Tanner v. Wal-Mart CV-99-44-JD 02/08/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary and Charles Tanner

v. Civil No. 99-44-JD Opinion No.

Wal-Mart Stores, Inc.

O R D E R

The plaintiffs, Mary and Charles Tanner, filed suit in

Hillsborough County Superior Court against Wal-Mart Stores, Inc.

("Wal-Mart") after Mary Tanner slipped and fell in the parking

lot of a Wal-Mart store in Hooksett, New Hampshire.1 The Tanners

initially sued Wal-Mart for negligence. After the Tanners added

a claim under Title III of the Americans with Disabilities Act

("ADA"), Wal-Mart removed the action to this court. Before the

court are the Tanners' motion for partial summary judgment on the

issue of liability for negligence (document no. 11) and Wal-

Mart' s motion for partial summary judgment on the ADA claim

(document no. 7), with objections.

Standard of Review

Summary judgment is appropriate when the pleadings.

1The Tanners also sued Granite State Marketplace and Brix & Stix Construction Corporation. The Tanners settled their claims against those defendants. 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). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v. Catrett,

(1986) . An issue

is only genuine if there is sufficient evidence to permit a

reasonable jury to find for the nonmoving party, while a fact is

only material if it has the potential to affect the outcome of

the suit under the applicable law. See Bourque v. FDIC,

(1st Cir. 1994) (citing NASCO, Inc. v. Public Storage,

Inc.,

(1st Cir. 1994)). In response to a properly

supported motion for summary judgment, the nonmoving party bears

the burden to show a genuine issue for trial by presenting

significant material evidence in support of the claim. See

Tardie v. Rehabilitation Hosp.,

(1st Cir.

1999). The record evidence is taken in the light most favorable

to the nonmoving party. See Zambrana-Marrero v. Suarez-Cruz,

(1st Cir. 1999). Summary judgment will not be

granted as long as a reasonable jury could return a verdict in

favor of the nonmoving party. Anderson v. Liberty Lobby, Inc.,

(1986) .

2 Background

The Tanners allege that on December 9 , 1996, they drove to the Wal-Mart store in Hooksett, New Hampshire. Mrs. Tanner, then

age 63, drove their car, which bore a handicap label authorized

for Mr. Tanner, then age 65. When they arrived at the store, the

Tanners allege there was only one handicapped accessible parking

space available, and several shopping carts were in that parking

space. Mrs. Tanner pulled up near the parking space and got out

of the car to move the shopping carts. After getting out of the

car, she noticed that she was standing on ice that had no sand on

it. Because she was wearing rubber-soled shoes, she decided to

go ahead and move the carts. As she began to do so, she slipped

on the ice and fell onto her right knee and her hands, sustaining

personal injuries.

The parties agree that on December 9, 1996, the Tanners

reported a slip-and-fall accident to a Wal-Mart manager. Sherry

Jones. The Tanners told Ms. Jones that Mrs. Tanner had slipped

and fallen on ice in the store's parking lot after getting out of

her car in order to remove shopping carts from a handicapped

accessible parking space. Ms. Jones recorded the complaint on an

incident report form and noted that the store had no evidence to

prove the event did not happen. The form also notes that Mrs.

3 Tanner was wearing rubber soled shoes and that when she fell she

injured her right knee and left thumb.

Discussion

I. Wal-Mart's Motion for Partial Summary Judgment

The Tanners have included a claim against Wal-Mart under

Title III of the ADA. Wal-Mart moves for summary judgment on

four grounds: (1) Mrs. Tanner lacks standing under the ADA; (2)

the court lacks subject matter jurisdiction because the Tanners

failed to comply with the ADA's notice requirements; (3) the

Tanners' claim fails on the merits; and (4) the relief the

Tanners request is not available under the ADA.

A. Mrs. Tanner's Standing under the ADA

Wal-Mart argues that Mrs. Tanner lacks standing to sue under

the ADA because she was not herself disabled within the meaning

of the ADA at the time of the accident, nor is she disabled now.

Title III of the ADA prohibits public accommodations from

discriminating against individuals on the basis of disability.

See

(a) (West 1995). A private right of

action for preventive relief is available to anyone who is

subjected to discrimination on the basis of disability. See

(a)(1), 2000a-3(a). Under Title III,

4 discrimination includes the failure to ensure that "no individual

with a disability is excluded" from a place of public

accommodation. See § 12182(b)(2)(A)(ill). It also includes the

failure to make reasonable accommodations in policies, practices,

or procedures for "individuals with disabilities." See §

12182(b)(2)(A)(11). Title III of the ADA generally prohibits

discrimination against individuals who are themselves disabled.2

See, e.g., Abbott v. Braqdon,

(1st Cir. 1997),

vacated,

(1998) (stating ADA protects only disabled

patients from discrimination in medical office); Bowers v.

National Collegiate Athletic Ass'n,

(D.N.J. 1998) (stating first element of prima facie case under

Title III is establishing plaintiff's disability); Shultz v.

Hemet Youth Pony League, Inc.,

(C.D. Cal.

1996) (same); United States v. Morvant,

(E.D. La. 1995) (same); Mayberry v. Von Valtier,

(E.D. Mich. 1994) (same).

The Tanners do not dispute that Mrs. Tanner was not, and is

not, disabled. They argue that Mr. Tanner was effectively denied

2Title III does provide for a right of action in the specific situation where an individual is discriminated against because of the known disability of a person with whom he is known to be associated. See § 12182(b)(1)(E). The Tanners do not argue that this section affords standing to Mrs. Tanner.

5 access to Wal-Mart because he could not drive himself, and his

driver, Mrs. Tanner, was unreasonably imperiled by Wal-Mart's

failure to remove the shopping carts. The court concludes that

Mrs. Tanner is not within the class of persons protected by Title

III, and she has no standing to sue under Title III of the ADA on

the basis of her disabled husband allegedly being denied access

to the store.

B. Notice Reguirement

Wal-Mart contends that the court lacks subject matter

jurisdiction because the Tanners failed to comply with the ADA's

notice requirement. The court must first decide whether Title

III of the ADA imposes such a notice requirement.

Title III of the ADA provides:

The remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter . . . Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions.

§ 12188(a) (1). Section 2000a-3(a) of the Civil Rights Act, which

§ 12188(a) (1) incorporates by specific reference, provides a

right of action for preventive relief. Wal-Mart contends that §

6 2000a-3(c) also applies to Title III of the ADA. Section 2000a-

3 (c) requires victims of discrimination to file written notice

with the appropriate state authority at least thirty days before

bringing suit under § 2000a-3(a), in states where state law

authorizes a state authority to seek relief for discrimination.3

Wal-Mart asserts that the Tanners failed to comply with this

notice requirement, and therefore this court lacks jurisdiction.

See Stearnes v. Baur's Opera House, Inc.,

(7th

Cir. 1993) (stating § 2000a-3(c) requirements are

jurisdictional).

Federal district courts are split on the issue of whether §

2000a-3(c) applies to Title III of the ADA, with apparently no

circuit courts having ruled on the matter. Several district

courts have decided that because the ADA's language refers

specifically to § 2000a-3(a), and neither mentions § 2000a-3(c)

nor refers to § 2000a-3 generally. Congress must have intended

for only § 2000a-3 (a) to be incorporated into Title III of the

ADA. See Mover v. Showboat Casino Hotel, 5

, 501

(D.N.J. 1999); Guzman v. Denny's, Inc.,

, 934-

35 (S.D. Ohio 1999); Botosan v. Fitzhugh,

,

3Wal-Mart argues that the New Hampshire Commission for Human Rights is the appropriate authority in this case, pursuant to New Hampshire's Law Against Discrimination. See N.H. Rev. Stat. Ann. ("RSA") § 354-A:17 (Supp. 1998).

7 1050 (S.D. Cal. 1998); Bercovitch v. Baldwin Sch.,

(D.P.R. 1997), rev'd on other grounds,

(1st

Cir. 1998). Other courts have held that Title III of the ADA

does incorporate § 2000a-3(c), relying on the statutory language

and legislative history. See Burkhart v. Asean Shopping Ctr.,

(D. Ariz. 1999); Snyder v. San Diego

Flowers,

(S.D. Cal. 1998); Maves v.

Allison,

(D. Nev. 1997).4

Under traditional rules of statutory interpretation, the

court must first consider the plain meaning of the statutory

language. If the meaning is ambiguous, only then should the

court proceed to examine the relevant legislative history. See

Bercovitch,

(citing Caminetti v. United States,

(1917)) . The language of § 12188 (a) (1) refers

specifically to § 2000a-3(a). If Congress had intended for the

4The court recognizes that Judge Devine in this district applied the notice requirement of § 2000a-3(c) to Title III of the ADA without explicitly addressing its incorporation into Title III. See Daigle v. Friendly Ice Cream Corp.,

(D.N.H. 1997). However, Judge Devine reconsidered this decision in Doukas v. Metropolitan Life Ins. Co.,

, at *3 (D.N.H. 1997), where he interpreted the plain language of Title III to mean that § 2000a-3(c) does not apply to Title III. See Doukas,

, at *3 n.2. The court considers the reasoning in Doukas to be more persuasive than the decision in Daigle. notice requirement of § 2000a-3 (c) to apply to Title III of the

ADA, Congress could have made explicit reference to that section,

or it could have referred to § 2000a-3 as a whole. Reading the

statute to include all of § 2000a-3 would render the specific

designation of § 2000a-3 (a) superfluous. The court is guided by

the doctrine of statutory interpretation of expressio unius est

exclusio alterius -- when a statute enumerates specific subjects,

the court can assume that other subjects were omitted

deliberately. See, e.g.. Mover, 56 F. Supp. 2d at 502; Guzman,

. Therefore, considering the first

sentence of § 12188(a) (1), it appears that Congress deliberately

chose not to incorporate § 2000a-3(c) into Title III of the ADA.

The Burkhart case, which held that § 2000a-3 (c) does apply

to Title III, relied on the plain language of the second sentence

of § 12188(a)(1), which states that " [n]othing in this section

shall require a person with a disability to engage in a futile

gesture if such person has actual notice that a person or

organization covered by this subchapter does not intend to comply

with its provisions." § 12188 (a) (1) . The Burkhart court

interpreted this language to mean that Congress intended for the

aggrieved party to notify the violator of the discriminatory

action before filing suit. See Burkhart,

.

That court held that notice under § 2000a-3(c) was the proper

9 requirement to apply to Title III plaintiffs.

This court finds the reasoning in an opinion criticizing

Burkhart to be more persuasive. See Sharp v. Waterfront

Restaurants,

(S.D. Cal. Aug. 2, 1999). The

"futile gesture" language allows a plaintiff to bring suit

without having to go through the motion of being denied access to

a place of public accommodation, if the plaintiff has actual

notice that the place of public accommodation intends to

discriminate against people with disabilities. See International

Bhd. of Teamsters v. United States,

(1977)

(holding plaintiff can bring Title VII action for employment

discrimination without actually seeking employment from defendant

if doing so would be futile gesture). Therefore, if a place of

public accommodation displays a sign indicating that it denies

entry to people with disabilities, a plaintiff may bring suit

without trying to enter the premises himself.5 See

5Any ambiguity in this language is clarified by the legislative history of Title III. "[A] person does not have to engage in a 'futile gesture' if the person has notice that an entity covered under [TJitle III does not intend to comply with its provisions. For example, if a theatre has turned away six people with cerebral palsy and has indicated that it has a policy of turning away such individuals, a person with cerebral palsy can bring suit without first subjecting himself or herself to the humiliation of being turned away by the theatre." 136 Cong. Rec. E1920 (daily ed. May 22, 1990) (statement of Rep. Hoyer),

10 The court interprets § 12188(a)(1) to mean that the notice

requirement of § 2000a-3(c) does not apply to Title III of the

ADA. Therefore, Wal-Mart has not shown that the court lacks

subject matter jurisdiction to consider the merits of the claim.

C. Merits of ADA Claim

The Tanners allege that Wal-Mart is liable under Title III

of the ADA because the handicapped parking spaces at the Hooksett

store were routinely obstructed by shopping carts before, on the

date of, and after Mrs. Tanner's accident, and because the

parking space in question was icy and slippery on the date of the

accident. The Tanners claim that Wal-Mart is responsible for the

shopping carts and does not have adequate procedures for

monitoring and removing shopping carts from handicapped parking

spaces.

The Tanners allege that Wal-Mart has routinely allowed

handicapped accessible parking spaces to be blocked by shopping

carts from September 1, 1995, until the Tanners filed their

charge with the New Hampshire Commission for Human Rights on

December 4, 1998. However, a careful review of the record

presented to the court on summary judgment yields no evidence to

available in 19

90.

11 support this allegation. The specific facts sworn to by the

plaintiffs and otherwise presented in the record refer to the

circumstances surrounding Mrs. Tanner's accident on December 9 , 1996. Therefore, in the absence of sufficient evidence to

support allegations of other violations, the Tanners' ADA claim

appears to rest on the events of December 9, 1996.

Title III of the ADA requires places of public accommodation

to remove architectural barriers to provide reasonable access to

people with disabilities. See § 12182(b)(2)(A)(iv). Creating

designated handicapped accessible parking spaces is one way

public accommodations typically remove barriers to access. See

(b)(18); id^, p t . 3 6, Ap p . A § 4.1.2 (1999).

Public accommodations are required to maintain those features of

their facilities that need to be readily accessible to people

with disabilities. See

(a). Isolated or

temporary interruptions in access due to maintenance or repairs

are not prohibited. See § 36.211(b). Regular use of an

accessible route for storage of supplies would violate Title III,

but an isolated instance of placement of an object in an

accessible route is not a violation if the object is promptly

removed. See United States Department of Justice, Civil Rights

Division, The Americans with Disabilities Act: Title III

Technical Assistance Manual § III-3.7000 (1993); see also

12 Braqdon,

(citing Technical Assistance Manual and

noting Justice Department's views entitled to deference).

Wal-Mart relies on a case in which the Colorado Court of

Appeals held that "an isolated instance of negligence regarding

the failure to maintain access routes, without more, is not

covered by the ADA." Pack v. Arkansas Valley Correctional

Facility,

(Colo. C t . App. 1995). That case

concerned a failure to remove ice and snow from a handicapped

parking zone. See

. While Pack is not binding

authority on this court, the court finds its reasoning persuasive

in light of the Justice Department's guidelines. Title Ill's

purpose is to ensure that people with disabilities have access to

public facilities, not to provide a remedy for specific acts of

negligence. See

. Based on the facts before

the court on summary judgment, the isolated incident on December

9, 1996, of failure to remove shopping carts and failure to

properly remove ice and snow from the handicapped parking space

does not constitute a Title III violation. In making this

decision, the court does not decide whether a general practice of

failing to remove ice or snow or shopping carts from a

handicapped parking area would violate Title III.

Because the court finds that Wal-Mart is entitled to summary

judgment on the Tanners' ADA claim, the court need not address

13 the damages issue.

14 Conclusion

For the foregoing reasons, the defendant's motion for

partial summary judgment is granted (document no. 7). Judgment

for the defendant shall be entered on the federal claims under

the ADA. As the Tanners' remaining negligence claims against

Wal-Mart are based on state law, the court declines to retain

jurisdiction over those claims and remands the action to state

court. See Camelio v. American Fed'n,

(1st

Cir. 1998). This case shall be remanded to the New Hampshire

Superior Court, Hillsborough County. The court need not address

the Tanners' motion for partial summary judgment on liability for

negligence pending before this court (document no. 11) and said

motion is considered moot insofar as this court is concerned.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

February 8, 2000

cc: Christopher A. Bandazian, Esquire Alexander J. Walker, Esquire

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