California Court of Appeals, Fourth District, Third Division
Order File Date 7/31/13
Appeal from a judgment of the Superior Court of Orange County, No. 07CC08601 Andrew P. Banks, Judge.
David Geffen Law Firm and David G. Geffen for Plaintiff and Appellant.
Payne & Fears, Daniel F. Fears, Daniel L. Rasmussen and Daniel F. Lula for Defendant and Respondent.
ORDER MODIFYING OPINION
The opinion filed in this case on July 18, 2013, is ORDERED modified as follows:
1. On page 9, in the first full paragraph, delete the following sentence: “Where the trial court has granted summary judgment, we consider ‘“all of the evidence offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)’ (Cordova v. City of Los Angeles (2012) 212 Cal.App.4th 243, 252.)”
2. On page 9, in place of the deleted language, insert the following sentence: “Where the trial court has granted summary judgment, we consider ‘all of the evidence offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]’ (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)”
MOORE, ACTING P. J.
In 2007, plaintiff Tina Baughman brought suit against Walt Disney World Co. (Disney) alleging negligence per se, and violations of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq., (ADA)), California’s Disabled Persons Act (Civ. Code, § 54 et seq., (DPA)), and the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), based on Disney’s refusal to allow her to use a Segwayat Disneyland, a place she has never been. Baughman alleged the Segway is her preferred method of transportation, given that her muscular dystrophy substantially limits her ability to walk. The ADA cause of action was subsequently removed to the federal district court.
The trial court below granted Disney’s motion for summary judgment and entered judgment in Disney’s favor. We find Disney established it is entitled to judgment as a matter of law in that it demonstrated a Segway is an unstable two-wheeled device that could accelerate quickly, either forward or backward, and injure the rider and/or others if the rider is bumped. The undisputed expert evidence showed Segways cannot be used safely in Disneyland crowds due to its method of operation. In all of the papers submitted, there is no evidence showing the Segway can be safely used at Disneyland except Baughman’s inconsequential declaration that she has never had an accident while using her Segway. There was no evidence that Disney’s procedures amounted to a lack of a reasonable accommodation. Accordingly, no triable issue of fact remains.
Because this issue is dispositive, we need not address other issues raised by the parties, including whether Baughman should be judicially estopped from claiming she cannot use a motorized scooter or wheelchair, given the fact she has brought three prior ADA lawsuits in which she alleged she uses a wheelchair or motorized scooter, or whether she has standing to bring an action for damages under the Unruh Civil Rights Act or the DPA. (Surrey v. TrueBeginnings, LLC (2008) 168 Cal.App.4th 414, 416 [“a person must tender the purchase price for a business’s services or products in order to have standing to sue it for alleged discriminatory practices” under the Unruh Civil Rights Act]; Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1224 [DPA requires disabled person to have paid admission fee and then be denied entry].) We affirm.