It’s been a bad week for folks wanting to ride Segways in Disneyland. On July 17, 2013, a federal judge held that the plaintiff, Tina Baughman, was not entitled to the $124,000 in attorney fee bill she wanted Disney to pay. The next day, the California Court of Appeals ruled that Disneyland’s safety based ban on Segways did not violate California’s disability discrimination laws. Baughman has demonstrated she is a tenacious litigant, however, so don’t be surprised if she tries to appeal either of these rulings.
I last posted on the Segway lawsuit(s) in April 2013, after the U.S. Supreme Court declined to hear a challenge to the class settlement of all claims that Disney discriminated against individuals who wanted to use Segways in the Theme Parks. That decision ended attempts to force Segway use at Walt Disney World. I also said it probably sounded the deathknell for the Disneyland lawsuit. Sure enough, in May of this year, the federal judge dismissed the Disneyland Segway lawsuit. That decision was not appealed meaning efforts to get a federal judge to order Disneyland to permit Segways are over.
Undaunted by the clear loss, Baughman’s attorney asked the federal judge to order Disneyland to pay him about $124,000 in attorney fees. As noted, on Thursday, July 17, 2013, the federal judge refused her request. After recounting the long history of the Disneyland Segway litigation, an effort that took five pages, the federal judge held Baughman was not entitled to fees because she had not prevailed in any meaningful manner. In simple terms, Baughman lost and losers are usually not entitled to attorney fees.
Baughman’s biggest (and only) success occurred in 2012, when the federal court of appeals held that Baughman’s use of Segways at Disneyland could be “necessary” even if she could use a wheelchair. The federal court of appeals made clear, however, that its decision did not “hold that Disney must permit Segways at its theme parks.” While the appeals court ruled in Baughman’s favor, the federal judge found it did not mean Baughman had sufficiently prevailed to permit an award of attorney fees.
The next day, July 18, the California Court of Appeals dashed what might be the last best hope for Segway advocates when it ruled that Disney could validly ban Segways at Disneyland. Ironically, after almost six years of Segway litigation, Thursday’s decision was the first time any appeals court directly addressed (and upheld) Disney’s safety justification for banning Segways.
Readers may wonder why a state court of appeals issued a decision about Segways at Disneyland (and, even if you don’t, I’ll tell you). It’s a feature of our system of dual sovereignty that state courts can hear essentially the same legal claim that is pending in federal court. And while there are rules about one court not questioning another court’s final decision, the key word here is “final.” Most states regard a judgment as non final as long as it is pending on appeal. The rules on this are often complex so it isn’t unusual to get decisions from different courts about essentially the same legal claim.
It’s also significant that I say “essentially the same legal claim” because states often create state law claims that are similar if not identical to federal laws. So, to use the Segway decisions as an example, the federal Americans with Disabilities Act claim was pending in federal court while virtually identical claims based on California law were pending in state court. (Now, this being California, readers shouldn’t be surprised to learn that the state has two disability discrimination laws, both of provide that a violation of the ADA is a violation of state law.)
The state court lawsuit started after the federal court in 2010, dismissed the Disneyland Segway lawsuit. While, as noted above, this dismissal was later reversed on appeal, Baughman decided to try her luck in state court rather than appeal the dismissal of her state law claims. Her luck ran out; the July 18 Court of Appeals decision is realistically her last hope for using a Segway in Disneyland.
The California Court of Appeals explained its ruling (which I have edited somewhat):
Disney submitted the declaration and deposition testimony of Gregory Hale, Disney’s chief safety officer. Hale is responsible for “safety, accessibility for guests with disabilities and technology advances in these areas for [Disney] theme parks, including Disneyland Park.”
Disney decided the unsupervised and unrestricted use of Segways in Disneyland is inherently unsafe and poses an unacceptable risk of injury to guests,including the user, for a number of reasons. The policy is not related to disabilities. It is related to safety, Disney’s “number one priority.” The Segway is an inherently unstable device that constantly responds “to input, in the form of movements by its rider and active stabilization systems, to move and remain upright. In the event of a sudden or unexpected input, be it a sharp movement by the rider or an obstacle such as a curb, the Segway can tip over rapidly. In addition, if any part of the onboard computer fails, the Segway will not work properly and may, again, tip over or move unexpectedly.” Hale stated, ”It is difficult for a Segway rider to keep the device perfectly still, as would be required in a crowded theme park surrounded by other guests, because the Segway must be free to move in order to maintain its upright status when the rider even slightly shifts their weight.” He analogized the Segway to a unicycle. “Just as it is virtually impossible for a unicycle rider to stop moving and remain still–because the unicycle requires movement to operate–the Segway is constantly moving to find the center of gravity created by the rider’s weight and directional learning. 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.”
Even in the hands of experienced rider (which [Disney] would have no way of assessing on a person by person basis), a small misstep or wrong move or malfunction would cause the Segway to lose control, speed forward or backward or tip over, injuring its rider or other persons.”
Baughman’s opposition contained her own declaration. In it she set forth the nature of her disability and represented that she has never used a wheelchair. She said she bought a Segway in 2002 and has used it for over 600 hours without an accident. She stated that she wanted to use her Segway at Disneyland because she has difficulty rising from a seated position, her daughter cannot assist her in getting out of a wheelchair or scooter, and use of the Segway would help her supervise her children and enjoy her time at Disneyland.
Disney produced expert evidence to the effect that Segways poses a substantial risk of injury in the crowded confines inside the park due to the vehicle’s design. Baughman did not counter this evidence with expert evidence of her own. Instead, she offered her own declaration to the effect that she has never had an accident on her Segway.
With regard to Baughman’s evidence that Disney is one of the largest purchasers of Segways in the world and Disney has used Segways on tours, the issue is whether Segways can be used safely by guests inside the park. The public is not present on Disney’s back lots where Segways may be used by its employees. More telling is the fact that Disney’s “back-stage” Segway users ”cannot go on stage at all while guests are in the parks,” and even when Disney gave Segway tours in the past, the tours were limited to a predesignated route in California Adventure Park, adjacent to Disneyland, involved “constant supervision” in “a roped off area away from other guests,” and were conducted in the early morning hours before the park opened to the general public. This evidence did not undermine the expert evidence presented by Disney. Additionally, Baughman’s evidence does not show Disney failed to make reasonable modifications in its policies, practice, or procedures, or that the modification she requested was necessary to afford goods, services, privileges, advantages, or accommodations to individuals with disabilities.
In Baughman v. Walt Disney World Co., supra, 685 F.3d at page 1135, the Ninth Circuit Court of Appeals held: “Facilities are not required to make any and all possible accommodations that would provide full and equal access to disabled patrons; they need only make accommodations that are reasonable. In deciding what’s reasonable, facilities may consider the costs of such accommodations, disruption of their business and safety.” (Italics added.) In the present case, Disney’s evidence demonstrated that given the crowds at Disneyland and the intrinsic characteristics of Segways, the device poses a danger to the guests of the park, including the operator of a Segway.
As I understand it, Baughman has one final chance; she can ask the California Supreme Court to review the Court of Appeals decision and set it aside. The odds are not in her favor, however, so the July 18 Court of Appeals decision may have finally let all the air out of her Segway lawsuit(s).