Skip and I are in the uncomfortable position of, for once, siding with DRAFT. Let me be clear, it is insanity to think a Segway can be safely used in a crowded theme park. (I'm more intrigued by the situation where an individual with a disability shows up on a day when the park is "deserted.")
But, like Skip, I can't entirely agree with the statement that "the burden would be on the plaintiff to have Disney's safety analysis examined and prove that the analysis is flawed." My views don't count and I could care less about DRAFT's views. But in this instance they do reflect the position taken by the Justice Department both in the regulations (DOJ cites pages 56,255 and 56,298) and in the brief it filed with the court in late January (a copy of which i will send to anyone who PM's me). But burden placement only matters when the evidence is evenly divided and arguing over who has it when the evidence is not equal is a distraction.
The more interesting points are how does a court review a decision that permitting a segway in a theme park is not safe. Does it really further the interests protected by the ADA to allow a court to freely second guess whether WDW has accurately evaluated the safety issue? Some
courts have said no in a similar context, explaining that a court should limit its role to ascertaining whether the party "reasonably considered and relied upon sufficient evidence specific to the individual and the potential injury." This is not without teeth, as
Chattanooga found several years ago when its physician decided someone who was HIV positive was automatically unqualified to be a police officer.
And there is, in the DOJ's mind, a serious question whether WDW has
adequately "performed a safety analysis considering the factors set forth in the Department of Justice rule." The DOJ minced no words in their brief, calling WDW's safety concerns bland and unsupported. (Of course, I'm sure they would not have said this if WDW had called Skip and Kevin as witnesses.)
But sadly, I wasn't at the hearing and can only go by what was said in the briefs (which I have previously said are not that helpful).
The only sure thing, I guess, is that the fat lady hasn't even started getting warmed up on this issue.
I also found a free version of the Federal Rules of Civil Procedure, Federal Rules of Evidence and Federal Rules of Appellate Procedure for my Droid. Most useful the have around when since the books weigh too much.
That is all made possible because Disney cares about disabled guests.
