About Me

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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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Friday, August 31, 2012

Could the Disney Segway Issue Be Headed To The Supreme Court?

In my last post, I discussed Ault v. Walt Disney World Co., a class-action lawsuit in Florida challenging Disney's "no Segways" policy in its Florida properties.  To quickly recap, the judge in Florida approved a settlement in the case finding that that Disney was likely to prevail under the ADA if the case actually went to trial because it could probably prove that Segways constituted an actual safety hazard in its parks.  

Yesterday, the U.S. Court of Appeals for the Eleventh Circuit affirmed the trial court's ruling.  Read more after the jump. 


The Eleventh Circuit's analysis in Ault focused, appropriately, on the deposition testimony of Greg Hale, Disney's Chief Safety Officer, who had "presented evidence that allowing customers to bring Segways into the Disney Resorts would pose a significant safety risk to other guests."  The Court of Appeals agreed with the trial court that this testimony made it likely that Disney would prevail on the ADA claim if the case were to go to trial, noting that "the very factors Hale considered before deciding that Segways are too dangerous for operation in Disney Resorts are the very factors facilities are required to consider under the new regulations," such as "the attributes of the device, the volume of foot traffic in the facility, the design and operational characteristics of the facility, whether safey restrictions on the use of the device can mitigate its danger, and whether operation of the device will harm the environment in determining if a specific device is allowable in the facility."

So what does this mean for Baughman v. Walt Disney World, Inc., Disney's on-going litigation in California that I've also written about?  In that case, as you might recall, the Ninth Circuit ordered Disney to study the use of Segways at Disneyland and reversed a lower court's judgment dismissing the case altogether.  Well, first, its worth noting that the Ault decision specifically discussed Baughman and found that Baughman was not necessarily in conflict with Ault.  The Eleventh Circuit found, correctly, that the Baughman decision was procedurally different from the circumstances at issue in Ault.  In California, the Court was asked to dismiss a case prior to any evidence being presented whereas in Florida, the Court was asked to affirm a trial judge's decision to approve a settlement after considering evidence that showed Disney was likely to prevail on an ADA claim at trial.  The differing postures of the cases thus made them, to a large extent, apples and oranges. 

That said, the Ault decision may have an impact on Baughman's ultimate resolution.  As I mentioned, the Ninth Circuit ordered Disney to study the use of Segways in its parks, as it is required to do under the new ADA regulations.  Once that happens (or, more accurately, once Disney presents the evidence of the study it has already done), the District Court in California will have to decide whether Disney's study was sufficient and whether it supports prohibiting Segways.  This is where the Ault decision may have an impact.  Because these cases present a very unique set of circumstances, the Eleventh Circuit's opinion in Ault will undoubtedly by of some value to the District Court in California.  While the California trial judge is not bound by an Eleventh Circuit Court of Appeals decision, given that it's the only decision that has looked at this exact issue, the trial judge cannot simply ignore it.  The Eleventh Circuit's decision in Ault therefore should give Disney some optimism that it will prevail in California since, to lose, the District Court is going to have to say, in effect, that it knows how to apply the ADA better than the Court of Appeals.  Not a position most judge's want to take unless they are REALLY sure of themselves.*

*There is another way the District Court in California could sidestep the Ault decision if it wanted to do so, but it involves a good understanding of the significance of the "abuse of discretion" standard of review the Eleventh Circuit applied in he Ault case.  I won't get into that here.

Nonetheless, the possibility still exists that the Baughman court in California could disagree with Ault and could rule that, despite Mr. Hale's study, Disney cannot legally prohibit Segways at Disneyland.  What then?  Well that is where things could really get interesting.  If that were to occur, Disney would be subject to differing legal obligations imposed by courts in Florida and California.  It could face the unenviable reality that it could be required to allow Segways at Disneyland, but could still prohibit them at Disney World.  While legally correct, this would be a guest relations and PR nightmare for Disney.  More importantly, if such a ruling were to occur, the industry as a whole would lack any real guidance on what the ADA requires in terms of Segway use at individual facilities given diametrically opposed views from courts on the East and West Coasts.  In that event, the only way to sort it out would be through an appeal to the U.S. Supreme Court - the only Court that could overrule either or both lower courts.  Its a remote possibility at this point, but it certainly could happen if the planets lined up just right.  At this point, we'll have to keep our eyes on California to see if such a cosmic event might be on the horizon.  

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