Friday, July 19, 2013
Disabled Woman Cannot Use Segway at Disneyland—Court
By KENNETH OFGANG, Staff Writer
The Fourth District Court of Appeal yesterday rejected a lawsuit by a woman who claimed the operator of Disneyland is violating her civil rights by refusing to allow her to use a Segway mobility device at the park.
“We find Disney established it is entitled to judgment as a matter of law in that it demonstrated a Segway is an unstable two-wheeled device that could accelerate quickly, either forward or backward, and injure the rider and/or others if the rider is bumped,” Justice Eileen Moore wrote for Div. Three. “The undisputed expert evidence showed Segways cannot be used safely in Disneyland crowds due to its method of operation.”
Plaintiff Tina Baughman’s declaration, stating that she has never had an accident while using a Segway, is “inconsequential” in the face of that evidence, Moore said.
Baughman, who has muscular dystrophy, sued Walt Disney World Co. in 2007, challenging its policy of banning all two-wheeled vehicles in its theme parks. While the company does allow wheelchairs and scooters, Baughman said she needed 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.
ADA Claim Removed
Baughman sued under the California Disabled Persons Act and Unruh Civil Rights Act. She also included a claim under the Americans With Disabilities Act, but that cause of action was removed to federal court.
The law requires Disney to reasonably accommodate patrons with disabilities, Moore said. But requiring that it allow patrons to use Segways would be unreasonable, the justice explained.
She cited the declaration and deposition testimony of Gregory Hale, chief safety officer of Disney.
Hale is a personal friend of Dean Kamen, who invented the Segway, and has ridden the device “many times,” he said. Allowing its use in crowds at theme parks would be dangerous, he declared, because it requires constant motion, much like a unicycle.
“Even seemingly ‘stopped’ Segways are in reality moving, and a small movement by a rider on an apparently ‘stopped’ Segway can cause it to begin moving forward or backward rapidly, even if it is accidental,” Hale said.
Disney, he added, would have no way of controlling the skill level of Segway users in its parks. And even experienced riders can have accidents resulting from small missteps or malfunctions, he pointed out.
The company noted that Jimi Heselden, head of the group that bought Segway Inc. in 2009, was killed the following year after he lost control of his device.
Baughman countered that Disney is itself a major purchaser of Segways, which are used by its Disneyland employees and were at one time used for tours in the adjacent California Adventure Park.
Orange Superior Court Judge Andrew Banks found Hale’s testimony persuasive and granted summary judgment.
Baughman’s response did not establish a triable claim, Moore said yesterday, because it did not go to the issue of whether the Segway could be used safely in crowds at Disneyland, “a place [Baughman] has never been.” Disney employees only use the devices on back lots from which the public is excluded, she noted, adding that when Segways were used for tours, it was on a supervised course during early morning hours when the park was not open to pedestrian users.
Yesterday’s ruling in Baughman v. Walt Disney World Company, G046470, is the latest in a string of defeats for Baughman on her claims against the theme park operator.
A Ninth U.S. Circuit Court of Appeals panel last year overturned a summary judgment in favor of Disney on her ADA claim, saying Baughman had presented sufficient evidence that it was “necessary” for her to use a Segway, and that Disney therefore had the burden of showing that the device could not be safely operated in the park.
But U.S. District Judge Cormac J. Carney dismissed the suit in May, saying it was precluded by last year’s approval of the settlement of a class action in the Middle District of Florida. That action, Ault v. Walt Disney World Co., was resolved with an agreement allowing Disney to keep the ban in place while developing a four-wheeled alternative to the Segway.
The settlement was approved over the objections of the Justice Department, 23 state attorneys general, and some disabilities advocates, and became final after the U.S. Supreme Court denied certiorari following a ruling by the Eleventh Circuit.
Baughman then moved for attorney fees, claiming her action had been a catalyst for the settlement. But Carney ruled this past Wednesday that she had achieved nothing by her own lawsuit, and that if she “believes she is entitled to attorneys’ fees based on the outcome in Ault, she should have filed the appropriate motion before the Ault court.”
Baughman was represented by Santa Monica attorney David E. Geffen and Disney by the Irvine firm Payne & Fears.
Copyright 2013, Metropolitan News Company