On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-216-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Grall and Skillman.
The opinion of the court was delivered by PARRILLO, P.J.A.D.
This civil rights litigation, alleging a municipality's violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by failing to make various public facilities handicap accessible, raises the novel issue of whether a request for assistance is required to sustain an LAD public accommodation disability discrimination claim alleging overall lack of access. The motion judge granted summary judgment dismissal of plaintiff's LAD complaint because plaintiff, indisputably, did not request an accommodation prior to filing suit. Plaintiff appeals, and for the following reasons, we now reverse.
Plaintiff, a paraplegic, is a Florida resident who frequently travels to New Jersey to see friends and assist others in Hightstown, where he also acts as a "tester," visiting facilities to determine their accessibility to the disabled. On March 12 and 13, 2008, plaintiff attempted access to several public buildings in the borough. According to plaintiff, City Hall was "not properly accessible, the parking sign [wa]s too low, the urinal [wa]s too high, the toilet paper dispenser [wa]s over the grab bar, [there was] no insulation on the pipes, the door [wa]s too heavy, and there may be a problem with turnaround space . . . ." The museum across from City Hall had no disabled parking and the sidewalk path leading to its entrance was "not accessible because the route [wa]s on an acute slope and cross slope .
Plaintiff encountered similar barriers in downtown Hightstown, where the sidewalks and curb cuts on Bank and Main Streets were on "acute slopes and cross slopes . . . ." Plaintiff also could not access the library because there were no disabled parking spaces and "the drop off box [wa]s on an acute slope." The Army Navy Memorial too had no accessible parking, and the "sidewalk to river view ha[d] cross slopes . . . ." Plaintiff summarized his access difficulties thus:
I was unable to be a patron at the library, museum, Army Navy Memorial, and my ability to use the routes on Bank St[reet] and Main St[reet] has been impaired because of slopes and cross slopes. I was a patron of the Municipal Court Building at City Hall[.] [However, my access was impaired] . . . because of [a] lack of accessible bathroom and parking.
These conditions persisted on October 13, 2010, when plaintiff attempted to revisit Hightstown's library, municipal building and downtown area. Despite having his access "greatly impaired[,]" plaintiff never requested assistance from a municipal employee or any other representative of the borough in facilitating access to Hightstown's services and facilities.
Plaintiff secured the services of an expert, who reported areas of non-compliance with the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.A. §§ 12101 - 12132; American National Standards Institute (ANSI) regulations; and the New Jersey Barrier Free Subcode, N.J.A.C. 5:23-7.1 to -7.32 (2009), including, but not limited to, the bathroom facilities in City Hall, the ramp leading to City Hall, the rear parking area of City Hall, the book drop slot at the library, the landing behind the Army Navy Memorial, curb cuts at the corners of Main and Franklin Streets and Hightstown Mall and Broad Street, and cross slopes on various streets in downtown Hightstown.
Thereafter, plaintiff and Advocates for Disabled Americans (AFDA) filed a complaint, alleging that the Borough of Hightstown (at times defendant) discriminated against them by failing to provide plaintiff access to defendant's "services including the sidewalks and curb cuts, library, municipal hall and parking[,]" in violation of Title II of the ADA and LAD. After defendant removed the case to federal court, plaintiff filed an amended complaint that abandoned the ADA claim and requested less than $75,000 in damages. Following the case's remand to state court, AFDA dismissed its claims with prejudice.
Following discovery, on defendant's motion for summary judgment, the court dismissed plaintiff's public accommodation disability discrimination claims, finding an obligation under the LAD for plaintiff to request assistance from a place of public accommodation prior to filing suit and that, in this instance, plaintiff never made such a request:
There's no indication that those requests were made, they were put on notice, so there's no way to see whether or not they would have ...