Pollard v. Tmi Hospitality GP, LLC, Case No. 16-11281

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Docket NumberCase No. 16-11281
Decision Date22 March 2017



This case arises out of an injury Plaintiff suffered at a Fairfield Inn owned by Defendants. Plaintiff's three-count Complaint alleges that Defendants: (1) violated American with Disabilities Act, 42 U.S.C. § 12181 et seq. ("ADA") (Count I); (2) and the Michigan Persons with Disabilities Civil Rights Act ("PWDCRA"), M.C.L. § 37.1101 et seq. (Count II); and (3) were negligent, when providing Plaintiff with a handicap-accessible room with a roll-in shower that had a visible depression and crack(s). Defendants filed a Motion for Summary Judgment, Dkt. No. 17, which the parties have fully briefed. A hearing on Defendant's Motion was held on February 1, 2017. For the reasons that follow, the Court grants in part and denies in part Defendants' Motion for Summary Judgment.


On August 28, 2013, Plaintiff and her husband, Albert Pollard, wanted to stay in a hotel in Saginaw. Plaintiff has multiple sclerosis, utilizes a wheelchair, and requires a hotel room with a handicap-accessible, roll-in shower. The first hotel they tried didn't have a suitable shower, and Plaintiff was referred to the Fairfield Inn, which was across the parking lot from the first hotel. Plaintiff specifically requested a handicap-accessible room with a roll-in shower. The Fairfield Inn staff gave Plaintiff the only room it had that satisfied those requirements.

After checking into their room, Plaintiff and her husband noticed a crack in the roll-in shower floor. As Plaintiff testified:

Q. Okay. And did you check out the room as soon as you arrived or did you leave that to your husband.
A. No, we checked it out.
Q. Okay. And you said a minute ago that your husband asked if there were any other available rooms. Was there something that you—that made you decide to ask that?
A. Floor.
Q. Okay. When you say floor, can you tell me more about that?
A. There was a crack. That doesn't sound—That's not right. There was a hole, an indentation that was cracked. And there were cracks that caused the floor to sink down.

Dkt. No. 17, Ex. 2 at 27-28. Plaintiff testified that she could see the crack from her wheelchair:

A. I saw it as more of a circle area that was cracked. And I don't know what the depth was but, clearly, and to me, it sunk down.
Q. Okay. But you were able to see it from your vantage point in your wheelchair when you inspected the room?
A. Uh-huh (Yes).

Id. at 30. Mr. Pollard echoed Plaintiff's testimony, stating that the shower floor had several cracks in it and the area underneath appeared to be spongy and somewhat depressed. Dkt. No. 19, Ex. 2 at 10-11. After seeing the condition of the roll-in shower floor, Mr. Pollard asked the Front Desk Manager if there were any other handicap-accessible rooms available that had a roll-in shower. Mr. Pollard was advised that it was the only such room at that Fairfield Inn.

Plaintiff and Mr. Pollard stayed in that room at the Fairfield Inn the night of August 28, 2013. The next morning, Plaintiff utilized the shower in the condition described above. With help from her caretaker, Plaintiff got into her shower chair, which was rolled into the shower. The caretaker has testified that, while rinsing off Plaintiff's back, the front leg of the shower chair "seemed to sink down then slip,rotating out from under her." Dkt. No. 19, Ex. 6. Plaintiff fell to the floor and fractured her hip. Plaintiff had surgery to repair the fracture and spent five days in the hospital before returning home. Plaintiff states that she had to undergo in-home physical therapy, received daily injections of a parathyroid hormone to increase calcium uptake in her bones, and continues to have residual issues associated with the fall.

Numerous employees of the Fairfield Inn, including the Front Desk Manager, General Manager, Assistant Manager, and housekeeping and maintenance staff were aware of the condition of the handicap-accessible, roll-in shower floor. Dkt. No. 19, Ex. 5 at 5-9. The General Manager testified that he had reported the condition to the corporate level and was told to continue make the room available to guests while looking for a vendor to fix the condition. Dkt. No. 19, Ex. 3 at 7-8, 12. Two photographs attached to Plaintiff's response brief show the condition of the handicap-accessible, roll-in shower floor on or about August 28, 2013, at least insofar as it was cracked. Dkt. No. 19, Ex. 4.

On April 7, 2016, Plaintiff filed this lawsuit alleging: (a) Count I - Violations of the Americans with Disabilities Act; (b) Count II - Violations of the Michigan Persons with Disabilities Civil Rights Act; and (c) Count III - Negligence.


Rule 56(a) of the Rules of Civil Procedures provides that the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Although the Court must view the motion in the light most favorable to the nonmoving party, where "the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material. Anderson,477 U.S. at 248.

A. ADA Claim

In Count I, Plaintiff claims that Defendants violated Title III of the ADA. The ADA provides:

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). Discrimination under the ADA includes "a failure to remove architectural barriers, and communications barriers that are structural in nature, in existing facilities . . ." 42 U.S.C. § 12182(b)(2)(A)(iv). Pursuant to 42 U.S.C. § 12186, the U.S. Attorney General has adopted regulations referred to as the "2010 ADA Standards for Accessible Design" (the "Standards"), found at 28 C.F.R. part 36. 28 C.F.R. § 36.211(a) states:

A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the [ADA] or this part.

The regulations further provide: "The [ADA] requires that, to the maximum extent feasible, facilities must be accessible to, and usable by, individuals with disabilities. This section [§ 36.211] recognizes that it is not sufficient to provide features such asaccessible routes, elevators, or ramps, if those features are not maintained in a manner that enables persons with disabilities to use them." 28 C.F.R. part 36 (Appendix C). Standard 302.1 provides: "Floor and ground surfaces shall be stable, firm, and slip resistant and shall comply with 302." Standard 608 addresses shower compartments.

Defendants assert, and Plaintiff concedes, that private parties such as Plaintiff cannot recover money damages for alleged violations of Title III of the ADA. See, e.g., Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 293 (6th Cir. 1999); Barbosa v. American Osteo. Bd. of Surgery, No. 3:07-cv-338, 2008 WL 2468483 (S.D. Ohio 2008); Dorsey v. City of Detroit, 157 F.Supp.2d 729, 733 (E.D. Mich. 2001); Mayberry v. Von Valtier, 843 F.Supp. 1160, 1167 (E.D. Mich. 1994).

A private person suing for a violation of Title III has two available remedies: (1) to bring "a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order," pursuant to 42 U.S.C. § 12188(a), based on the remedies and procedures set forth in 42 U.S.C. § 2000a-3(a); or (2) for violations of 42 U.S.C. § 12182(b)(2)(A)(iv) for failure to remove architectural barriers, "injunctive relief" that "shall include an order to alter facilities readily accessible to and usable by individuals with disabilities." 42 U.S.C. § 12188(a)(2).

Defendants argue that Plaintiff has not asserted any claim for injunctive reliefpursuant to her ADA claim. Defendants further argue that an order to make the Fairfield Inn more accessible is unnecessary (and such preventative relief moot) because they have repaired the handicap-accessible, roll-in shower. Dkt. No. 20, PgID 310, 319-20. Plaintiff argues that Defendants failed to provide facilities that were accessible to, and usable, by individuals with disabilities when it gave Plaintiff a handicap-accessible room with a roll-in shower that did not have a stable and firm floor. 28 C.F.R. part 36, Appendix C ("The [ADA]...

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