A discrimination suit against Walt Disney World Co. over its ban on two-wheeler Segways at its Florida theme parks has taken an unexpected twist with a judge throwing out a settlement and Disney disingenuously claiming a victory.

As part of the settlement of a proposed class action filed by three disabled people, Disney agreed in December 2008 to provide disabled guests with at least 15 newly-designed four-wheeled vehicles. The company had claimed Segways could endanger the safety of other theme park guests and that it adequately accommodated the disabled by providing wheelchairs and motorized scooters for rent.

But the settlement left the Segway ban in place and enraged disabled rights groups because, among other things, it shielded Disney from “any and all past, present, and future claims ... of any and every kind or nature whatsoever” arising from the policy. More than 100 individuals and the U.S. Department of Justice filed objections to the agreement.

In an Oct. 6 opinion, U.S. District Judge Gregory A. Presnell vacated his preliminary approval of the settlement and dismissed the case, finding the plaintiffs did not have standing to sue for discrimination because it was not “necessary” that they use a Segway to access Disney parks.

“Although there may be some disabled individuals for whom an upright mobility device such [as] a Segway –- and not a wheelchair or some other 'traditional' device –- amounts to something that is essential, it remains a near physiological certainty that most people, regardless of disability, can sit from time to time,” he said. “The named Plaintiffs ... are no different from most of humanity in this regard.”

Under Section 12182(b)(2)(A)(ii) of the Americans With Disabilities Act, a public facility must “make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.”

Disney responded to the decision with remarkable chutzpah, saying in a statement:

This ruling is consistent with what we have advocated all along in this case -- that we have appropriately balanced the need to maintain a safe environment for everyone while at the same time meeting our legal requirements to provide access to those with mobility impairments.

In fact, Presnell confined his ruling to the reasonable accommodation issue and expressed concerns that the Segway ban is an affront to the dignity of the disabled.

“[T]he Segway is quickly changing the way disabled Americans are perceived and treated in our society,” he noted. “The importance of this interest simply cannot be overlooked. While on the facts of this case equal treatment and human dignity may not be protected under Section 12182(b)(2)(A)(ii), those interests may still be protected by other provisions of the ADA or state law.”

David Ferleger, an attorney for disabled rights groups that objected to the settlement, said Disney had actually

suffered a great loss. It's effort to obtain approval of the settlement which would have made the Segway ban permanent was rejected. The court spoke at length about the ADA's protection of the dignity of people with disabilities and left the way open to other suits under a variety of theories. Given Disney's urgent efforts to win approval of the settlement, it is ironic to see it attempt to call this loss a win.

The settlement also provided for an award of $70,000 in fees to counsel for two of the plaintiffs. The attorney for the other plaintiff requested $106,812.50 in fees.

The Department of Justice cited the “overbroad” liability release provisions in objecting to the settlement. “Given the limited scope of the Complaint, well-established federal caselaw precludes the settling parties in Disney from compromising the claims of absent class members that arise out of other legal or factual predicates,” it said in a brief.

By Matthew Heller
10/9/09