On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2884-07.
The opinion of the court was delivered by: Parrillo, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 27, 2012 -
Before Judges Parrillo, Skillman and Hoffman.
The opinion of the court was delivered by PARRILLO, P.J.A.D.
At issue is whether a trial court may deny injunctive relief upon a jury finding of access discrimination under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-12213, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
By way of background, plaintiff Linda Vandeusen, a South Carolina resident, has dystonia, is wheelchair dependent, and is aided by a dog. She travels to New Jersey approximately twice a year to help a disabled man, attend disability conferences, and visit friends. She is a self-acknowledged "tester,"*fn1 that is, "a person who goes places just to see if it is accessible for people with disabilities . . . ."
In her travels, she visited the municipal building in defendant Maple Shade Township, constructed in the late 1980's or early 1990's. She experienced difficulty accessing the bathrooms in the basement and third floor because the doors were too heavy. Additionally, the toilets were "too low[,]" being only fifteen inches high. Plaintiff found these same conditions existed in the police station.
Plaintiff also had difficulty accessing City Hall and maneuvering West Main Street in downtown Maple Shade because of the "very steep" curb cuts and cross slopes, which she defined as a curb cut or sidewalk that "angles one way or the other, so if . . . [a] ball [were placed] on the sidewalk that's supposed to be level[,] if there's a slope the ball will go one way or the other[, but] not straight." Moreover, the handicapped parking spaces needed a "bigger access [a]isle."
On about seven occasions, plaintiff visited Steinhauser Park (park), which was created sometime in the 1950's. There, she observed that a sidewalk traversing and leading around the park contained a "cross-slope lean[ing] toward the . . . [lake]." She had difficulty accessing the park because of this cross-slope:
Currently the sidewalk going through the park, around the park it's got that cross-slope and unfortunately the cross-slope leans toward the water. And going in to the park I keep my dog on my right. He's always on the right, so my chair is constantly pushing in him, and he's pushing me back, but leaving the park I'm going to turn around my dog's still on my right then my chair is open to the water so that my chair is going towards the water. And, I'm constantly pulling on my dog to keep me over.
Although the sidewalk traversing the park had been repaved to smooth bumps that "happe[n] over age," this neither helped nor hindered her effort at access:
This is going to sound silly, but it actually made it just different. Because when there were bumps in the sidewalk at least my wheelchair could get caught on a bump and I didn't feel like I was going to fall in the water, I was going to get dumped out on the sidewalk, and now it's just a smooth surface, and I can just fall in the water if I don't have the dog with me.
Plaintiff also could not access the park's picnic tables because they were "over grass."
Plaintiff did not seek assistance from the township in accessing these facilities, nor inform them of the conditions affecting her access. Instead, she filed a complaint against the township, alleging that as a disabled person, she was not afforded proper access to defendant's municipal building, downtown sidewalks and curb cuts, and the park, in violation of Title II of the ADA and the LAD.*fn2 She sought both compensatory damages and equitable relief.
At the ensuing jury trial, William Cody, an expert in ADA regulations, American National Standards Institute (ANSI) regulations, barrier free construction, and accessibility, generally corroborated plaintiff's observations of the township's facilities. According to Cody, the bathroom doors in the municipal building needed adjustment, costing approximately twenty-five dollars and the parking aisle required widening, costing approximately sixty dollars per space.
Cody believed the re-pavement of the sidewalk around and through the park occurred as recently as 2008, based upon the "very black" appearance of the asphalt. The cross slopes leading to and from the park averaged five to six percent, whereas applicable guidelines require cross slopes of accessible routes not to exceed two percent.*fn3 Cody opined that the repaving in the park constituted an "alteration[,]"*fn4 explaining that if a surface is added "to the present surface then you would have to bring it up to code." To correct the cross slope of the pathway to the park, part of which constituted new construction according to Cody, would cost approximately $600 to $800. To level the surface inside the park to correct the cross slopes which, on average ranged between five and six percent, would cost approximately $6500.
To make the picnic table accessible, Cody suggested either creating "an accessible route" or moving a table down to a "concrete pad with a beveled edge to allow somebody to get up to the table . . . ." Lowering a table and creating a concrete pad would cost "less than a [$1000] . . . ." And it would cost about $16,000 to fix two curb cuts adjacent to the municipal building. There were also twelve problematic curb cuts along Main Street, which would cost approximately $78,000 to repair.
George Haeuber, the former City Manager of Maple Shade from 1984 to 2009, also testified and explained that there was a transition plan in place to improve access to defendant's facilities. Although recreational areas were not part of the transition plan, the township was "improving . . . [those] facilities . . . in accordance with ADA standards." During his tenure as City Manager, Haeuber received only two complaints regarding access to township facilities, both of which came in the form of lawsuits filed by plaintiff's counsel. Haeuber further explained if a complaint were made regarding accessibility of Maple Shade's facilities, he would ensure that someone from the applicable department would promptly render assistance.
Plaintiff moved for a directed verdict at the close of evidence, arguing that a court has no discretion to deny relief when a violation of the ADAAG is proven. The court denied the motion.
The jury found that defendant discriminated against plaintiff because of her disability by either wrongfully excluding her from or denying her access to the park and a bathroom in the Municipal Building, but rejected her other claims as to the Municipal Building, sidewalks on Main ...