IRENAS, District Judge:
This matter appears before the Court on defendants' motion for partial summary judgment. Defendants argue that summary judgment is appropriate on the following issues: (1) whether the Blockbuster-Sony Music Entertainment Centre ("E-Centre") violates the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12201 et seq., and its implementing regulations. the Justice Department's Standards for Accessible Design ("JDSAD"), 28 C.F.R. pt. 36 App. A § 4.33.3, by failing to provide unobstructed lines of sight for wheelchair users over spectators standing in front of them; and (2) whether the lawn area outside the E-Centre pavilion violates the ADA and the JDSAD. Defendants' motion for partial summary judgment is granted as to both issues.
Plaintiffs William Caruso ("Caruso")
and the Advocates for Disabled Americans
filed their complaint on July 14, 1995, alleging that defendants' E-Centre facility
does not comply with the public accommodations provisions of the ADA. Construction of the E-Centre began in the spring of 1994 and it opened to the public in May 1995. On July 13, 1995, Caruso attended a concert at the E-Centre. He alleges two specific ADA violations: (1) he could not see the concert from his wheelchair because the E-Centre does not have enhanced lines of sight for the disabled; and (2) the E-Centre's lawn area was not accessible to him. To support the allegations, plaintiffs rely on an expert report, prepared by Paradigm Design Group ("Paradigm").
Defendants filed the instant motion for partial summary judgment on April 30, 1997, claiming that several of the claims raised in the Paradigm report should be dismissed.
Standard for Summary Judgment
Under Fed. R. Civ. P. 56(c), a court may grant summary judgment "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." The non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible evidence establishing a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. See Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring).
B. Enhanced Lines of Sight
Plaintiffs allege that the E-Centre fails to comply with 28 C.F.R. pt. 36 App. A § 4.33.3, an ADA regulation that provides as follows: "Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public. " Plaintiffs allege that the phrase "comparable" lines of sight mandates that wheelchair users be given "enhanced" lines of sight, which would enable them to see over the heads of standing spectators.
To support this interpretation of § 4.33.3, plaintiffs rely on the 1994 Supplement to a 1993 Department of Justice ("DOJ") Technical Assistance Manual ("TAM"). See Def. Ex. 2 at 3. The 1994 TAM Supplement provides as follows:
In addition to requiring companion seating and dispersion of wheelchair locations, ADAAG requires that wheelchair locations provide people with disabilities lines of sight comparable to those for members of the general public. Thus, in assembly areas where spectators can be expected to stand during the event or show being viewed, the wheelchair locations must provide lines of sight over spectators who stand.