Kinney v. Yerusalim, Civ. A. No. 92-4101.

• Decision Date: 02 February 1993
• Docket Number: Civ. A. No. 92-4101.
• Citation: 812 F. Supp. 547
• Parties: Elizabeth KINNEY, Glenn Niman, Daniel C. Sullivan, Diane Fatula, Cassie James, Erik Von Schmetterling, John Gladstone, Tom Levine, Charles Homiller, Rona Schnall, Mary Barnes, Ann McLaughlin, Disabled in Action of Pennsylvania, v. Harold YERUSALIM and Alexander Hoskins.
• Court: U.S. District Court — Eastern District of Pennsylvania

812 F. Supp. 547

Elizabeth KINNEY, Glenn Niman, Daniel C. Sullivan, Diane Fatula, Cassie James, Erik Von Schmetterling, John Gladstone, Tom Levine, Charles Homiller, Rona Schnall, Mary Barnes, Ann McLaughlin, Disabled in Action of Pennsylvania, v. Harold YERUSALIM and Alexander Hoskins.

Civ. A. No. 92-4101.

United States District Court, E.D. Pennsylvania.

February 2, 1993.

Stephen F. Gold, Philadelphia, PA, for plaintiffs.

Barry Kramer, Office of Atty. Gen., Philadelphia, PA, for Harold Yerusalim.

Deborah M. Russo, Asst. City Sol., City of Philadelphia Law Dept., Philadelphia, PA, for Alexander Hoskins.

MEMORANDUM

BARTLE, District Judge.

Plaintiffs, disabled individuals who reside and work in Philadelphia, have filed this class action against Howard Yerusalim, Secretary of the Pennsylvania Department of Transportation (PennDOT), and Alexander Hoskins, Commissioner of the Streets Department of the City of Philadelphia ("City"), under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.¹ Plaintiffs seek to compel the City to install "curb ramps" or "other sloped areas" on all streets which the City has resurfaced since January 26, 1992, the effective date of the ADA. Before the Court are the parties' cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure.

Rule 56(c) provides for the entry of summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact...." See, Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In 1992, Congress passed the ADA to address the problem of discrimination against persons with disabilities. Specifically, the ADA prohibits discrimination in employment (Title I), in public services and public transportation (Title II), in public accommodations (Title III), and in telecommunications (Title IV). Title II of the ADA, 42 U.S.C. § 12131 et seq., which is the subject of this dispute, provides:

No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. Rather than outline the specific obligations of public entities under this section, the ADA directed the Department of Justice ("DOJ") to promulgate regulations consistent with the anti-discrimination provisions of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act"), and the regulations promulgated thereunder by the DOJ. 42 U.S.C. § 12134. The Rehabilitation Act prohibits discrimination against handicapped individuals by any program receiving public funds.

The removal of architectural barriers to the disabled, and particularly the installation of curb ramps or slopes, was a major concern of Congress in passing the ADA. In the ADA's statement of purpose, Congress specifically identified the "discriminatory effects of architectural ... barriers ..." as one of the evils which the ADA was intended to address. 42 U.S.C. § 12101. To this end, the DOJ in its regulations established a scheme intended ultimately to create a society providing physical accessibility to persons with disabilities. The regulations under Title II attempt to accomplish this goal by means of a twotiered process which distinguishes between a public entity's responsibilities concerning "existing facilities" on the one hand, and "new construction or alterations" on the other.

With respect to existing facilities, public entities are not required to modify each facility to provide for access by individuals with disabilities, but must operate all programs, services and activities in a manner such that, when viewed in its entirety, each service or program is "readily accessible to and usable by individuals with disabilities ..." 28 C.F.R. § 35.150(a). Furthermore, this section provides an undue burden defense, stating that a public entity is not required "to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." 28 C.F.R. § 35.150(a)(3).

Although public entities may comply with the program accessibility requirements for existing facilities in several ways, the regulations specifically mandate the installation of curb ramps. The ADA regulations provide that "if a public entity has responsibility or authority over streets, roads or walkways, its transition plan shall include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act ..." 28 C.F.R. § 35.150(d)(2). All such changes to facilities must be made within three years of January 26, 1992. 28 C.F.R. § 35.150(d).

In contrast, the regulations are more demanding with respect to new construction and alterations. They require that when the entity undertakes to engage in new construction or to make alterations to existing facilities it must take that opportunity to make its facilities accessible. 28 C.F.R. § 35.151 states:

(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.

(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities if the alteration was commenced after January 26, 1992.

Furthermore, this section also specifically requires the installation of curb ramps:

(1) Newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway.

(2) Newly constructed or altered street level pedestrian walkways must contain curb ramps or other sloped areas at intersections to streets, roads, or highways.

28 C.F.R. § 35.151(e). Plaintiffs contend that resurfacing a street constitutes an "alteration" under this provision and that the City is therefore obligated to provide curb ramps or slopes on all streets which have been resurfaced since the effective date of the statute, January 26, 1992.

The regulations' special emphasis on the installation of curb ramps is not hard to understand. Without curb ramps or slopes, it is extremely difficult, if not dangerous, for persons in wheelchairs and other persons with disabilities to perform the essential task of crossing the street. Because the wheels of wheelchairs are sensitive to obstacles, curbs without ramps or slopes present the danger that the chair will overturn, injuring the occupant. Consequently, disabled persons are sometimes obligated to navigate their chairs in the street, exposed to the peril of traffic. Without the ability to cross streets, the opportunities afforded by the ADA are of little benefit. The disabled are severely limited in their ability to obtain employment and recreation and otherwise to participate fully in society. As the House Report explained, "the employment, transportation, and public accommodation sections of the ADA would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between the streets." H.Rep. 485(II), 101st Cong., 2d Sess. 84 (1990), U.S.Code Cong. & Admin.News 1990, 267, 303, 367.

The City does not dispute the importance of installing curb ramps. The City installs ramps or slopes whenever work is performed on the curb and plans eventually to install ramps or slopes throughout the City, as required by the "existing facilities" provisions of Title II. The City contends, however, that merely resurfacing a street is not an "alteration" which triggers the application of 28 C.F.R. § 35.151(e), and therefore resurfacing a street does not require the installation of curb ramps or slopes.

The City first asserts that the obligations under the "alterations" section of the regulations apply only to the altered portion of the facility. In other words, because resurfacing affects only the street, it does not trigger an obligation to alter the curb. In support of this argument, defendant point to 28 C.F.R. § 35.151(b) which provides that alterations must be performed in a manner such that "the altered portion of the facility is readily accessible to and usable by individuals with disabilities ..." (emphasis added). Nonetheless, section 35.151(e)(1) specifically provides that "newly constructed or altered streets ... must contain curb ramps" (emphasis added). This more specific regulation supersedes the more general provision of § 35.151(b)(1). According to Webster's Third New International Dictionary, to alter something is "to cause something to become different in particular characteristic (as measure, dimension, course, arrangement or inclination) without changing it to something else." The regulations enacted pursuant to Title II of the ADA do not define the term "alteration" except to state that when a facility is altered in a manner which "affects or could affect the usability of a facility," the altered portion shall be made accessible. 28 C.F.R. § 35.151(b). The Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities ("ADAAG"), which was adopted by the DOJ as a standard for compliance with the accessibility requirements of the...