Court Rules on Disneyland Segway Lawsuit

[jcb]

http://www.ca9.uscourts.gov/datastore/opinions/2012/07/18/1055792.pdf

I'll have more to say about this in a blog post.

The bottom line: the ruling does not mean that Disney must permit Segways in Disneyland. Rather, Disney must now evaluate whether it is safe to use Segways in the theme parks.

 

[WebmasterMaryJo]

I think it would be a nightmare to allow them at Disneyland.

 

[PinkBudgie]

Ok, reading through that it looks like Disney won because earlier the person won a lawsuit saying they had trouble using the wheelchair in the bathrooms. Now they want to say never mind about the wheelchair because we can't use one anyway. We need a Segway. If I understand correctly, they lost because they can't have it both ways. So, the question of needing a segway under ADA is still legally unresolved, right? Just trying to understand, but maybe I have it wrong.

I can't imagine Segways at DLR! How about golf carts? Where do you draw the line? And then Disney would have to regulate how fast they can go. Do they make people change the settings when they come in? What keeps people from changing back them later? Don't know if those issues come up with the scooter things, but I've never seen those go as fast as the segways can.

 

[Gwinfred]

http://www.ca9.uscourts.gov/datastore/opinions/2012/07/18/1055792.pdf

I'll have more to say about this in a blog post.

The bottom line: the ruling does not mean that Disney must permit Segways in Disneyland. Rather, Disney must now evaluate whether it is safe to use Segways in the theme parks.

The Court said Disney must prove they are unsafe...impossible...Disney is the second largest user of Segways next to that Disabled Veterans group.

From the Chief Justice:


Read as Disney suggests, the ADA would require very few accommodations indeed. After all, a paraplegic can enter a courthouse by dragging himself up the front steps, see Tennessee v. Lane, 541 U.S. 509, 513–14 (2004), so lifts and ramps would not be “necessary” under Disney’s reading of the term. And no facility would be required to provide wheelchair-accessible doors or bathrooms, because disabled individuals could be carried in litters or on the backs of their friends.

That’s not the world we live in, and we are disappointed to see such a retrograde position taken by a company whose reputation is built on service to the public.

In deciding what’s reasonable, facilities may consider the costs of such accommodations, disruption of their business and safety. But they must also take into account evolving technology that might make it cheaper and easier to ameliorate the plight of the disabled. In the past, it might have been enough for a theme park to permit only non-powered wheelchairs. As technology made motorized wheelchairs and scooters cheaper, safer and more reliable, our expectations of what is reasonable changed—as Disney recognizes. But technological advances didn’t end with the powered wheelchair. As new devices become available, public accommodations must consider using or adapting them to help disabled guests have an experience more akin to that of non-disabled guests.

LAST PARAGRAPH of the opinion:

New technology presents risks as well as opportunities; we must not allow fear of the former to deprive us of the latter. We have every confidence that the organization that, half a century ago, brought us the Carousel of Progress and Great Moments with Mr. Lincoln can lead the way in using new technology to make its parks more welcoming to disabled guests. As the man who started it all said, “Disneyland will never be completed as long as there is imagination left in the world.” Walt Disney, 65, Dies on Coast; Founded an Empire on a Mouse, N.Y. Times, Dec. 16, 1966, at 40.

 

[Justin Jett]

I soooo want to respond, but I shall be good.

 

[Gwinfred]

I soooo want to respond, but I shall be good.

That's an interesting comment

 

[livndisney]

I soooo want to respond, but I shall be good.

Not worth it. 49 posts in 6 years all on the same subject. Just someone trying to push their own agenda.

 

[OKW Lover]

Thanks for the analysis in the blog Jack. The part about Disney having to decide if it is safe to allow a guest to operate a Segway in the parks makes me wonder about the outcome if this, or a similar decision, were applied to the Florida parks.

It would seem to me that proponents will argue that at WDW at least Disney has already demonstrated that Segways can be safely operated in the parks by guests. The Segway tour in Epcot obviously does just that. Although some of this tour is conduced in parts of the park not yet open to day guests, a part of it does (by necessity) operate in the part of the park that other guests are actively using.

 

[jcb]

Thanks for the analysis in the blog Jack. The part about Disney having to decide if it is safe to allow a guest to operate a Segway in the parks makes me wonder about the outcome if this, or a similar decision, were applied to the Florida parks.

It would seem to me that proponents will argue that at WDW at least Disney has already demonstrated that Segways can be safely operated in the parks by guests. The Segway tour in Epcot obviously does just that. Although some of this tour is conduced in parts of the park not yet open to day guests, a part of it does (by necessity) operate in the part of the park that other guests are actively using.

I'm glad you found it helpful.

One of reasons the federal judge in Orlando gave for upholding the settlement of the Segway class action was that Disney had proven, to his satisfaction, that

Disney would likely be able to maintain its ban on Segways in light of its legitimate safety concerns. Specifically, the evidence at the fairness hearing supports Disney’s position that unrestricted Segway use poses significant safety risks because Segways cannot be operated in accordance with Disney’s legitimate safety requirements.

Proponents of permitting Segways in the theme parks (one of whom is the United States Department of Justice; another being Gwinfred) have, in fact, argued that the Segway tours demonstrate that Segways can be safely operated. To me, that is like saying people don't speed on the Interstate because they don't speed when there is a cop in their rear view mirror.

Frankly, I found the decision pretty condescending toward Disney. I always find that distasteful. It seemed to me that the court unfairly accused Disney of focusing to much on one word in the statute ("necessary"), and then manufactured a parade of horrors that "would" happen if Disney's supposed interpretation were allowed. Perhaps even worse, in saying what the ADA required, the court then ignored the requirement that any accommodation must be "necessary." I have several other criticisms of the decision (and I'm being pretty general about the ones I address here) but repeating any more would make this exceedingly tedious.

Now, to be fair, the ADA could have been written better. No statute is perfect. But the current view of statutory interpretation is that courts don't get to rewrite statutes because they think Congress meant something different.

 

[DCTooTall]

Thanks for the analysis in the blog Jack. The part about Disney having to decide if it is safe to allow a guest to operate a Segway in the parks makes me wonder about the outcome if this, or a similar decision, were applied to the Florida parks.

It would seem to me that proponents will argue that at WDW at least Disney has already demonstrated that Segways can be safely operated in the parks by guests. The Segway tour in Epcot obviously does just that. Although some of this tour is conduced in parts of the park not yet open to day guests, a part of it does (by necessity) operate in the part of the park that other guests are actively using.

Beyond the "people don't speed with a cop behind them" argument that jcb mentioned, The other reasons why I don't think the Segway tours are a fair comparison for the themeparks in general are 1. There is a LOT more room on the walkways in EPCOT's Future World than there are in many areas of the Magic Kingdom, Animal Kingdom, or MGM....so there is a bigger buffer around the Segways and non-segway public than in most other themepark environments, and 2. Think about the sea of people in some areas of the parks currently with stroller and ECV's and the bumping that inevitably occurs. Do you really think it's possible for a device which is operated via the shifting of weight [steered/ accelerated/ braked] to operate safely in these situations? Even if you are the most highly trained and experienced Segway user (which there is no way for Disney to verify), you have no control over the other people around you during the post-wishes sea of people down Mainstreet and if they choose to bump or push you in their rush to get out of the park.


Ultimately, my only issue with the Segway in the park debate, is that I truly don't believe there is any way to operate a device which relies on balance and shifting of weight safely within the types of crowds I have witnessed at the parks. I've been bumped/shoved too many times while walking in some of those mass of people times (Park Exits, Fantasmic lines, Even exiting a show) to believe that it won't happen to a Segway rider.

 

[sayhello]

Beyond the "people don't speed with a cop behind them" argument that jcb mentioned, The other reasons why I don't think the Segway tours are a fair comparison for the themeparks in general are 1. There is a LOT more room on the walkways in EPCOT's Future World than there are in many areas of the Magic Kingdom, Animal Kingdom, or MGM....so there is a bigger buffer around the Segways and non-segway public than in most other themepark environments, and 2. Think about the sea of people in some areas of the parks currently with stroller and ECV's and the bumping that inevitably occurs. Do you really think it's possible for a device which is operated via the shifting of weight [steered/ accelerated/ braked] to operate safely in these situations? Even if you are the most highly trained and experienced Segway user (which there is no way for Disney to verify), you have no control over the other people around you during the post-wishes sea of people down Mainstreet and if they choose to bump or push you in their rush to get out of the park.


Ultimately, my only issue with the Segway in the park debate, is that I truly don't believe there is any way to operate a device which relies on balance and shifting of weight safely within the types of crowds I have witnessed at the parks. I've been bumped/shoved too many times while walking in some of those mass of people times (Park Exits, Fantasmic lines, Even exiting a show) to believe that it won't happen to a Segway rider.

Having taken the Epcot Segway tour, I have to agree with you. Even when we were riding through the World Showcase after park opening, there were *very* few people out, and our guide steered us through spaces where there weren't people, occasionally calling out to people to make way, etc. There was a whole line of people, not going fast, on these Segways, with a Guide in front of us clearing the way. We were a novelty. This in no way, shape or form resembled what it would be like riding on your own with family members in a crowded park. (I can just imagine the response you got if you drove through a crowd of people shouting "Look out!")

Sayhello

 

[jcb]

Having taken the Epcot Segway tour, I have to agree with you. Even when we were riding through the World Showcase after park opening, there were *very* few people out, and our guide steered us through spaces where there weren't people, occasionally calling out to people to make way, etc. There was a whole line of people, not going fast, on these Segways, with a Guide in front of us clearing the way. We were a novelty. This in no way, shape or form resembled what it would be like riding on your own with family members in a crowded park. (I can just imagine the response you got if you drove through a crowd of people shouting "Look out!")

Sayhello

One of the things the court suggested Disney could do is "require Segways to travel only as fast as motorized wheelchairs."

If Segways have to be allowed, look for Segway speed limit signs to crop up around the theme parks and for Disney to create the new job of Segway speed limit "cop" just to patrol the parks and issue warning tickets to guests who fail to follow the Segway speed limit.

I can think of someone who would be very well qualified for the position.

 

[k5jm]

I can think of someone who would be very well qualified for the position.

I know Jack! I can see Nikki out there with her ruler and teacher glasses.

 

[mytripsandraces]

Hi Jack - would it be possible for Disney to set up a trial period and allow the Segways to see how they manage in real park conditions? Or would allow them at all mean that Disney would be compelled to continue to allow them, no matter what safety issues arise, if any?

 

[jcb]

Hi Jack - would it be possible for Disney to set up a trial period and allow the Segways to see how they manage in real park conditions? Or would allow them at all mean that Disney would be compelled to continue to allow them, no matter what safety issues arise, if any?

George,

If Disney were to set up an established "trial period" under real park conditions, I doubt it would mean Disney would be compelled to continue to permit the Segways after the period ended. Of course, how you design such a test so it is meaningful is the issue. Testing between 12/24 to 1/2 would obviously be slanted, just as testing from 2/1 to 2/12 would be slanted. Crowd sizes aside, the real problem with a sample test of this nature is the likelihood that it would be almost impossible to select neutral Segway riders because I'm finding it hard to see how Disney could control for the "average" disabled Segway rider.

The people who have sued to use Segways in theme parks probably have a good bit of skill and experience in using a Segway (at least we can assume they do for present purposes). But if Disney must allow disabled guests to use Segways that would incrase the likelihood that less skilled Segway operators will be bringing them into the parks. (Think about Kevin's experience driving Bob's extra ECV.) That increases the likelihood of accidents.

So, to me, the real concern I have is that the test period idea, while pretty good in theory, could generate uninformative or misleading data in execution. It wouldn't be impossible just very difficult to do right.

 

[Gwinfred]

It would appear that many are missing the point here. The question at hand is whether a disabled person can operate a Segway safely at Disney's theme parks.

It doesn't mean can everyone. "A" is an individualized assessment, which is what the law requires.

The fact that Disney operates Segway Tours in their theme parks is not Disney's biggest hurdle, it pales in comparison to the fact that Disney makes extensive use of Segways by their cast members in the operation of their parks.

This together with the fact that Universal Studios has always allowed Segways inside their venues without any incident will make it very difficult for Disney to ultimately prevail in this case.

They may delay it, they may appeal it all the way to the SCOTUS, but ultimately they will be compelled to allow them.

Interestingly, there's always a difference of opinion, the opinion written by the court which Jack found condescending and distasteful, many have described as beautifully written and eloquent. I happen to agree with the latter.

 

[jcb]

It would appear that many are missing the point here. The question at hand is whether a disabled person can operate a Segway safely at Disney's theme parks.

It doesn't mean can everyone. "A" is an individualized assessment, which is what the law requires.

* * *
Interestingly, there's always a difference of opinion, the opinion written by the court which Jack found condescending and distasteful, many have described as beautifully written and eloquent. I happen to agree with the latter.

Only here, the "individualized assessment" you want is to try it until some guest is hurt or killed. It isn't as if WDW and DL can give Segway driving tests. And if you say Disney should presumptively permit Segways to those who "need" to use them, we are back to my first sentence. The individualized assessment "requirement" is not a fixed inevitable rule. There are numerous decisions where the courts have said the threat to others caused by a disability is simply too great for the activity to be permitted. A surgeon who is HIV positive is a good example. A school bus driver who has epilepsy, another. Disney, after all, proved to at least one federal judge that Segway use in a Disney theme park falls into the same category.

I was responding to Tobi's post only partially in jest. It just seems to me that permitting Segways will require hiring a squad of Segway cops and that stretches the boundaries of what is a reasonable modification to a policy pretty far. Perhaps Disney could use Segway traffic/speed cameras or RFID speed sensors. Three speeding warnings (or one run over guest) and you and your Segway are banned for life. Perhaps I'm wrong. I would like to be.

To be clear, I found the decision condescending. It is condescension that I find distasteful. I'm glad you found it enjoyable reading. I thought it mangled the statute. To each their own.

 

[DCTooTall]

It would appear that many are missing the point here. The question at hand is whether a disabled person can operate a Segway safely at Disney's theme parks.

It doesn't mean can everyone. "A" is an individualized assessment, which is what the law requires.

The fact that Disney operates Segway Tours in their theme parks is not Disney's biggest hurdle, it pales in comparison to the fact that Disney makes extensive use of Segways by their cast members in the operation of their parks.

This together with the fact that Universal Studios has always allowed Segways inside their venues without any incident will make it very difficult for Disney to ultimately prevail in this case.

They may delay it, they may appeal it all the way to the SCOTUS, but ultimately they will be compelled to allow them.

Interestingly, there's always a difference of opinion, the opinion written by the court which Jack found condescending and distasteful, many have described as beautifully written and eloquent. I happen to agree with the latter.

I'll also ask how can Disney on the scale of Disney, Make a valid "Individual Assessment" for each and every guest or case? While there may be people with perfectly valid reasons for preferring to use a Segway as their mobility assistance device, There are also going to be people who abuse the accomodation made for legitimate purposes.

Just look at the Abuse by some people with ECV's or GAC's currently. While a large majority of people using both may have perfectly valid reasons for taking advantage of these accomodations, There is still a group that abuses them.

Unlike with an ECV and GAC however, there are very legitimate safety concerns with Segway usage in the parks. You can have rules and policies in place, but they are only as good as the enforcement of those rules and policies.

You mention Disney's usage of Segways in it's daily operations as an example that they can be used safely, But that's not a fair comparison either. Disney can control and monitor the training on the usage of those devices with their Employees. More importantly, They have many more options available to them in their enforcement of the rules and policies governing their use. (You can fire an employee for negligent and/or unsafe usage resulting in guest injury or property damage. You don't have those same options with the general public.). They also can have policies in place to prevent usage of the segways in narrower or more crowded situations, something they would not be able to do with the public using them under the banner of accessibility.

I also would be willing to say that Universal's allowing the devices is not a fair comparison either. Universal's crowd levels are significantly smaller than Disney's, which means that the biggest safety factor in using the Segways in a Disney Park (namely: The strong possibility of the Segway user getting bumped or pushed while attempting to make their way in the crowd), is not going to be a factor at Universal on nearly the same level at Disney.

 

[jcb]

For those that are interested, after the California federal court of appeals (let's refer to this as the "Disneyland" appeal) issued its decision, DRAFT and others provided a copy of the decision to the federal court of appeals hearing the Orlando Segway lawsuit (the "WDW" appeal). Yesterday, Disney filed a response that sharply criticized the Disneyland ruling. So far as I can tell, this is the first public comment by Disney about the Disneyland decision.

Disney's letter, written by lawyers for judges, is pretty technical. In essence, though, Disney's position is that the Disneyland decision does not affect the WDW settlement. While there is some obvious similarity, the issues in the two appeals are fundamentally different. The issue in the Disneyland lawsuit was limited to whether the ADA itself required Disney do more than permit wheelchairs. The issue in the WDW lawsuit is whether the Orlando federal court really messed up when it approved the settlement in the class action.

First, Disney says, the Disneyland decision did not address Segway safety in the theme parks. The Orlando court did, finding that Disney had proven there were significant safety risks.

Second, Disney listed five legal reasons why the Disneyland decision is "wrong" (Disney's word, not just mine). Disney isn't taking the Disneyland decision lying down.

Disney's letter doesn't say what Disney will do next in the Disneyland lawsuit. The tone of the letter suggests Disney may pursue further appeals, especially if it receives a favorable ruling in the WDW appeal. It might also decide that further appeals would not be cost effective and ask the California trial court to decide whether Segways pose too great a safety risk.

And as for the WDW appeal, the court heard argument on the appeal in late June so we could receive a decision any day - or in six month from now.

 

[monkeyknuckler]

If this Segway thing gets to be a reality, how long before businesses start renting these things out to park goers? By the way, how do you park them? If someone nails me with one, is it light enough to toss into Cinderella's moat?