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Mote v. City of Chelsea

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

July 3, 2019

SHAUNA M. MOTE, DEBORAH CLARK, CARLOS GRAY-LION, BRENDA BARANIAK, KAREN STREET, MERLYN STREET, LEE BENTON, by his next friends RONALD M. BENTON and MARION BENTON, J.N., a minor, by his next friends DANIEL and MARY JANE NELSON, ANN ARBOR CENTER FOR INDEPENDENT LIVING, INC., and JENNIFER KUNDAK, Plaintiffs,
v.
CITY OF CHELSEA, CHELSEA DOWNTOWN DEVELOPMENT AUTHORITY, and WASHTENAW COUNTY ROAD COMMISSION, Defendants, and CITY OF CHELSEA, Third-party plaintiff,
v.
WASHTENAW COUNTY ROAD COMMISSION, Third-party defendant.

          OPINION AFTER TRIAL

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE.

         This case concerns the sidewalks, curbs, and intersections in the City of Chelsea, Michigan, and their accessibility to persons with disabilities. In a second amended complaint, the plaintiffs - Shauna Mote and several other disabled individuals, joined by the Ann Arbor Center for Independent Living - allege violations of the Americans With Disabilities Act (ADA), the Rehabilitation Act, and Michigan's Persons With Disabilities Civil Rights Act, based primarily on the condition of certain sidewalk curb ramps within the City of Chelsea. The individual plaintiffs are 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. Plaintiff Ann Arbor Center for Independent Living is an association that represents disabled persons such as the plaintiffs throughout southeastern Michigan, including in Chelsea. They contend in their second amended complaint that the public streets and sidewalks in the City of Chelsea recently have become less than fully accessible to them due to City approvals of renovations by private businesses adjacent to public sidewalks and streets making those facilities inaccessible. They allege that the City of Chelsea and its Downtown Development Authority (DDA), along with the Michigan Department of Transportation (MDOT) and the Washtenaw County Road Commission (WCRC), have created or facilitated violations of the ADA within certain public pedestrian areas in the City by allowing businesses to renovate storefronts without including appropriate accessibility measures, and by removing previously constructed physical accommodations for wheelchair users, such as curb ramps at some intersections.

         On May 22, 2017, the plaintiffs filed their second amended complaint, alleging violations of ADA Title II (Count I) and the Rehabilitation Act of 1973 (Count II) against the City of Chelsea, the City's Downtown Development Authority, and MDOT. The complaint also raises a congruent claim against the City of Chelsea only under Michigan's Persons With Disabilities Civil Rights Act (PWDCRA). With leave granted, the City of Chelsea filed a third-party complaint against the WCRC, which the City contends has exclusive control over and responsibility for certain roadways within its city limits. The plaintiffs later entered into a consent decree with the City of Chelsea, and they filed their second amended complaint naming WCRC as a principal defendant.

         After motion practice resulted in the dismissal of the case against the MDOT, realigned the parties, and narrowed the issues, the case came on for trial on May 29, 2018 before the Court sitting without a jury. Fourteen witnesses testified (four by deposition) and the Court received 73 exhibits. Afterward, the parties submitted proposed findings of fact and conclusions of law.

         The disputed trial issues concerned the construction of the curb ramps installed at six intersections along a stretch of Old US-12 in the southern part of Chelsea, with the main focus on four of those intersections. The parties's exhibits throughout the case have included drawings and diagrams of the intersections, which use a “Ramp Location Index.” That index identifies each intersection's potential ramp location with ordinal No. “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.). The Court will continue to use those designation here.

         The following constitutes the Court's findings of fact under Federal Rule of Civil Procedure 52(a)(1), based on the record evidence, followed by its application of the governing law.

         I. Factual Findings

         A. The Plaintiffs

         Shauna Mote, a 35-year Chelsea resident, lost both legs in an automobile accident in February 2005. She uses a wheelchair and a scooter. She rarely uses her prosthetics to ambulate. For transportation, Ms. Mote is able to use a van by transferring from the wheelchair to the vehicle, for which she must maintain her upper body strength.

         Ms. Mote described her experiences going to events in Chelsea and navigating the sidewalks and intersections along Old US-12. When she attended parades in 2016, she parked in a handicap-accessible lot, passing through the parking lot to the south side of Old US-12 to cross over at Manchester Street. She described the curb ramp at the Manchester Street intersection as steep with a large crack at the bottom and a big asphalt “lip” where the ramp joins the street. The ramp has a cross-slope, causing difficulty proceeding straight down. There is a pothole in the crosswalk. On a different day, her front caster became lodged in a crack in the sidewalk ramp.

         On another occasion, her companion, Debra Clark, also wheelchair bound, encountered accessibility difficulty when her power wheelchair became mired in the mud and grass at one of the ramps at the intersection of Old US-12 and Taylor Street. She described similar debris and growing grass at the Lane Street intersection ramp, which she characterized as “steep.” Her husband had to help her traverse that ramp. At Arthur Street, there was grass growing in the ramp. Once she and her companions reached their destination, rain began and lasted for about 20 minutes. When she tried to return to her van, there was standing water that obscured the ramps and the transitions to the asphalt. She was unable to access the ramps without her husband's help. She said that all the ramps on Old US-12 were littered with debris.

         Brenda Baraniak lived in Chelsea for seven years. She suffered a spinal cord injury, leaving her paralyzed from the waist down. She uses a manual wheel chair for mobility, and she transfers to a van for transportation.

         Ms. Baraniak described her experience in August 2014 when she took her granddaughter to the Chelsea Fair. She parked at a mall across from the Fairgrounds and used the curb ramp to cross Manchester Road at Old US-12. She said the ramp leaned one way and there was a “lip” at the bottom where the curb ramp met the asphalt. She could not proceed on her own and needed help getting back in the crosswalk. Her daughter had to help her up the ramp on the opposite side of the intersection because of the slant on one side of the ramp. There was water, sand, dirt, and stones on the detectable warning of the ramp and the Silver Maples Road intersection with Old US-12. She identified photographs that depicted the hazards she described in her testimony.

         Karen Street testified that she has been paralyzed in her right lower extremity since 1954 when she contracted polio. She tried to walk using two canes, but for longer distances she uses a powered scooter. Ms. Street has lived in Chelsea for 41 years. She frequents a retirement community on Silver Maples Drive. She testified that she cannot use the curb ramp at that intersection with Old US-12 when there is standing water. She described an experience in the summer of 2016 when she encountered difficulty with the curb ramp at Silver Maples Drive; the ramp was full of sand, which accumulated because the ramp slopes toward the center. She found that water stands in the ramps for a considerable time after a rainfall.

         Merlyn Street, Karen's husband, testified that he has had limited walking ability since he contracted polio in 1952. He is able to walk about ten feet with assistance. He stated that he would like to cross Old US-12 at Silver Maples Drive if he could. But the conditions there, as described by his wife, prevent him from doing that.

         Lee Benton testified that he was paralyzed on the left side of his body from cerebral palsy. He uses a motorized chair for mobility, which he controls with a joy stick using his right hand. The chair weighs 900 pounds. Mr. Benton travels from Ann Arbor using the Way Bus, gets off at Main Street, and works his way down Old US-12. On one occasion, traveling to the Chelsea Fair, he noticed grass and debris at the curb ramp intersections. When it rained, there frequently was standing water. The impediments caused him to lose his balance. If he loses touch with his joy stick, he has to ask a stranger to help him readjust his body in the chair. He noted that there was grass growing on some of the curb ramps, and the cross slopes cause his body to lean to the left. Sometimes at the Old Manchester Road intersection, he has to go out into the roadway to cross over. At the other side of the intersection, the cross slope makes him lean when ascending the ramp. And other times when he hits a bump on the ramp transition, his wheels get stuck.

         Jennifer Kundak, a 26-year Chelsea resident, has degenerative disc disease with impingement in her lumbar spine. She has chronic leg pain, which causes difficulty walking and she drags her right foot. She attends the Wellness Center on Old US-12 near the Silver Maples Drive intersection. She does not use the curb ramps at the Silver Maples Drive intersection because debris, gravel, mud, and broken pavement interfere with her walking there.

         Deborah L. Clark testified by deposition that she has had multiple sclerosis for more than 30 years, which caused a steady decline of her motor functions so that she now needs to use a wheelchair all the time to move around. She also has a van that is modified to accommodate her wheelchair and which allows her to drive using hand controls. Clark lives in Grass Lake, Michigan, and in 2014 she began to attend services at St. Mary's Church in Chelsea, Michigan. The church is located on Old US-12 within the City, near the intersection with Silver Maples Street. Clark began to attend services at St. Mary's to get out of the house and meet people after her husband died. The priest at the church told her about events that happen in Chelsea like parades and the Sights and Sounds fair.

         The first time that Clark tried to attend a parade in Chelsea, she parked in the parking lot of the shopping mall on Old US-12 near the intersection with Manchester Road. At the curb cut for that intersection, while crossing US-12 from south to north, Clark was “jolted” in her wheelchair while descending the curb cut to the street. She had a similar “jolting” feeling while using the curb cut at the intersection of Taylor Street. Clark stated that she had similar difficulties with the intersections she used along Old US-12 each time she tried to attend parades in 2014 and 2016. She also stated that at the same intersections with Manchester, Silver Maples, and Taylor streets there are “large potholes that make some of the curb ramps unusable.” In addition to the “jolting” sensation she felt when navigating the curb cuts, Clark testified that when she tried to attend a parade in the Summer of 2014, the curb cuts and sidewalks prevented her from getting as far as she wanted to travel along the parade route, and she could not get to a shaded area. Unable to reach any shade, she gave up and left early without seeing the entire parade. The jolting that she experienced when going up or down curb ramps caused Clark's hands to shift on the controls of her electric wheelchair, which made it difficult for her to control her chair and made her feel unsafe.

         Carlos Gray-Lion also testified by deposition. He has lived on West Summit Street in Chelsea since 1999. He had a stroke in 2006, causing the loss of full use of the right side of his body. He can walk between 10 and 20 feet using a walker, but for mobility over any longer distance he has to use a wheelchair. When he leaves his home, Gray-Lion always has his caretaker, Joanne Ladio, go with him to push the wheelchair, because it is unmotorized and he cannot move with it on his own.

         Gray-Lion testified that he most recently tried to attend the Sights and Sounds fair in Chelsea in 2016, and that, even with his caretaker's help, “in a wheelchair it's almost impossible . . . to maneuver up and down the sidewalks along Old US-12.” Gray-Lion said that around the intersection of Will Johnson Drive and US-12, near Silver Maples, there were “mud puddle[s] galore.” He stated that the rain (and, in the winter, snow) made it impossible to navigate the curb ramps for the sidewalks along Old US-12, and that it often would be 24 to 48 hours after a rain before the ramps would dry out and become passable again for a wheelchair.

         Marijane Nelson sued on behalf of her minor son, J.N. (age 12). She testified by deposition that J.N. was born with spina bifida and is paralyzed from the waist down. He uses forearm crutches to walk and sometimes uses a manual wheelchair which he moves on his own. J.N. has sometimes walked as far as 400 yards on crutches, but when they go to areas with crowds he is in the wheelchair for his safety. Since 2014 J.N. has participated in a summer race through downtown Chelsea known as Run for the Rolls. Part of the race route covers M-52 going south, then turning onto Old US-12 heading west toward Taylor Street. J.N. most recently participated in the race in August 2016.

         Nelson testified that she has to be careful and keep a close watch on J.N. any time he is traveling along sidewalks because the clearance of his feet to the ground in the wheelchair may cause him to get stuck on uneven or sloped surfaces, and sometimes he has gotten a crutch stuck and tripped. Nelson focused on J.N.'s problems navigating the curb ramps at the crosswalk to cross Taylor street while traveling east to west along the north side of US-12, which was part of the route that they used to return to their car after the race. Nelson attested that J.N. had a “tendency” to “clip his toes” or get his crutches caught where there was not a “smooth transition” from the curb ramp to the crosswalk.

         The plaintiffs also offered the deposition testimony of Carolyn Grawi, the full-time Executive Director of plaintiff Ann Arbor Center for Independent Living (AACIL). She said that she also works part-time as an instructor in the School of Social Work at the University of Michigan. Grawi manages all of the business affairs of the AACIL, plans conferences and events, provides services to members who are disabled persons, and supervises a staff of 16 employees. Each year the organization provides services to between 3, 500 and 5, 000 disabled persons living in Washtenaw County. The AACIL's operations are funded primarily by grants from the State of Michigan and the federal government. The organization's annual budget is $1 million, mostly from government grants, but about $130, 000 comes from charitable donations. Grawi is paid a salary of $75, 000 per year and works at least 1, 980 hours per year as a full-time employee.

         Grawi testified that she has not personally had occasion to use any crosswalks along Old US-12, but she had observed on many occasions that numerous sidewalk ramps along the road were inundated with water, including many that she observed during the drive to the location of her deposition on February 7th. Grawi stated that her organization received complaints from members including plaintiffs Shauna Mote, Deborah Clark, and Brenda Baraniak, about difficulties that they had using the sidewalks along Old US-12 in Chelsea. Grawi and the individual plaintiffs as her members “spent quite a bit of time talking about the different areas” that have accessibility problems along US-12. The time Grawi spent considering those problems was time that could not be devoted to other activities of the AACIL, like providing services to members. Grawi also communicated by email and had phone calls with the plaintiffs and members of AACIL's board about the sidewalk issues. Grawi also conferred with plaintiffs' counsel and testified at a deposition in this litigation regarding the problems with the sidewalks along Old US-12. Grawi attested that all of the time that she spent relating to this litigation would have been spent providing services to members of the AACIL in other ways, if she had not been required to pursue the lawsuit.

         B. Old US-12 Intersections

         1. Construction Project

         Old US-12 is a county road under the exclusive domain of the WCRC. In 2007, the 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 project called for resurfacing Old US-12 with hot asphalt cold milling from 120 feet west of its intersection with Wilkinson Street to 75 feet west of its intersection with State Highway M-52. The project was to include ADA-complaint concrete sidewalk ramps and curb and gutter repair work. The project 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 referenced specifications were found in MDOT Standard R-28-F.

         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 of Chelsea 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. The project was financed with federal funds.

         The City of Chelsea did not exercise any control over the WCRC's construction activity within the WCRC right-of-way. Christine Linfield, Chelsea's city engineer, testified that there was no statutory authority to do so. However, Chelsea required a permit for any WCRC construction outside the WCRC right-of-way connecting city streets for asphalt cutting, patching, and placement of signs within the city limits. In turn, the WCRC required the City to obtain permits for any construction or maintenance activity within the county ...


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