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Pollard v. TMI Hospitality GP, LLC

United States District Court, E.D. Michigan, Southern Division

March 22, 2017

BEVERLY POLLARD, Plaintiff,
v.
TMI HOSPITALITY GP, LLC, MIDWEST HERITAGE INN OF SAGINAW, L.P., and MARRIOTT INTERNATIONAL, INC ., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [#17]

          HON. DENISE PAGE HOOD, United States Chief Judge

         I. INTRODUCTION

         This case arises out of an injury Plaintiff suffered at a Fairfield Inn owned by Defendants. Plaintiff's three-count Complaint alleges that Defendants: (1) violated American with Disabilities Act, 42 U.S.C. § 12181 et seq. (“ADA”) (Count I); (2) and the Michigan Persons with Disabilities Civil Rights Act (“PWDCRA”), M.C.L. § 37.1101 et seq. (Count II); and (3) were negligent, when providing Plaintiff with a handicap-accessible room with a roll-in shower that had a visible depression and crack(s). Defendants filed a Motion for Summary Judgment, Dkt. No. 17, which the parties have fully briefed. A hearing on Defendant's Motion was held on February I, 2017. For the reasons that follow, the Court grants in part and denies in part Defendants' Motion for Summary Judgment.

         II. BACKGROUND

         On August 28, 2013, Plaintiff and her husband, Albert Pollard, wanted to stay in a hotel in Saginaw. Plaintiff has multiple sclerosis, utilizes a wheelchair, and requires a hotel room with a handicap-accessible, roll-in shower. The first hotel they tried didn't have a suitable shower, and Plaintiff was referred to the Fairfield Inn, which was across the parking lot from the first hotel. Plaintiff specifically requested a handicap-accessible room with a roll-in shower. The Fairfield Inn staff gave Plaintiff the only room it had that satisfied those requirements.

         After checking into their room, Plaintiff and her husband noticed a crack in the roll-in shower floor. As Plaintiff testified:

Q. Okay. And did you check out the room as soon as you arrived or did you leave that to your husband.
A. No, we checked it out.
Q. Okay. And you said a minute ago that your husband asked if there were any other available rooms. Was there something that you-that made you decide to ask that?
A. Floor.
Q. Okay. When you say floor, can you tell me more about that?
A. There was a crack. That doesn't sound-That's not right. There was a hole, an indentation that was cracked. And there were cracks that caused the floor to sink down.

Dkt. No. 17, Ex. 2 at 27-28. Plaintiff testified that she could see the crack from her wheelchair:

A. I saw it as more of a circle area that was cracked. And I don't know what the depth was but, clearly, and to me, it sunk down.
Q. Okay. But you were able to see it from your vantage point in your wheelchair when you inspected the room?
A. Uh-huh (Yes).

Id. at 30. Mr. Pollard echoed Plaintiff's testimony, stating that the shower floor had several cracks in it and the area underneath appeared to be spongy and somewhat depressed. Dkt. No. 19, Ex. 2 at 10-11. After seeing the condition of the roll-in shower floor, Mr. Pollard asked the Front Desk Manager if there were any other handicap-accessible rooms available that had a roll-in shower. Mr. Pollard was advised that it was the only such room at that Fairfield Inn.

         Plaintiff and Mr. Pollard stayed in that room at the Fairfield Inn the night of August 28, 2013. The next morning, Plaintiff utilized the shower in the condition described above. With help from her caretaker, Plaintiff got into her shower chair, which was rolled into the shower. The caretaker has testified that, while rinsing off Plaintiff's back, the front leg of the shower chair “seemed to sink down then slip, rotating out from under her.” Dkt. No. 19, Ex. 6. Plaintiff fell to the floor and fractured her hip. Plaintiff had surgery to repair the fracture and spent five days in the hospital before returning home. Plaintiff states that she had to undergo in-home physical therapy, received daily injections of a parathyroid hormone to increase calcium uptake in her bones, and continues to have residual issues associated with the fall.

         Numerous employees of the Fairfield Inn, including the Front Desk Manager, General Manager, Assistant Manager, and housekeeping and maintenance staff were aware of the condition of the handicap-accessible, roll-in shower floor. Dkt. No. 19, Ex. 5 at 5-9. The General Manager testified that he had reported the condition to the corporate level and was told to continue make the room available to guests while looking for a vendor to fix the condition. Dkt. No. 19, Ex. 3 at 7-8, 12. Two photographs attached to Plaintiff's response brief show ...


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