post by Jack Burgin
The Justice Department says Disney must permit Segways in their theme parks. Disney, in turn, tells the Justice Department its revised ADA regulations are invalid.
Ostensibly settled two years ago, the Segway lawsuit against Walt Disney World Co. (WDW) is far from over. In November 2007, three individuals filed a lawsuit saying WDW violated the Americans with Disabilities Act (ADA) by refusing to let them use Segways in WDW’s theme parks. The settlement terms would have let WDW develop its own four-wheeled electrically powered vehicle (ESV) which can be used standing. The ESV would be rented to guests on the same terms that WDW rents ECVs, currently $50 a day.
(ESV drawing from court file)
Ordinarily, settling a civil suit gathers no objections. This settlement, however, was a class action settlement. If approved, the terms of the settlement would prevent any other person who had a mobility impairment from bringing a future lawsuit alleging WDW (or Disneyland) violated the ADA by prohibiting the use of Segways (and other two-wheeled vehicles) in any Disney resort. The rules governing class settlements permit class members (a term that typically means the members of the class action who are not taking part in the lawsuit) to object that the settlement is inadequate or unfair. It may seem surprising that settlements will prevent lawsuits from class members who have not sued but this is not uncommon and ordinarily meets with no objection.
Here however, the proposed settlement drew strong objections from certain disability advocacy groups and the Justice Department (DOJ). These objections were extensively discussed on DISboards.com – links to these threads will appear throughout this post. The federal court in Orlando held a hearing but instead of deciding whether to approve the settlement, the court dismissed the lawsuit, saying the people suing could not show that requiring WDW to modify the rules prohibiting Segways in theme parks was “necessary” for them to visit WDW. The court defined “necessary” as “at least arguably indispensable or essential.”
Last December (2010) a federal court of appeals disagreed but failed to explain why, other than to say the federal court in Orlando should consider whether the people who brought the lawsuit (and now want to settle it) are in the best position to represent the class members. For all its opposition to the class settlement the DOJ did not participate in the appeal. Instead, while appeal was pending, the DOJ issued revised ADA regulations which address (among other things) the use of Segways in amusement parks. (The revised regulations were extensively discussed on the podcast board and disABILITIES board.)
With the case back in the district court, WDW and two of the original plaintiffs (one passed away while the case was on appeal) still want to settle the case on the terms proposed in 2008. The DOJ and Disability Rights Advocates for Technology (“DRAFT”) still oppose the class settlement. What makes the DOJ’s opposition interesting is that it goes farther than making procedural objections to the class settlement.
Emboldened by its revised ADA regulations (which it calls a “game changer”), the DOJ’s position is that the settlement is unfair to the class members because the revised ADA regulations “expressly provides legal recognition of, and protection for, use of Segways [at theme parks] subject to legitimate safety considerations.” The regulations, DOJ said, do not permit places like WDW “to flatly refuse” to permit Segways “based on its belief that such devices are not ‘necessary’ for individuals with disabilities.” Saying the court was wrong to dismiss the lawsuit, Justice says “necessary” in the ADA should not mean the desired policy modification is “essential.” Instead, necessary merely means there is “a disability-based need” for a modification of WDW’s policies. Stated in somewhat plainer English, DOJ’s position is that an individual with a mobility impairment needs only to show that they need some physical assistance because of their impairment. They do not need to show that the physical assistance they want (i.e. a Segway) is “necessary.” (The DOJ gets to stack the deck in some ways. It not only gets to write the regulations, courts are required to defer to them, within reasonable limits, even if, as here, the regulations were finalized during litigation.)
The DOJ recognizes that Segways need not be permitted if there are “legitimate safety considerations” but, it says, WDW cannot adhere to its “blanket ban on Segways at all Disney properties” based on WDW’s “bland and unsupported” safety concerns. While some of the DOJ’s attacks on WDW’s safety-based Segway ban border on the frivolous (that WDW does Segway tours and there hasn’t yet been a Segway accident at WDW), its strongest point is that WDW’s blanket ban is too broad. In a prior brief, the DOJ explained, “even if Disney believed that some Segway users (whether disabled or not) may have posed significant safety risks, that brush could not be used to paint all of Segways users.” It suggested WDW adopt a “permit program for disabled Segway users” similar to that adopted by the Washington D.C. Metro system. The D.C. Metro permits Segways to be used “as a mobility device” if the user is “an ID card holder in one of Metro’s disability related programs” and if a physician certifies “that the Segway is used as a mobility device.” (Without this, Segway users must walk their Segways through the Metro.)
While WDW cannot inquire as to the nature of a guest’s disability, DOJ’s endorsement of the Metro Segway program seemingly concedes that WDW could require any guest wanting to use a Segway provide a certification from a physician. That, however, would be inconsistent with the DOJ’s revised ADA regulations, which would require WDW to “accept as a credible assurance a verbal representation, not contradicted by observable fact, that the [Segway] is being used for a mobility disability.” Unfortunately, the DOJ never resolves this inconsistency.
WDW’s response to the DOJ was to mount the “best defense,” choosing to go on the offensive and argue that the DOJ’s revised regulations are an unreasonable interpretation of the ADA. Under WDW’s interpretation, “because persons with disabilities currently have access to the Disney Resorts by using wheelchairs, scooters or other allowed devices, modification of [WDW’s] policies is not necessary.” WDW also explained that its ban on Segways was adopted because
the safety risks posed to other guests in the unique environment of the resorts were simply too great. This review included specific consideration of the Segway’s technology, including its speed, failure modes, inherent technological characteristics (such as its means of self-balancing and reaction to obstacles) and the nature of the Disney Resorts, including unique architectural elements as well as guest population, age and density.
WDW also cited a recent study of Segway injuries in the D.C. area which concluded that emergency room “admission rates for Segway injuries” was “higher than pedestrians struck by a car.” (The study, it should be noted, only examined injuries to Segway riders.)
In some strange way it is interesting to watch two legal behemoths battle it out. I can’t help but feel for the federal judge, however. What would ordinarily be a routine hearing on the fairness of the class settlement has turned into a full blown war over whether or not Segways must be permitted in crowded theme parks. The judge could rightly think the DOJ out of its mind in thinking that WDW must permit Segways in the parks even during the Christmas holidays while also wondering why WDW insists on a complete ban on Segways at all times. The competing interests (all four of them) have adopted such polarized positions (and on more issues than I can explain here) that the court is not being given much help in resolving the difficult and novel issues in the lawsuit.
One of the individuals objecting to the class settlement has her own Segway lawsuit pending against Disneyland. A federal judge in California dismissed the Disneyland Segway lawsuit in a way that rejects the DOJ’s interpretation of the ADA. That ruling has been appealed. The appeals court’s records show briefs have not yet been filed, and I’m suspicious, given the DOJ’s tone in the WDW lawsuit, that it might take up the cause against Disneyland in the appeal. So even if the judge in Orlando approves the class action settlement, litigation over Segway use in Disney theme parks is unlikely to end soon.
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