Culvahouse v. City of LaPorte

• Decision Date: 22 December 2009
• Docket Number: Cause No. 3:06-CV-313 RM.
• Citation: 679 F. Supp.2d 931
• Parties: Jon CULVAHOUSE, et al., Plaintiffs v. CITY OF LAPORTE, Indiana, Defendant.
• Court: U.S. District Court — Northern District of Indiana

679 F.Supp.2d 931

Jon CULVAHOUSE, et al., Plaintiffs v. CITY OF LAPORTE, Indiana, Defendant.

Cause No. 3:06-CV-313 RM.

United States District Court, N.D. Indiana, South Bend Division.

December 22, 2009.

Kenneth J. Falk, ACLU of Indiana, Indianapolis, IN, for Plaintiffs.

Mark L. Phillips, Michelle L. Shirk, Newby Lewis Kaminski & Jones LLP, Laporte, IN, for Defendant.

OPINION AND ORDER

ROBERT L. MILLER, JR., Chief Judge.

Both sides seek summary judgment on the issue of whether sidewalks in the City of LaPorte violate Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. In reliance on 42 U.S.C. § 12132, the plaintiffs say the City's sidewalks qualify as a "service, program, or activity" within the meaning of the ADA, so the City must make the sidewalks readily accessible to people with disabilities. The City responds, first, the sidewalks don't constitute a service, program, or activity under the ADA; second, maintenance of existing sidewalks is the home owner's responsibility under LaPorte City Ordinance No. 733, so requiring the City to repair or improve sidewalks would require implementation of a new service, program, or activity contrary to the ADA's requirements; and, third, granting the requested relief would result in an undue financial burden to the City.

Realizing that these motions have been pending for far too long, the court apologizes for the delay and to prevent further delay declines to re-open briefing on the motions. After considering the parties' arguments, the applicable provisions of the ADA and its 2008 Amendments, and the supplemental authorities cited by the parties, the court denies the City's motion and grants the plaintiffs' motion in part.

FACTS

The parties agree that the sidewalks in residential areas of LaPorte are in bad repair and use of those sidewalks by persons with disabilities is difficult or, in some instances, impossible. Plaintiff Alvin Levendoski is a 77-year-old City resident who uses a motorized chair to travel from place to place because he can't walk. Mr. Levendoski reports that he is unable to travel on sidewalks in LaPorte because many sections are missing and the existing sidewalks are extremely uneven. He explains that being able to use the sidewalks would allow him to visit friends, travel to stores downtown, and attend meetings and activities at the City's Civic Auditorium. Mr. Levendoski reports, too, that he must drive his chair in the street for some blocks travel to his therapy sessions at LaPorte Hospital because the sidewalks on the route to the hospital are unpassable, even in his chair.

Plaintiff Jon Culvahouse is a 55-year-old blind resident of the City of LaPorte who travels via his manual wheelchair or, when using his prosthesis, with his guide dog. Although the sidewalks in the block around Mr. Culvahouse's residence are new, the condition of the sidewalks outside that area make his travel very difficult and often dangerous. Mr. Culvahouse says he can't walk on the uneven sidewalks when with his dog, and he must travel in the street if he is in his wheelchair. Mr. Culvahouse says there are many places he would go were the sidewalks passable—to meetings at the Civic Auditorium and to his granddaughter's school to meet with her teachers (he has custody of his granddaughter)—but the lack of accessible sidewalks prohibits him from doing so.

The plaintiffs say the experiences of Messrs. Levendoski and Culvahouse aren't unique; many other disabled City residents are unable to walk on the rough and uneven sidewalks, which often results in their having to walk in the street. The plaintiffs note that the City has a bus service, but say they often are unable to utilize the service because the buses aren't available after 8:00 p.m. on week nights after 3:00 p.m. on Saturdays, or at all on Sundays. In addition, Mr. Culvahouse, who is blind, says he has difficulty locating bus stops, and if he does locate a stop, he can't easily board a bus and City bus drivers aren't allowed to get off the bus to assist riders.

In 2007, Schneider Corporation of Indianapolis conducted a survey of the sidewalks in LaPorte to see what work would be needed to update the City's sidewalk and curb ramp system. Schneider estimated that making the sidewalks ADA compliant would cost $33.4 million: $11.5 million for repairing or replacing 43.8 linear miles of existing sidewalks and curb ramps, and $21.9 million for constructing 116 linear miles of sidewalks and curb ramps where none presently exist.¹ The plaintiffs claim the estimate is too high. They acknowledge that the ADA doesn't require installation of sidewalks where none currently exist, so because they "are only requesting that existing sidewalks be made readily accessible to and usable by persons with disabilities," they estimate the cost of the necessary work to be around $5.8 million, plus some additional costs for concrete removal.

Even if the parties could agree on the extent and cost of the needed work, they disagree about who has the responsibility to undertake and pay for the work. The plaintiffs say the City is obligated to repair the sidewalks under the ADA, an Indiana statute, and 120 years of Indiana case law. The City disagrees and claims it has no obligation to repair the sidewalks. According to the City, sidewalks don't qualify as a "service, program, or activity" under the ADA and a 1939 LaPorte Ordinance imposes a duty on real estate owners, not the City, to maintain and repair the side-walk(s) located on their property. The City also says that because historically it has chosen to not provide sidewalks and sidewalk maintenance to its citizens, any requirement to undertake such work now would amount to a new service not required by the ADA.

Recognizing that a sidewalk project would be a costly undertaking, the plaintiffs say funding options are available to the City to help defray the costs. For example, in 2004 the City began receiving Community Development Block Grant funds available through the Department of Housing and Urban Development to help cities address housing and community development needs and aid eligible residents whose income and resources fall below prescribed limits and who are in need of improvements on their property. From 2004 to 2007, the City used some $168,000 in CDBG funds to aid eligible applicants, including plaintiff Al Levendoski, who qualified to have the sidewalk in front of his house replaced and an interior staircase and wheelchair lift installed in his house. The plaintiffs note, too, that the City has undertaken and financed several sidewalk projects in the last few years, including the installation of new, as well as the repair of existing, sidewalks. The plaintiffs say the City should be required to formulate a plan to set aside and/or obtain funds for the repairs and improvements necessary to render the City's unimproved sidewalks ADA compliant. The City, on the other hand, claims that any requirement to repair and maintain sidewalks would create an undue financial burden that would deprive City residents of other critical services and result in bankruptcy for the City.

The plaintiffs have moved for summary judgment, seeking a declaration that the City's actions and inactions with respect to the repair and maintenance of its sidewalks violate the ADA. The plaintiffs conclude that because the City's sidewalks, when viewed in their entirety, aren't readily accessible to or usable by members of the class, the City should be ordered submit, within thirty days, a plan to bring its existing sidewalks into compliance with the ADA.

The City argues that the plaintiffs' motion should be denied and summary judgment should, instead, be entered in its favor. The City maintains its custom of not providing sidewalks or sidewalk maintenance to any of its citizens is non-discriminatory. The City argues that it shouldn't now be required to repair or improve its sidewalks because sidewalks don't constitute a "service, program, or activity" under the ADA, LaPorte Ordinance No. 733 relieves the City of responsibility for upkeep, repair, or improvement of its sidewalks, and a requirement to repair or improve its sidewalks would create an undue burden and financial hardship to the City.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when "the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). In deciding whether a genuine issue of material fact exists, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine issue of material fact exists when a rational trier of fact could not find for the nonmoving party even when the record as a whole is viewed in the light most favorable to the nonmoving party. Ritchie v. Glidden Co., 242 F.3d 713, 720 (7th Cir.2001). "The mere existence of an alleged factual dispute will not defeat a summary judgment motion; instead, the nonmovant must present definite, competent evidence in rebuttal." Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir.2004). The party with the burden of proof on an issue must show that there is enough evidence to support a jury verdict in his favor. Lawrence v. Kenosha County, 391 F.3d 837, 842 (7th Cir.2004); see also Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) ("summary judgment `is the `put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events'") (quoting Schacht v. Wisconsin Dep't of Corr., 175 F.3d 497, 504 (7th Cir.1999)).

The existence of cross-summary judgment motions doesn't imply that...