United States v. 2012-07-18 | 10-55792 | BAUGHMAN VWALT DISNEY WORLD COMPANY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 TINA BAUGHMAN, No. 10-55792
Plaintiff-Appellant, D.C. No.
v. 8:07-cv-01108-  CJC-MLGWALT DISNEY WORLD COMPANY,
Defendant-Appellee. OPINION

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—Pasadena, California
Filed July 18, 2012
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
William A. Fletcher, Circuit Judges.
Opinion by Chief Judge Kozinski
8413

-- 1 of 12 --

COUNSEL
David E. Geffen, David Geffen Law Firm, Santa Monica,
California, for appellant Tina Baughman.
Daniel F. Fears, Daniel L. Rasmussen and Daniel F. Lula,
Payne & Fears LLP, Irvine, California, for appellee Walt Dis-
ney 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.
OPINION
KOZINSKI, Chief Judge:
Segways at Disneyland? Could happen.
Facts
Tina Baughman suffers from limb girdle muscular dystro-
phy, 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-
8416 BAUGHMAN v. WALT DISNEY WORLD CO.

-- 2 of 12 --

wheeled mobility device operated while standing. See Appen-
dix 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 Disabili-
ties 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 sum-
mary judgment for Disney.
Discussion
I. Judicial Estoppel
[1] 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 posi-
tion . . . .” 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 cita-
tions 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)
8417 BAUGHMAN v. WALT DISNEY WORLD CO.

-- 3 of 12 --

Is the party’s later position “clearly inconsistent with its ear-
lier 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? and (3) Will the party seek-
ing to assert an inconsistent position “derive an unfair advan-
tage 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 state-
ments because she didn’t make them under oath.
[2] 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 (empha-
sis added). Positions need not be taken under oath. The point
is to “prevent[ ] a party from asserting a claim in a legal pro-
ceeding 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 ear-
lier legal assertion. Wagner v. Prof’l Eng’rs in Cal. Gov’t,
354 F.3d 1036, 1044 (9th Cir. 2004).
[3] 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 posi-
tion she’s taking in our case. That is all that’s needed to sat-
isfy this factor.
2. The second New Hampshire factor—that one of the
courts has been misled—is often dispositive. See Interstate
8418 BAUGHMAN v. WALT DISNEY WORLD CO.

-- 4 of 12 --

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 Ris-
setto 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.
[4] 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 defen-
dants’ facilities by using a wheelchair, and the lawsuits
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 quota-
tion marks omitted).
[5] Baughman also claims she wasn’t aware of those repre-
sentations 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 law-
suit 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.
8419 BAUGHMAN v. WALT DISNEY WORLD CO.

-- 5 of 12 --

[6] Each of the New Hampshire factors supports the dis-
trict 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.
II. ADA Claim
[7] Congress enacted the ADA “to remedy widespread dis-
crimination against disabled individuals.” PGA Tour, Inc. v.
Martin, 532 U.S. 661, 674 (2001). Title III of the ADA pro-
vides 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 accom-
modations 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 modifica-
tions in policies, practices, or procedures, when such modifi-
cations 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 scoot-
ers. 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 front steps, see Ten-
nessee 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
8420 BAUGHMAN v. WALT DISNEY WORLD CO.

-- 6 of 12 --

friends. That’s not the world we live in, and we are disap-
pointed to see such a retrograde position taken by a company
whose reputation is built on service to the public.
[8] 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 guar-
antees 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 indi-
vidual 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 dur-
ing 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
requested, i.e., that [the theater] ensure that his companion
could be seated next to him, was necessary.” Id. at 1083
(emphasis added).
[9] 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 experi-
ence. See Spector v. Norwegian Cruise Line Ltd., 545 U.S.
119, 128-29 (2005). For example, the movie theaters in Ore-
gon 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 the-
ater. 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 com-
fortable viewing locations from which to choose.” Id. at 1133.
8421 BAUGHMAN v. WALT DISNEY WORLD CO.

-- 7 of 12 --

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 dis-
abled 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. Id.
[10] Facilities are not required to make any and all possi-
ble 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 tech-
nological 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 guests.
[11] The modification Baughman seeks is entirely consis-
tent with our caselaw. She claims that she has difficulty stand-
ing up from a seated position, so the Segway—which allows
her to remain standing—makes it easier for her to visit Dis-
neyland’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
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
8422 BAUGHMAN v. WALT DISNEY WORLD CO.

-- 8 of 12 --

its policies, any discomfort or difficulty she may suffer is too
darn bad. Supplemental Br. of Appellee 5. Disney is obvi-
ously 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 Cin-
emas, Inc., 339 F.3d at 1133.
Our conclusion is supported by regulations recently pro-
mulgated 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 regula-
tions 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.
[12] 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 accor-
dance with legitimate safety requirements.” § 36.311(b)(1).
The regulation discusses Segways at length, concluding “that
in the vast majority of circumstances” public accommodations
will have to admit them. § 36, app. A, at 726.
[13] “As the agency directed by Congress to issue imple-
menting 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 regu-
lation,” such regulation is “given controlling weight unless
[it’s] arbitrary, capricious, or manifestly contrary to the stat-
ute.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843-44 (1984).
8423 BAUGHMAN v. WALT DISNEY WORLD CO.

-- 9 of 12 --

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 “neces-
sary,” 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 rea-
sonable but not 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.
[14] 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. Sec-
tion 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 pedes-
trian 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, per-
missibly 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,
stereotypes, or generalizations about individuals with disabili-
ties.” 28 C.F.R. § 36.301(b).
8424 BAUGHMAN v. WALT DISNEY WORLD CO.

-- 10 of 12 --

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.
8425 BAUGHMAN v. WALT DISNEY WORLD CO.

-- 11 of 12 --

Appendix 1
ER 564.
8426 BAUGHMAN v. WALT DISNEY WORLD CO.

-- 12 of 12 --