Businesses, particularly retail establishments, are increasingly confronting customers’ use, or desired use, of Segways and similar Personal Mobility Devices (“PMD”). Some patrons with disabilities prefer to use Segways instead of wheelchairs or motorized scooters, but Segways can operate at faster speeds and often cause legitimate safety concerns for businesses operating places of public accommodation. While this problem is especially common in the sometimes narrow aisles of grocery stores, it certainly can be an issue of concern for many different types of businesses.
The DOJ’s 2010 ADA Title III regulations specifically address this topic, and the matter continues to be litigated and played out in courts across the country. While businesses still have some ability to prohibit the use of Segways under certain circumstances, the clear trend indicates that customers with disabilities may use Segways and similar PMDs in places of public accommodation.
The DOJ regulations specify two classes of mobility devices: (1) wheelchairs and manually-powered mobility aids and (2) other power-driven PMDs. 28 C.F.R. § 36.311. Segways fall under the second category. The regulations go on to state that in considering the use of a Segway or other PMD from the second category, a place of public accommodation must “make reasonable modifications” to permit the PMD unless it can demonstrate that the patron cannot operate the device “in accordance with legitimate safety requirements.” Businesses may include a number of factors listed by the regulations in determining the permissible use of Segways, including the size, weight, and speed of the device, the volume of pedestrian traffic in the facility, and whether legitimate safety requirements can ensure safe operation of the PMD. 28 C.F.R. § 36.311(b)(2).
The DOJ regulations contain specific discussion of Segways, and provide that any safety requirement imposed “must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individual with disabilities.” The regulations also state that “in the vast majority of circumstances” places of public accommodation will have to let patrons with disabilities use Segways and similar power-driven PMDs.
Recent court decisions have reinforced these principles, citing the recent regulations. For example, the Ninth Circuit recently required that Disneyland make necessary effort to accommodate a disabled guest’s use of a Segway, absent overriding safety concerns. Much of the litigation even prior to the new regulations involved shopping malls where businesses have refused to allow patrons with disabilities to use power-driven PMDs. See, e.g., McElroy v. Simon Property Group, 2008 WL 4277716 (D. Kan. Sept. 15, 2008) (enjoining mall from prohibiting the use of a Segway where an individual agrees to all of a mall’s policies for use of the device, except indemnification). In reaching these conclusions in favor of Segways, courts have pointed out that the ADA assures more than just access to public facilities, but also provides for “full and equal enjoyment” of such facilities.
As the law on this topic continues to evolve, and technology advances, businesses will need to determine how to safely permit the use of Segways and similar PMDs in their places of public accommodation. While public accommodations cannot outright ban the Segway, or force customers with disabilities to use alternate PMDs against the customer’s preference, businesses can (and should) demand that patrons operate these devices in a safe manner, and provide a specific and preferably written framework and rules for doing so.