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Mote v. City of Chelsea

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

January 2, 2018




         This case is before the Court again on the second round of dispositive motions in this municipal sidewalk accessibility dispute brought under the Americans With Disabilities Act (ADA), the Rehabilitation Act, and their state-law counterpart. The Court previously denied motions to dismiss filed by defendants Washtenaw County Road Commission (WCRC) and Michigan Department of Transportation (MDOT). Mote v. City of Chelsea, 252 F.Supp.3d 642 (E.D. Mich. 2017). The plaintiffs since have filed a second amended complaint, and discovery has closed. Defendants WCRC and MDOT now have filed motions for summary judgment, presenting many of the same legal arguments raised and rejected earlier. Each defendant has raised additional arguments, however, some of which merit dismissal of part of the plaintiffs' claims. The Court will grant in part and deny in part the defendants' motions for summary judgment.


         The plaintiffs are individual disabled persons, who live, work, or frequently travel to and within the City of Chelsea, Michigan, and who each require the use of a wheelchair, braces, cane, or other assistive devices in order to get around, along with the Ann Arbor Center for Independent Living (AACIL), which is an association that represents disabled persons such as the plaintiffs throughout southeastern Michigan, including in Chelsea. Together, and on behalf of persons similarly situated, the plaintiffs complain that the public streets and sidewalks in the City of Chelsea are less than fully accessible, at least in part because of construction and renovation work done on public sidewalks and streets by the City of Chelsea, the WCRC, and MDOT, which either removed, omitted, or improperly constructed accessibility features. The plaintiffs also initially complained about accessible public parking, but they have not developed those claims and appear to have abandoned them.

         The parties have furnished drawings and diagrams of some of the intersections. Their “Ramp Location Index” identifies each intersection's potential ramp location with ordinal numbers “1” through “8, ” beginning with the northwest corner of an intersection - ramp “1” is the south-facing location - then proceeding clockwise until the southwest corner, with “8” being the north-facing location. (In the case of a “T” intersection, at least two of the ordinal locations would be inapplicable.). Those designation will be used here. The following fact summary is taken from the parties' affidavits, declarations, and authenticated documents. We begin with the circumstances of the individual and institutional plaintiffs.

         A. Individual Plaintiffs

         1. Shauna Mote

         In 2005, plaintiff Shauna Mote was in a car accident, and her injuries resulted in the amputation of both her legs. She now uses an adapted van with hand controls for transportation, which has a side fold-out ramp that she uses to exit the vehicle. Before her accident, she never used the sidewalks or curb ramps along US-12, but in 2015 a new friend suggested to her that a good way to meet people was to participate in the fairs and parades held in town. In August 2016 Mote attempted to travel the pedestrian route along US-12 for the first time, in order to meet with her friend for the “Old 12 Childrens Fair Parade.” She also attempted to attend the “Chelsea Summer Fair Children's Parade” on an unspecified date in 2016. While traveling the sidewalk route along US-12, Mote observed several ramps with excessive running slopes, one of which was so steep that it caused the front wheels of her wheelchair to come up off the ground at the top. She also found it hard to navigate the ramps across US-12; at one location an excessive cross-slope on the ramp almost caused her to roll into traffic, and at another crossing police had to stop traffic to allow Mote and her friend to try to cross the street. However, upon crossing the street Mote and her friend were “confronted with a very steep curb ramp that was also covered with mud, weeds, and gravel several inches deep, ” and as “a result we had to avoid that curb ramp entirely and use a different ramp, which forced us to travel along Old 12, with our police escort.” On other occasions, Mote has found many of the curb ramps to be flooded with water and mud, requiring her husband to push her wheelchair with great difficulty; Mote averred that she would not have been able to make the passage in her wheelchair without his aid. As a result of these and other problems with the US-12 curb ramps, Mote has not been able to access the Lake Pierce Boardwalk either alone or with the assistance of friends.

         Mote did not identify the specific intersections with the offending ramps.

         As to M-52, Mote attested only that there are no accessible or handicapped-placarded parking spaces anywhere in the street parking along M-52; the normal spaces marked out on that street do not have enough width to allow deployment of her van's ramp; and, as a result, she has had to forego attending music festivals in town, or is forced to “park far away, and risk [her] health and safety using the very inaccessible and unsafe curb ramps, street crossings and sidewalks along SR-52 (Main Street).”

         2. Deborah Clark

         Plaintiff Deborah Clark has a wheelchair-modified van and a motorized wheelchair that she uses to get around. She first met friends who lived in Chelsea and visited there in 2014. Before August 2014, she never had occasion to visit the City or use any of the sidewalks there. In August 2014 Clark attended the Chelsea Summer Fair Parade, which ran along US-12, and, after parking in an accessible space by the shopping mall, she used six curb ramps installed by defendant WCRC to reach a spot where she could view the parade. The excessive slope on some of those ramps caused her wheelchair to tip, and gaps where some ramps met the sidewalk caused her wheels to get stuck, resulting in Clark having difficulty controlling her chair and her service dog. In 2015 Clark decided not to attend the parade, to avoid facing the same difficult trek.

         In 2015 or 2016, Clark learned that a new pedestrian crossing was installed across US-12 leading to the Lake Pierce Boardwalk. However, when it rains Clark has observed that the entire cross-walks and ramps are submerged and filled with pooled water and mud, which causes her wheelchair tires to lose traction, leaving her unable to traverse the ramps. As a result, Clark was not able to access the boardwalk despite the new crossing.

         In 2016, Clark tried to attend one of the Thursday Night Sights and Sounds events in downtown Chelsea with her friend, fellow plaintiff Brenda Baraniak. The event features musical acts on ten stages arranged along M-52 (Main Street). Clark attested that “[v]irtually every transition from each crosswalk to and from each curb ramp had an abrupt change in level, (large lips) that risked tipping our wheelchairs”; almost “every painted crosswalk had one or more divots, potholes, rips or other defects in the road surface that were tipping hazards”; and a “few times we had to go outside of the painted crosswalk, to find the least risky place to transition from the street onto or off of a curb ramp.” Clark stated that “[a]t one location, we abandoned the crosswalks and curb ramps entirely, ” and instead “both traveled in heavy vehicular traffic and used a commercial driveway apron to leave the street and enter onto the sidewalk, and later to leave the sidewalk and enter the traffic.” As a result, Clark and Baraniak were able to get close to only two of the performing stages, were unable to reach two others, and ended up giving up and going home without enjoying most of the festival.

         As with Ms. Mote, Clark did not identify the specific intersections with the offending ramps.

         3. Brenda Baraniak

         Plaintiff Brenda Baraniak is paralyzed from the waist down and uses a wheelchair that she pushes by her own power. She has a device that lifts the wheelchair and stores it on top of her car when she travels, and her car is modified to use hand controls. Baraniak stated that she had not visited Chelsea or used any of the pedestrian crossings there before August 2014. However, sometime after July 2014, Baraniak believed her granddaughter had reached an age where she could enjoy the parades in Chelsea and decided to attend the Chelsea Community Fair and its associated parade along US-12. Baraniak described nearly verbatim the same difficulties encountered by plaintiff Clark during her visit to the US-12 parade route. She also described similar difficulties and a lack of access to the Lake Pierce Boardwalk via the new pedestrian crosswalk across US-12, and she related the same difficulties encountered while attempting unsuccessfully to attend the downtown music fair with Clark.

         4. Karen and Merlyn Street

         Plaintiff Karen Street lives in Chelsea, is a survivor of polio, and has trouble walking. In 2014 she had an orthotic brace made for her ankle to assist her, but she still has trouble ambulating. She can walk for short distances, but she uses a motorized scooter to get around most of the time, and as her condition has worsened in recent years she has relied on her scooter more and more. Before August 2015, she never had any reason to use the curb ramps or sidewalks along US-12. But in January 2017 a friend of hers moved into a retirement home across US-12 from the Lake Pierce Boardwalk, and Street attested that she wants to visit the boardwalk with her friend, but has been unable due to the same flooding and debris accumulation at the US-12 crossing which was described by other plaintiffs. Street also stated that in 2015 she attended one of the Thursday evening music festivals along M-52 in Chelsea, and while trying to negotiate a particularly dangerous transition from a curb ramp her scooter tipped over into traffic along the street. Since that time Street and her husband have taken the dangerous - but in her view less risky - alternative of passing along the street among parked cars and passing traffic, rather than risk tipping over again on that particular curb ramp. However, even by that risky avenue Street was unable to reach most of the stages during the festival, due to the number of curb ramps that she found dangerously impassable.

         Street attested that almost every transition from ramp to street or sidewalk along M-52 has large lips that cause her scooter almost to tip over, and she often is forced to go outside the painted crosswalks to find a place to safely enter or exit the ramp. Even when walking short distances, Street stated that she often has to turn sideways in order to safely traverse the ramps, due to the steep slopes and poor transitions, which increases her risk of falling.

         Plaintiff Merlyn Street submitted a declaration generally corroborating his wife's account of her difficulties traversing the US-12 and M-52 curb ramps and sidewalks, which he also has had the same problems with as an elderly survivor of polio. Neither identified specific problematic intersections along US-12 or M-52

         5. Lee Benton

         Plaintiff Lee Benton attested that he moved to Ann Arbor in 2014, and in 2015 and 2016 he rode the WAVE bus from Ann Arbor to Chelsea, where his parents live. He has cerebral palsy, cannot use his legs, has limited use of his arms, and uses a powered wheelchair. He described problems similar to those encountered by Mote, Clark, Baraniak, and the Streets while traveling from his bus stop to the Chelsea summer fair and parade, and while attempting to access the Thursday night summer music festivals; but he did not point out the specific intersections where the ramps were problematic.

         6. Joanne Ladio

         Joanne Ladio attested that she is the full-time caregiver for plaintiff Carlos Gray-Lion, and that the two have lived together in Chelsea since 1999. She attested to difficulties pushing Carlos's wheelchair on the pedestrian routes along US-12 and M-52, stating that she had similar difficulties as other plaintiffs with the US-12 crossing to the Lake Pierce Boardwalk. She also attested that in 2014, 2015, and 2016 she and Carlos only have been able to attend the one stage nearest to their home during the summer music festivals, due to the many (unspecified) impassable curb ramps along M-52.

         7. Other Individual Plaintiffs

         Plaintiffs Jennifer Kundak, who has difficulty walking, and J.N. (by his next friend), a minor who has spina bifida and uses a wheelchair and forearm crutches to ambulate, submitted similar declarations describing their difficulties traversing the same curb ramps discussed by the plaintiffs mentioned above.

         8. Plaintiff Ann Arbor Center for Independent Living (AACIL)

         Carolyn Grawi, director and CEO of plaintiff AACIL, submitted a declaration in which she attested that she is blind, cannot drive, and walks using a cane. AACIL provides services to disabled individuals that include information, peer mentoring, training in individual living skills, advocacy, and assistance with community transitions. Grawi was contacted in late 2015 or early 2016 by plaintiffs Mote, Clark, and Baraniak. She drove to Chelsea to meet with the plaintiffs, where she observed for the first time that many of the businesses along main street had inaccessible entrances, and that much of the street parking in the City was inaccessible. Grawi referred the plaintiffs to their counsel of record for advice about their legal rights, and she “spent hours inspecting sidewalk, curb ramp and crosswalk barriers to access throughout Chelsea, which is in AACIL's service area.”

         Several weeks later, Grawi was driven to Chelsea to meet with City officials about the accessibility barriers she had encountered; evidently unsatisfied with the City's response, the AACIL board of directors later voted to file suit against the City under the ADA. While this lawsuit has been pending, Grawi has had to spend time answering discovery inquiries and attending a deposition, and her involvement in the case has diverted her from work that had to be covered by other employees. Grawi attested that “[d]ue to funding cuts, and layoffs, AACIL is stretched very thin, ” and “[a]ny time spent on the Chelsea matters is a drain, in people, resources and time that I and other employees would otherwise spend on other AACIL work.” Grawi also attested that her organization's ability to negotiate with commercial businesses in Chelsea to persuade them to make their premises accessible is hampered because of the time and resources diverted to dealing with accessibility defects in the public way, and because Grawi must be “accompanied and assisted by a non-disabled person even to reach the establishments.”

         B. The Chelsea Thoroughfares

         1. State Road 52 (M-52)

         In 2003 defendant MDOT resurfaced the part of State Road 52 (M-52, a.k.a. “Main Street”) that runs through the City of Chelsea. MDOT's representative also testified that the agency periodically “refreshes” painted pavement markings along the M-52 corridor, on an approximately five-year cycle, and that the agency also periodically “salvages” or “replaces” street signs along the road.

         Beyond those preliminary and apparently undisputed facts, it was difficult to discern any coherent information that could be pertinent to the applicable construction standards from the record submitted by the plaintiffs relating to M-52. The plaintiffs attached to their response to MDOT's motion a vast catalog of inscrutable diagrams and photographs, which perhaps are meant to depict the dimensions and condition of numerous curb ramps at locations along M-52. However, unlike the description of conditions along US-12, the defects purportedly identified at those locations were not summarized in any affidavit by the plaintiffs' inspectors, and no deposition or other affidavit testimony was included to explain them. The plaintiffs also do not cogently summarize or identify the specific defects of those M-52 curb ramps with respect to particular regulations anywhere in their briefing.

         After reviewing all of those exhibits, without the benefit of any testimonial guidance from the plaintiffs' inspectors or any explanatory briefing to illuminate the significance of the depictions, the Court could say that there appear to be some locations depicted in the exhibits that are in some degree of disrepair, but cannot draw any conclusions about what a factfinder could ascertain relating to any specific defects at those locations that contravene an applicable regulation.

         The Court discussed that difficulty with the plaintiff's attorney at oral argument, and invited supplemental briefs that might cure the problem. However, the plaintiffs' brief fails to address the lack of information required by Federal Rule of Civil Procedure 56(c), regarding the supposed defects along the M-52 (Main Street) corridor. Contrary to the Court's direction, the plaintiffs refused to actually enumerate the defects at each of the sidewalk ramps, and instead cited only “one example” of purported defects, referencing the same inscrutable engineering sketches previously submitted. The plaintiffs' only explanation for their failure to produce an inventory of defects is that it would take a lot of pages to make such a list, so they apparently believed they should not try.

         2. Old U.S. 12 (US-12)

         In 2007, WCRC carried out the “Old U.S. 12 Resurfacing Project, ” which was referred to in project documents as being undertaken “in cooperation with the Michigan Department of Transportation.” The log stated that the “improvements covered by [it would be] constructed in accordance with the Michigan Department of Transportation 2003 standard specifications for construction, ” and it included drawings and specifications for, among other things, “sidewalk ramp details, ” “concrete sidewalks, ” and “concrete curb[s].” The project log stated that “all sidewalk ramps” within the work zone would be “replaced and/or relocated with ADA compliant ramps.” An accompanying letter from WCRC officials stated that the County required a permit to be issued by the City for work to be performed within the City limits, before it could “submit a final engineering package to the Michigan Department of Transportation Local Agency Section.” That letter noted that the work would include “reconstruction of the sidewalk drops to become compliant with ADA requirements” at the intersections with Lane Street, Arthur Street, and Old Manchester Road. Subsequently, the WCRC entered into a contract with MDOT to procure financing for the project from MDOT.

         On October 19, 2016, Derik Bollinger and Ray Schmidt, two superintendents of the City of Chelsea Public Works Department, inspected several of the intersections along US-12 that were included within the 2007 resurfacing project. Bollinger and Schmidt stated in their affidavits that they observed that at the Wilkinson, Arthur, and Lane street “T” intersections, there were only two curb ramps placed at crossings of US-12, meaning that the ramps designated as “1” and “8” according to the plaintiff's diagram were omitted (i.e., one ramp at the northwest corner of each intersection and one corresponding ramp at the southwest corner). They also observed that at the “” or “plus” intersection with Taylor street, there also were only two ramps crossing Taylor, with ramps “4” and “5” omitted from that intersection. At Wilkinson Street, at ramps “4” and “5” crossing US-12, the superintendents observed “evidence of ponding water, such as staining and debris covering part of the detectable warnings and collected at the transition of each curb ramp to Old U.S. 12.” At that location ramp “4” also “had a running slope of 10%.” Similarly, at Lane Street they also observed evidence of ponding water, at ramps “2, ” “3, ” “4, ” and “5, ” and they noted that ramp “4” had a running slope of 9%. At Arthur Street, they noted evidence of ponding water at ramps “2, ” “3, ” and “4, ” and ramp “2” had a running slope of 10.4%. At ramps “4” and “5” they also observed a “3/4 to 1 inch abrupt change in level at the transition from the curb ramp to the street - an ‘asphalt reverse lip.'”

         At Taylor Street, they observed that curb ramps “1, ” “2, ” and “8” had evidence of ponding water, and ramps “6” and “7” (across Taylor Street) had “missing expansion joints leaving a gap in the surfaces approximately 1.5 inches wide and more than 1 inch deep for the entire widths of the ramps.” They also noted a “hole in the asphalt approximately 1.5 inches deep and 7 inches wide” in the road surface crosswalk between ramps 6 and 7, and they recorded that ramps 2 and 7 had 1/2 inch “asphalt reverse lips.”

         Mark McCulloch of the WCRC confirmed at his deposition that the work during the 2007 project included removing two of the four curb ramps that previously had existed at Arthur and Lane Streets. McCulloch testified that the ramp locations were removed because there were some ramps in place on one side of the street with no “receiving” ramp on the other side, and because it was determined that ...

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