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finding an event management company was not a public entity under Title II where the company received compensation from the government for its management services, and the government supplied police officers to aid in guiding traffic for events managed by the entity, but the entity's employees were not considered government employees and the entity was not governed by a board elected by the voters or appointed by elected officials
Summary of this case from Shore v. MirabilioOpinion
No. 03-2135-DV.
April 7, 2005
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant SMG's motion for summary judgment. Defendant asserts that the Court should grant its' motion for summary judgment as to Plaintiffs' Title II, Title III, negligence per se, civil contempt, and loss of consortium claims.
The Court notes that Plaintiffs' response to Defendant's motion for summary judgment was not timely in that Plaintiffs filed the response seven days after the mandated deadline. Although the Court does not find this issue dispositive, the Court warns that untimely responses may not be considered by the Court at its discretion.
Defendant first argues that Plaintiffs cannot recover under 42 U.S.C. § 12132 because Plaintiffs were not denied participation and benefit from the services and accommodations at the Pyramid. Defendant also asserts that their compliance with the Department of Justice ADA Accessibility Guidelines for Buildings and Facilities ("ADAAG") precludes any violation under the Americans with Disabilities Act ("ADA"). Further, Defendant contends that SMG did not engage in deliberate indifference. Finally, Defendant argues that they are not a public entity within the meaning of the statute.
Defendant also asserts that Plaintiffs cannot recover under 42 U.S.C. § 12182 because Plaintiffs were not denied participation and benefit from the services and accommodations at the Pyramid. Furthermore, Defendant contends their compliance with the Department of Justice ADA Accessibility Guidelines for Buildings and Facilities ("ADAAG") precludes any violation under the ADA. Additionally, Defendant argues that any injunction is superfluous as this was an isolated event and the Pyramid already maintains an adequate parking plan.
Defendant next argues that Plaintiffs cannot recover for civil contempt or negligence/negligence per se because Plaintiffs base their claim entirely upon Defendant's failure to comply with the consent order in Paralyzed Veterans Of America Mid South Chapter, et al. v. Hackett, et al., No. 91-2462-HB (W.D.Tenn. 1991).
Finally, Defendant contends Plaintiffs cannot establish a claim for Plaintiff Mark Obert's loss of consortium because Plaintiff Lesley Obert has no viable action against SMG.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Mark Christopher Obert and Lesley Obert, husband and wife, attended a George Strait concert on March 8, 2002, at the Pyramid Arena ("Pyramid") located in Memphis, Tennessee. Second Am. Comp. ¶ 19. Mrs. Obert suffers from spina bifida and has been confined to a wheelchair since birth. Id. at ¶ 20. On the date of the concert, Plaintiffs arrived downtown at least one hour before the beginning of the concert. Id. at ¶ 19. Plaintiffs attended other functions at the Pyramid and were familiar with the facility's available parking and seating options for handicapped individuals. Id.
In accordance with the ingress and egress lane dedicated to handicap access, Plaintiffs assert that they approached the Pyramid from Riverside Drive to park in the handicapped spaces located on the South side of the facility. Id. at ¶ 22. However, when they arrived they allegedly found that the dedicated handicapped lane was not being used for handicapped access. Id. Plaintiffs assert that agents or employees of SMG, apparently Memphis police officers, told Plaintiffs that the South side of the Pyramid had neither handicapped access nor handicapped parking spaces, despite Plaintiffs' requests for handicapped access and parking. Id. Plaintiffs maintain that Mark Obert then attempted to leave Lesley Obert on the North side of the Pyramid, however, he was denied access. Id. at ¶ 23. Thereafter, Mark Obert allegedly sought to leave Lesley Obert at the designated handicap drop-off zone located in front of the Pyramid, but again Memphis police officers denied him entry, telling him that there was no handicapped access available in front of the Pyramid and the area was closed to all except those in limousines and church buses. Id.
After being denied access and parking at the Pyramid, Plaintiffs assert that they obtained parking behind Café Francisco Restaurant, which is located several blocks southwest of the Pyramid. Id. at ¶ 25. After parking, Plaintiffs proceeded toward the Pyramid. Id. at ¶ 26. To reach the Pyramid, Plaintiffs had to cross North Main Street where it intersected with North Parkway. Id. A trolley track ran through the center of North Main Street. Id. As Lesley Obert crossed the street, the tire of her wheelchair lodged in the trolley tracks causing her to flip over the front of the wheelchair and land on the street. Id. at ¶ 27. The fall broke Lesley Obert's leg completely through in two places. Id. at ¶ 28. Lesley Obert maintains that she had a long and painful recuperation. Id.
On March 7, 2003, Plaintiffs initiated the instant action against Defendants. On the same day, Plaintiffs filed an action in state court against entities associated with the Memphis Area Transit Authority ("MATA") for the injuries Plaintiffs suffered as a result of Lesley Obert's wheelchair becoming lodged in the trolley tracks.
II. MOTION FOR SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In other words, summary judgment is appropriately granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The party moving for summary judgment may satisfy its initial burden of proving the absence of a genuine issue of material fact by showing that there is a lack of evidence to support the nonmoving party's case. Id. at 325. This in turn may be accomplished by submitting affirmative evidence negating an essential element of the nonmoving party's claim, or by attacking the opponent's evidence to show why it does not support a judgment for the nonmoving party. 10a Charles A. Wright et al.,Federal Practice and Procedure § 2727, at 35 (2d ed. Supp. 1996).
Facts must be presented to the court for evaluation. Kalamazoo River Study Group v. Rockwell Int'l Corp., 171 F.3d 1065, 1068 (6th Cir. 1998). The court may consider any material that would be admissible at trial. 10a Charles A. Wright et al., Federal Practice and Procedure § 2721, at 40 (2d ed. 1983). Although hearsay evidence may not be considered on a motion for summary judgment, Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999), evidentiary materials presented to avoid summary judgment otherwise need not be in a form that would be admissible at trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553;Thaddeus-X v. Blatter, 175 F.3d 378, 400 (6th Cir. 1999).
In evaluating a motion for summary judgment, all the evidence and facts must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Ltd. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Walbourn v. Erie County Care Facility, 150 F.3d 584, 588 (6th Cir. 1998). Justifiable inferences based on facts are also to be drawn in favor of the non-movant. Kalamazoo River, 171 F.3d at 1068.
Once a properly supported motion for summary judgment has been made, the "adverse party may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue for trial exists if the evidence would permit a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To avoid summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586.
III. ANALYSIS
A. Title II ADA Claim
In order to establish a violation of Title II of the ADA, a plaintiff must show that 1) she qualifies as a disabled individual; 2) she was excluded from participation in or was denied the benefits of some service, program, or activity by reason of her disability; and, 3) the entity providing the service, program or activity is a public entity. Dillery v. City of Sandusky, 398 F.3d 562, 567 (2005).
Defendant asserts four arguments as to Plaintiffs' Title II ADA claim. First, Defendant argues that Plaintiffs were not denied participation and benefit from the services and accommodations at the Pyramid. Next, Defendant contends that its compliance with the Department of Justice ADA Accessibility Guidelines for Buildings and Facilities ("ADAAG") precludes any claims of violations under the ADA. Defendant also argues that even if Plaintiffs can establish a Title II claim, SMG did not engage in deliberate indifference, which precludes recovery of compensatory damages under § 504 of the Rehabilitation Act. Finally, Defendant contends that SMG is not a public entity within the meaning of Title II of the ADA, but rather a private organization and thus cannot be held liable for any alleged discrimination under 42 U.S.C. § 12132. Because the Court finds SMG is not a public entity under Title II of the ADA, the Court need not address Defendant's first three arguments.
Defendant argues that it is not a public entity within the meaning of 42 U.S.C. § 12132, and, therefore, Plaintiffs' Title II claim must be dismissed. Plaintiffs contend that private organization does not immunize Defendant from Title II liability because Defendant is a lessee and/or operator of a public accommodation and is therefore liable for noncompliance with the ADA. Plaintiffs confuse Title II and Title III of the ADA. Title II provides as follows:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.42 U.S.C. § 12132. A defendant may only be held liable under Title II of the ADA if it is a public entity, not if defendant merely leases or operates a public accommodation. 42 U.S.C. § 12132. However, under Title III, organizations leasing or operating a public accommodation may be liable for noncompliance with the ADA. 42 U.S.C. § 12182. Title III provides as follows:
No 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.42 U.S.C. § 12182. When an entity appears to have both public and private features, the court should examine the relationship between the entity and the governmental unit to determine if the entity is in fact public or private. Title II Technical Assistance Manual, § 1.2000 (1993). The relevant factors in this determination include whether: 1) the entity is operated with public funds; 2) the entity's employees are considered government employees; 3) the entity receives significant assistance from the government by provision of the property or equipment; and, 4) the entity is governed by an independent board elected by members of a private organization or a board elected by the voters or appointed by elected officials. Id.
Plaintiffs confuse the issue by alleging that the Pyramid is the entity and thus incorrectly reason that, because the government owns the Pyramid, operates it with public funds, and affords the Pyramid with government assistance including traffic and parking assistance, SMG is a public entity. The correct inquiry is whether SMG operates with public funds, maintains government employees, receives significant government assistance, and is governed by a board elected by the voters or appointed by elected officials. SMG receives compensation from the government for its management services of the Pyramid, and the government supplies Memphis police officers for events to aid in parking direction. SMG's employees, however, are not considered government employees and SMG is not governed by a board elected by the voters or appointed by elected officials. Thus, the Court finds the evidence insufficient to hold that SMG is a public entity for purposes of Plaintiffs' Title II claim under the ADA. Therefore, the Court grants Defendant's motion for summary judgment as to Plaintiffs' Title II claim against SMG.
The Court further notes that Title III of the ADA applies to "public accommodations and services operated by private entities." 42 U.S.C. § 12181. A "private entity" as "any entity other than a public entity." Id.
B. Title III ADA Claim
In order to establish a Title III claim under the ADA, a plaintiff must show that 1) she has a disability; 2) defendants are owners or operators of a place of public accommodation; and, 3) defendants discriminated against plaintiff by denying her a full and equal opportunity to participate in the accommodation.Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). Defendant raises three arguments in favor of dismissal of Plaintiffs' Title III claim under the ADA.
First, Defendant argues that Plaintiffs were not denied participation and benefit from the services and accommodations at the Pyramid because Plaintiffs accessed the Pyramid by entering the Front Street wheelchair ramp, using an elevator to access the appropriate building level, sitting in the designated wheelchair accessibility area throughout the concert, and by leaving through the same means. Plaintiffs argue that although they obtained access to the Pyramid, such access was merely physical and not "meaningful" as required by the ADA because they were denied access to the designated handicapped parking spaces and were not allowed to enter the required handicapped drop-off zones.
In Chaffin v. Kansas State Fair Bd., 348 F.3d 850 (10th Cir. 2003), the defendant argued that, because handicapped plaintiffs had access to the fair and the programs and services at the fair, the plaintiffs could not be deemed to have been "denied the benefits of" the fair under Title III. Id. at 857. The court did not find this argument persuasive, holding that mere physical presence of handicapped individuals at the fair was insufficient to avoid Title III liability. Id. The court reasoned that the plaintiffs' inability to use the restroom facilities, view the stage, or utilize the free parking lot because of the distance from the fair and the poor condition of the parking lot was sufficient evidence to establish a denial of the benefits of a public accommodation. Id. The Court finds that the reasoning in Chaffin is persuasive. The Court therefore holds that evidence of Defendant's failure to provide access to the handicapped drop-off zone may establish a denial of a full and equal opportunity to participate in the accommodation.
Next, Defendant contends that its compliance with the ADAAG precludes any violation under the ADA. Defendant maintains that it afforded three times the required number of designated handicapped parking spaces as well as two wheelchair accessible entrances to the Pyramid and two passenger drop-off areas. Plaintiffs respond that compliance with the ADAAG guidelines does not preclude claims based on the ADA. Furthermore, Plaintiffs submit that Defendant has not produced any evidence of its alleged compliance with the drop-off zone requirements under the ADAAG guidelines.
First, the ADAAG "sets guidelines for accessibility to places of public accommodation . . . to be applied during the design, construction, and alteration of such buildings." Fortyune, 364 F.3d at 1085 (quoting 28 C.F.R. Part 36 App. A) (emphasis added). If the issue of concern is a public accommodation's policy regarding the use of the design, not the design itself, the provisions of the ADAAG are not controlling. Id. Additionally, ADA plaintiffs need not prove that the defendant contravened a "specific requirement of the ADAAG" to establish a violation of the ADA, and thus it follows that compliance with the ADAAG guidelines does not necessarily preclude recovery under the ADA. Id. In this case, Plaintiffs do not assert that Defendant failed to construct and design handicapped parking, wheelchair accessible entrances, or an ingress and egress lane. Plaintiffs instead assert that Defendants failed to provide access to the designated handicapped ingress and egress lane and thus Plaintiffs did not have use of the accommodation. The Court therefore holds that Defendant's alleged compliance with the ADAAG guidelines does not preclude recovery under the ADA.
Finally, Defendant argues that SMG provided written instruction regarding the transportation of handicapped individuals into the handicapped drop-off zone and an injunction should not be issued against SMG for the actions of a Memphis police officer who misunderstood the supplied directions. In addition, Defendant contends that the incident denying Plaintiffs access to the handicapped drop-off zone was an isolated event, which does not require the issuance of an injunction. Furthermore, Defendant asserts that any injunction is superfluous because the Pyramid already maintains an adequate parking plan as mandated by the consent order reached in Paralyzed Veterans of America Mid-South Chapter, et al. v. Hackett, et al., No. 91-2462-HB (W.D.Tenn. 1991). The Court first finds that there exists a genuine issue of material fact as to whether Defendant in fact trained and monitored the Memphis police officers concerning the required ingress and egress lanes. The Court also finds there is an issue of material fact as to whether Plaintiffs' denial of access was an isolated event because Plaintiffs submitted the Affidavit of Cory Jones, which evidenced alleged repeated denial of access to the Pyramid by similarly situated individuals. Finally, the Court finds that there exists a genuine issue of material fact as to whether the existing consent order is adequate for handicapped parking purposes. The Court determines that these are questions of fact best determined by the jury. In conclusion, the Court holds that Defendant's motion for summary judgment as to Plaintiffs' Title III claim is denied.
C. Claims Premised Upon Consent Order
Defendant asserts that Plaintiffs premise their civil contempt and negligence per se claims solely upon a Consent Order entered in a prior case in which neither the present Plaintiff nor Defendant were a party, and therefore, those claims must be dismissed. This Court already determined in a previous order, entered July 16, 2003, that "Plaintiffs' claims for injunctive and declaratory relief and any other claims premised solely on Defendant's alleged noncompliance with the Consent Order [entered in Paralyzed Veterans of America Mid-South Chapter, et al v. Hackett, et al., No. 91-2462-HB (W.D. Tenn. 1991)] are dismissed." The Court based its decision upon Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 44 L.Ed.2d 539, 95, 95 S.Ct. 1917 (1975), in which the Supreme Court held that "a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefitted by it." Id. at 750. Based upon Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992), this Court noted that "[a] person who is not a party to the consent decree has standing, however, to challenge the constitutionality of the consent decree as it is applied to them." Court's July 16, 2003 Order at 6. As previously decided in the order entered July 16, 2003, Plaintiffs do not challenge the constitutionality of the Consent Order, but instead seek to enforce the terms of the Consent Order. Therefore, Plaintiffs' claim for civil contempt is hereby dismissed.
As for Plaintiffs' negligence per se claim, Plaintiffs argue that they can establish the claim without reliance on the Consent Order. Defendant contends, however, that Plaintiffs fail to allege facts sufficient to substantiate a claim for negligence per se, and that Plaintiffs cannot establish proximate cause because SMG is not responsible for the trolley track upon which Mrs. Obert's accident occurred. In order to recover on the basis of negligence per se, the plaintiff must first show that one defendant violated a statute or ordinance which "imposes a duty or prohibits an act for the benefit of a person or the public."Cook By and Through Uithoven v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 937 (Tenn. 1994). Second, the plaintiff must show that the injured party was within the class of persons whom the legislative body intended to protect by the enactment of that particular statute or ordinance. Id. Finally, the plaintiff must show that the negligence was the proximate cause of the injury. McIntyre v. Balentine, 833 S.W.2d 52, 59 (Tenn. 1992).
In the instant case, Plaintiffs alleged evidence sufficient to show a genuine issue of material fact as to whether Defendant violated Title III and whether Mrs. Obert is within the protected class of Title III. Proximate cause is generally a question for the jury unless the uncontroverted facts make the answer so clear that all reasonable persons must agree on the outcome.Spinnaker's, 878 S.W.2d at 940. The Court holds that the question of proximate cause in this case is not so clear that all reasonable persons must agree on the outcome. Accordingly, Defendant's motion for summary with respect to the negligence per se claim is denied.
D. Loss of Consortium
Finally, Defendants argue that because Lesley Obert has no viable cause of action against SMG, her husband, Mark Obert, has no such cause of action. Because the Court finds that Lesley Obert does have a viable cause of action against SMG for violation of Title III and negligence per se, Defendant's motion for summary judgment as to loss of consortium is denied.
IV. CONCLUSION
For the reasons stated herein, Defendant's motion for summary judgment is granted with respect to Plaintiffs' Title II claim under the ADA and Plaintiffs' claim for civil contempt. Defendant's motion for summary judgment is denied, however, as to Plaintiffs' Title III claim under the ADA, Plaintiffs' claim for negligence per se, and Mark Obert's claim for loss of consortium.
IT IS SO ORDERED.