Segway Lawsuit

[jcb]

The Orlando Sentinal is reporting that the judge has dismissed ("thrown out") the segway lawsuit. I'm suspicious of this headline but can't pull up the decision right now. I suspect the judge has refused to agree to the settlement but when I get home, I will check and update this thread.

ETA: The judge has "thrown out" the entire lawsuit without addressing whether the settlement was - or was not - appropriate. The decision takes a little explaining but you can read it for yourself if you want.

A court can raise certain issues on its own. Here the judge has decided that the folks who sued lacked "standing" because of the way the Americans with Disabilities Act provision they relied upon is worded. They sued to force WDW to modify its policies on Segways. To do this, the statute requires them to show that the modification (of the policy) is "necessary" for them to use the services.

The folks who sued can't, the judge ruled, show that the use of the Segway is "essential" (necessary) to their enjoyment of WDW because they can all sit in a wheelchair or scooter. (This leaves the door open to someone who can't sit but can use a Segway.) The judge explained the decision:

Although some individuals may, with good reason, not want to use those devices and instead prefer to use a Segway, that preference – standing alone – is not essential to accessing Disney’s Parks. Although there may be some disabled individuals for whom an upright mobility device such a Segway – and not a wheelchair or some other “traditional” device – amounts to something that is essential, it remains a near physiological certainty that most people, regardless of disability, can sit from time to time.

Skip, if I recall correctly, this means you were right.

While the judge dismisssed the lawsuit, he did not foreclose the people who sued from asserting different claims - such as arguing WDW has violated a different provision within the ADA. They may, however, decide to appeal instead.

 

[Expert_Glider]

I cannot post attachments, so I pasted the press release from Disability Rights Advocates for Technology (DRAFT).



FEDERAL COURT TOSSES OUT DISNEY SETTLEMENT
Judge Opens Door to a Remedy for Disabled
Disability Rights Advocates Vow to Pursue Open Policy for Segways

Contact: Chris Black
Tel: 202 333 3853
Mobile: 202 302 4748
christine_black@msn.com

ORLANDO, FL. – In a striking victory for the disabled, a federal District Court judge tossed out a proposed settlement which would have banned personal Segway use forever in all Disney properties in the United States.

``This is a victory for disability rights and we are heartened by the court’s findings,’’ said Jerry Kerr, President of Disability Rights Advocates for Technology (www.draft.org), the non-profit organization which organized opposition to the proposed ban. ``But Disney’s policy on Segways still stands. We call on the Walt Disney Company to voluntarily change its policy and recognize the rights of disabled people to use the assistive device which best meets their needs.’’

US District Judge Gregory A. Presnell tossed out the proposed settlement after four months of deliberation after holding a two-day fairness hearing on the proposed ban last June. DRAFT members and disabled war veterans were among those who testified against the settlement. In addition, the civil rights division of the U.S. Justice Department and 23 state Attorneys General filed friend of the court briefs objecting to the settlement.

DRAFT did not bring the original law suit against the Walt Disney Company. DRAFT got involved when the original three plaintiffs agreed to a settlement which would have banned all personal Segway use in perpetuity in all Disney properties. Disney uses Segways for its own employees and for paid Segway tours for park visitors but banned the use of private Segways ostensibly for safety reasons.

The Segway has found a loyal following among many disabled people. DRAFT has presented more than 350 Segways to military service members who suffered disabling injuries in Iraq and Afghanistan in the last three years. One of those recipients, Major Daniel Gade, a former member of the White House domestic policy staff who lost a leg in combat, testified at the fairness hearing.

Judge Presnell said the section of the federal Americans with Disabilities Act cited by the original plaintiffs was not sufficiently broad enough to expressly allow Segways but in his opinion he recognized that the important psychological advantages of a disabled person using a Segway which allows a user to stand upright instead of a wheelchair.

``This case is not about necessary accommodation,’’ said the ruling. `` The real question, it seems, is the extent to which the ADA can (or should) promote equal treatment and human dignity by requiring acceptance of new technologies. As Major Gade and others testified, the Segway is quickly changing the way disabled Americans are perceived and treated in our society. The importance of this interest simply cannot be overlooked.’’

Judge Presnell left open the possibility that another law suit or action by another branch of government might be sufficient to overturn the Disney ban. The Justice Department is working on regulations which are expected to classify the Segway as a legitimate assistive device when used by the disabled to improve their mobility.

David Ferleger, lead counsel for DRAFT and a legal advocate for the disabled for more than 35 years, said the original lawsuit contained fatal flaws which could be addressed in another legal action.

``It is gratifying to see the court recognize the tremendous importance of technology to people with disabilities and to recognize that federal law specifically protects the dignity of disabled people,’’ said Ferleger.

David Ferlenger, the ADA counsel, can be reached at: Office 215 887 0123
Mobile: 215 498 1777

 

[Justin Jett]

The Orlando Sentinal is reporting that the judge has dismissed ("thrown out") the segway lawsuit. I'm suspicious of this headline but can't pull up the decision right now. I suspect the judge has refused to agree to the settlement but when I get home, I will check and update this thread.

ETA: The judge has "thrown out" the entire lawsuit without addressing whether the settlement was - or was not - appropriate. The decision takes a little explaining but you can read it for yourself if you want.

A court can raise certain issues on its own. Here the judge has decided that the folks who sued lacked "standing" because of the way the Americans with Disabilities Act provision they relied upon is worded. They sued to force WDW to modify its policies on Segways. To do this, the statute requires them to show that the modification (of the policy) is "necessary" for them to use the services.

The folks who sued can't, the judge ruled, show that the use of the Segway is "essential" (necessary) to their enjoyment of WDW because they can all sit in a wheelchair or scooter. (This leaves the door open to someone who can't sit but can use a Segway.) The judge explained the decision:



Skip, if I recall correctly, this means you were right.

While the judge dismisssed the lawsuit, he did not foreclose the people who sued from asserting different claims - such as arguing WDW has violated a different provision within the ADA. They may, however, decide to appeal instead.

Yes! There is no proven medical "need" for a Segway. I'm glad the judge sees that wheelchairs and ECV's can be used!

I am also extremely happy that these people did not get the FREE VACATION they were seeking.

Disney should be praised for their care and effort put forth for Disabled guests! The "ADA violation" claim was just plain silly, and I hope this just goes away!

 

[Justin Jett]

Disney Wins Dismissal of Suit Over Segways, Settlement Voided

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By Sophia Pearson and Doris Bloodsworth

Oct. 7 (Bloomberg) -- Walt Disney Co. won dismissal of a lawsuit claiming a ban on personal two-wheel transporters at its facilities violates federal disabilities laws, after a judge rejected a proposed settlement in the case.

Two Illinois residents and one from Iowa sued Disney in November 2007 after the company barred them from using the Segway Personal Transporter on family vacations at four theme parks in Florida. As an alternative to Segways, Disney agreed in December to acquire at least 15 newly designed electric stand-up vehicles to settle the case.

U.S. District Judge Gregory Presnell in Orlando yesterday voided an earlier decision granting preliminary approval to the settlement and threw out the case. The plaintiffs, who are all able to use wheelchairs or scooters, failed to show that Segways were “necessary” to access the park, Presnell said in the decision.

“Although some individuals may, with good reason, not want to use those devices and instead prefer to use a Segway, that preference -- standing alone -- is not essential to accessing Disney’s Parks,” Presnell wrote in the opinion.

Bernard Dempsey, an attorney for plaintiff Mahala Ault, and Jason Medley, representing plaintiff Stacie Rhea, didn’t immediately return phone and e-mail messages seeking comment yesterday. John Baker and J. Phillip Krajewski, attorneys for plaintiff Dan Wallace, also didn’t return phone messages.

“This ruling is consistent with what we’ve advocated all along in this case that we have appropriately balanced the need to maintain a safe environment for everyone while at the same time meeting our legal requirements to provide access to those with mobility impairments,” Andrea Finger, a spokeswoman for Disney, said in a phone interview.

7,000 Riders

The Segway, a two-wheeled, self-balancing transportation device, allows riders to remain upright and steer with body movements. The device, first sold in 2002, is used by as many as 7,000 people in the U.S. with mobility-related disabilities, according to court documents.

Disabled people who objected to the settlement argued at a court hearing this year that the Segway was their preferred choice of transportation. The Justice Department argued that the settlement agreement would compromise its ability to regulate the theme park industry.

Aaron Bates, an attorney for many of the objectors, said yesterday’s decision was a “win” for people with disabilities.

“This leaves the door open for others to file suit, and the government may soon recognize Segways in the same way they do wheelchairs and other mobility devices,” Bates said in a phone interview.

Disney’s new vehicles, called ESVs, would replicate in dimension and operation a wheelchair while allowing users to stand upright, the company said in court papers. Under the terms of the settlement, the vehicles would have been rented on the same terms as sit-down electric vehicles.

The case is Ault v. Walt Disney World Co., 07-01785, U.S. District Court, Middle District of Florida (Orlando).

To contact the reporters on this story: Sophia Pearson in Wilmington, Delaware, at spearson3@bloomberg.net; Doris Bloodsworth in federal court in Orlando at dorisbloods@earthlink.net.

Last Updated: October 7, 2009 00:01 EDT

 

[kafitty]

As an alternative to Segways, Disney agreed in December to acquire at least 15 newly designed electric stand-up vehicles to settle the case.

they sure do know how to keep things like this from popping up again. "No, you can't use a Segway, here's one of our thingamajigs though!" Very smart.

 

[Disneybridein2k3]

Thank you, Jack and Justin, for keeping us up to speed on this. I really appreciate that you took the time to post the update here. While it wasn't something I was personally actively following, I was interested in the outcome.

 

[Justin Jett]

October 7, 2009, 12:54 PM ET Must the Magic Kingdom Allow the Magic Segway?
Just how far does the federal government require a private facility go in ensuring that disabled people can access and enjoy the facility?

It’s an interesting question with which one judge in Orlando had to wrestle recently, in the context of some interesting facts. The bottom line in the case, that Disney does not have to let its park patrons use the Segway Personal Transporter to maneuver around its parks. (The Segway, while not yet ubiquitous on New York City streets, has a lot of fans, including Gob Bluth (pictured), possibly the best character in arguably the funniest television show ever made, Arrested Development.)

The quick background: Two Illinois residents and one from Iowa sued Disney about two years ago after Disney barred them from using the Segway at Florida theme parks. Alternatively, Disney agreed in December to acquire at least 15 newly designed stand-up vehicles to settle the case.

But federal judge Gregory Presnell in Orlando yesterday voided an earlier decision granting preliminary approval to the settlement and threw out the case. The plaintiffs, who are all able to use wheelchairs or scooters, failed to show that under Title III of the Americans with Disabilities Act, Segways were “necessary” to access the park, Presnell said in the decision. Click here for the opinion; here for the Bloomberg story.

“Although some individuals may, with good reason, not want to use those devices and instead prefer to use a Segway, that preference — standing alone — is not essential to accessing Disney’s parks,” Presnell wrote in the opinion.

Lawyers for the plaintiffs did not return Bloomberg’s requests for comments.

“This ruling is consistent with what we’ve advocated all along in this case that we have appropriately balanced the need to maintain a safe environment for everyone while at the same time meeting our legal requirements to provide access to those with mobility impairments,” Andrea Finger, a spokeswoman for Disney, said in a phone interview.

Presnell did note, however, that the ADA might need to be broadened to address new devices available to the disabled. Presnell suggested that another branch of government has the initial responsibility to ensure that the disabled can take advantage of the Segways.

“The real question, it seems, is the extent to which the ADA can (or should) promote equal treatment and human dignity by requiring acceptance of new technologies,” Presnell wrote.

http://blogs.wsj.com/law/2009/10/07/must-the-magic-kingdom-allow-the-magic-segway/

 

[Justin Jett]

Hi Stacy,

Jack is the one that deserves 100% of the credit for the facts. My stuff is just a semi-Pete Rant against these Segway people.

Now, I am because WDW won!!!! Although, I think this was just the second episode of a really annoying trilogy. WDW has right on their side, and the best mouse will win.....but who know how long this will go on.

I do plan to write a letter to Bob Iger, thanking Disney for being so wonderful for disabled people. That said.....I still have to finish my personal letter to Pete first.

 

[Expert_Glider]

Hey Skip - AKA Justin,

If you could use a Segway as your primary mobility device, what would your position be then?

 

[Expert_Glider]

For those that are interested in learning more, please visit the following link to a white paper entitled "Public Myths and Objections Regarding the Segway" (and its use by people with disabilities).

http://www.draft.org/LinkClick.aspx...the+Segway+-+August+2009.pdf&tabid=75&mid=502

 

[Justin Jett]

Hey Skip - AKA Justin,

If you could use a Segway as your primary mobility device, what would your position be then?

If I were able to stand and balance a segway, then I would also be able to FOLLOW THE RULES and sit on an ECV or stand on an ESV. Also, if I were able to sit in a ride vehicle without assistance, I'd be able to sit in a wheelchair or ECV!

In general, the real winners in class action lawsuits are the lawyers. Also, if the issue is just to allow Segways into the parks, why are finicial awards and free vacations for 4 families part of all this.

The ADA was written to provide for the needs of disabled people. I do not think the ADA was intended for the preferences of disabled people. Also, people are saying that the ADA does not require FDA approval. That raises the question of why the government spends tax dollars to do FDA trials.

My tray helps sit better. I use most of the time, but when my parents transfer me alot, we tighten the harness a little instead of using the tray. We took the tray to WDW last week, but decided not to take to the parks, because there is no place to put it during transfers.

Also, there are a handful of rides that I cannot ride, because of my head and trunk control. If we were allowed to place a Tumble Forms seat in the ride vehicle, I could probably handle the ride.

The tray and the portable seat would be great, but that does not mean I can sue WDW for a policy change and a free vacation. That would be wrong. Instead, we adjust and enjoy the stuff I am able to do. I mean, I'm sure some able bodied people wish they could play professional basketball, but does the fact that they have to settle for watching give them the right to sue the NBA?

I feel that disabled people are often overlooked by society. Disney is one of the few companies that cares about disabled people. Many class action lawsuits end up making things worse rather than better. Companies get scared to do things, because they may get sued. Disney and other companies may look at this lawsuit and feel it is not worth it. That would not be good for anyone. Also, I have noticed that whenever a special interest group starts a lawsuit like this, the public sometimes gets angry and Annoyed. The Orlando Sentinel poll that I posted shows what I am trying to say. This could worsen the public's view of disabled people.

"Please remain seated."

 

[Expert_Glider]

Skip,

DRAFT did not start this lawsuit. DRAFT became an objector once the terms of a Disney/plaintiff negociated class action settlement agreement was reached.

The terms of the settlement called for a ban of Segways at Disney properties throughout the US forever. It also attempted to prevent any future lawsuits and trumped any current or new legislation (ie: ADA).

The US Dept. of Justice and 23 states Attorneys General also objected along with a number of national disability rights organizations and over 100 individual objectors.

If three people want to sue and settle - who cares? It was when they attempted to give up rights for all people with disabilities via a class action settlement agreement (for a vacation, $4,000 and attorneys fees) that DRAFT got involved.

DRAFT's goal was to get the settlement portion of the lawsuit thrown out. The settlement was all in Disney's favor. This is a HUGE victory for the disabled.

 

[Justin Jett]

This is a HUGE victory for the disabled.

Ummmmm......no! The Judge's decision talks about the Plantiffs' FAILURE in 6 different places. That is not a victory. A draw is more realistic.

This was a victory for the attorneys collecting a paycheck.

As for the Department of Justice getting involved.....I will not go there again. If you want to know what I think about that issue, please listen to the news segment of "DIS Unplugged" podcast on March 25, 2009. I have VERY strong feelings about that.

What's next???? DISsers sueing WDW over bad coffee???

Just enjoy the parks in an ECV or wheelchair like all the other disabled guests. Disney takes care of the NEEDS of many, and should not have to waste their time with the WANTS and preferences a very select few.

All of the named Plaintiffs and objectors who testified in this case are able to use wheelchairs or scooters.

By the way, what is your name?

 

[Justin Jett]

From Segway's own website:

It is important to note that the Segway HT has not been designed, tested, or approved as a medical device.

Segway.com FAQ

 

[Expert_Glider]

Myth - A mobility device must be FDA approved to qualify under ADA.


This is a common misconception. FDA approval has nothing to do with ADA
protections. Canes, crutches, walkers, braces, and many ECV’s and scooters are not FDA approved, but are covered under the ADA. Service dogs are covered under the ADA as well but lack FDA approval.

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.

FDA approval is not required to be a qualifying mobility device under the ADA.

 

[Justin Jett]

Myth - A mobility device must be FDA approved to qualify under ADA.


This is a common misconception. FDA approval has nothing to do with ADA
protections. Canes, crutches, walkers, braces, and many ECV’s and scooters are not FDA approved, but are covered under the ADA. Service dogs are covered under the ADA as well but lack FDA approval.

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.

FDA approval is not required to be a qualifying mobility device under the ADA.

http://lawyersusaonline.com/blog/2009/09/24/fda-orders-study-of-medical-device-approval-process/

 

[Justin Jett]

I just want to publicly thank Expert Glider for debating this topic in a calm and respectful matter. Others have not been so polite.

While I disagree with his position.....I do appreciate him being able to state his position without this getting "heated."

 

[DisneyKevin]

I've said it before and I will happily say it again.....

Skip.....I think you are awesome. Just awesome.

 

[dpuck1998]

I've said it before and I will happily say it again.....

Skip.....I think you are awesome. Just awesome.

I'm hold off on judgment until I get my free ride around EPCOT!!

 

[FireDancer]

I do love how the courts seem to dismiss cases while leaving gaping doors through which to file new lawsuits.

I think the debate boils down to needs vs wants. I am fortunate in that I do not need a wheelchair or GAC but have been on the boards enough to see the conversation from those that do. From what I can tell and what people like Skip and Kevin have mentioned Disney goes out of their way to make sure everyone can enjoy their parks. There are bare minimums designated by laws like the ADA and the absolute no device barred view that any device is allowed regardless of cost or guest safety.

Disney is somewhere in the middle of the continuum. While I'm sure there are people who would like to use a Segway instead of a an ECV or wheelchair is it necessary that they do? There may be the one in a billion outlier with an ailment that doesn't allow them to sit in a chair, but basing a policy on such a rare situation would be like forcing them to completely cover the parks with canopies for the one or two people who can't be exposed to the sun at all.

No policy will make 100% of the people happy and trying to do so will end in ulcers and possibly a rubber room.