WDW Segway Lawsuit - 6/10/09 Update (post 74) - wdwinfo.com cited in lawsuit

[Justin Jett]

Hi Jack,

Thank you explaining things in plain English. I am following the lawsuit, but I do not understand the legal language. I disagree strongly with the lawsuit overall. However, the explanations Jack is giving are helping me understand the details better.

You are absoluteky right, as the ADA is written. Although, Segway Inc. does not suggest them to be used as a medical device

The accessibility at the Disney parks and resorts is a very passionate subject for me. Since I have begun to make friend have fun on these boards, I will not get too serious here, other than to say the lawsuit itself really bothers me.

I would like to close with a bit of humor if I may. Please know this next statement in meant to be very light hearted, even though I have very strong feelings about everything that is going on.

How many times has someone in the park said "Oh, I've been on my feet alllllll day. I wish I could sit down." Now, there is a lawsuit that is basically for the right to stand up.

Skip

PS.....I am very sorry if I offend anyone. This is a very emotional subject for me.

 

[SueM in MN]

Sue,

I would hope no business is ever penalized for going beyond what the ADA requires. The difficult question the DOJ is having to answer is what does the ADA require in terms of whether places must be forced to allow the use of personally owned powered mobility devices (which I'll call Segways in light of the lawsuit's focus). If they must allow personally-owned Segways, they can't force individuals with disabilities to pay for using store-owned Segways.

I used the word "accommodation" though perhaps the more accurate way to describe this is to say that if WDW must make "reasonable modifications" to its policies IF DOJ ultimately prevails in saying places may not impose a blanket ban on Segways. As to the other logistical issues, I do not doubt they are significant. I can think of a few more. I simply meant to point out the reason (and only reason) WDW gave in the lawsuit. Frankly, I think the safety issues are pretty significant but as I implied, I am not so sure they justify a blanket ban as opposed to some less onerous safety regulation.

One interesting thing WDW has done in the past -
when people brought in wagons (which are not allowed by WDW) and large jogging strollers with non-swiveling front wheels (which were not allowed at one time), WDW held those items at the stroller rental area and gave the people who brought them in a park rental stroller free of charge.

I imagine that it what they would do plan to do with Segways.

polineedyan,

As to whether there will be other "settlements," if federal law required WDW to allow Segways within the park, no one could sue WDW because it complied with federal law. That isn't complete immunity. WDW would probably still have to train its employees on how they should act if they observed unsafe Segway use - by anyone.

They do that already with mobility scooters (although the CMs are not always perfect at it).

Justin Jett

The fact that Segway has not sought or obtained approval to advertise (or sell) its product as an FDA approved mobility device doesn't necessarily mean the people who use them are prohibited from treating them as an ADA mobility device. Perhaps I'm wrong and someone will correct me.

It mostly means that the company that makes them can't advertise or sell them as an FDA approved mobility device.
It also makes it harder to get insurance coverage to pay for them.
In addition (and I think this was one of the points in the IAAPA document), things that are FDA approved mobility devices have been designed so that they fit into the spaces that have been designated in the ADA guidelines as spaces that fit "common wheelchairs".
Having something like a Segway that needs its own different type of space makes it much more difficult to accommodate.

 

[wilde_oscar]

"The Segway was not designed as a mobility device and has not been approved by the FDA as a medical device so we are not allowed to market it as a medical device," says Carol Valianti, a spokesman for Segway Inc.

http://toledoblade.com/apps/pbcs.dll/article?AID=/20090329/ART16/903280262/-1/ART06

yeah... that was the question I was asking as I read this thread. The guy who invented the Segway also invented some pretty high end wheel chair esque devices and are ADA mobility devices. It is not like they don;t have experience in the matter. If the inventor, designers and manufacturer don't intend for the segway to be a mobility device... how does any of this lawsuit make sense? If you need a mobility device, get something that is intended to be a mobility device? And according to the company that makes the segway (that also makes mobility devices) this is not one of those.

 

[jcb]

Rex,

The explanation I have seen is that canes are not an FDA approved "mobility device" but places like WDW (public businesses) must permit them.

There are obvious differences between a cane and a Segway. The cane is generally less of a "danger" to the user and those around him/her than the Segway (unless the cane user gets upset, of course). But in term of whether a mobility device must be F.D.A. approved before a public business must make a reasonable modification to its policies to permit it, the analogy seems to be appropriate.

A similar issue arises with service animals. Many businesses had policies that only allowed "certified" or "licensed" guide dogs. That is not permitted: "you may not insist on proof of state certification before permitting the service animal to accompany the person with a disability." If in doubt, all a business can ask is "if it is a service animal required because of a disability."

 

[Expert_Glider]

The members of this forum may want to review the following white paper - Universally Designed Technology Solutions - People Who Have Difficulty Walking & the Segway:

Since I cannot post links yet, go to DRAFT (dot) ORG in the Education and Advocacy section (documents and links) to view the PDF.


A couple of passages from the white paper to consider:

The Segway is an electrically powered, self
balancing, non-tandem two wheeled device, and
classified as a consumer product. With its
introduction people who had difficulty walking
but could stand now had an option available to
them which would allow them mobility while
allowing them to remain standing. This includes
people who have conditions such as multiple
sclerosis, spinal cord injuries, Parkinson's disease,
amputations, COPD, spina bifida, traumatic burn
injuries, traumatic brain injuries, and many
neurological conditions.

For those having the ability to use the Segway as
an assistive device it offers them mobility more
consistent with that which they enjoyed prior to
becoming disabled. They are able to reach things
from high shelves, move in and out of tight spaces,
including closets and even move about the kitchen
in a manner consistent with their pre-disability
movements. They are able to better see and be
seen when interacting with others. The mere act
of passive standing has dramatic physiological and
psychological benefits.

Individuals with disabilities who have a substantial
limitation in their ability to walk require an
assistive device, its use is not a convenience or an
option - it is a fundamental necessity for their
activities of daily living. It would be a rare case
indeed for an individual with a disability not to
own the assistive device which best met their
unique and specific needs.

The class of people who have a "substantial
limitation" and those who rent or use "electric
convenience vehicles" for occasional use are
distinctly different in their needs, their operational
experience, and their rights under the law. It is
not devices that are protected under the law; it is
an individual’s substantial limitation.

For some operators of large amusement parks the
electric convenience vehicle has become a source of
income often times renting at daily rates that
exceed those charged by automobile rental
companies to rent an automobile.

As a result many are encouraging guests who are
not disabled but who may have concerns about
their stamina to seriously consider using a
wheelchair, personal scooter or electric
convenience vehicle while visiting the venue. They
are also advised that they are available for rent on a
first-come first-served basis.

While ECV rentals have become a very lucrative
market for corporate America, they have become
very problematic for people with disabilities who
rely on an assistive device for their basic mobility.
Users of electric convenience vehicles are typically
inexperienced in their operation creating an
increased risk for injury to others and they are
oblivious to mobility device etiquette when
interacting with others.

Most people with disabilities are supportive of an
atmosphere where people who have mobility
challenges will be accommodated in the most
appropriate way possible. They're also aware of
the fact that, with electric convenience vehicles
already becoming ubiquitous, merchants, mall
operators and the operators of large amusement
parks should make every effort to make them only
available to those who have a reasonable need.

In 1991 in publishing the first regulations
implementing the ADA U. S. Attorney General
Richard Thornburgh consistently made reference
to the fact that there would be no exhaustive list of
devices and services because any attempt to do so
would omit the new devices that would become
available with new and emerging technology.

The 1973 Rehabilitation Act as amended in 1998,
in the definitions contained in that act, applicable
to every section of that act, including section 504,
defined an assistive technology device as "any
item, piece of equipment, or product system,
whether acquired commercially, modified, or
customized, that is used to increase, maintain,
or improve functional capabilities of
individuals with disabilities."

It is an all encompassing definition and includes all
items from Segways to wheelchairs. There is
absolutely no definition or mention of any other
type of assistive device, including a wheelchair or
scooter in the entire 1973 Rehabilitation Act as
amended in 1998, nor does there need to be.


There is much more contained in the white paper and I encourage people to review it carefully.

The bottom line in the lawsuit is "WorldCo" is taking the position that Segways are not safe. They have not provided any evidence to support this position (that I'm aware of).

Disability rights groups (such as DRAFT) argue WorldCo is in direct violation of the ADA.

To see some of the people DRAFT is fighting for, go to Segs4Vets (dot) ORG for further information.

I hope this helps shed some light on the issue.

 

[MaryKatesMom]

Interesting.

Thank you expert_glider for the post. I see that there is a purposeful vagueness in the definition of mobility devices in anticipation of improvements in technology.

I also found the passage interesting that referenced the occasional user. It is not devices that are protected under the law; it is an individual’s substantial limitation. But who is to make the decision?

Sorry but this bothered me:

For some operators of large amusement parks the electric convenience vehicle has become a source of income often times renting at daily rates that
exceed those charged by automobile rental companies to rent an automobile.

While they do rent them the implication that this is a "source of income" is not substatiated. The liability insurance (which rental companies offer but is usually declined), gas, storage, etc would be proprietary information know only to those "large amusement parks". That comment sounded like a cheap shot at a big bad company that has always done what it can to provide a pleasant diversion for it guests. Just MHO.

 

[Justin Jett]

The whole lawsuit is very disheartening. It is a shame that WDW is having to deal with this. The whole thing is just plain silly.

I am very thankful to Disney for what they do for the disabled. I am very much against this whole lawsuit.

 

[wilde_oscar]

The bottom line in the lawsuit is "WorldCo" is taking the position that Segways are not safe. They have not provided any evidence to support this position (that I'm aware of).

Disability rights groups (such as DRAFT) argue WorldCo is in direct violation of the ADA.

To see some of the people DRAFT is fighting for, go to Segs4Vets (dot) ORG for further information.

I hope this helps shed some light on the issue.

safe? a car, a gun, a ball bat, a golf club, a pocket knife, etc. is only as safe as the person that uses it. Can it be reasonable expected that someone that goes to WDW and rents a segway from a third party to use in the parks knows how to safely operate the device? In time with more widespread use, perhaps. 4 wheel mobility vehicles are common, and it is not reasonable to expect someone to fall off and bang their head. I have rode a segway many times, a helmut is a good idea.

If I follow right, WDW has to allow anything that can be reasonably understood to aid with a disability, but cannot question the disability. Well, my ball bat and my pistol help with my anxiety issues... but is it reasonable that I carry them in the parks?

there has to be agreement on what is reasonable at some point, so far that hasn't happened

 

[NWOhioAngela]

It seems to me that it all turns on the fact that the Segway is not an approved medical device. Period.

The ADA allows that there are many different devices, but has to draw the line for accomodations somewhere. For example, a public transit system can deny boarding to a wheelchair user, if the chair doesn't meet the ADA definition of a common wheelchair ( A common wheelchair is defined as any three or four wheeled mobility device up to 48 inches long by 30 inches wide and weighing no more than 600 pounds (including occupant)). It can be very difficult for a service provider to secure a non-common chair safely.

It seems to me that the petitioners would be better served working on legislation to make Segways approved devices rather than suing the deep pockets of Disney.

 

[Justin Jett]

It seems to me that the petitioners would be better served working on legislation to make Segways approved devices rather than suing the deep pockets of Disney.

Very well said!!!

 

[Expert_Glider]

It seems to me that it all turns on the fact that the Segway is not an approved medical device. Period.

The Segway (or any other device or system) doesn't have to be FDA approved to be protected under the ADA.

Service animals are not FDA approved but are protected. Canes, crutches, walkers, etc... aren't FDA approved either. FDA approval and ADA protections are two entirely different things that are often confused.

At first, WorldCo used the "not FDA approved" reason for preventing access. When it became clear to them this wasn't going to stand up, they then switched to "not safe".

People with qualifying disabilities that own and use their Segway as their primary mobility device believe WorldCo is in violation of federal ADA laws by preventing them from using their device of choice that best meets their mobility needs.

This will be determined by the court system and not on this site. That said, I just thought the people here might want further information to help explain the issue from "the other side".

 

[Expert_Glider]

The "safety issue" is covered under ADA:

§ 36.208 Direct threat.

(a) This part does not require a public
accommodation to permit an individual
to participate in or benefit from
the goods, services, facilities, privileges,
advantages and accommodations
of that public accommodation when
that individual poses a direct threat to
the health or safety of others.

(b) Direct threat means a significant
risk to the health or safety of others
that cannot be eliminated by a modification
of policies, practices, or procedures,
or by the provision of auxiliary
aids or services.

(c) In determining whether an individual
poses a direct threat to the
health or safety of others, a public accommodation
must make an individualized
assessment, based on reasonable
judgment that relies on current
medical knowledge or on the best
available objective evidence, to ascertain:

the nature, duration, and severity
of the risk; the probability that the potential
injury will actually occur; and
whether reasonable modifications of
policies, practices, or procedures will
mitigate the risk.

 

[Justin Jett]

People should just use an ECV and enjoy the parks.

May the best MOUSE win this whole thing. I cannot wait until it just goes away!

 

[wishspirit]

I find this topic very interesting, especially coming from the other side of the pond where disability law is different.

This will be determined by the court system and not on this site. That said, I just thought the people here might want further information to help explain the issue from "the other side".

Of course, we all understand we are all just putting out our views on our limited knowledge of the situation. Your extra information is great, but doesn't mean people are going to automatically agree with you.

I do think Segways are a good idea, if they can be modified to make them safe in the parks. Currently they are neither modified, nor are the parks modified, for their use. WDW does let you bring in your own mobility aids if they see them as reasonable, however currently segways are not reasonable and are a threat to park guests. WDW goes out of their way to make their parks as disability friendly as humanly possible, and they do a brilliant job. I can understand why a charity would go for Disney, rather than anyone else, because they have got the basics sorted, if they went for anyone else, it would be about fundamental access issues rather than specifically segways.

If segways were modified to a lower speed, with a decent breaking system which would allow an immediate halt, with the user having proper safety equipment, i would be the first to call it a brilliant idea. Until then, ECV's will have to be the way to go.

 

[Expert_Glider]

WDW does let you bring in your own mobility aids if they see them as reasonable, however currently segways are not reasonable and are a threat to park guests.

You state that Segways "are a threat to park guests". What is this based on? Could you please provide the supporting facts that back up this statement?

I'd specifically like to know of any reported instance(s) of a person with a qualifying disability injuring another person while using a Segway as their mobility device.

I look forward to your reply.

 

[Justin Jett]

This all sounds like "lawyer speak" to me.

What is considered to be a "qualifying disability?" If a disabilty has to "qualify" than a mobility device should also have to qualify.

The more I read about this.....the more it sounds like just some lawyer going after Disney's deep pockets.

 

[Expert_Glider]

The definitions of a "qualifying Disability" and a "mobility device" are contained in the ADA - Americans with Disabilities Act.

You can find them there if you wish.

A "direct threat" based on safety has to be real and not perceived or imagined - ie: you have to have a factual basis for denying access because of a safety concern.

Find me an accident (any accident) caused by someone with a qualifying disability that has caused injury to another person while using a Segway as their mobility device.

Otherwise, please let me know what other factual basis a safety claim can be made to deny access.

I would really like to know.

 

[jcb]

I think what causes the most consternation is that the Segway is a device used by folks who don't necessarily have a disability so it is somewhat difficult for those of us who do not have a disability to have the perspective of those who do. I would imagine that for folks who have been “confined” to a wheelchair as their only mode of personal transportation the relative freedom a Segway provides is a pretty emotional experience. I don’t know – but I imagine it dwarfs how I might feel if I were to lose 50 pounds overnight.

That said, not everything that makes someone feel better about themselves must be tolerated. Richard Bach had a great example using vampires in Illusions. Rex gives an extreme one with guns and bats. But the standard is whether the mode is reasonable and the courts and DOJ have established criteria to determine that even if they have not addressed this specific problem (yet). Safety is one of the concerns – as is the cost involved in making substantial modification to existing facilities. The issue here is how to balance the concerns.

I do know that in the legal documents WDW filed urging the court to approve the settlement, it asserted that the people suing acknowledged they had been provided with “a clear explanation of Worldco’s justification for prohibiting Segways at the Disney resorts.” While this is not necessarily a statement that the other side agrees with Disney’s reasoning, with all the effort that has gone into this lawsuit, it is probably close.

As for Segways actually causing an accident, it is pretty clear that is not the standard. No company has to wait for an accident to actually happen before its safety concerns are validated. I know of several accidents involving Segways but those have only injured the operator.

Turning to the status of the "Segway lawsuit" itself, the court has scheduled a hearing for June 3 and 4 to take evidence about the “fairness” of the proposed class action settlement. Meanwhile, WDW has filed a response to other objections to the settlement. It is too long to quote here but it is worth setting out WDW's reasoning for deciding why Segways are “inherently incompatible in a crowded theme park.” Without meaning to take sides (there is enough of that here already) and hoping I do not take WDW’s statements too out of context, here are WDW’s reasons:

• the manufacturer itself warns consumers that Segways can cause serious injury or death because of “loss of control, collisions, and falls,” not simply because of excessive speed.
• Worldco’s chief safety officer, Greg Hale, explained what causes such loss of control and falls:“the basic principle [of the Segway] is it is an unstable device” and that because of its constantly adjusting sensors which are connected to powerful twin motors, “t will fall over unless it’s actively working properly.”
  [*]this unique combination of power and microadjustments can break down and cause accidents in certain circumstances because the Segway is incapable of recognizing danger: the Segway’s “extremely powerful twin motors [ ] can generate thousands of watts of power instantly” and its large wheels must “generate enough force and torque to move very rapidly, a hundred times a second,”
  [*]if the wheels of the Segway inadvertently contact an object, such as “a curb or [ ] a child’s leg,” then “the device doesn’t know danger” and “doesn’t know what it contacted.” As a result, it will “try even harder and ramp up to – it’s like flooring a car when it hits an object in the driveway rather than putting on the brakes.”
  [*]under normal operating conditions, failure to precisely control the self-balancing mechanism of the Segway and to avoid the wheels coming into contact with another object (even something as small as loose gravel), can easily cause the device to lurch out of control or throw the rider off the vehicle’s platform, posing an unacceptable safety risk.
  

I think WDW's fundamental point is that operating a Segway in a crowded theme park is enough of an unusual experience for even the most experienced Seqway user that it poses an unacceptable risk of harm.

 

[yitbos96bb]

I think i side with Disney on this one... They allow other types of vehicles to accomodate people. The segways are capable of much faster speeds than most of the ECVs. So right there is a safety issue... if a person on a Segway hits someone, the potential for injury is greater, IMHO.

 

[Expert_Glider]

Jack,

I have enjoyed your posts on this topic.

While I could dispute Greg Hale's testimony on this, I will not do so here.

But isn't it kind of ironic:

CM's use Segways everyday and Disney is one of Segways largest volume users.

They have a Segway experience type display at Epcot where you can try one out for a couple of minutes.

They offer a tour at Epcot (my understanding is it's before the park opens to the public).

They offer a tour at Fort Wilderness.

If the device is so dangerous, why on earth would they do these things that could pose undue risk (their claim, not mine) to their CM's or guests?