TRUCKEE, Calif. - The Americans with Disabilities Act (ADA) is a fertile area of the law - meaning it generates lots of lawsuits. As you have probably read, there is a wheelchair-bound attorney in Sacramento who frequents towns like Truckee and files ADA lawsuits in federal court. Around 2,000 at last count. A serial drive-by ADA litigant. I've defended several of his lawsuits.
This particular attorney was sued last month by several of his employees who claimed he often did not enter the premises he sued, yet claimed they were ADA deficient. He supposedly sometimes stayed in his van while his employees checked the premises, but later alleged in his lawsuits that he himself entered the premises. The employees also allege the law office is a "hostile workplace."
Segway through Disneyland
Tina Baughman has a degenerative muscular disease that makes it difficult for her to walk or rise from a seated position. For transportation she prefers a Segway, which in case you have been in a cave, is a two-wheeled self-balancing motorized device.
Baughman wrote to Disney requesting permission to use her Segway in the Anaheim park for a birthday visit with her eight year-old daughter. Disney responded that they were not able to honor her request because of safety concerns.
Shortly afterward, Baughman sued Disney claiming violations of the federal ADA and California's version of ADA law.
Americans with Disabilities Act
The ADA prohibits discrimination against people with disabilities in places of public accommodation. Under the statutes, discrimination includes "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, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations ..."
In order to prevail, an ADA plaintiff must show that the requested modification to a policy, practice or procedure is both necessary and reasonable. The latter injects a cost-to-fix consideration.
A Segway is Necessary
Disney argued that Baughman's requested modification - to allow her to use a Segway - is unnecessary because she can use a wheelchair or power scooter.
In her deposition in this case, Baughman testified under oath that she never used wheelchair. She claimed her physical impairment was such that she needed a Segway, not a wheelchair or scooter.
Surprise, surprise, Baughman told a fib.
Did I Say That?
Baughman must have short-term memory loss because Disney dug up three separate lawsuits she filed in the prior two years asserting that she relied on a wheelchair or scooter for mobility, and that she had difficulty standing. Claiming she was wheelchair bound, she had successfully sued Santa Monica Ford, DMV and Sav-On Drugs. All three defendants subsequently made improvements to their premises to allow better wheelchair access.
In response, Baughman lied again, claiming those assertions in her earlier cases were "pleading errors" by her attorneys. Then she claimed she never actually used a wheelchair or scooter, she just alleged she did. Digging a deeper hole.
Playing Fast and Loose
The federal Court of Appeals upheld the trial court Ruling: Baughman could not claim she used a wheelchair and scooter in three cases, then turn around in this case and state under oath that she has never used a wheelchair and needs a Segway. The Court wrote, "(the law) prevents litigants from 'playing fast and loose' with the courts by taking one position, gaining advantage from that position, then seeking a second advantage by later taking an incompatible position ... Ms. Baughman was dishonest ..." Indeed.
The federal Court of Appeals threw out Baughman's federal case. But because she had a claim against Disney under the California Disabled Persons Act, her state claim was transferred to Superior Court in Orange County. She lost in federal court, but may proceed in state court, where I predict no better results.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He was the Governor's appointee to the California Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, foreclosures, mediation and other transactional matters. He may be reached at email@example.com or at the firm's website www.portersimon.com.