Disability advocacy groups are touting it as a big win for accessibility. However, I do not really see it that way. In fact, as I've already written, I think this was the WRONG case for the Ninth Circuit to have even reached the issue, given that Ms. Baughman can't seem to decide whether she uses a wheelchair because she cannot stand or uses a Segway because she cannot sit. But, putting that aside, I also do not think the case will ultimately result in Disney being required to allow Segways in its parks. The bigger question is what, if any, effect the decision might have on other parks and family entertainment centers - particularly those that lack the seemingly limitless resources of Disney.
Turning first to what the decision means to Disney. As pointed out in my last post, the Ninth Circuit's recent decision is quite specific that it is not ordering Disney to allow Segway use in its parks. Rather, the court ordered Disney to study the feasibility of allowing Segways. Here's what it said exactly:
"We do not hold that Disney must permit Segways at its theme parks. It might be able to exclude them if it can prove that Segways can't be operated safely in its parks. Section 36.311(b) lists several factors to consider in determining whether a device can be used in a particular facility, including the size, weight and speed of the device; the volume of pedestrian traffic in the facility; and whether legitimate safety requirements can be established to ensure safe operation of the device. Disney might, for example, permissibly require Segways to travel only as fast as motorized wheelchairs. But any safety requirements Disney imposes must be based on actual risks and not on mere speculation."
"Section 36.311(b)" refers to a regulation adopted as part of the "ADA-redux" in 2010, and it specifically addresses when a facility can exclude motorized mobility devices such as, in particular, a Segway. As the Court stated, the facility can exclude Segways, if it determines that they cannot be safely operated. The key, though, is that the facility must base this decision on "actual risks and not on mere speculation" - language that also comes right out of the regulation.
To me, that is where the rubber meets the road. How do you prove that there are "actual risks" as opposed to "mere speculation?" Well, in Disney's case, I think they probably have an answer all teed up and ready to go. See, in addition to the Baughman lawsuit, Disney has been fighting a virtually identical class action in Florida claiming that the Segway prohibition violates the ADA. That case settled last year. However, to settle a class action, the Court must rule on whether the proposed settlement is fair to all the class members who are not before the court and, in doing so, the federal judge in Florida noted something interesting. In finding that the settlement was fair, the Florida Federal Court noted that Disney had a good chance of proving that Segways should not be allowed. The Court reasoned that approving the settlement was therefore fair because, if Disney ultimately won, the plaintiffs would not get anything. More specifically, the Court noted that:
At the fairness hearing and in his deposition, Greg Hale, Disney's Chief Safety Officer, testified in detail about his thorough review and assessment of whether the Segway could be used by guests at Disney's theme parks and his conclusion that the safety risks posed to other guests in the unique environment of the parks were simply too great.
Based on this, it looks like Disney has, in fact, already studied whether it should allow Segway use in its parks, having conducted a "thorough review and assessment" to ascertain the safety risks involved. Now, I don't know how detailed this review and assessment was, but given Disney's level of sophistication, I have a very difficult time believing that this merely represents Mr. Hale's learned opinion. I would be quite surprised if this review and assessment were not backed up by hard data and statistics taking into account things like average speed of the Segway, crowd density at the parks, walkway width, etc. In other words, my educated guess is that, following the Ninth Circuit's opinion, Disney is probably all ready with the very study they have been ordered to undertake and that will, in all likelihood, relieve it of any obligation to allow Segways in the parks.
But what about other facilities? Obviously, not everyone has the resources of Disney, nor does everyone have a dedicated Chief Safety Officer like Greg Hale capable of conducting such an assessment. Assuming Disney ultimately prevails, will that be enough to justify others in the industry similarly prohibiting Segways? Probably not. The ADA is not a "one size fits all" law. It is designed so that each public accommodation must be assessed individually, taking into account all the idiosyncratic qualities that separate one facility from the next. And this is where the regulation could be problematic, particularly for smaller facilities. Going forward, it is probably not going to be enough for a facility to exclude Segways simply based on a good faith belief that Segways cause safety issues. Assuming that a facility questions whether Segways can be operated safely, it is going to have to have something more than anecdotal experience to draw upon. Like what?
Well, that's the problem. The Disney decision is the first test-ground for this particular regulation and issue. There's just not a lot of guidance out there to determine what is enough in terms of proof. Could a facility hire a professional engineer with expertise in crowd movement or mobility to conduct a detailed assessment? Sure. And that would probably be just the kind of thing a court would love to see. Could a facility ask a qualified employee to walk around and observe the park to figure out whether, in her opinion, Segways could be safely accommodated? Almost surely not. That's not far from "mere speculation" that isn't allowed. So what's in the middle? No one knows unfortunately. But, there are a few things facilities might do to hedge their bets either against getting a claim in the first place or defending against a claim that is filed:
1. Whatever you do, document it. A paper trail showing exactly how the assessment was done will be much better than if you have to later rely upon the memory of the employee that did it. It will also last a lot longer than the employee might - and this is not the kind of thing you want to lose when someone quits. The document should show exactly what was done, what resources were consulted, who did the assessment, what conclusions were reached, and exactly why those conclusions were reached. By the way .. this is a good thing to get your lawyer involved with.
2. Consider whether there are other options besides either allowing Segways or prohibiting them. If the Ninth Circuit's decision (and the new 2010 ADA regulations) make anything clear, it is the expectation that facilities will adapt to emerging technologies. For example, if the concern is speed of a Segway, can it be mechanically or electronically limited somehow? While I am personally skeptical that posted speed limit will do any good, there may be ways to govern the speed otherwise. Is it financially feasible to allow Segways that are rented from the facility, like wheelchairs and scooters, that contain speed governors on them? This may be another option to show that a facility is trying to reach a reasonable balance between safety and access. Again, this consideration should be documented somewhere.
3. And, of course, the most obvious, consider allowing Segway use to the disabled if it can be done safely. The law requires that access be the default position unless safety risks can be proven. If a facility cannot identify safety risks, allowing Segways should be the rule. But, again, an assessment is necessary to know whether this is the way to go or not.
While this all may seem like a lot of trouble to go through, it seems to be the law, at least for now. Until we have more court cases interpreting these regulations, and no one wants to be the test case, facilities large and small need to address and assess their disability policies in an effort to conform. While the answer may ultimately be that the current access policy is fine, it is the process undertaken to reach that conclusion that is, in many ways, more important than the ultimate conclusion itself.
- Erik H. Beard, Esq.
- I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.
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