As a lawyer for Disneyland defended the park's preference of wheelchairs for the disabled over Segways, the 9th Circuit judges joked about sedan chairs held aloft by porters, as practiced in ancient times.
Tina Baughman says that muscular dystrophy makes it difficult for her to walk or get up from a seated to position. She filed suit in 2007 because Disneyland barred the use of her customary Segway, saying she said would need to rent a wheelchair or a four-wheeled scooter to visit the Anaheim, Calif., park.
The original lawsuit filed in Orange County Superior Court says Baughman has "never" used a wheelchair and that the Americans with Disabilities Act requires companies like Disney to let customers use a "mobility device of choice."After the case was removed to federal court, U.S. District Judge Cormac Carney found for Disney in April 2010.
Baughman had claimed in three prior lawsuits that she was confined to a wheelchair, and two of those resulted in a monetary settlement, Carney noted. The judge was not sympathetic to claims that Baughman's lawyer, prominent disabilities rights attorney David Geffen, accidentally used the same language in Baughman's lawsuit as he had used in many other similar cases.
"The court simply will not allow Ms. Baughman to play fast and loose with the facts," he wrote. After granting Disney summary judgment on Baughman's ADA claims, he remanded the remaining allegations to state court.
Geffen insisted that Baughman has "never used a wheelchair" in oral arguments before the Pasadena-based 9th Circuit last week. "No one who is not in a wheelchair wants to be put in one," he said. "No one who can stand wants to be told to sit."
Under ADA regulations issued in May, companies must accommodate the use of wheelchairs and "other power-driven mobility devices" in any area open to pedestrians, unless the device creates a safety hazard.
The Segway is included among "other power-driven mobility devices" in the regulations. Though not designed specifically for people with disabilities, the two-wheel transports have become increasingly popular in the community.
Geffen said this endorsement is critical since the new regulations emphasize the importance of letting disabled people individually decide what type of mobility device they require. Such decisions should not be left to the whims of a company like Disney, he argued.
Disney's lawyer, Daniel Fears, argued that Segways are dangerous. With no brakes, no steering wheel and speeds of up to 12 miles per hour, he said they should not be allowed in a theme park often crowded with children and the elderly.
"And I need not remind the court that the owner of the company fell of a cliff on a Segway and died," Fears said, referring to the September 2010 death of Segway company owner James Heselden, who apparently drove one of the devices off a 30-foot cliff on his estate near London.
Chief Judge Alex Kozinski pointed out that Segways are used in California's busy Burbank airport, which is "small and crowded, lots of people in a rush, people carrying luggage - and there doesn't seem to be a problem."
Fears countered that neither Baughman nor the Justice Department have presented evidence that it actually is safe to drive a Segway down Main Street in Disneyland.
"Assuming a disabled individual could have any mobility device that they preferred, a motorcycle, for instance? And, according to the DOJ, the burden is switched to the company to establish that that motorcycle or other vehicle is unsafe."
Fears said the law and the Supreme Court mandate that, "as long as we provide her an opportunity for some form of access, like we do thousands of disabled individuals every single year, then the fact that she may have a specific preference for a two-wheeled vehicle - a motorcycle, a bicycle, whatever - her preference does not mean it's necessary in the specific language with in the statute."
The judges interrupted with a different example. "So if you had four people carrying her on a litter, that would comply with the statute," Judge William Fletcher asked.
"As long as they bought five tickets, right," Judge Alex Kozinski added. To the amusement of the panel, Fears said, "That issue is not before the court, but, as long as we provide access with some means for her to go to the park, then, certainly, yes."
"Unless she claims that there is a certain reason why she needs this specific device, like she has a 'sitting disability,' then there is no reason why she shouldn't just use a wheelchair or the seated scooters
Disneyland has available," he added. Geffen was indignant. Just to be clear, what I heard Disneyland saying is that they want a business entity telling a person what mobility device they can use when they come to their place," he said. "They want to be able to take away a mobility device and say, 'You can use a wheelchair, but you must use our wheelchair. You can use a mobility device, but you must use our own mobility device at Disneyland. You don't want businesses involved in that very, very personal choice of deciding what mobility device best suits somebody's needs."
Geffen also said that Disney was practicing a double standard when it claimed that Segways were too dangerous for visitor use at the park.
"Disneyland is the largest purchaser of Segways in the country," Fears said. "Their employees use them in the back lots. They show the device in Tomorrowland and say, "The Segway is the mobility device of the future. It's as natural as walking. And, after an hour of training, you can use a Segway at Disneyland to tour their park.