Tina Baughman v. Walt Disney World Company
FILED OPINION (ALEX KOZINSKI, STEPHEN R. REINHARDT and WILLIAM A. FLETCHER) REVERSED AND REMANDED. Judge: AK Authoring, Judge: SR , Judge: WAF FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
JUL 18 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff - Appellant,
D.C. No. 8:07-cv-01108-CJCMLG
WALT DISNEY WORLD COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted January 11, 2012
Filed July 18, 2012
KOZINSKI, Chief Judge, REINHARDT and W. FLETCHER,
KOZINSKI, Chief Judge:
Segways at Disneyland? Could happen.
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Tina Baughman suffers from limb girdle muscular dystrophy, which makes
it difficult for her to walk or stand from a seated position. Baughman nevertheless
hoped to fulfill her daughter’s eighth-birthday wish: a visit to the happiest place on
earth. She contacted Disneyland to explain her physical limitations and request
permission to use a Segway, a two-wheeled mobility device operated while
standing. See Appendix 1. 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.
Baughman sued Disney under the Americans with Disabilities Act (“ADA”),
claiming that Disney denied her full and equal access to Disneyland. The district
court held that Baughman was judicially estopped from claiming she can’t use a
motorized wheelchair, so there was no genuine issue of material fact as to whether
it was “necessary” for Baughman to use a Segway to visit Disneyland. It therefore
granted summary judgment for Disney.
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In three prior lawsuits, Baughman claimed that “she has a physical
impairment which causes her to rely upon a power scooter or wheelchair for her
mobility.” Now she claims that she must use a Segway because using a wheelchair
is “impractical, painful, and difficult.” “[W]here 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 . . . .” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (internal
quotation marks omitted). 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.”
Id. at 749–50 (internal quotation marks and citations omitted).
Judicial estoppel is imposed at the discretion of the district court. Id. at 750.
In considering whether the district court abused its discretion, we look at several
factors, including: (1) Is the party’s later position “clearly inconsistent with its
earlier position?” (2) Did the party succeed in persuading a court to accept its
earlier position, creating a perception that the first or second court was misled?
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and (3) Will the party seeking to assert an inconsistent position “derive an unfair
advantage or impose an unfair detriment on the opposing party?” Id. at 750–51
(internal quotation marks omitted).
1. In three prior lawsuits, Baughman claimed that she relied on a wheelchair
or scooter for her mobility. Assertions in her current complaint that she has “never
used” and “do[es]n’t need” a wheelchair clearly can’t be reconciled with the earlier
claims. 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.
But, as the Supreme Court has explained, judicial estoppel prevents a party
from changing its “position in a legal proceeding.” New Hampshire, 532 U.S. at
749 (emphasis added). Positions need not be taken under oath. The point is to
“prevent[ ] a party from asserting a claim in a legal proceeding that is inconsistent”
with a previous claim. 18 James Wm. Moore et al., Moore’s Federal Practice
§ 134.30, p. 134-63 (3d ed. 2012) (emphasis added). Indeed, the claim might not
be factual at all. We’ve applied the doctrine to prevent a party from making a legal
assertion that contradicted its earlier legal assertion. Wagner v. Prof’l Eng’rs in
Cal. Gov’t, 354 F.3d 1036, 1044 (9th Cir. 2004).
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That Baughman’s earlier statements weren’t made under oath doesn’t matter.
What matters is that she pressed a claim in the earlier lawsuits that is inconsistent
with the position she’s taking in our case. That is all that’s needed to satisfy this
2. The second New Hampshire factor—that one of the courts has been
misled—is often dispositive. See Interstate Fire & Cas. Co. v. Underwriters at
Lloyd’s, London, 139 F.3d 1234, 1239 (9th Cir. 1998). For a court to be misled, it
need not itself adopt the statement; those who “induce[ ] their opponents to
surrender have prevailed as surely as persons who induce the judge to grant
summary judgment.” See Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d
597, 604–05 (9th Cir. 1996) (internal quotation marks omitted). When a party
settles a case involving false allegations or claims, the court is deemed to have
been misled. This is because it’s the coercive power of the court—the judgment it
might render if the case is litigated to its conclusion—that’s the driving force
behind such settlements.
Baughman’s statements in the earlier cases were not peripheral or
immaterial; they were central to her claims. She filed complaints alleging that she
couldn’t access the defendants’ facilities by using a wheelchair, and the lawsuits
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resulted in favorable settlements. If Baughman is now allowed to claim that she
cannot use a wheelchair, either the earlier courts or we will have been misled. We
don’t allow parties to “play fast and loose with the courts” by adopting such
contradictory positions. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778,
782 (9th Cir. 2001) (internal quotation marks omitted).
Baughman also claims she wasn’t aware of those representations in her
earlier complaints, which were drafted by her lawyer. But Baughman’s personal
knowledge doesn’t matter. What matters is that she derived a benefit from an
earlier lawsuit where material inconsistent representations were made on her
behalf. So long as those judgments or settlements stand, Baughman is bound by
the representation she made during the course of the litigation.
3. Finally, if Baughman can assert that she’s never used, and can’t use, a
wheelchair, her ADA claim in our case could be significantly stronger, giving her
an unfair advantage over her opponent.
Each of the New Hampshire factors supports the district court’s ruling that
Baughman is estopped from claiming she can’t use a motorized wheelchair or
scooter. We analyze her ADA claim based on the presumption she can.
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Congress enacted the ADA “to remedy widespread discrimination against
disabled individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). Title
III of the ADA provides that “[n]o individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation . . . .” 42 U.S.C. § 12182(a) (emphasis added). Discrimination is
defined, in part, as “a failure to 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 . . . .” § 12182(b)(2)(A)(ii) (emphasis added); see also
Martin, 532 U.S. at 683 n.38.
The district court held that Disney is not required to modify its policy
because it permits motorized wheelchairs or scooters. Disney argues vigorously in
support of the district court’s judgment that “necessary” means only one thing:
can’t do without. Because Baughman can access Disneyland by using a wheelchair
or scooter, a Segway isn’t “necessary” for her to use the park. QED.
Read as Disney suggests, the ADA would require very few accommodations
indeed. After all, a paraplegic can enter a courthouse by dragging himself up the
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front steps, see Tennessee v. Lane, 541 U.S. 509, 513–14 (2004), so lifts and ramps
would not be “necessary” under Disney’s reading of the term. And no facility
would be required to provide wheelchair-accessible doors or bathrooms, because
disabled individuals could be carried in litters or on the backs of their friends.
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.
Disney’s (and the district court’s) error lies in fixating on a single word in
the statute rather than reading all of the relevant words together. See FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000). The ADA
guarantees the disabled more than mere access to public facilities; it guarantees
them “full and equal enjoyment.” 42 U.S.C. § 12182(a). What this means is
illustrated by cases such as Fortyune v. American Multi-Cinema, Inc., 364 F.3d
1075, 1085 (9th Cir. 2004), where we held that a theater was required to provide
wheelchair seating for the disabled individual and an adjacent seat for his wife.
The attendant seat was obviously not necessary for Fortyune to see the movie, but
moviegoers expect to sit with their friends and family during the show; their
enjoyment is diminished if they are forced to sit apart. “Because Fortyune
require[d] an attendant to enjoy the viewing of a film, the modification that he
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requested, i.e., that [the theater] ensure that his companion could be seated next to
him, was necessary.” Id. at 1083 (emphasis added).
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. See Spector v. Norwegian Cruise Line Ltd., 545
U.S. 119, 128–29 (2005). For example, the movie theaters in Oregon Paralyzed
Veterans of America v. Regal Cinemas, Inc., 339 F.3d 1126, 1127–28 (9th Cir.
2003), provided seating for wheelchair-bound patrons only in the front rows of the
theater. We found it “simply inconceivable that this arrangement could constitute
‘full and equal enjoyment’ of movie theater services by disabled patrons” because
it required them “to crane their necks and twist their bodies in order to see the
screen, while non-disabled patrons [had] a wide range of comfortable viewing
locations from which to choose.” Id. at 1133. We rejected the notion that “[n]o
matter where in the theater the seats are, and no matter how sharp the viewing
angle, so long as there is no physical object standing between the disabled patron
and the screen” the theaters satisfied the ADA. Id. We held that theaters had to
provide disabled patrons an experience comparable to that of able-bodied patrons.
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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.
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.
But technological advances 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
The modification Baughman seeks is entirely consistent with our caselaw.
She claims that she has difficulty standing up from a seated position, so the
Segway—which allows her to remain standing—makes it easier for her to visit
Disneyland’s many attractions, concessions and facilities. She also claims that
using a Segway allows her to be at eye-level with other guests and staff, rather than
having everyone look down at her. Disney doesn’t dispute Baughman’s claim that
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using a motorized wheelchair or scooter would require her to stand and sit many
times during her visit, or that doing so would be painful for her. Nor does Disney
dispute that Baughman would feel more comfortable and dignified using a Segway.
Disney simply takes the position that, even if Baughman’s access is made
“uncomfortable or difficult” by its policies, any discomfort or difficulty she may
suffer is too darn bad. Supplemental Br. of Appellee 5. Disney is obviously
mistaken. If it can make Baughman’s experience less onerous and more akin to
that enjoyed by its able-bodied patrons, it must take reasonable steps to do so. See
Regal Cinemas, Inc., 339 F.3d at 1133.
Our conclusion is supported by regulations recently promulgated by the
Department of Justice (“DOJ”), which is charged with administering the ADA.
See Bragdon v. Abbott, 524 U.S. 624, 646 (1998); 28 C.F.R. § 36.311. The
regulations identify two classes of mobility devices: (1) wheelchairs and manually
powered mobility aids and (2) other power-driven mobility devices. § 36.311.
According to the DOJ, Segways fall into the second category. § 36, app. A, at 726.
When faced with an individual who uses a device from the second category,
the public accommodation must “make reasonable modifications” to permit the
device unless it can demonstrate that the device can’t be operated “in accordance
with legitimate safety requirements.” § 36.311(b)(1). The regulation discusses
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Segways at length, concluding “that in the vast majority of circumstances” public
accommodations will have to admit them. § 36, app. A, at 726.
“As the agency directed by Congress to issue implementing regulations, to
render technical assistance explaining the responsibilities of covered individuals
and institutions, and to enforce Title III in court, the Department’s views are
entitled to deference.” Bragdon, 524 U.S. at 646 (internal citations omitted); see
also 42 U.S.C. § 12186(b). Where Congress has given “express delegation of
authority to [an] agency to elucidate a specific provision of [a] statute by
regulation,” such regulation is “given controlling weight unless [it’s] arbitrary,
capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984).
Disney scoffs at the regulation, claiming it conflicts with precedent. It
argues that in Martin, 532 U.S. at 682, the Supreme Court adopted Disney’s strict
meaning of “necessary,” precluding the Justice Department from adopting a
broader definition by way of regulation. According to Disney, the Martin Court
held that a requested modification under Title III of the ADA isn’t necessary,
“even when access to the public accommodation may be ‘uncomfortable or
difficult’ for the plaintiffs without it, so long as access is not ‘beyond their
capacity. In such cases, an accommodation might be reasonable but not
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necessary.’” Supplemental Br. of Appellee 5 (quoting Martin, 532 U.S. at 682
(emphasis added)) (internal citation omitted).
But the issue presented in Martin was whether the requested
modification—using a golf cart—fundamentally altered the nature of the PGA
Tour, which required golfers to walk. Martin, 532 U.S. at 682–91. The Court had
no occasion to rule on whether the requested modification was necessary “[g]iven
the concession by [the public accommodation] that the modification sought [was]
reasonable and necessary.” Id. at 683 n.38. Martin offers Disney no help, and
Disney’s other arguments that the regulation is invalid border on the absurd.
We do not hold that Disney must permit Segways at its theme parks. It
might be able to exclude them if it can prove that Segways can’t be operated safely
in its parks. Section 36.311(b) lists several factors to consider in determining
whether a device can be used in a particular facility, including the size, weight and
speed of the device; the volume of pedestrian traffic in the facility; and whether
legitimate safety requirements can be established to ensure safe operation of the
device. § 36.311(b)(2). Disney might, for example, permissibly require Segways
to travel only as fast as motorized wheelchairs. But any safety requirements
Disney imposes “must be based on actual risks and not on mere speculation,
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stereotypes, or generalizations about individuals with disabilities.” 28 C.F.R.
New technology presents risks as well as opportunities; we must not allow
fear of the former to deprive us of the latter. 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. As the man who started it all said,
“Disneyland will never be completed as long as there is imagination left in the
world.” Walt Disney, 65, Dies on Coast; Founded an Empire on a Mouse, N.Y.
Times, Dec. 16, 1966, at 40.
REVERSED AND REMANDED.
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David E. Geffen, David Geffen Law Firm, Santa Monica, California, for appellant
Daniel F. Fears, Daniel L. Rasmussen and Daniel F. Lula, Payne & Fears LLP,
Irvine, California, for appellee Walt Disney World Company.
Thomas E. Perez, Assistant Attorney General, Jennifer L. Eichhorn and Gregory B.
Friel, United States Department of Justice, Civil Rights Division, Washington,
D.C., for amicus curiae United States.
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