By Minh Vu and Paul Kehoe
Many individuals with disabilities are choosing other power-driven mobility devices (OPMDs) such as Segways™ over traditional wheelchairs and scooters to provide them with enhanced mobility. In response, as we previously reported, the Department of Justice (DOJ) amended its regulations in 2010 to require businesses to allow the use of OPMDs in their facilities unless the business can establish that the particular OPMD cannot be operated safely within any particular facility. Three years later, businesses still have very little practical guidance from the courts and DOJ about when they may limit the use of these devices.
The regulations specify that businesses must analyze five factors to determine whether they must allow a particular OPMD to be used in a specific facility, including (i) the type, size, weight, dimensions and speed of the device, (ii) the facility’s pedestrian traffic, (iii) the facility’s design and operational characteristics, (iv) whether legitimate safety requirements can be established to permit the safe operation of another OPMD in that facility, and (v) whether the use of that OPMD creates a substantial environmental harm or conflicts with federal land management laws. But there is little guidance on how to apply these factors to specific situations.
The DOJ’s position is that “in the vast majority of circumstances,” public accommodations would have to admit Segways™ and other OPMDs. In its technical guidance document, ADA Update, A Primer for Small Businesses, the DOJ encourages businesses to develop written policies based on these factors specifying when OPMDs will be permitted on their premises and to communicate those policies to the public. However, it does not give examples of scenarios in which OPMDs can be excluded, other than to say a business may be able to limit OPMD use at certain times of the day when a facility has a high volume of pedestrian traffic.
Prior to the new regulations, much of the Segway™ access litigation involved shopping malls. 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 agreed to all of a mall’s policies for use of the device, except indemnification). Since the DOJ adopted the new regulations, only two courts have actually applied the regulatory factors to specific facts and they both involve a large amusement park. The first case, decided in a California trial court and affirmed on appeal, upheld the amusement park’s no-Segway policy because the park had submitted undisputed evidence that Segways™ could not be safely used in the crowded park because of the way they operate. In the second case, a federal district court approved a class settlement in which the plaintiffs had agreed to abandon their challenge to the park’s no-Segway policy in exchange for a commitment by the park to provide four-wheeled stand up OPMDs. The court based its approval on the fact that the amusement park owner had submitted sufficient expert testimony regarding the dangers of Segways™. This evidence caused the court to conclude that the plaintiffs would not have likely prevailed had the issue been litigated.
The reality is that few businesses have Segway experts on their staff who can conduct analyses to justify any restrictions on OPMD use, and even fewer have the resources or desire to defend their OPMD policies in court. Unfortunately, the regulations’ use of a multi-factor test results in uncertainty and litigation. Until more courts issue decisions involving scenarios that would justify restrictions, businesses should adopt policies with the fewest possible restrictions on OPMDs after conducting a thoughtful analysis of the regulatory factors as applied to each unique facility. Businesses also need to keep in mind that conditions can change depending the time of the day or year and that a policy should take into account these differences. These steps will help minimize the threat of litigation but will not eliminate it.