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Old 07-29-2010, 10:58 AM   #46
jcb
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There seem to be several misconceptions about the DOJ's position and the issues in the WDW Segway lawsuit.

DOJ's position in the lawsuit was that the court should reject the proposed class action settlement between the plaintiffs and WDW. DOJ cited "procedural problems" such as an

Quote:
overbroad class definition that improvidently covers Disney’s resorts nationwide, overly expansive release provisions that impermissibly waive class members’ claims outside the scope of the underlying complaint, and the lack of any mechanisms for enforcement or compliance
monitoring.
This is pretty much legal wonkism and I apologize for it. As to substance, DOJ objected to the settlement because:

Quote:
Approval of the Disney Class Settlement Agreement at this juncture would thus frustrate the regulatory process by “freezing” in place Disney’s blanket policy banning Segways from all Disney resorts and theme parks since the agreement has no end date. To be sure, there are strong views on all sides regarding the extent to which mobility devices such as EPAMDs/Segways should be accommodated by Title III-covered facilities as reflected in the diversity of opinions expressed by Segways-related comments in response to the Title III NPRM.
And, in fact, during the hearing on whether the settlement should be approved, WDW put on substantial evidence as to why it concluded that Segway use in WDW would be unsafe. WDW's brief after the hearing made the following points about safe operation of a Segway:
  • Is the safety risk inherent in the Segway’s two-wheeled balancing technology, which causes the rider to lose control and fall in certain circumstances (see infra Section II.D), acceptable in the world’s most populated theme parks?
  • In a themed environment where guests are walking in different directions and focusing on the attractions and entertainment, is it reasonable to allow a two-wheeled mobility device that travels at approximately three times the average walking speed?
  • Does a Segway provide access to the Disney Resorts which is not available with other alternative mobility devices?
  • How and where can Worldco store Segways for guests while they are on rides without attracting the attention of other guests, including children, who may attempt to stand on the device and injure themselves as a result?
  • What is the cost of training and having available additional employees to move a Segway from the start of each ride to the end of that ride where it can be returned to the guest?
  • How can the Segway operate safely after dark without a light, like the light designed for the ESV and ECV?
  • How can Worldco reliably confirm that a guest’s Segway has been properly serviced and maintained consistent with the manufacturer’s requirements and recall notices?
  • How can Worldco determine whether a Segway owner with a mobility disability has the minimum strength requirements set by the manufacturer to operate the device safely (ascending and descending stairs without holding onto a handrail) without asking the person about the nature of the disability?
  • Is it reasonable to allow a stand-up mobility device in a populated theme park that would not be deemed safe under the RESNA standards?
  • Because the Segway can travel up to 12.5 mph, how can Worldco effectively enforce a reasonable speed limit for Segways inside the resorts?
  • Is it acceptable to allow on sloped queue lines a mobility device that has no braking or anti-rollback mechanism?

Ultimately, the court did not approve the settlement because it determined the people suing could not show the use of a Segway was "necessary to afford access to Disney’s Parks." This is the issue currently on appeal. I don't think DOJ has taken a position in the appeal. I'm having trouble accessing the court's computer right now, however, but I'll check tonight.

I know a lot of folks here dispute a lot of Disney's points. That is great. Folks are entitled to their own opinions. I'm just trying to clarify what actually happened in the lawsuit.

As to other points, I don't think it all that significant that WDW employees use Segways or that Segway tours are offered before the park opens. These are different situations. WDW has a lot of ways to control how their employees use Segways in a theme park. Employers permit employees to do a lot of things that they don't let customers do.
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Old 07-29-2010, 11:13 AM   #47
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Good morning,

You have brought up some interesting questions.

After doing a little research although wheelchair manuals in general do not use the term death they dedicate a very large portion of their manuals to the safety risks. Although they don't use the word death they spend plenty of time explaining the risks to the user and to others. The warnings of some of the manuals are so extensive that they take up almost a third of the document. They list a wide range of dangers from tipping over, losing traction and hitting others to the possibilities of electrical failures and fires. I also turned up recalls while I was looking for a manuals.

It seems that I am unable to provide you links for some of these wheelchair manuals, but they can be found by doing a Google search for wheelchair operating manuals. There is a good link there that lists the manuals for hundreds of different wheelchairs both power and manual.

The link is titled Mobility Scooters Manuals, Wheelchair and Powerchair User Guides .

*

Based on the fact that many Disney rides and attractions list the risks of injury and death, I also believe there is a disclaimer on the tickets, I don't think their attorneys would be willing to take that route.

Although they only give tours when the parks are closed and after thorough training it still would not remove them from liability, if there would be any injuries, should one of their guests fall or run into another person. As far as your employees would assume that they would cease use of the Segways.

As to your question on buses I was very surprised to find that there is actually policy on the subject. I was even more surprised to see that this guidance was released in 2005. Again I cannot provide a link so I apologize for posting the policy in its entirety.

Federal Transit Administration (Printable) - ADA Information Section

Use of "Segways" on Transportation Vehicles

DEPARTMENT OF TRANSPORTATION

DISABILITY LAW GUIDANCE

USE OF "SEGWAYs" ON TRANSPORTATION VEHICLES

This guidance document concerns the question of whether transportation entities (e.g., transit

authorities, Amtrak) should permit the "Segway" personal transportation device to be used on

transportation vehicles when used as a mobility device by people with disabilities.

The Segway is a two-wheeled, gyroscopically stabilized, battery-powered personal transportation

device. The Segway is not designed primarily for use by individuals with disabilities, nor is it used

primarily by such individuals. However, some individuals with disabilities may use a Segway as a

personal mobility aid, in lieu of more traditional devices like a wheelchair or scooter.

The Department's ADA rule (49 CFR Part 37, §37.3) defines a "wheelchair" as "a mobility aid belonging

to any class of three or four-wheeled vehicles, designed for and used by individuals with mobility

impairments..." (emphasis added). By this definition, a Segway is not a wheelchair. However, a

Segway, when used by a person with a disability as a mobility device, is part of the broad class of

mobility aids that Part 37 intends will be accommodated (see for instance §§37.5 and 37.165). In this

way, a Segway occupies a legal position analogous to canes, walkers, etc.

Because a Segway is not a wheelchair, the ADA regulation's provisions for lift and securement use

specific to wheelchairs (§37.165(a) - (e)) do not apply to Segways and their users. However, §37.165

(g) requires transit providers to "permit individuals with disabilities who do not use wheelchairs" to use a

vehicle's lift or ramp to enter the vehicle. Individuals who do not use wheelchairs commonly use the lift

together with their non-wheelchair mobility devices, such as canes, crutches or walkers. Under this

provision, an individual with a disability who uses a Segway as a mobility device must be permitted to

use the lift.

This is not to say that transportation providers are required to allow all Segway users to bring their

devices on board a bus or train. Transportation providers may establish their own general policies

regarding Segways and other devices, just as they do with respect to pets or bicycles. However, when a

device is being used as a mobility device by a person with a mobility-related disability, then the

transportation provider must permit the person and his or her device onto the vehicle.

This is analogous to the situation in which a transportation provider that has a general policy that does not permit pets to enter, but must permit a person with a disability to bring a service animal into a vehicle.

Also, a transportation provider is not required to permit anyone -- including a person with a disability -- to

bring a device onto a vehicle that is too big or that is determined to pose a direct threat to the safety of

others. With respect to size, a non-wheelchair mobility device that exceeds the size and weight

standards for a "common wheelchair" (i.e., 30 x 48 inches, measured two inches above the ground, and

not exceeding 600 pounds, including the user) can reasonably be considered too large. The direct

threat standard is intentionally stringent (i.e., requiring a determination that there is a significant risk to

the health or safety of others that cannot be eliminated by modification of policies, procedures, practices,

or by the provision of auxiliary aids or services). A transportation provider seeking to exclude a mobility

device on direct threat grounds should first consult with the appropriate DOT operating administration for

guidance.

We note that this analysis would apply to other situations. For example, a Federal Highway

Administration-assisted recreational trail that normally cannot permit use by motorized vehicles should

accommodate Segways when used as a mobility device by someone with a mobility-related disability.

This guidance has been approved through the Department of Transportation's Disability Law

Coordinating Council as representing the official views of the Department on this matter.

September 1, 2005

Last Modified: Thursday, September 01, 2005

Many may wonder why this guidance is provided by the DOT and not the Department of Justice.

The reason is that the definition of the common wheelchair was created originally for the sole purpose of providing dimensions etc. so that wheelchair users could be accommodated by what would become a standard lift design.

As I said I was surprised to see that there was already policy on this. So the answer would be yes public transportation would have to be included and that will include Disney's buses whether the buses are leased or owned by Disney.

This is become for more interesting for me than I ever would've imagined. These are the most sweeping changes since the original signing of the ADA. Over the years the courts have picked apart many of the rights that were initially awarded those with disabilities.

A couple of quick things. If you are a person that has been using a companion animal for emotional purposes you should also read these regulations carefully as they have removed those protections.

Finally, and sadly I see at times that the conversation turns from constructive to destructive. I saw this for many years while I practiced law. I have many clients who are persons with disabilities and some of them would find the term "confined to a wheelchair" offensive while for others it really didn't make a difference. It's very difficult to read into what a person meant when all the conversations are in printed word. When you can't see the people you're talking to is impossible to judge the inflection in her voice to look at her eyes and all the other factors that make face-to-face communication what it is.

Again I apologize for being redundant but 180 days after these regulations are posted they will become law. What's done is done and discussion on this NPRM ended almost 2 years ago. After Atty. Gen. Holder put his signature to the documents they became law of the land.

What the end result will be for Disney is still yet to be seen but these new regulations have put the heavy burden of proof squarely on the places of public accommodation. I will say this though, lengthy discussions on how they could avoid the law never looks good when others come lurking. I will assume that all sides, Disney, the Segway users, and the DOJ look at each other's sites from time to time.

While we are on the subject here are four new proposed changes up for public comment. You can give your opinion at the DOJ's website.

Thank you again for your time,

Harold
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Old 07-29-2010, 11:22 AM   #48
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I hate to turn this into a legal discussion but I have to say that I don't see the rules as increasing WDW's burden to show Segways are unsafe. It has always been the public accommodation's burden to show that making a modification to its policies for an individual with a disability would cause a direct threat to the safety of others.

If anything, and this is my main point, I suspect the Segway folks are thinking about challenging the regulations on the ground that they are too accommodating to places like WDW, malls and the like. I see them arguing that the DOJ lacks the authority to a dual system for wheelchairs and for other powered mobility devices.

I'm not saying I agree the challenge would be successful.
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Old 07-29-2010, 11:54 AM   #49
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[QUOTE=jcb;37592044]I hate to turn this into a legal discussion but I have to say that I don't see the rules as increasing WDW's burden to show Segways are unsafe. It has always been the public accommodation's burden to show that making a modification to its policies for an individual with a disability would cause a direct threat to the safety of others.

If anything, and this is my main point, I suspect the Segway folks are thinking about challenging the regulations on the ground that they are too accommodating to places like WDW, malls and the like. I see them arguing that the DOJ lacks the authority to a dual system for wheelchairs and for other powered mobility devices.

I'm not saying I agree the challenge would be successful.[/q]

I'll agree to disagree, that's what guys like us do......

As far as Disneys private fleet, this ruling has little effect unless they chose to say the Segway is not safe. Then it would be a matter for OSHA to deal with.

I don't think the Segway folks as a group are going to challenge. After looking into what is known as DRAFT, they have never been the plaintiffs in any litigation.

They have been objectors, as in the class action but I can't find them anywhere as plaintiffs.

One other interesting fact is when the plaintiffs in the class action sought to have the ruling overturned , DRAFT objected . That put them and Disney on the same side of the table for that. Litigation makes for strange bedfellows .

I'm sure that just was a thrill to the attorneys still trying to get a settlement so they can get paid.
The Department of Justice filed an amicus in the class action cases. Again I still can't post the link.

It is a pleasure to read your thoughts.

Harold

Last edited by CR ESQ.; 07-29-2010 at 12:10 PM.
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Old 07-29-2010, 12:03 PM   #50
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[QUOTE=CR ESQ.;37592525]
Quote:
Originally Posted by jcb View Post
I hate to turn this into a legal discussion but I have to say that I don't see the rules as increasing WDW's burden to show Segways are unsafe. It has always been the public accommodation's burden to show that making a modification to its policies for an individual with a disability would cause a direct threat to the safety of others.

If anything, and this is my main point, I suspect the Segway folks are thinking about challenging the regulations on the ground that they are too accommodating to places like WDW, malls and the like. I see them arguing that the DOJ lacks the authority to a dual system for wheelchairs and for other powered mobility devices.

I'm not saying I agree the challenge would be successful.[/q]

I'll agree to disagree, that's what guys like us do......
I don't think the Segway folks as a group are going to challenge. After looking into what is known as DRAFT, they have never been the plaintiffs in any litigation.

They have been objectors, as in the class action but I can't find them anywhere as plaintiffs.

One other interesting fact is when the plaintiffs in the class action sought to have the ruling overturned , DRAFT objected . That put them and Disney on the same side of the table for that. Litigation makes for strange bedfellows .

I'm sure that just was a thrill to the attorneys still trying to get a settlement so they can get paid.

It is a pleasure to read your thoughts.

Harold
According to DRAFT's own website, even though they have never been plantiffs in the lawsuit. DRAFT has been in contact with the plantiffs counsel.
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Old 07-29-2010, 12:29 PM   #51
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[QUOTE=Justin Jett;37592658]
Quote:
Originally Posted by CR ESQ. View Post

According to DRAFT's own website, even though they have never been plantiffs in the lawsuit. DRAFT has been in contact with the plantiffs counsel.
Hello Justin it's a pleasure to meet you.

Yes I read as you did that DRAFT has been in contact with the plaintiffs counsel. That is not uncommon.

It seems that whatever contact they did have worked out poorly as DRAFT fought, as objectors , to see that the plaintiffs received no financial gain.

They fought against the class action. They were not there to advance the plaintiffs case.

As I said above when the plaintiffs tried to overturn DRAFT sided with Disney, as objectors, to see that the ruling AGAINST the plaintiffs held.

There are many twists here but I don't see where there is any collusion. They were a hindrance not a help to the plaintiffs.

Have a nice day,
Harlod
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Old 07-29-2010, 03:37 PM   #52
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Quick question from somebody not from the US: what is an ESV?


*sneaks back to lurking mode*
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Old 07-29-2010, 03:54 PM   #53
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Quote:
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Also look at service animals, they should be allowed wherever possible. If a service animal is not housebroken that animal can be banned for poor behavior but that has no effect on the vast majority of people that have well behaved service animals.
Actually, yes it does. One poorly behaved service animal makes it harder for the next team. For example, if I went to the store and another team was there the day before and that team was asked to leave because the dog peed then that store is more likely to try and deny access to me. It happens all the time. One faker (or inexperienced) handler makes it more and more difficult for the rest of us.
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Old 07-29-2010, 04:12 PM   #54
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What I want to know is:

1) Why do we have to 'prove' that something is dangerous in order to ban it - do we have to wait until a child is killed by a Segway (or will it take multiple injuries and/or deaths in the parks?) before intelligent people come out and say 'hey, that's enough'?

2) Can I sue the pants off the idiot (disabled or not) that injures me with the Segway - like when it hits me over the head on the bus, or crushes into me at one of the parks? Can that person be charged with assault? Or just negligence?
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Old 07-29-2010, 04:41 PM   #55
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Quote:
Originally Posted by goofieslonglostsis View Post
Quick question from somebody not from the US: what is an ESV?


*sneaks back to lurking mode*
An ESV is an Electric Standing Vehicle - It is basically an ECV base that a person is meant to stand on and drive - it has a tiller just like an ECV and does not require a person's balance and weight shifting to drive the vehicle. It takes considerably less training to use.
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Old 07-29-2010, 05:13 PM   #56
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A facility may be annoyed by a service animal that has acted poorly but it cannot legally ban a properly trained and behaving service animal because another service animal was poorly trained or behaved. That is the law, yes an establishment may be annoyed by a prior bad experience but they would be breaking the law to deny access. Schmeck, the same thoughts that you are stating about Segways were stated about power wheelchairs 20 years ago. If a power chair hits someone and breaks an ankle the person controlling the power chair can be banned but not all power chairs.

The US Dept of Justice, Civil Rights Division has issued regulations that Segways will be treated in a like manner in approximately 180 days. This increases the ability of some people to join their families and retain their dignity as they too deal with a difficult disability.

I understand there is a lot of opinion on this Chat Board regarding Segways but read and understand the new law and recognize that after voluminous studies, public hearings two years ago in which Disney's representatives appeared this is the new law. The new law as CR Esq has mentioned created a much higher threshold for proving a mobility device is a direct threat. Added to the irony is that Disney employees and guests use the same device. The effect is that Segways will be legal.

It is painful for one disabled person to be told by another disabled person that they should be limited in their benefits from technology and their ability to enjoy a place such as Disney on their mobility device. One person here says we should be happy with an ECV but that same person would sue if not permitted to bring his/her personal mobility device into the park. If you support disabled rights, you should support disabled rights for all, not just yourself.

Last edited by SueM in MN; 07-29-2010 at 08:27 PM.
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Old 07-29-2010, 05:29 PM   #57
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A facility may be annoyed by a service animal that has acted poorly but it cannot legally ban a properly trained and behaving service animal because another service animal was poorly trained or behaved. That is the law, yes an establishment may be annoyed by a prior bad experience but they would be breaking the law to deny access.
And yet they still do it, in fact it's happened to me and gotten to the point where I had to call the police to try and get access and even THAT didn't work. One poorly trained dog or handler can make things harder or impossible for others. One dog does something and that business becomes angry and hard to deal with and will deny access, regardless of the legality of their actions. And not all handlers have the resources to anything about it (filing complaints takes forever, cops don't always help, and if it has to go to court lawyers cost money).
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Old 07-29-2010, 07:20 PM   #58
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Added to the irony is that Disney employees and guests use the same device. The effect is that Segways will be legal.
A few Disney Cast Members of whose ability to safely operate the Segway Disney is aware, use Segways when it's necessary to get quickly from one part of a park to another. The Guests who Disney allows to use Segways do so after instruction, in controlled areas away from other Guests, wearing safety equipment, and after having signed releases indicating Disney is not responsible if they're injured. They don't put OTHER Guests at ANY risk (although someone I know once did attack an urn in Italy )
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Old 07-29-2010, 08:28 PM   #59
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Good evening ,

This is a lively exchange.

It will be interesting to see how the DOJ rules when somebody looks for access.

It's a shame that one bad service animal should make it hard on those whoa lives depend on them. Human nature is a interesting show !

Good night all and stay well,
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Old 07-29-2010, 08:52 PM   #60
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Since I've yet to see a power chair, wheelchair, or ECV go out of control to this extent...I can only imagine what sort of injuries this sort of Segway accident would cause to nearby pedestrians. I can see elderly folks easily being killed if something like this hit them while tumbling.

http://www.youtube.com/watch?v=gkY2Qa_FchE

As others have said, how would Disney (or any other crowded venue) be able to fully control the speed? And given that anyone could rent one, disabled or not, experienced or not, it would likely only be a matter of time before this would happen. Doesn't this clearly demonstrate a serious potential safety hazard?
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