A federal judge of the Eastern District of Louisiana has denied the motion for partial summary judgment brought by a quadriplegic, who sued the owners and operators of the Mercedes-Benz Superdome, claiming violations of the alteration requirements of the Americans with Disabilities Act (ADA).
On June 14, 2018, Shelby Bailey filed a complaint, naming SMG, the operator of the Superdome, and Kyle France, in his official capacity as chairman of the Board of Commissioners of the Louisiana Stadium & Exposition District, as defendants.
Bailey, who is seeking declaratory and injunctive relief, relies on an electric wheelchair for mobility. He has been a Saints season ticket holder for over 30 years. Bailey alleged that prior to 2011, his seat was located on a wheelchair accessible raised platform in the 100 Level section of the Superdome. He alleged that in 2011, the defendants began extensive renovations on the Superdome and reconfigured the accessible seating section for patrons with disabilities. As a result of the renovations, the wheelchair accessible seating at the Superdome was moved to other positions where the views are obstructed by barriers and other patrons or players standing during the game, or the seating is not fully accessible by wheelchair, according to the complaint. Further, Bailey alleged that the defendants have been on notice of ongoing accessibility issues for many years. He also alleged that in 2008 the United States Department of Justice conducted an inspection of the Superdome and issued a report detailing violations of ADA regulations.
On December 13, 2019, the court granted in part and denied in part SMG’s motion for judgment on the pleadings. Important to Bailey, it concluded SMG could be held liable as an operator of the Superdome because SMG controls modification of the Superdome and could cause the Superdome to comply with the ADA. It also found that the plaintiff’s claims for injunctive and declaratory relief were timely because the complaint was filed within one year of SMG allegedly denying the plaintiff “the full and equal enjoyment” of a place of public accommodation.
Bailey responded with the instant motion on December 31, 2019, arguing that he is entitled to summary judgment as to the following alleged violations of the alteration requirements of the ADA: (1) sightline obstructions at 100 Level, Row 1; (2) sightline obstructions at 100 Level, Row 36; (3) inadequate amount of accessible seating at the 100 Level; (4) making the Superdome less accessible to individuals with mobility-related disabilities; (5) making the 200 Level less accessible; and (6) failure to provide sufficient accessible seating stadium wide.
The court denied summary judgment on three of the arguments, it decided more evidence was needed on the following two.
Whether Defendants Made the Superdome Less Accessible at Level 100
“The plaintiff argues that the defendants made the Superdome less accessible by removing the ADA Platforms. As to removing the on-field ADA Platforms, SMG asserts that the plaintiff has failed to satisfy his burden to show that the seating was made ‘less’ accessible or that the defendants had anything to do with the decision to move the seats.
“ADA Accessibility Guidelines for Buildings and Facilities (ADAAG) Section 4.1.6(1)(a) provides that ‘[n]o alteration shall be undertaken which decreases or has the effect of decreasing accessibility or usability of a building or facility below the requirements for new construction at the time of alteration.’ The plaintiff asserts that prior to the 2010 Renovations, the plaintiff and others with disabilities had ADA seating at the ADA Platforms with unobstructed views. In Mr. Terry’s expert report, he opines that ‘the 2011 Alterations project relocated wheelchair users to inferior and noncompliant locations in terms of the vertical, and ticket price dispersal, lines of sight over standing spectators.’ In his expert report, Mr. Mazz opines:
“[T]he eye level of a person in a wheelchair [on the prior ADA Platforms] would be about 6 inches lower and about 54 inches closer to the field than a person sitting in a wheelchair in the current front row 100 Level wheelchair spaces. The line of sight over persons standing along the sideline is about the same. With less equipment and less people directly in front of these seats, the view of the field would be somewhat better only between one End Zone and 25-yard line than the current front row 100 Level wheelchair spaces.
“Additionally, during his deposition, the plaintiff testified that when the front of the ADA Platforms would fill with patrons, the remaining persons needing accessible seating would be filled in behind the persons in the front row, but that ‘second row’ of seating was not raised. Plaintiff also testified that his view was blocked on occasion by kickers practicing during the game. Accordingly, there are genuine issues of material fact in dispute regarding whether the 2010 Renovations decreased or had the effect of decreasing accessibility of the 100 Level.”
Whether Defendants Made the Superdome Less Accessible at Level 200
“Fifth, the plaintiff argues that Defendants made the Superdome less accessible by removing wheelchair accessible seats at the 200 Level. Plaintiff asserts that 139 ADA seats should be provided on the 200 Level under the ADAAG. Regarding the alleged removal of wheelchair accessible seats at the 200 Level, SMG asserts that this is not an alteration because the 200 Level never had wheelchair accessible seats.
During his deposition, Alan Freeman, the general manager of the Superdome, detailed ‘the substantial renovation work [that] took place in 2009 and 2010.’ Mr. Freeman also testified that following Hurricane Katrina 9,540 seats were removed from the 200 Level and replaced with 8,919 seats. The plaintiff contends that ADA compliant seats were also removed from the 200 Level. According to the plaintiff, ‘[b]y removing the accessibility seating at the 200 Level, the defendants made the facility less accessible and violated the alteration requirement of the ADA.’ In support, the plaintiff cites a 2007 letter prepared by Larry Roedel, former counsel for the Board, which states that there were ADA compliant seats at the 200 Level. In opposition, SMG presents a declaration of Mark Arata, an employee of SMG who has worked in the box office of the Superdome since 2001. Mr. Arata states that ‘from 2001 to the present, there has never been any wheelchair seating in the 200 Level Loge seating area.’
“ADAAG Section 4.1.6(1)(a) provides that ‘[n]o alteration shall be undertaken which decreases or has the effect of decreasing accessibility or usability of a building or facility below the requirements for new construction at the time of alteration.’ There is a disputed issue of material fact as to whether wheelchair accessible seating was ever available on the 200 Level. Accordingly, there are genuine issues of material fact in dispute regarding whether the 2010 Renovations decreased or had the effect of decreasing accessibility of the 200 Level.”
Bailey v. Bd. of Comm’r of the La. Stadium & Exposition Dist.; E.D. La.; 2020 U.S. Dist. LEXIS 29678, CIVIL ACTION CASE NO. 18-5888; 2/21/20