Ninth Circuit reverses ruling in favor of Disney in ADA suit

Jessica M. Karmasek Jul. 25, 2012, 12:00pm


SAN FRANCISCO (Legal Newsline) - A federal appeals court ruled last week that a Disney theme park is wrong in refusing to allow a woman to use a Segway while visiting "The Happiest Place on Earth."

In its July 18 opinion, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded a decision by the U.S. District Court for the Central District of California.

The district court had ruled that plaintiff Tina Baughman, who suffers from limb girdle muscular dystrophy, was judicially estopped from claiming she cannot use a motorized wheelchair and granted summary judgment for Disney.

Baughman's disease makes it difficult for her to walk or stand from a seated position.

Nevertheless, she hoped to fulfill her daughter's eighth birthday wish: to visit Disneyland in Anaheim, Calif.

Baughman had contacted Disneyland ahead of time to explain her physical limitations and request permission to use a Segway, a two-wheeled mobility device operated while standing.

However, Disney's policy is to allow wheelchairs and motorized scooters; "two-wheeled vehicles or devices," like bicycles and Segways, are prohibited.

Disney refused to make an exception for Baughman.

She then sued under the Americans with Disabilities Act, claiming that Disney denied her "full and equal access" to its theme park.

In its 12-page ruling, the Ninth Circuit agreed that Baughman is estopped from claiming she cannot use a motorized wheelchair or scooter.

In three prior lawsuits, she had claimed "she has a physical impairment which causes her to rely upon a power scooter or wheelchair for her mobility."

In the instant suit, she claimed that she must use a Segway because using a wheelchair is "impractical, painful and difficult."

"Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position."

This doctrine is known as judicial estoppel and its purpose is to protect the integrity of the judicial process by "prohibiting parties from deliberately changing positions according to the exigencies of the moment."

"Assertions in her current complaint that she has 'never used' and 'doesn't need' a wheelchair clearly can't be reconciled with the earlier claims," Chief Judge Alex Kozinski wrote for the appeals court.

"Baughman presents no evidence that her condition has changed so that she can no longer use a wheelchair or scooter. Instead, she argues that she's not bound by her previous statements because she didn't make them under oath."

The fact that her earlier statements weren't made under oath doesn't matter, the Ninth Circuit said.

"What matters is that she pressed a claim in the earlier lawsuits that is inconsistent with the position she's taking in our case," Kozinski wrote.

"If Baughman is now allowed to claim that she cannot use a wheelchair, either the earlier courts or we will have been misled."

As for Baughman's ADA claim, the Ninth Circuit ruled against Disney and the district court.

"Read as Disney suggests, the ADA would require very few accommodations indeed," Kozinski wrote. "That's not the world we live in, and we are disappointed to see such a retrograde position taken by a company whose reputation is built on service to the public."

Public accommodations must start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience, the court explained.

"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," Kozinski wrote.

"But they must also take into account evolving technology that might make it cheaper and easier to ameliorate the plight of the disabled.

"In the past, it might have been enough for a theme park to permit only non-powered wheelchairs. As technology made motorized wheelchairs and scooters cheaper, safer and more reliable, our expectations of what is reasonable changed -- as Disney recognizes."

Technological advances, the Ninth Circuit noted, didn't end with the powered wheelchair.

"As new devices become available, public accommodations must consider using or adapting them to help disabled guests have an experience more akin to that of non-disabled guests," Kozinski wrote, adding that the appeals court does not hold that Disney must permit Segways at its theme parks.

It might be able to exclude them if it can prove that Segways cannot be operated safely in its parks, the court noted.

"We have every confidence that the organization that, half a century ago, brought us the Carousel of Progress and Great Moments with Mr. Lincoln can lead the way in using new technology to make its parks more welcoming to disabled guests," Kozinski concluded.

From Legal Newsline: Reach Jessica Karmasek by email at

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