Oregon Paralyzed Veterans v. Regal Cinemas

• Decision Date: 13 August 2003
• Docket Number: No. 01-35554.,01-35554.
• Citation: 339 F.3d 1126
• Parties: OREGON PARALYZED VETERANS OF AMERICA, an Oregon non-profit Corporation, Plaintiff, and Kathy Stewmon; Tina Smith; Kathy Braddy, Plaintiffs-Appellants, v. REGAL CINEMAS, INC., a Tennessee Corporation doing business in Oregon; Eastgate Theatre Inc., dba Act III Theater, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1126

339 F.3d 1126

OREGON PARALYZED VETERANS OF AMERICA, an Oregon non-profit Corporation, Plaintiff, and Kathy Stewmon; Tina Smith; Kathy Braddy, Plaintiffs-Appellants, v. REGAL CINEMAS, INC., a Tennessee Corporation doing business in Oregon; Eastgate Theatre Inc., dba Act III Theater, Inc., Defendants-Appellees.

No. 01-35554.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 2, 2002.

Filed August 13, 2003.

Kathleen L. Wilde, Oregon Advocacy Center, Portland, OR, for the plaintiffs-appellants.

Laura M. Franze, Akin, Gump, Strauss, Hauer & Feld, LLP, Dallas, TX, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Garr M. King, District Judge, Presiding, D.C. No. CV-00-00485-KI.

Before: B. FLETCHER, KLEINFELD and McKEOWN, Circuit Judges.

Opinion by Judge BETTY B. FLETCHER; Dissent by Judge KLEINFELD.

BETTY B. FLETCHER, Circuit Judge:

This appeal concerns the validity of the Department of Justice's ("DOJ") interpretation of its own regulation requiring that movie theaters, pursuant to Title III of the ADA, provide comparable lines of sight for wheelchair-bound and non-wheelchair-bound moviegoers. Three individual, disabled plaintiffs and the Oregon Paralyzed Veterans of America ("OPVA") sued two companies that own and operate movie theaters in Oregon. The theaters at issue located all wheelchair-accessible seats in the front rows, where the vertical viewing angle was significantly sharper than in the rest of the theater.

The plaintiffs raised three claims. First, they alleged that the "stadium seating" plans in six of the defendants' movie theaters violate Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12182, and DOJ's regulations promulgated thereunder. The plaintiffs also claimed that the seating plans violate Oregon's public accommodations statute, Or.Rev. Stat. § 659.425(3), and claimed negligence in the design, construction, and operation of the stadium-riser theaters. They sought declaratory and injunctive relief, compensatory and punitive damages under the Oregon statute, and damages for negligence (in an amount to be proved at trial), in addition to attorneys' fees and costs.

The district court granted summary judgment to the defendants on all three claims. The three individual plaintiffs¹ now appeal the district court's decision as to the ADA claim only. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

I. FACTS

Viewed in the light most favorable to the appellants, the non-moving parties, Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002), the record reveals the following facts. The plaintiffs-appellants in this case are three disabled, wheelchair-bound individuals living in Oregon. The defendants are Regal Cinemas, Inc. and Eastgate Theatre, Inc., two companies that own and/or operate six movie theaters in Oregon.² All six theaters utilize a design incorporating "stadium-riser seating," which places most of the theater seats on stepped risers rather than on a sloped floor. The purpose of the stadium design is to maximize unobstructed views for theater patrons. In most cases, the first few rows at the front of the theater are set on a sloped floor; there is an aisle at the entry level of the theater separating the sloped portion of the seating from the riser section, and the stadium seats (approximately 6-13 rows) then rise behind the aisle, with each row raised 15-18" above the one in front of it.

In order to get to the seats in the stadium riser section, patrons must walk up stairs on either side of the seating section. The riser seats are not wheelchair-accessible. In all six theaters, seating for disabled patrons is located only in the first five rows; in five of the six theaters,³ wheelchair-accessible seating is located only on the sloped portion of the floor, not in the aisle or in the stadium seating, with over half of the accessible seats in the very front row. The result is that all patrons who require wheelchairs have no choice but to sit in the first few rows of the theater.

As the appellants point out, locating all of the wheelchair-accessible seating in the first few rows of the theaters creates significant disadvantages for wheelchair-bound patrons. Plaintiffs' experts, who visited the theaters and conducted research there, found that the vertical lines of sight for the wheelchair seating locations ranged from 24 to 60 degrees, with an average of approximately 42 degrees, as compared with the average median line of sight of 20 degrees in the non-wheelchair seating — a difference the experts termed a "tremendous disparity." In reality, however, the disparity is even greater, because wheelchair-bound patrons cannot slump in their seats and recline their bodies in order to adjust for the unfavorable viewing angle, as can able-bodied patrons sitting in the same part of the theater.

In its engineering guideline for movie theaters, the Society of Motion Picture and Television Engineers ("SMPTE") concluded that, for most viewers, physical discomfort occurs when the vertical viewing angle to the top of the screen exceeds 35 degrees, and when the horizontal line of sight measured between a perpendicular to the viewer's seat and the centerline of the screen exceeds 15 degrees. Soc'y of Motion Picture & Television Eng'rs, SMPTE Engineering Guideline: Design of Effective Cine Theaters 5 (1994) (hereinafter SMPTE Guideline). Thus, not only do the wheelchair seats themselves have, on average, highly unfavorable viewing angles relative to the rest of the theater, but the patrons sitting in them will be less able than other patrons to adjust for those angles by shifting position in their seats.

The experts' conclusions were also borne out by the individual plaintiffs' own experiences in the theaters, as recounted in their affidavits and deposition testimony. Kathy Stewmon, who has multiple sclerosis and has been wheelchair-bound since 1989, related:

Sitting in [the front row], so close to the screen, the screen was so huge that I couldn't focus on it; it made me dizzy trying to focus. I had to keep moving my head and neck back and forth to look at the whole movie screen. I found myself losing the story because I was working so hard to watch the screen; I couldn't concentrate on the movie.

. . .

I only lasted about 15 minutes in the front row — I couldn't tolerate it. My family members dragged my wheelchair up the stairs, which was [a] very dangerous and precarious thing to do, so I could watch the movie.

Plaintiffs Tina Smith and Kathleen Braddy related similar experiences: sitting in the front row of the theater made Smith nauseous and gave her a headache, and Braddy testified that she was unable to watch a movie with her grandson from the wheelchair-accessible rows of the theater because she would have had to bend her neck back to the point where her vision would have been blurry, and because the sound was "not comfortable that close."

In the district court, both the plaintiffs and the defendants moved for summary judgment. The district court denied the plaintiffs' motion for summary judgment and granted the defendants' motion for summary judgment.⁴ Oregon Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 142 F.Supp.2d 1293 (D.Or.2001). The district court recognized that the defendants' movie theaters are public accommodations subject to Title III of the ADA, which provides generally:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a). As the district court went on to note, Congress directed the Department of Justice ("DOJ") to issue regulations that provide substantive standards applicable to facilities covered under Title III. 42 U.S.C. § 12186(b); Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 580 (D.C.Cir.1997), cert. denied sub nom. Pollin v. Paralyzed Veterans of Am., 523 U.S. 1003, 118 S.Ct. 1184, 140 L.Ed.2d 315 (1998). DOJ, in turn, adopted as regulations a set of guidelines promulgated by the Architectural and Transportation Barriers Compliance Board ("Access Board"), a body charged with "establish[ing] and maintain[ing] minimum guidelines and requirements for the standards issued pursuant to" Title III of the A.D.A. 29 U.S.C. § 792(b)(3)(B). These regulations, known as the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"), provide, in relevant part, as follows:

Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public.

28 C.F.R. Pt. 36, App. A, § 4.33.3.

In granting the defendants' motion for summary judgment, the district court held that the language about "lines of sight comparable to those for members of the general public" in § 4.33.3 does not require that wheelchair-accessible seating afford patrons comparable viewing angles to those in non-accessible seating. 142 F.Supp.2d at 1297-98. The district court followed what was, at the time, the only federal appellate decision in the nation addressing the viewing-angle issue directly: Lara v. Cinemark USA, Inc., 207 F.3d 783 (5th Cir.2000). In Lara, the district court had held that, based on the plain language of § 4.33.3, stadium-style seating arrangements like the ones at issue in this case failed to meet the statutory and regulatory requirements:

"Comparable" simply means capable of being compared; equivalent or similar.... [T]he present configuration of the eighteen Tinseltown theaters does not afford wheelchair-bound patrons comparable lines of sight. Either the row designated for wheelchair-bound...