Hunt Talks About ADA and FHA Litigation.

Main menu
Skip to content

Home

About Richard

About Hunt Huey PLLC

Education for Business

First Fix, Then Fight

Segway or the Highway Says

the DOJ
MARCH 18, 2014 By Richard Huntin ACCESSIBILITY LITIGATION TRENDS, ADA FHA GENERAL, ADA FHA
LITIGATION GENERAL, REASONABLE ACCOMMODATIONTags: ADA LITIGATION, DOJ, PRIVATE LAWSUITS, SEGWAY

On January 31 of this year the Department of

Justice published a new guidance (www.ada.gov/opdmd.pdf) on the use of mobility devices other
than wheelchairs. Business owners cannot avoid paying attention to the guidance despite the fact
that the DOJ has taken a position that is diametrically opposed to the existing judicial decisions
regarding Segways as well as a class action settlement involving Segways at Disney theme parks. As is
too often the case the guidelines invite litigation by requiring that businesses do more than is
possible when trying to decide how to accommodate disabled visitors.

This guidance appears to be a reaction to several lawsuits that reached results DOJ did not like. The
largest in scope was Ault v. Walt Disney World Co., 692 F.3d 1212 (11th Cir. 2012). In Ault the 11th
Circuit approved a class action settlement in which Walt Disney World was allowed to ban 2 wheeled
devices, including Segways, from use in its theme parks. The suit was brought under the ADA by a
guest with a mobility impairment who wanted to use her Segway because she was unable to walk the
distances required at the theme park. The settlement allowed Disney to continuing banning Segways,
even for those with mobility impairments, in exchange for a promise to develop a 4 wheeled stand up
vehicle. The settlement was approved in part because the District Court found that safety concerns
were such that the plaintiffs were unlikely to prevail at trial.
The Department of Justice was among a group of objectors to the settlement. The DOJs regulations
concerning mobility devices (28 CFR 36.311) were promulgated during the litigation, and the DOJ
claimed that these regulations made it more likely the plaintiffs would prevail at trial. The District
Court disagreed, in essence finding that the DOJ was wrong in its analysis of the safety risks of using
the Segway in a crowded theme park.
The second lawsuit was Baughman v. Walt Disney World Co., 217 Cal.App.4th 1438 (2013). In that
case the California Court of Appeals found that there was no violation of the ADA when Disney
forbade the use of the plaintiffs Segway. Once again the issue was safety, with the Court agreeing
that the device was simply too dangerous for use in a theme park. A third case, also brought by
Baughman in federal court in California was dismissed based on the class action settlement in the
11th Circuit case. In two of other decisions involving Segways and the ADA, the courts agreed that
because of safety concerns at least some limits on Segway use are appropriate in public
accommodations. See, McElroy v. Simon Prop. Grp., Inc., 2008 WL 4277716 (D. Kan. 2008)
[plaintiff could be required to sign a registration and safety form], Komperda v. Hilton Hawaiian
Vill., LLC, 2010 WL 4386758 (D. Haw. 2010) [plaintiff lost his ADA claim after a jury trial].
It appears, based on these cases, that everyone but the Department of Justice understands that
Segways are simply too dangerous for use in crowded public areas. Despite this the new DOJ
guidance insists that devices such as Segways can be accommodated in most circumstances,
pointedly giving theme parks as an example where Segway use should be accommodated. Armed
with this guidance there is little doubt that Segway litigation will continue as disabled users claim
they should be allowed to go anywhere their machine can fit, regardless of the danger to others.
What can a business do? The DOJ guidance is almost useless when it comes to answering this
question, for it requires every business to formulate a policy covering all power driven mobility
devices (OPDMDs in DOJ jargon) based on five assessment factors that cannot be objectively
measured. Businesses are allowed to develop rules, but exactly what rules are permissible remains
vague. Businesses are also allowed to require credible assurance that the individual has a disability

requiring use of the Segway, but credible assurance includes the user just claiming to be disabled
and need the Segway. This means, in effect, that anyone who is willing to lie will be able to take a
Segway into almost any public accommodation despite the fact that courts and experts agree that it is
unreasonably dangerous to allow this.
Of course this isnt just about Segways. Electric golf carts fall into the same category, and based on
the DOJs definition the guidance would also apply to electric scooters and skateboards of all kinds.
The DOJs position is that every disabled person is entitled to decide what device best helps him or
her on a purely subjective basis, and there are no objective criteria a business can rely on to
determine which devices are too dangerous to others to be excluded. Businesses are left to balance
the likely costs of a personal injury lawsuit resulting from inadequate control of a Segway or other
OPDMD against the cost of defending an ADA lawsuit supported by the DOJ. While it will certainly
be worthwhile for businesses to pay experts to develop a policy based on the DOJ guidance, in the
end, as is too often the case, the primary beneficiaries of the ADA will be experts and lawyers.