Segway Lawsuit Update

[jcb]

Today is the day the lawyers for WDW and the people suing to use Segways at WDW argue the appeal in a federal court in Atlanta.

Avid followers of the lawsuit (Skip and I) recall that late in 2009, the federal court in Orlando dismissed the claims against WDW on the ground that the people suing failed to show that their use of a Segway at WDW was "necessary" to their attendance. It was not enough for them to show they wanted to use a Segway. The court didn't rule that WDW could refuse to allow people to use Segways at WDW, just that the people suing failed to prove they needed to use Segways at WDW.

An argument on appeal is not something often portrayed on television. There is no testimony or witnesses. It is rarely a spectator sport (except for legal nerds like me). The lawyers for each side are allocated 15 minutes (in this case) to explain to a panel of three appeals court judges why the decision should be reversed or upheld (depending on the perspective). The judges can ask questions of the lawyers. There is no back and forth between the lawyers (as is often inaccurately portrayed in "Law and Order").

Appeals courts rarely issue rulings "from the bench." It happens but the norm is for the judges to issue a written decision at some point in the future. There is no time set in which to expect a decision.

While some federal appeals courts will let release recordings of oral arguments, the appeals court in Atlanta is not one of them. Lawyers ask for oral argument largely because they hope to be able to get a feel (based on the comments and questions asked by the judges) how the court is likely to rule. Sometimes you get an answer you don't like. Sometimes you get no questions at all (and feel like you are talking to a brick wall).

The only other recent development in the case is a sad one. One of the people suing died recently leaving only two people left in the lawsuit.

 

[safetymom]

Thanks for the update. I have been following this and appreciate your expert take on it all.

 

[sayhello]

I don't understand. What was their basis for wanting to use the Segways at WDW? They are faster than walking for sure, but not easier by a long shot. After using a Segway for an hour and a half, my legs, feet and back killed me way more than walking all day in WDW ever did. What condition did they have that would make using a Segway a benefit? Unless someone were in a body cast or braces that wouldn't bend, I totally can't see how using a Segway is preferable to using an ECV or walking.

Sayhello

 

[jcb]

Sayhello, You might look through these prior threads for the background on the lawsuit. Several folks weighed in with personal observations about why they wanted to use Segways in the parks (with others saying why they thought that was a bad idea).

http://www.disboards.com/showthread.php?t=2129173

http://www.disboards.com/showthread.php?t=2302728

 

[sayhello]

Sayhello, You might look through these prior threads for the background on the lawsuit. Several folks weighed in with personal observations about why they wanted to use Segways in the parks (with others saying why they thought that was a bad idea).

http://www.disboards.com/showthread.php?t=2129173

http://www.disboards.com/showthread.php?t=2302728

Well, that was quite an education!! Thanks so much for the links, Jack.

I still think it's a huge can o' worms, and can understand Disney's concern. Boy, that's a complicated situation. If you could make sure that only qualified people with disabilities used them, and that there was some way to cap the speed, then I totally think they should be allowed. But since you really can't do either (the ADA won't allow the former, and I haven't seen anything that says the latter can be enforced) it remains a sticky situation.

I'll be interested to see how this all goes down.

Sayhello

 

[Cheshire Figment]

The following is from Page 56189 of the Federal Register, September 15, 2010. It is a very large update to the Americans with Disabilities Act published by the Department of Justice. The new rules take effect on March 15, 2011.

The Department has considered all the comments and has concluded that it should not include the Segway PT in the definition of "wheelchair.'' The final rule provides that the test for categorizing a device as a wheelchair or an other power-driven mobility device is whether the device is designed primarily for use by individuals with mobility disabilities. Mobility scooters are included in the definition of "wheelchair'' because they are designed primarily for users with mobility disabilities. However, because the current generation of EPAMDs, including the Segway PT, was designed for recreational users and not primarily for use by individuals with mobility disabilities, the Department has decided to continue its approach of excluding EPAMDs from the definition of "wheelchair'' and including them in the definition of "other power-driven mobility device.''

It continues to say

Although EPAMDs, such as the Segway PT, are not included in the definition of a 'wheelchair,'' public entities must assess whether they can make reasonable modifications to permit individuals with mobility disabilities to use such devices on their premises. The Department recognizes that the Segway PT provides many benefits to those who use them as mobility devices, including a measure of privacy with regard to the nature of one's particular disability, and believes that in the vast majority of circumstances, the application of the factors described in Sec. 35.137 for providing access to other-powered mobility devices will result in the admission of the Segway PT.

So this clearly says that the Segway is not considered to be a wheelchair, and it is up to the to the controlling authority to determine if it wil allow Segways.

So this appears to make the court case moot, as under the ADA, as of March 15, 2011, the Segway specifically is not a wheelchair.

 

[jcb]

So this appears to make the court case moot, as under the ADA, as of March 15, 2011, the Segway specifically is not a wheelchair.

Actually, these regulations make the issue much more complicated.(Words, unlike numbers, can be hopelessly ambiguous.)

While I agree the Segway is not a wheelchair, these regulations create a separate category of devices (referred to as "other power-driven mobility device") that a public accommodation (such as WDW) may have to accommodate (modify policies to permit) if it is necessary for the individual with a disability to use the public accommodation. This is from page 56263 of the Federal Register:

Although EPAMDs, such as the Segway® PT, are not included in the definition of a ‘‘wheelchair,’’ public accommodations must assess whether they can make reasonable modifications to permit individuals with mobility disabilities to use such devices on their premises. The Department recognizes that the Segway® PT provides many benefits to those who use them as mobility devices, including a measure of privacy with regard to the nature of one’s particular disability, and believes that in the vast majority of circumstances, the application of the factors described in § 36.311 for providing access to other powered mobility devices will result in the admission of the Segway® PT.

This litigation was actually mentioned in the commentary to the regulations.

The Justice Department was actually remarkably careful to stay neutral on the litigation (Justice did not file a brief with the appeals court). The commentary to the regulations state (page 56261) that it should be "rarely, if ever" appropriate for a public accommodation to ask whether a device designed primarily for use by individuals with mobility disabilities is necessary. (A Segway, as you point out, is not designed primarily for individuals with mobility disabilities.) The commentary, however, did not say this for devices (such as Segways) that are not primarily designed for mobility disabilities.

I am glad you brought this up. I expect the judges at today's argument probably asked about the impact of the 2011 regulations. I also expect each side will take the position that the regulations support their argument. Lawyers are just like that.

 

[Cheshire Figment]

Isn't the Federal Register fun? This update to ADA runs almost 200 pages of three columns and about 20 characters per inch!

 

[jcb]

Isn't the Federal Register fun? This update to ADA runs almost 200 pages of three columns and about 20 characters per inch!

"Fun" is not the word I use. I can't imagine using it before being able to text search it (and I still have several older printed copies in my office).

 

[jcb]

While some of us were cruising, the court of appeals "vacated" the district court's dismissal of the Segway lawsuit against WDW. The decision is not officially published (which means the decision cannot be cited in later decisions). Worse, the three judges did not explain their reasons for their decision.

Here is a link to the decision: http://www.ca11.uscourts.gov/unpub/ops/200915668.pdf I can save you the trouble. Here is the full decision:

After oral argument and careful consideration, we conclude for the reasons fully discussed at oral argument that the district court erred in concluding that the named plaintiffs lacked prudential standing. The interests sought to be protected by the named plaintiffs are arguably within the zone of interest protected by 42 U.S.C. § 12182.
Accordingly, we vacate the judgment of the district court and remand for
further proceedings, including inter alia a determination as to whether the claims of the named plaintiffs are typical of the claims of the class and whether they are adequate representatives of the class.

The decision does not require WDW to permit Segways in the theme parks by anyone who wants to use them. The last paragraph of the decision is interesting. Rather than say that the lower court should decide whehter or not to approve the class settlement, the court of appeals is telling the lower court to review whether the people suing can maintain a class action (the rules relating to class actions are stupidly complex and I'm not going into them because I had to get up at 5:45 this morning to get off the Wonder ).

 

[cm8]

While some of us were cruising, the court of appeals "vacated" the district court's dismissal of the Segway lawsuit against WDW. The decision is not officially published (which means the decision cannot be cited in later decisions). Worse, the three judges did not explain their reasons for their decision.

Here is a link to the decision: http://www.ca11.uscourts.gov/unpub/ops/200915668.pdf I can save you the trouble. Here is the full decision:



The decision does not require WDW to permit Segways in the theme parks by anyone who wants to use them. The last paragraph of the decision is interesting. Rather than say that the lower court should decide whehter or not to approve the class settlement, the court of appeals is telling the lower court to review whether the people suing can maintain a class action (the rules relating to class actions are stupidly complex and I'm not going into them because I had to get up at 5:45 this morning to get off the Wonder ).

Thanks for the update!

 

[Justin Jett]

They wait til I am on a boat in the Bahamas to make a decision.

Just a fair warning......I'M BACK, PEOPLE!

 

[jcb]

Somehow, this Youtube video seemed appropriate for this thread:

http://news.travel.aol.com/2011/01/25/video-of-the-day-segway-crash/

 

[Justin Jett]

Somehow, this Youtube video seemed appropriate for this thread:

http://news.travel.aol.com/2011/01/25/video-of-the-day-segway-crash/

Imagine that happening on a crowded Main Street.