WDW Segway Lawsuit - 6/10/09 Update (post 74) - wdwinfo.com cited in lawsuit

[jcb]

I have been following the WDW Segway lawsuit with some interest. I thought it might help to explain why the government has objected to the proposed settlement.

At the start, I should say I'm not trying to go into technical legal issues here so you other lawyers out there don't start picking at me for omitting what you think might be relevant details. I'll admit I probably have for the sake of simplicity. Also, I have no professional relationship to the lawsuit.

I have a copy of the government's initial objections (they are to file their final ones today, though I doubt this will be much different than what it has already said). Anyone who wants to read these in full can pm me their e-mail address and I will gladly email you a copy.

The government's objections to the proposed settlement have a lot to do with technical issues relating to class action settlements. Here, the government feels this settlement disproportionately benefits the people who sued without benefiting the non-party class members (those whose name is not on the lawsuit but who would nevertheless be bound by the settlement) as well as how the settlement might muck up other, current and future, lawsuits or pending regulatory actions.

Take the last point first, none of the people suing say they have or want to go to Disneyland but the settlement would include Disneyland. That's a big problem, legally; it was essentially the reason why the Segway lawsuit was initially dismissed. Also, there is a pending a Segway lawsuit against Disneyland and the settlement, if it covers Disneyland, could affect that lawsuit.

More importantly (to the government), the government has, since at least June 2008, been studying whether and under what conditions (including safety concerns) must Segways (and any other "electronic personal assistive moibility devices") be allowed in theme parks (as well as other businesses). As to Segways in theme parks, you can see the issues the government is studying here (page 33, particularly "example 1"). Essentially, the Government is trying to find a way to balance the benefit of permitting Segway use against the safety and other challenges that use poses in public places. It is concerned that the WDW settlement (which would also include DL), would undercut whatever it decides to do in these regulations.

The other objections (to try to cut to the chase) are that the lawsuit benefits the people who sued but not any other members of the class. The people who sued get something of value ($4,000, free use of a Disney owned four wheel "electronic standup vehicle" and of course, some attorney fees) but other members of the class only get the "opportunity" (government's quotes) to rent WDW's "ESV" at, currently, $45 a day. The problem with this, the government says, is that this "opportunity" is an "illegal surcharge in violation of the ADA" because businesses cannot require disabled individuals to pay a fee to get an accommodation.

These are not the Government's only objections but this post already too much resembles a blog post as it is.

When the government takes the unusual step of objecting to a private settlement (and it is unusual for it to do so), it is more likely to direct its resources at highly visible targets because it knows that is more likely to generate publicity than in a lawsuit against a local shopping mall. It worked here, after all.

Don't take any of this as saying I agree or disagree with the government's position or that I disagree that WDW has a strong track record of accommodating individuals with disabilities. For what it is worth, were I calling the shots for WDW (and again, I am not) I would be inclined to ask that both Segway lawsuits be put on hold until the government finalizes the regulations that would govern whether and how theme parks (and other places) must permit the use of Segways.

 

[tunaslayer]

now that that's cleared up !! ???

 

[connie1042]

Can you image a park full of segways, strollers, wheelchairs, and ECV's They would have to make elevated walk ways for the walkers, so that no one gets hurt.

 

[Disneybridein2k3]

Jack - I appreciate the time you took putting this into layman's terms and also shedding light on details we might've otherwise missed.

 

[jcb]

Stacy,

I was happy to try to confuse things further!

Congratulations on getting to go to DL!

 

[Disneybridein2k3]

Stacy,

I was happy to try to confuse things further!

Congratulations on getting to go to DL!

Thanks! As for confusing things further, not at all! You gave a clear and consise explanation that even an auto claims adjuster could understand. When I was looking at the suit itself and the govenment objections, THAT confused me!

 

[DisneyKevin]

Thanks Jack. Interesting stuff.

I learned something today.

I appreciate the effort taken to post that information.

Kevin

 

[YellowMickeyPonchos]

That really was a great explanation. It really helps to understand that the government is getting involved for a beneficial reason with long term benefits for all. Not just favoring a few.

 

[jcb]

I took a minute to check the status of the lawsuit.

The court has scheduled a status conference for 4/9/2009 at 03:00 PM in federal court in Orlando (Courtroom 5 A) if anyone is interested in going. It's a public hearing but these are usually only attended by lawyers and the judge to discuss deadlines and scheduling future hearings and how best to resolve disputed issues. Few if any decisions are made. I did see that Disney objected to putting this hearing off saying it wants to get the settlements objections resolved. WDW appears to be thinking the settlement will go through.

Part of the pending settlement would have WDW pay (by agreement) the attorney fees of the suing parties. Fee requests are almost always fun (in a warped sense) to review because, as you can imagine, when one attorney expects the opponent to pay, especially when it is WDW, the urge to pile on is too powerful for many to resist. I won't go into too many details. The thing that stuck out at me was that WDW objected (rightly so) to the suing parties wanting to be reimbursed $292 for their dinner at the "Ravenous Pig."

One wonders whether WDW would have objected to the cost if it had been the Spirit of Aloha.

 

[Disneybridein2k3]

One wonders whether WDW would have objected to the cost if it had been the Spirit of Aloha.

 

[wishspirit]

Thanks for that! Makes it easier to understand. I can see it from both sides, but the safety of pedestrians comes first (as they are technically the most vulnerable, even if a lot are idiots!) I don't understand why Segways are needed rather than ECV's (rather than for a better view, and take up less room). If they were allowed they would have the be capped at a pretty low speed, lower than that of an ECV I expect since it doesn't have quick breaking. Very complicated!

The whole paying $45 is tricky, technically Disney is accessible as you can bring your own or rent off site, they are not denying access, plus they provide wheelchairs (or is there a cost for that too?). Therefore they are fully accessible, more than most places. However is it right for people with disabilities to have to pay $45? I just don't know! Its a tough one!

 

[jcb]

Kate's comments intrigued me so I thought I would link to some of the comments that have been made to the U.S. Justice Department about the rule they have under consideration. I thought two were helpful in explaining the different perspectives on Segways in amusement parks.

First, the International Association of Amusement Parks and Attractions (IAAPA) has make extensive remarks about the use of Segways and the potential problems they pose. (I've seen enough to make me think that WDW is a member of this association but don't know for sure.) The full (55 page!) IAAPA comments (which goes into much more than Segways) is available here. You can skip to page 30 for their Segway position.

For a different perspective, I'll link to the page where the National Multiple Sclerosis Society filed its comments. They are shorter (only 19 pages) and the Segway discussion starts on page 8. The link doesn't go straight to the pdf - you need to click on the pdf symbol to read the comments. Here is a direct link to the pdf. Other comments concerning the Segway are at regulations.gov.

 

[NWOhioAngela]

Here's a semi-related story from the Toledo Blade last week about an area physician trying to get segways out there as approved devices and a local lawsuit. It mentions Disney briefly. www.toledoblade.com/apps/pbcs.dll/article?AID=/20090329/ART16/903280262


Retired physician with a disability fights for the right to get around on a Segway
Photo
Dr. McNamara does his grocery shopping on the two-wheeled device.
( THE BLADE/AMY E. VOIGT )
Zoom | Photo Reprints
By RYAN E. SMITH
BLADE STAFF WRITER

Dr. Patrick McNamara gets out of his silver minivan and hobbles a few steps, leaning heavily on a homemade wooden cane. There is pain in every awkward movement the 51-year-old makes — until he pops open the trunk and grins.

"In a moment, I will no longer be handicapped," he declares.

The next thing you know, he’s zipping around the parking lot like Willy Wonka — he’s still holding the cane — using a Segway to run circles around an observer. He continues to show off inside a nearby supermarket, gliding around with ease, pushing a shopping cart, and exhibiting no trace of the nerve ailment that leaves him in severe pain most of the time.

"I’m not disabled when I’m on this," says Dr. McNamara, who has complex regional pain syndrome and retired from internal medicine three years ago. "It’s such a completely rehumanizing experience."

MULTIMEDIA
MULTIMEDIA: Patrick McNamara is moving forward
That’s what interests the Sylvania Township man most. Sometimes the solution is flashy and high-tech, like the Segway he uses to get around. At other times, it’s as old-school as the canes that he makes from scratch in his basement workshop.

It all began when Dr. McNamara injured his back while exercising and found that he had trouble walking even a short distance due to the extreme pain. He investigated all sorts of help: scooters, wheelchairs, hiking sticks, metal canes, but each had its own problem.

"The devices that you use to get around kind of mark you," he says. Consider aluminum canes, for example. "They’re ugly, they’re cold, they’re uncomfortable," he says. "They mark you as someone sick or disabled."

Then he tried a Segway and everything changed.

When the two-wheeled device was unveiled in 2001, it was envisioned as a way to transform car-clogged cities, not as a tool for people with impaired mobility. But that hasn’t stopped Jerry Kerr, president of Disability Rights Advocates For Technology in St. Louis, from calling it "one of the greatest things ever designed for people with disabilities."

Mr. Kerr said there are thousands of people who have difficulty walking who use Segways, which move forward simply based on the user leaning in that direction.

Karen A. Whalen, owner of Segway of Ohio: Toledo, says people with disabilities make up about 30 percent of her sales. (Most of the rest come from police and security companies.)

"It really gives them back their lives," she says. "They just get this huge smile."

It’s a smile that’s seen often on Dr. McNamara’s face when he talks about how the invention revolutionized his life, allowing him to go to the store or join his family for his son’s baseball games. It also keeps him at eye-level, unlike a wheelchair, which he finds painful.

These days, Dr. McNamara doesn’t leave home without his Segway. He keeps it ready to go in the back of his van where, once it’s turned on, he can easily roll it down a pair of portable tracks.

"The Segway is, I think, an idea whose time has come for disabled people," Dr. McNamara says.

While federal buildings under the jurisdiction of the U.S. General Services Administration allow Segway use by people with disabilities, not everyone else does, sometimes citing safety concerns. Nationally, the spotlight is on Walt Disney, which prohibits people from bringing personal Segways into its parks.

Locally, it became a kind of quest for Dr. McNamara to make the city more Segway-friendly for the disabled and to raise awareness. He said he hasn’t had any trouble at private businesses and worked with the Ability Center of Greater Toledo to gain access to the Metroparks of the Toledo Area.

Getting his Segway into One Government Center proved more difficult. In 2007, Dr. McNamara tried to use his Segway there and was not allowed to in an incident he called humiliating.

The Ohio Civil Rights Commission found probable cause that he was denied access to a place of public accommodation due to his disability in violation of state discrimination law.

"We essentially didn’t see that this was all that different from a motorized wheelchair," says spokesman Brandi Martin.

In November, more than a year after the original incident, the Ohio Building Authority, which owns the building, put in effect a new policy regarding Segway use on the same day Dr. McNamara filed a federal lawsuit against it. He has since received a settlement from the OBA.

Dr. McNamara’s claim against the other defendant in the lawsuit, Reuben Management, which manages One Government Center, has not been resolved. Lisa L. Nagel, an attorney for Reuben Management, says it enforced existing policy and provided a wheelchair as a reasonable accommodation.

Nationally, access issues don’t seem to be widespread. A bigger roadblock is price. Segways start at more than $5,000 and are not covered by health insurance, putting them out of reach for many.

"The Segway was not designed as a mobility device and has not been approved by the FDA as a medical device so we are not allowed to market it as a medical device," says Carol Valianti, a spokesman for Segway Inc.

Fortunately, Dr. McNamara has found lower-tech and less expensive ways to help humanize those with disabilities. After all, the Segway can help him in the grocery store but he still needs something to get him around the house. So he bought some tools a year ago and learned to make wooden canes from scratch.

"It kind of gives me a purpose in life," he says. "I get to make something that’s not only comfortable and useful, but also beautiful."

Working downstairs, a stack of wood nearby, he shaves the wood with purpose and molds a cane handle until it conforms perfectly to his hand. The result is something elegant and distinguished.

"I wanted something that was comfortable and attractive and doesn’t say, ‘sick person,’" he says.

Already Dr. McNamara has donated about a dozen of his creations to the Ability Center and more are in the works. The Ability Center plans to loan them out for a nominal fee.

"I can’t practice medicine any longer," he says, "but I have found another way to be helpful to others."

 

[SueM in MN]

I don't know if anyone is interested, but this is a link to a past discussion about Segways at WDW from Feb 2006 and another thread from October 2007

 

[jcb]

Walt Disney World (which in legal documents refers to itself as "Worldco") has filed its response to the Justice Department's (DOJ) objections to the Segway class action settlement. Most of WDW's response discusses class action law as it applies to settlements. That discussion bored even me.

What WDW says about the Segway in the parks issue is more interesting. WDW emphasizes that the settlement is not based upon any finding that prohibiting Segways in theme parks violates the Americans with Disabilities Act (ADA). The settlement would permit WDW to continue to "prohibit all guests from using two-wheeled vehicles including Segways" at Disney Resorts. (It's safe to assume the lawyers meant powered two-wheeled vehicles.) On that premise, requiring guests to rent WDW provided "ESVs" as part of the settlement is OK, WDW says, because renting ESVs is an "additional accommodation" one that goes beyond anything required by the ADA.

WDW says the possibility that the DOJ will issue future regulations governing Segway use in public areas (malls, theme parks, etc.) can't prevent this settlement. That's accurate but no settlement can override subsequently issued regulations that contradict the terms of the settlement.

Recognizing this, WDW says DOJ cannot, by regulation, require personal Segways in theme parks whenever a guest asserts one is needed because a guest "preference for using a Segway over other types of mobility devices need not" always be accommodated to comply with the ADA. Talk about a warning shot across the bow. You have to think that if the DOJ issues a final regulation requiring personal Segways in theme parks, WDW will be among those challenging it in court.

While I don't think there is any doubt as to WDW's motives, WDW makes it clear in this filing that its basis for prohibiting Segways is because it has determined that allowing personal Segways into the theme parks would be unsafe to guests. What I would like to see, but haven't found, is WDW's analysis which shows why it concluded Segways are so dangerous that an all out ban is requried.

 

[wishspirit]

Kate's comments intrigued me so I thought I would link to some of the comments that have been made to the U.S. Justice Department about the rule they have under consideration. I thought two were helpful in explaining the different perspectives on Segways in amusement parks.

First, the International Association of Amusement Parks and Attractions (IAAPA) has make extensive remarks about the use of Segways and the potential problems they pose. (I've seen enough to make me think that WDW is a member of this association but don't know for sure.) The full (55 page!) IAAPA comments (which goes into much more than Segways) is available here. You can skip to page 30 for their Segway position.

For a different perspective, I'll link to the page where the National Multiple Sclerosis Society filed its comments. They are shorter (only 19 pages) and the Segway discussion starts on page 8. The link doesn't go straight to the pdf - you need to click on the pdf symbol to read the comments. Here is a direct link to the pdf. Other comments concerning the Segway are at regulations.gov.

Thanks for that! I read the PDF for the NMSS, and found it interesting. Working with kids with special needs, I realise how important it is to be seen as 'normal', and Segways (in theory) take away that stigma. However at a Disney park EVC's are normal, where as a Segway would just draw attention to yourself, and from some of the comments made by people on these boards, not in a good way! Plus, although they do have the benefit of being able to stand and see, I am just not sure how easy they would be to stop at the same speed as an ECV. My parents did the tour round Epcot, and really enjoyed it, but said they only ever did nice, slow, gentle stops.

Still befuddles me why this lawsuit was ever really brought up. Segways are not common enough, or tested enough, to use in a crowded theme park. If they find some way of making them safe, and cost comparative to ECV's, then I will be all for them! I hope that Disney (who in general go above and beyond their requirements in disabled access) don't get victimised in this!

 

[SueM in MN]

On that premise, requiring guests to rent WDW provided "ESVs" as part of the settlement is OK, WDW says, because renting ESVs is an "additional accommodation" one that goes beyond anything required by the ADA.

That is correct.
All the ADA says is that they have to make things accessible so that someone who needs a mobility device can get in (ramps & elevators). The assumption is that if you need a mobility device, you will bring one with you. There is no requirement that any business provide one for you, either free of charge or for rent.

When places like Target, Walmart and grocery stores provide free mobility scooters, they don't do it because the ADA requires it. They do it because it makes good business sense - if people with mobility problems can use one in the store, they are likely to stay longer and buy more.
WDW provides them for the same reasons (plus, they get paid by people renting them).

The threads that I linked before discussed some of the difficulties people with disabilities who have been to WDW thought about. Some of us had taken the Epcot Segway tours, so had some experience.

• Where would you put a Segway while the person is on a ride. Wheelchairs and scooters are self supporting. You can park them and they will stay where you put them. Segways need to be leaned against something and if bumped, they could fall over. A wheelchair or scooter might move a bit if bumped, but it won't fall over.
• What about attractions that include theater seating. Would you need a leaning spot for the Segway plus a seat for the guest to sit in? Right now they have spots for wheelchairs and scooters to park (no close by walls to lean a Segway on) with a seat next to it for one member of the 'wheelchair party' to sit next to the person using a wheelchair or scooter.
• Door and ceiling heights are made for the average size person, not the average size person standing on a Segway. To expect accommodations be made for Segways to go thru all those would be expensive and maybe not even achievable.

So, there are other things to think about besides whether or not it is safe for people on Segways to be mixed with the other guests.

 

[polineedyan]

Not being a lawyer, and certainly not always P.C., my question is, how is WDW gonna let someone with physical limitations use a segway? how does segway feel about that? And free of charge?? thats just opening up a whole other can..Please excuse me, but I feel like putting someone who is not in full control of their body on a segway is a recipe for a hole other round of 'settlements'..

 

[Justin Jett]

how does segway feel about that?

"The Segway was not designed as a mobility device and has not been approved by the FDA as a medical device so we are not allowed to market it as a medical device," says Carol Valianti, a spokesman for Segway Inc.

http://toledoblade.com/apps/pbcs.dll/article?AID=/20090329/ART16/903280262/-1/ART06

 

[jcb]

Sue,

I would hope no business is ever penalized for going beyond what the ADA requires. The difficult question the DOJ is having to answer is what does the ADA require in terms of whether places must be forced to allow the use of personally owned powered mobility devices (which I'll call Segways in light of the lawsuit's focus). If they must allow personally-owned Segways, they can't force individuals with disabilities to pay for using store-owned Segways.

I used the word "accommodation" though perhaps the more accurate way to describe this is to say that if WDW must make "reasonable modifications" to its policies IF DOJ ultimately prevails in saying places may not impose a blanket ban on Segways. As to the other logistical issues, I do not doubt they are significant. I can think of a few more. I simply meant to point out the reason (and only reason) WDW gave in the lawsuit. Frankly, I think the safety issues are pretty significant but as I implied, I am not so sure they justify a blanket ban as opposed to some less onerous safety regulation.

polineedyan,

As to whether there will be other "settlements," if federal law required WDW to allow Segways within the park, no one could sue WDW because it complied with federal law. That isn't complete immunity. WDW would probably still have to train its employees on how they should act if they observed unsafe Segway use - by anyone.

Justin Jett

The fact that Segway has not sought or obtained approval to advertise (or sell) its product as an FDA approved mobility device doesn't necessarily mean the people who use them are prohibited from treating them as an ADA mobility device. Perhaps I'm wrong and someone will correct me.