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Franek v. Tomahawk Lake Resort

July 20, 2000


Before Judges Stern, Kestin and Steinberg.

The opinion of the court was delivered by: Kestin, J.A.D.


Argued: May 18, 2000

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Sussex County.

Plaintiff appeals from a Law Division order dismissing the complaint (with jury demand) which, in a single count, alleged unlawful discrimination in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD). We reverse and remand.

The dismissal eventuated from a grant of defendants' motion for summary judgment. Accordingly, we view the facts in the light most favorable to plaintiff, the respondent on the motion, to determine whether a genuine issue of material fact exists in respect of which plaintiff is entitled to plenary consideration by a finder of fact. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

On July 10, 1994, Millie Della Volpe, then eighty-three years old and since deceased, visited Tomahawk Lake Resort to participate in a family picnic. The resort, a privately-owned recreational facility available to the public for such activities and subject to the public accommodations provisions of the LAD, is operated by defendant Tomahawk Lake, Inc.

Both of Della Volpe's legs had been amputated and she was confined to a wheelchair. According to the deposition testimony of plaintiff's witnesses in this matter and in an earlier, related federal court matter, Della Volpe had been driven to the picnic by her daughter, Lorraine Franek. The complaint alleges that another daughter, Delores Otero, had telephoned Tomahawk Lake Resort in advance and had "inquired about wheelchair accessibility for . . . Volpe, and was informed that there were facilities for persons with physical disabilities[.]" When Della Volpe and Franek arrived, however, they found that there were no facilities on the premises for the handicapped and no handicapped- parking spaces. Otero, who had been waiting for them, asked a parking attendant if the car might drive beyond the parking field to the entrance to the grounds, or even closer to the picnic area, to allow her mother and the wheelchair to be dropped off.

The parking attendant radioed defendant Chester Wallace for permission. Wallace, who was supervising parking at the time, is the majority shareholder and sole officer of defendant Fun Valley, Inc., which owns the property on which the recreational facility is located. Both the property and the facility are owned and operated as a Wallace family business by corporate entities belonging to Chester Wallace, his wife and his son.

Wallace denied the radioed request. Otero testified that she then walked down the hill to speak with him directly concerning her mother's disability and the need for special consideration. She alleged that Wallace responded: "I don't want those kind of people here." *fn1 Otero testified further that "they let my mother off [some distance away], my brother-in-law took out the chair, put her in the chair and we went down, we walked it there, and then we proceeded to walk up the hill to where the tables were."

Millie Della Volpe also testified in depositions on January 31, 1996, when she was eighty-six years old. She said that she had witnessed an argument but, because she was seated in the vehicle, she could not hear what was being said. About a half-hour later, she learned of the details and was "very hurt when I heard about the argument was on account of me, and I said, see, I shouldn't have come. Had I not been here, this argument wouldn't have started." She also testified that after learning the details, she was unhappy to be at the facility and wished to leave early. "[Y]ou go to a place to have a good time and it starts out with an argument for no good reason at all." She concluded her testimony by noting that she hadn't been back to Tomahawk Lake since.

Franek testified that although her mother could not hear the conversation between Otero and Wallace, she knew what it was about, and indicated, while still in the car, that she was upset with the difficulty engendered by her physical limitations.

The complaint also alleges that during the course of her stay at the picnic, Della Volpe attempted to use the bathroom facilities, but they "were not accessible by wheelchair users . . . and she had to be carried into the bathroom." The complaint goes on to characterize the facility as not amenable to use by "mobility-impaired persons", and to allege that defendants acted in disregard of Della Volpe's rights and caused her mental anguish and humiliation.

The trial court's reasons for granting defendant's motion for summary judgment and dismissing the complaint were expressed in a written opinion. The conclusion was stated at the outset: "[T]he court is not satisfied that the defendant's conduct, when viewed in the light most favorable to the plaintiff, would permit a rational factfinder to resolve this matter in favor of plaintiff." (Citing Brill, supra, 142 ...

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