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Jeffreys v. City of Greensboro

United States District Court, M.D. North Carolina

December 23, 2019

Kenneth Jeffreys, Plaintiff,
v.
City of Greensboro, d/b/a Greensboro Coliseum Complex, a Political Subdivision of the State of North Carolina Defendant.

          MEMORANDUM OPINION AND ORDER

          LORETTA C. BIGGS UNITED STATES DISTRICT JUDGE.

         Plaintiff, Kenneth Jeffreys, brings this action against Defendant, the City of Greensboro d/b/a/ Greensboro Coliseum Complex, alleging violations of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”), as well as the Rehabilitation Act, 29 U.S.C. 794 et seq. (ECF No. 1.) According to Plaintiff, a double-leg amputee, the Greensboro Coliseum Complex is not readily accessible to wheelchair users because of its “inaccessible parking, inaccessible ramps, inaccessible paths of travel . . . and many other [barriers to access].” (ECF No. 20 at 5, 7.) Before the Court is Plaintiff's Motion for Summary Judgment. (ECF No. 19.) For the reasons stated below, Plaintiff's motion will be granted in part and denied in part.[1]

         I. BACKGROUND

         A. The Parties

         On Christmas Eve, 1992, Plaintiff was struck by a drunk driver. (ECF Nos. 1 ¶ 4; 22-8 at 133-34.) As a result of the accident, Plaintiff requires a wheelchair to ambulate. (ECF No. 20-2 ¶¶ 5-6.) In late 2017, Plaintiff began attending University of North Carolina at Greensboro (“UNC-G”) basketball games at the Greensboro Coliseum Complex to watch his nephew play for the Spartans. (Id. at ¶¶ 7-8.) The Spartans play in the part of the Complex known as the Coliseum Arena. (ECF No. 25-7 at 2.) Plaintiff plans to continue attending games at the Coliseum Arena after his nephew graduates. (ECF No. 20-2 ¶¶ 8, 15.)

         Defendant, a public entity which receives federal financial assistance, owns and operates the Greensboro Coliseum Complex. (ECF Nos. 6 ¶¶ 6, 9; 22 at 13 n.4.) The Complex is an umbrella unit containing the Coliseum Arena, the ACC Hall of Champions, and various other buildings.[2] (ECF No. 25-5 ¶ 4.) The Coliseum Complex first opened in 1959, showcasing a large gym-then called the Greensboro Coliseum-and several smaller, satellite auditoriums. (ECF No. 25-6 at 3.) This large gym is the flagship of the Complex and is now called the “Coliseum Arena” (or “the Arena”). (ECF No. 25-5 ¶ 4.) The Complex grew substantially after 1959. (ECF No. 25-6 at 3-4.) In 2011, the Complex expanded to include the new ACC Hall of Champions. (Id. at 4.) In addition, from 2012 to 2013, Defendant added $24 million in improvements to the Coliseum Arena. (Id.) During Phase One of these additions, in 2012, Defendant added a new scoreboard, 9, 000 seats, and four luxury suites, among other improvements. (Id.) During Phase Two of the expansion, starting in mid-March 2013, Defendant continued to improve the Arena, primarily by expanding its existing concourse by 17, 750 square feet and adding eight new concessions stands. (See id.) The record is unclear as to when in 2012 these alterations to the Arena began. (See ECF Nos. 20-5 at 5; 25-6 at 4.)

         B. The Parties' Contentions and Evidentiary Support

         The heart of Plaintiff's case consists of his alleged difficulties entering and exiting the Coliseum Arena. According to Plaintiff's affidavit and deposition, (ECF Nos. 20-2; 22-8), each stage of his journey from his car to the Arena and back is difficult. For example, Plaintiff states that he cannot always find a handicapped parking space due to an inadequate number of such spots. (ECF No. 25-8 at 60-61.) Once parked and in his wheelchair, he has trouble approaching the ramps leading into the Arena due to unlevel sidewalks and chipped asphalt where water pools. (Id. at 48, 127-28.) Once he reaches the base of the ramps leading into the Arena, Plaintiff struggles to summit the ramps. (Id. at 24, 28, 46.) Upon exiting the Arena, Plaintiff has difficulty descending steep exterior ramps and was once ejected from his wheelchair after losing control of it on the way down the ramp. (Id. at 24, 41.) Finally, once Plaintiff returns to his vehicle, he may have to wait for the cars parked around him to leave before he has enough room to enter his car, even if he is parked in a handicapped space. (Id. at 74-76.) Plaintiff's expert, Nicholas F. Heybeck, identified thirty-eight exterior barriers to accessibility around the Coliseum Complex. (See ECF No. 20-7 at 21-80.) These alleged barriers to access consist of, in the main, inadequate signage identifying accessible parking and accessible routes into the Complex's buildings; inadequate accessible parking spaces; curb ramps that are not smooth or are too steep; ramps that are too steep or lacked adequate handrails; and sidewalks that are too steep. (See id.) According to Heybeck's report, each of the barriers identified fell below federal guidelines designed to ensure that publicly operated facilities are accessible to the disabled. (See Id. at 8-9.) Further, for each of the barriers, Heybeck also proposed a removal plan. (Id. at 9.) Heybeck believes all such barriers could be removed for no more than $140, 008. (Id. at 15.) Plaintiff states in his affidavit that he encountered every obstacle listed in Heybeck's report. (ECF No. 20-2 ¶ 13.)

         Defendant contests Plaintiff's claims, insisting that “[t]here is no factual dispute that Plaintiff has had access to basketball games;” that Plaintiff did not encounter most of the items identified in the Heybeck report; and that its basketball games are just as “accessible to and usable for Plaintiff as they are to a person without a disability.” (See ECF No. 25 at 15, 18- 19.) To support its arguments, Defendant points out that Plaintiff goes to “just about every game, ” and that Plaintiff's deposition testimony appears inconsistent with his later sworn affidavit that he encountered every obstacle in the Heybeck report. (Id.) In addition, Defendant provides declarations of the Supervisor of Maintenance and Deputy Director for the Greensboro Coliseum Complex, to argue that, generally, the Complex offers sufficient handicapped accessible parking as well as accessible routes into the Arena so that Plaintiff “could access the facilities in a manner comparable to a nondisabled person.” (See ECF No. 25 at 8, 11, 18 (quoting Tatum v. New Orleans City Park Improvement Ass'n, No. 15-2508, 2016 WL 1660201, at *3 (E.D. La. Apr. 27, 2016).)

         II. Overview of Title II of the ADA

         Congress enacted the ADA to “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”[3] 42 U.S.C. § 12101(b)(1). Title II of the ADA “prohibits any public entity from discriminating against ‘qualified' persons with disabilities in the provision or operation of public services, programs, or activities.” Tennessee v. Lane, 541 U.S. 509, 517 (2004). To prove a Title II violation, “plaintiffs must show: (1) they have a disability; (2) they are otherwise qualified to receive the benefits of a public service, program, or activity; and (3) they were denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of their disability.” Nat'l Fed'n of the Blind v. Lamone, 813 F.3d 494, 502-03 (4th Cir. 2016).

         A public entity discriminates against a qualified individual with a disability, and so violates Title II of the ADA, when it fails “to take reasonable measures to remove architectural and other barriers to accessibility.” See Tennessee v. Lane, 541 U.S. at 531; 42 U.S.C. § 12182(b)(2)(A)(iv) (defining discrimination under Title III to include “a failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable”). To help implement this non-discrimination mandate, Congress authorized the Attorney General to promulgate regulations implementing Title II. Brown v. Cty. of Nassau, 736 F.Supp.2d 602, 611 (E.D.N.Y. 2010); 42 U.S.C. § 12134(a) (“[T]he Attorney General shall promulgate regulations . . . that implement [Title II].”).

         These regulations “provide different standards for facilities depending upon whether the facility was built before or after Title II's effective date, January 26, 1992.” Brown, 736 F.Supp.2d at 611. Facilities constructed prior to January 26, 1992 are known as “existing facilities.” 28 C.F.R. § 35.150; see also, e.g., Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 986 (9th Cir. 2014). Facilities constructed after this date are known as “new” facilities. 28 C.F.R. § 35.151; Daubert, 760 F.3d at 985-86. Finally, the portion of facilities altered after January 26, 1992 are known as “alterations, ” regardless of when the facility was initially constructed. 28 C.F.R. § 35.151(b). As set forth below, the extent to which public entities must accommodate disabled individuals depends on whether the facility in question is existing, new, or altered.

         Existing facilities must operate such that their “service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.150(a). Thus, if a stadium is an existing facility, it “is not required to make each and every portion of [the stadium] readily accessible in order to comply with the ADA; instead, the applicable test under the implementing regulations is whether the stadium . . . when viewed in its entirety, [is] readily accessible and usable by individuals with disabilities.” Brown, 736 F.Supp.2d at 612 (emphasis added).

         New facilities, however, must meet “[a] higher standard.” Brown, 736 F.Supp.2d at 611. They must be “readily accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.151(a)(1). The standard for alterations is higher still-any facility or part of a facility altered after the ADA's effective date must be “readily accessible to and usable by individuals with disabilities” to “the maximum extent feasible.” Id. at § 35.151(b)(1).

         This requirement to make alterations readily accessible to the maximum extent feasible extends to the “path of travel” leading up to the altered area of a facility so long as the alteration “affects or could affect the usability of or access to an area of a facility that contains a primary function” unless “the cost and scope of such alterations [to the path of travel] is disproportionate to the cost of the overall alteration.” See 28 C.F.R. § 35.151(b)(4). The path of travel to the altered area includes parking, curb ramps, sidewalks, and interior and exterior ramps. See Id. at § 35.151(b)(4)(ii)(a); Tatum, 2016 WL 1660201, at *5. A “primary function” is “a major activity for which the facility is intended.” 28 C.F.R. § 35.151(b)(4)(i). Alterations to the path of travel are disproportionate to the cost of the overall alteration if they “exceed[] 20% of the cost of the alteration to the primary function area.” Id. at § 35.151(b)(4)(iii).

         There are two routes or “safe harbors” by which a defendant can show that its facility is “readily accessible” to the disabled. See Cherry v. City Coll. of S.F., No. C 04-04981 WHA, 2006 WL 6602454, at *2 (N.D. Cal. Jan. 12, 2006). First, the newly constructed or altered facility can show it was “constructed in conformance with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (“ADAAG”), 28 C.F.R. Pt. 36, App. A, or with the Uniform Federal Accessibility Standards (“UFAS”), 41 C.F.R. Pt. 101-19.6 App. A.” Daubert, 760 F.3d at 986 (citing 28 C.F.R. § 35.151 (c)(1)-(3)). “The ADAAG is a comprehensive set of structural guidelines that articulates detailed design requirements to accommodate persons with disabilities.” Id. The UFAS are the Rehabilitation Act's analogue to the ADAAG. See Greer v. Richardson Indep. Sch. Dist., 472 Fed.Appx. 287, 291 n.2 (5th Cir. 2012). The two guidelines “impose materially identical architectural requirements, ” but the UFAS only apply to “construction carried out with federal funding by any state or local entity.” See Mote v. City of Chelsea, 284 F.Supp.3d 863, 883 (E.D. Mich. 2018). These guidelines are updated periodically and the controlling standard that new or altered facilities must comply with depends on when construction commenced. Daubert, 760 F.3d at 986 n.2. Specifically:

If physical construction or alterations commence[d] after July 26, 1992, but prior to September 15, 2010, then new construction and alterations . . . must comply with either UFAS or the 1991 [ADAAG] . . . . If physical construction or alterations commence[d] on or after September 15, 2010 and before March 15, 2012, then new construction and alterations . . . may comply with . . . [t]he 2010 [ADAAG], UFAS, or the 1991 [ADAAG] . . . . If physical construction or alterations commence[d] on or after March 15, 2012, then new construction and alterations . . . shall comply with the 2010 [ADAAG].”

28 C.F.R. ยง 35.151(c)(1)-(3) (emphasis added). Thus, compliance with the applicable federal guidelines represents the first safe harbor shielding a defendant from ...


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