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Gregory Lasky v. Moorestown Township

May 11, 2012

GREGORY LASKY, PLAINTIFF-APPELLANT,
AND ADVOCATES FOR DISABLED AMERICANS (AFDA), PLAINTIFF,
v.
MOORESTOWN TOWNSHIP, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1207-09.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 27, 2012

Before Judges Parrillo, Skillman and Hoffman.

The opinion of the court was delivered by PARRILLO, P.J.A.D.

Plaintiff Gregory Lasky, a paraplegic, filed suit against defendant Moorestown Township, alleging that defendant discriminated against him by not providing him access to Strawbridge Lake Park (park), in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-12213 (1990), and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. A jury returned a verdict in favor of defendant.

On appeal, plaintiff's principal contention is that because the proofs demonstrated he was disabled and the park inaccessible, a finding of liability under the ADA and LAD automatically follows and therefore he was entitled to a directed verdict or judgment notwithstanding the verdict (n.o.v.). Somewhat related is his challenge to the jury charge for failing to instruct that once plaintiff proposes methods for making the park accessible, the burden shifts to defendant to demonstrate they are not readily achievable without undue financial and administrative burdens. Plaintiff also claims error in barring expert testimony about the accessibility of other parks; precluding him from quoting case law in summation; and allowing defense counsel's alleged prejudicial remarks during summation. For the following reasons, we affirm.

Plaintiff is a Florida resident who occasionally travels to New Jersey to volunteer for the Advocates for Disabled Americans (AFDA), and to serve as a co-guardian ad litem for another disabled man. On one such occasion in November 2007, plaintiff visited the park and observed unpaved parking lots, no handicap designated parking, no signage indicating access to the park or alternatives to assist the disabled, and no ramp or accessible pathways to the picnic tables, playground or lake. After observing no change in these conditions in January 2008, plaintiff filed suit seeking injunctive relief by way of "access to [the] . . . [p]ark, to [its] benches, to [its] picnic tables, to the playground as well as the fishing[,]" and also monetary damages. Admittedly, plaintiff did not seek assistance from defendant or alert township officials to the conditions he observed prior to filing suit.

At trial, William Cody, an expert in ADA regulations, American National Standards Institute (ANSI) regulations, and barrier free construction, corroborated plaintiff's observations of the park. To make the park readily accessible to the disabled, Cody suggested creating parking spaces with striping, access aisles, and signage, and paved pathways from the parking area to the playground, picnic tables, and lake. Cody estimated the cost of these modifications to be about $9,580. The expert acknowledged, however, that the park was created in the early twentieth century, and therefore was not subject to ADA regulations applicable to "new" construction. Cody also affirmed that where access to a park is prohibited "because of the terrain or topography," the ADA permits the disabled person to be transported to the desired location "if it's feasible . . . ."

Also testifying for plaintiff was Christopher Schultz, the township manager and ADA coordinator, who explained that while the township had neither proposed nor implemented a transition plan with specific dates for greater access to the park, it was included in the community development block grant proposal in 2009. Through that proposal, it was the township's intent "to apply for . . . funding to improve access to municipal facilities in future program years, including 2012." In particular, the park proposal was to create disabled "parking areas . . . and a pathway to a playground area." Funding for the project was expected in 2010, and the township would then have approximately one year to implement the proposed improvements.

According to Schultz, in the interim, if a complaint were made regarding inaccessibility to township facilities, he would "either . . . refer it to the appropriate department to determine if they're able to assist, and if not, if it's something where [he] need[ed] to go and get information, [he] would . . . do [his] own research to determine what . . . needed to [be done] to assist." During his tenure with the township, Schultz had never received any complaints about access to the park.

At the close of evidence, plaintiff moved for a directed verdict, Rule 4:40-1, which the court denied, reasoning that it was for the jury to determine whether plaintiff was discriminated against. After the jury unanimously answered that question in the negative, plaintiff moved for a judgment n.o.v., Rule 4:40-2(b). The court denied this motion as well, concluding that "reasonable minds could differ on whether the defendant acted in a discriminatory manner. The jury . . . obviously accepted the explanation provided by the township . . . ."

This appeal follows.

I Motions for a directed verdict, Rule 4:40-1, and for judgment n.o.v., Rule 4:40-2(b), are "governed by the same evidential standard: '[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. . . .'" Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). We apply the same standard as the trial court. Boyle v. Ford Motor Co., 399 N.J. Super. 18, 40 (App. Div.), certif. denied, 196 N.J. 597 (2008). So measured, we are satisfied, as was the trial judge, that reasonable minds could find no discrimination here.

Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C.A. ยง 12132. Obviously, plaintiff, who is a paraplegic, is a "qualified individual," and ...


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