With the release of the updated ADAAG on July 26, 2010, the Department of Justice (DOJ) finally addressed the use of Segways as mobility devices. Well, kind of. Let’s just say it’s a first step. I think the whole issue will ultimately be decided by case law, but at least the new regulations give consumers and business owners a little more guidance about what is and what isn’t an assistive device.
Basically the DOJ took a two-tiered approach in the definition department; breaking up assistive devices between “wheelchairs” and “other mobility devices.”
A wheelchair is defined as “a manually-operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor or?both indoor and outdoor locomotion.”
Are Segways included in that definition? Absolutely not, according to the DOJ, because unlike wheelchairs and scooters, Segways were not primarily designed as mobility devices.
And with the new two tiered definition of assistive devices, also comes different levels of required access. Wheelchairs are granted full access to all public accommodations, while other mobility devices may be granted or denied access depending on factors such as:
- The device’s size, weight and speed
- The facility’s volume of pedestrian traffic
- The facility’s design and operational characteristics
- Whether the device conflicts with legitimate safety requirements
- Whether the device poses a substantial risk of harm to the immediate environment, nature or cultural resources, or conflicts with federal land management regulations.
So in that respect, the decision in Ault v. Walt Disney World might still hold up under the new regulations. In that case, Disney claimed that Segways presented a safety risk to their other guests; however before it was adjudicated a settlement agreement was reached. Basically the settlement allowed Disney to prohibit Segways, in exchange for their agreement to develop their own four-wheeled power stand-up scooters for disabled guests. But then, in a surprise move, the judge voided the settlement and threw out the case because “the plaintiffs were unable to prove that Segways were necessary for them to access the park; as they could all use scooters or wheelchairs, which are permitted in the park.”
As I said, the case might hold up today, because under the new regulations a public accommodation can ban other mobility devices if they are a safety risk. Here’s the kicker though. The regulations also state that the burden of proof lies with the public accommodation. In other words, the plaintiffs don’t have to prove that Segways are necessary for them; but the business must prove they are a safety risk. I’m betting Disney could muster the legal muscle to do it; but I still have a feeling another plaintiff will put that to the test.
In the end, the DOJ sums up their stand on the matter by saying that the new regulation, “neither mandates that all other power-driven mobility devices be accommodated in every circumstance, nor excludes these devices from all protection.”
But it does open the door for Segways. In the end, time — and probably a few federal judges — will tell.