Thursday, July 19, 2012
Page 1
Ninth Circuit Revives Bid to Use Segway at Disneyland
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has reinstated a suit by a woman who claims that she has the right to traverse Disneyland on a Segway mobility device.
Tina Baughman
raised a triable issue of fact as to whether is it “necessary” for her to use
the Segway, rather than a wheelchair or scooter, in order to enjoy the
amenities offered by “the happiest place on earth,” Chief Judge Alex Kozinski
wrote.
Baughman, who suffers from muscular dystrophy, sued Disney under the Americans With Disabilities Act after she was told that its policies prohibit any use of two-wheeled devices on its premises, and that it would not make an exception to accommodate her disability.
In suing, Baughman alleged that she needs to use the Segway because it is difficult for her to stand from a seated position, as would be necessary if she used a wheelchair or scooter. The Segway would allow her to take full advantage of the various attractions and concessions and to be at eyelevel with other guests and staff members, she said.
In granting summary judgment to Disney, U.S. District Judge Cormac J. Carney of the Central District of California noted that Baughman has brought three previous access suits in which she claimed she used or needed to use a wheelchair, so that she was estopped from claiming she could not use one at Disneyland. It was thus not “necessary”—within the meaning of the ADA—for her to use a Segway, so the statute didn’t afford relief, he said.
Kozinski, however, said the district judge was reading the statute too narrowly.
He agreed with Carney that judicial estoppel precluded Baughman from arguing that she couldn’t use a wheelchair. Even if she was unaware of her counsel making that allegation in the prior suits, the chief judge said, she benefited from the settlements or judgments entered in those cases and cannot now argue an inconsistent position.
But even if she can use a wheelchair, Kozinski wrote, that does not establish that it is unnecessary for her to use a Segway in order to enjoy the equal use of the facilities.
Disney’s argument, he said, would mean that “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.”
He called the argument “retrograde” and said it was disappointing given that Disney had a “reputation built on service to the public.”
The court’s ruling, he cautioned, does not necessarily mean that Baughman will prevail on remand. Instead, the burden will be on Disney to show that Segways cannot be operated safely in its parks.
He noted that the federal government, which filed an amicus brief supporting the plaintiff, has adopted regulations implementing the right to equal use of public accommodations under the ADA. One of those regulations, he pointed out, allows the facility operator to consider the size, weight, and height of a mobility device, the volume of traffic, and the ability to regulate the operation of the device in determining whether to permit the use of the device.
Judges Stephen Reinhardt and William Fletcher joined the opinion.
Baughman was represented by Santa Monica attorney David E. Geffen and Disney by the Irvine firm Payne & Fears.
The case is Baughman v. Walt Disney World Company, 10-55792.
Copyright 2012, Metropolitan News Company