DOJ: WDW Must Permit Segways in Theme Parks

| February 6, 2011

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.Disney Designed ESV for use as alternative to Segways(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.


Tags: ,

Category: Disney World, Editorials, News

About the Author ()

  • Pingback: Tweets that mention DOJ: WDW Must Permit Segways in Theme Parks | The DIS Unplugged Disney Blog -- Topsy.com

  • natenlogansdad

    I know that sometimes my views aren’t always popular on here and maybe I’m just not educated enough on the matter but if you can not walk around the parks because of a handicap, why would standing be better than sitting in the EVC’s already provided? Yes, the Segway’s are very controllable by an experienced rider, but they can also be dangerous if the rider is distracted. Handicap or not, if one was to ever strike my child in a park…..well, I don’t want to sound like a horrible person, but I can be when it comes to someone hurting my boys.

    I hope Disney fights this to the very end. Yes I have spent time on Segways, and no I do not EVER want to see one behind me in a large crowd or near my children while running around and having fun.

    The rules at Disney are not unreasonable. To see people try to push things through to make it “their way” turns my stomach a little.

  • jducky

    My thoughts exactly, natenlogansdad.

    I suppose that someone just can’t walk very well but can stand but then why not just use a regular ECV? The Disney buses are already designed to handle those well.

  • trivial

    Absurd.

  • Pingback: Private Segways coming to Disney??? - WDW Radio Disney Forums

  • AJRitz

    There are plenty of reasons why a person with a disability might prefer and/or need something other than a standard ECV to accomodate their mobility disability. Depending on the reason for needing the accomodation, sitting for a full day at the parks may not be much better than walking it. My mother-in-law has an arthritic hip condition and simply cannot tolerate sitting for more than a few minutes at a time. Walking all day is also a problem. But standing and using a Segway would actually make a trip to WDW with her grandchildren a possibility for the first time in more than a decade.

    All of the safety issues raised with regard to Segways are essentially identical to the issues already present with ECVs. The “bobbing” that Segways do while standing still don’t really take up any more space than the larger platform of the ECV already does. Innatentive ECV drivers are every bit as much of a problem as inattentive Segway riders. At least Segway riders can see where they’re going. I’ve seen far too many ECV riders find themselves in a jam, through no real fault of their own, simply because they have an incredibly poor vantage point for maneuvering around problems. Segway speed might be an issue, but there’s room to negotiate that if the sides were not so polarized. IIRC, there are ways to set speed limiters on a Segway. And operating a Segway in a dangerous manner can be dealt with just as any “guest behaving in an unsafe manner” situation – warn ‘em once, then toss ‘em out.

    It’s just unfair to presume that every Segway rider is a dangerous speed demon, when there’s little to no evidence to support such a claim. Just as it is unfair to presume that any significant proportion of ECV users are not really disabled and are just “sandbagging” or to presume that anyone who would be most appropriately served with a Segway would be just fine with an ECV.

  • Pingback: Walt Disney World Resort Update | DISNEYLAND PASSES

  • Pingback: Tweets that mention DOJ: WDW Must Permit Segways in Theme Parks | The DIS Unplugged Disney Blog -- Topsy.com

  • Pingback: News about Lawsuits information issue #1 | Attorneys At Law Firm

  • Pingback: Segway Madness Resolved « Theme Park Critic

  • lesterking214

    Well, I hope that this issue will soon be resolved. Whatever the reason of WDW why they’re not using Segways in theme parks, they’re the ones who know it best. Good luck to them!

  • wheels

    I am glad DOJ has taken a position to allow for Segways and other two wheeled mobility devices in theme parks. I have a Spinal Cord Injury. I use a two wheeled electric scooter which does not look like a mobility device. I have been discriminated against by security guards in places of public accommodation, even a medical center, despite presenting medical need. I am unable to use my manual wheelchair for distances. I can walk some, but fall easily. It causes more back pain for me to sit for long periods of time. I like my two wheeled scooter because I have aid to be able to stand when I am able. The Segway appears to be similar in that it allows for people to stand and travel. They also have sitting Segways. Powered wheelchairs are too costly and too large to fit into inaccessible spaces, travel over snow on blocked sidewalks, where a small sleek scooter will allow this. People who use electric mobility devices are at the controls. They need to be able to use it safely and know how to control it. The outdated view that everyone who has a mobility issue needs to only use a manual wheelchair, has been challenged, luckily for our generation. We need to keep pushing to make sure we are not being victims of discrimination when we simply wish to travel, go to the medical office, shopping, etc.

  • Kabc Gabc

    Why not? Because I cannot sit down for long stretches of time due to back surgery in the past. And I can’t walk very far because of a neuromuscular disease.

  • Kabc Gabc

    Unless it is painful to sit, ever think of that? L5/S1 disk removal prevents me from sitting for long stretches of time if I can’t move around a lot. In a car, you can move and stretch (hooray for cruise control) even if driving.

    There should be specific rules about speeds etc., or make standing wheelchairs available.

    And my FIL hit a kid with his Jazzy, which weighs a lot more. You think your kid is safe from those?

du-sidebar-show-notes
du-sidebar-show-notes du-sidebar-show-notes
du-sidebar-show-notes
du-sidebar-show-notes du-sidebar-show-notes du-sidebar-show-notes du-sidebar-show-notes