                                                                        FILED
                              FOR PUBLICATION                            JUL 18 2012

                                                                     MOLLY C. DWYER, CLERK
                  UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                          FOR THE NINTH CIRCUIT


TINA BAUGHMAN,                                 No. 10-55792

             Plaintiff - Appellant,            D.C. No. 8:07-cv-01108-CJC-
                                               MLG
  v.

WALT DISNEY WORLD COMPANY,                     OPINION

             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
                              Pasadena, California

                                Filed July 18, 2012

Before:     KOZINSKI, Chief Judge, REINHARDT and W. FLETCHER,
            Circuit Judges.

KOZINSKI, Chief Judge:

       Segways at Disneyland? Could happen.
                                                                               page 2
                                        Facts

      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.
                                                                                 page 3
                                      Discussion


I.    Judicial Estoppel

      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?
                                                                                page 4
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).
                                                                                 page 5
      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

factor.


      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
                                                                               page 6
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.
                                                                                 page 7
II.   ADA Claim

      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
                                                                                 page 8
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
                                                                                page 9
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.

Id.
                                                                                page 10
      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

guests.

      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
                                                                             page 11
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
                                                                                   page 12
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
                                                                              page 13
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,
                                                                             page 14
stereotypes, or generalizations about individuals with disabilities.” 28 C.F.R.

§ 36.301(b).

      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.
                                                                        page 15
                                    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 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.
             page 16
Appendix 1




ER 564.
