Ohio Civil Rights Commission
November 6, 1984
2714 Ruberg Avenue
Cincinnati, OH 45211
LeSourdsville Lake, Inc., dba Americana Amusement Park
575 7 Middletown-Hamilton Road
Middletown, Ohio 45044
The Ohio Civil Rights Commission makes the following determination concerning subject case.
Respondent is a place of Public Accommodation as defined by Ohio Revised Code, Section 4112.01(A)(9). Timeliness and all other jurisdictional requirements of the subject charge have been met.
Charging Party is a Caucasion male who has been blind for forty-four (44) years and is handicapped as defined by Ohio Revised Code, Section 4112.01 (A) (13). Charging Party therefore has standing to file a charge of discrimination under Sections 4112.02, 4112.02(G) and 4112.05(B) of the Ohio Revised Code. By affidavit filed with the Ohio Civil Rights Commission on September 4, 1984, Charging Party alleges that Respondent engaged in unlawful discriminatory practices because of his handicap on September 2, 1984.
Charging Party alleges that on September 2, 1984, he was denied Public Accommodation at the Americana Amusement Park by being denied the right to ride the "Screaming Eagle" roller coaster. Charging Party alleges that he was told that he could not ride the roller coaster because his blindness would have added to his risk of injury. Charging Party alleges that he has ridden the roller coaster and other roller coasters in the past. Charging Party alleges that his blindness has no effect upon the operation of the ride and that there is not statistical evidence to substantiate that being blind could add to his risk of injury.
Respondent's Representative, David H. Landis, Attorney, provided Respondent's statement of position as follows. Respondent denies that any unlawful discrimination has occurred. Respondent asserts that it is Park policy to not permit blind persons to ride the roller coaster because they cannot properly anticipate the "G" force which would act upon them and therefore are subject to a special risk of injury over and above that of the general public. Respondent asserts that it is a policy applicable alike to all persons that every effort will be made to operate the park safely, and if there is any attribute of a person which would subject them to a special risk or extraordinary risk of injury, then that person will not be permitted to use that device. Investigation by the Ohio Civil Rights Commission substantiates the following. The correct name of the roller coaster is "Screaming Eagle."
Ohio Case Law substantiates that proprietors of amusement parks have an obligation of reasonable care which is applicable to everything that threatens an invitee with an unreasonable risk of harm.
An Ohio Supreme Court ruling substantiates that the obligation of reasonable care includes the duty to warn patrons of dangerous conditions known to, or reasonably ascertainable by, a proprietor which a patron would not be expected to discover or protect against. The Court stipulates that the duty of the operator to warn the invitee that the nature of the ride is such that they might be injured in the normal course of its operation is dependent upon the facts and circumstances that the operator knew or should have known that the invitee had a disability, or infirmity of such nature that the danger of the injury from the normal operation of the ride could be reasonably foreseen by the operator by reason of his superior knowledge of the nature of the device.
The Ohio Supreme Court has substantiated that a warning eliminates the disparity between the proprietor's and patron's knowledge of the dangerous condition, and is sufficient to discharge the proprietor of his duty to exercise reasonable care. Respondent asserts that based upon their superior knowledge of the nature of the normal operation of the roller coaster and their knowledge of Charging Party's and other unsighted person's disability, that unsighted persons cannot be expected to anticipate the twists, turns, bumps, downgrades or the accompanying forces upon which persons are subjected to in the course of the roller coaster ride and therefore, are subject to special risk of harm. Respondent and Charging Party concur that Charging Party was prohibited from riding the "Screaming Eagle" roller coaster on September 2, 1984. Respondent and Charging Party concur that Respondent will now allow Charging Party and all unsighted persons to ride the roller coaster. However, a disclaimer or warning will be read to all unsighted persons before riding the roller coaster.
While it is probable that Respondent did unlawfully discriminate against Charging Party by prohibiting him from riding the "Screaming Eagle" roller coaster on September 2, 1984, Respondent has remedied the harm by now allowing Charging Party and all unsighted persons to ride the roller coaster. Respondent will read a warning or disclaimer to all unsighted persons before they ride the roller coaster and this is based upon their handicap condition. However, the warning cannot be deemed unlawfully discriminatory in that it is based upon Respondent's liabilities and responsibilities in meeting its obligations of reasonable care as stipulated by Ohio Law.
Therefore, no further remedy exists under the law.
As a result of the foregoing, the Ohio Civil Rights Commission has determined that no purpose may be served by continuing this matter. Accordingly, the Commission dismisses subject case. The parties to this charge are advised of their right to request reconsideration of the Commission's determination pursuant to Section 4112-03-04 of the Rules and Regulations. Request must be in writing, state specifically the grounds upon which based, and be filed in duplicate with the Commission at its office in Columbus within ten (10) days from the date of mailing of this notice.
FOR THE COMMISSION:
Ray O. Paul
Southwest Regional Director
David H. Landis, Attorney
Baden, Jones, Scheper, & Crehan Co. LPA
Suite 300 Hamilton Center Building
222 High Street
Hamilton, Ohio 45011
November 14, 1984
Subject: Request for reconsideration for Case No. G20-13764
I am in receipt of your decision mailed November 6th, in which you accepted the proposed solution by Americana Amusement Park. No mention was made in your decision as to language of the text of the disclaimer. Will it state or imply that blind persons as a class will have greater danger in riding the Screaming Eagle? Will the text be exactly the same as what is already at Americana? I would like to know exactly what is contained in the text before agreeing to the remedy proposed by Americana. By reading a disclaimer only to blind persons in which blindness is singled out as a barrier to riding the Screaming Eagle, unwarranted assumptions are made. Presumably, this would not be read to children. Are their powers of determining what is safe or unsafe greater than those possessed by blind persons? Ideally, gentlemen, I would prefer that no disclaimer of any sort be read. I feel that I should be given the right of deciding what is safe or unsafe for myself. Blindness should have no bearing on the matter.
Thank you for your consideration of this matter.