Smith v. Bd. of Comm'rs of the La. Stadium

• Decision Date: 14 May 2019
• Docket Number: CIVIL ACTION NO. 17-7267
• Citation: 385 F.Supp.3d 491
• Parties: Nancy SMITH, Plaintiff v. BOARD OF COMMISSIONERS OF the LOUISIANA STADIUM AND EXPOSITION DISTRICT, et al., Defendants
• Court: U.S. District Court — Eastern District of Louisiana

385 F.Supp.3d 491

Nancy SMITH, Plaintiff

v.BOARD OF COMMISSIONERS OF the LOUISIANA STADIUM AND EXPOSITION DISTRICT, et al., Defendants

CIVIL ACTION NO. 17-7267

United States District Court, E.D. Louisiana.

Signed May 14, 2019

Andrew David Bizer, Marc P. Florman, Bizer Law Firm, LLC, Jacqueline Kaye Hammack, Bizer & DeReus, LLC, New Orleans, LA, for Plaintiff.

Christopher Neal Walters Angela J. O'Brien, Scott G. Centorino, Louisiana Department of Justice (1450 Poydras), New Orleans, LA, for Defendant.

SECTION: "E" (1)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

Plaintiff Nancy Smith brings suit against Defendant SMG and Defendant Kyle France in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District ("LSED"). Plaintiff brings claims under (1) Title II of the ADA against France, in his official capacity, for injunctive relief;¹ (2) Title III of the Americans with Disabilities Act ("ADA") against SMG for injunctive relief; and (3) the Louisiana Human Rights Act ("LHRA")² against SMG for damages. On her claims for injunctive relief, Plaintiff seeks an injunction requiring Defendants to do the following:

(1) train SMG staff members on SMG's policy that gives priority for elevator use to patrons with disabilities over other patrons and SMG employees,

(2) adopt a written policy and train employees on the policy to require that, when a wheelchair user with a ticket for a conventional seat objects to or indicates a desire not to sit in the conventional seat, the SMG employee affirmatively offer the wheelchair user the option to exchange his or her ticket for a ticket for a wheelchair-accessible seat, and

(3) adopt a written policy and train employees on the policy to require that, when an SMG employee informs a wheelchair user that leaving a wheelchair on the Superdome concourse is not permitted, the employee also inform the wheelchair user about the availability of wheelchair check-in and storage at the Guest Relations Center at the Mercedes-Benz Superdome ("Superdome").

On her damages claim, Plaintiff seeks nominal and compensatory damages. Plaintiff also seeks attorney's fees and costs under the ADA³ and the LHRA.⁴

The matter was tried before the Court, sitting without a jury, on Monday, March 11, 2019.⁵ The Court heard testimony from Nancy Smith, Braeden Smith, Brian Brunet, and Laurie Ducros.⁶ The Court admitted into evidence Exhibits 1–12 and 15.⁷

Having considered the testimony and evidence at trial, the arguments of counsel, and the applicable law, the Court now issues the following Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. To the extent any findings of fact may be construed as conclusions of law, the Court adopts them as such. To the extent any conclusions of law may be construed as findings of fact, the Court adopts them as such.

FINDINGS OF FACT

The facts found by the Court are largely not in dispute. Plaintiff offered her own testimony and the testimony of her daughter Braeden Smith regarding Plaintiff's experience leading up to and during the Guns N' Roses concert at the Superdome on July 31, 2016. The testimony of Braeden Smith was consistent in all material respects with the testimony of Plaintiff Nancy Smith. Defendants did not offer testimony contradicting the testimony of Plaintiff and her daughter. Defense witnesses Brian Brunet, the SMG Senior Assistant Box Office Manager, and Laurie Ducros, the SMG Guest Services Manager, testified as to SMG's policies regarding the ticket sales, staff training, and accommodations for patrons with disabilities. Plaintiff did not offer testimony contradicting the testimony of the defense witnesses.

Plaintiff Nancy Smith is an amputee who had a complete hip disarticulation

of her left leg performed in 2015. Her daughter Braeden Smith bought tickets for herself and her mother via telephone for a Guns N' Roses concert to take place at the Superdome on July 31, 2016. Braeden Smith believed she had called the Superdome Box Office, but she in fact called Box Office Ticket Center LLC. The Box Office Ticket Center LLC customer service representative who sold Braeden Smith the tickets assured her the seats were wheelchair-accessible.

Box Office Ticket Center LLC is a third-party ticket vendor that sells tickets on the secondary ticket market. It purchases tickets from the SMG box office or from Ticketmaster LLC, which is the only authorized third-party vendor for Superdome tickets. Box Office Ticket Center, LLC then resells the tickets at a profit.

On July 31, 2016, Plaintiff Nancy Smith arrived at the Superdome with her daughter Braeden Smith prior to the start of the concert. They entered the Superdome. Neither Nancy Smith nor Braeden Smith testified as to the gate they used to enter the Superdome. Upon entering the Superdome, they were directed to turn left to take the elevators down to their ground floor seats. Plaintiff and her daughter turned left as directed, but SMG staff denied them access to the three elevators they encountered in that area. SMG staff did not inform Nancy Smith and Braeden Smith as to why they could not use these elevators. Nancy Smith and Braeden Smith eventually were taken to the ground floor, on a freight elevator, by a person who appeared to be a member of the backstage crew.

When Nancy Smith and Braeden Smith reached the ground floor, they spoke to an SMG staffer who guided them to their ticketed seats. They discovered the seats were not wheelchair-accessible. Plaintiff told the staffer she had purchased wheelchair-accessible seats and that she could not sit in the conventional seat for safety reasons. She asked the staffer to remove the existing seat in the space, which was a folding metal chair, to permit Plaintiff to put her wheelchair in the spot. The staffer refused and did not offer Plaintiff the alternative of switching to a wheelchair-accessible seat. Plaintiff believed she had no option but to transfer out of her wheelchair and into the conventional seat if she was going to see the concert. The SMG staffer then took Plaintiff's wheelchair to the left side of the stage and placed it behind a barricade, out of Plaintiff's line of sight.

During the concert, Plaintiff felt anxious, uneasy, and vulnerable because she was not allowed to sit in her wheelchair and because she could not see where it was stored. Plaintiff could not see the band on stage because her view was obstructed by others who were standing. She had been excited about attending the concert, but the experience was ruined for her. After the concert, Plaintiff's wheelchair was returned to her.

Laurie Ducros, the SMG Guest Services Manager, offered testimony about SMG policies. Under SMG policy, when an elevator at a concert leads to a private or restricted area on the ground level, the elevator is restricted. Elevator operators are instructed not to take any patrons to the ground level in restricted elevators. They are instructed to direct patrons to the next available elevator.

The elevator policy is confirmed by the SMG ADA pamphlet, introduced as Exhibit 4 at trial. According to a map of the Superdome in the pamphlet, the Superdome has 17 elevators, numbered 1–14, 2A, 7A, and 8A. Thirteen of these elevators are accessible to patrons with disabilities. The only elevators not accessible to patrons with disabilities are Elevators 5, 10, 13, and 14, which are labeled on the map as "freight only." Elevators 3, 4, 2A, 7A, and 8A do not service the ground level. This information is confirmed by a printout from the Superdome website, which was introduced as Exhibit 7 at trial.

Superdome staff members are trained annually, prior to the beginning of the New Orleans Saints football season. A portion of the training is devoted to accessibility for disabled patrons and the requirements of the ADA. Staff members hired during the year are required to attend a new hire orientation with similar information on SMG's ADA policies. Portions of the PowerPoint presentations SMG uses at these training sessions for new hires were introduced at trial as Exhibits 4 and 5.

It is SMG's usual practice and policy to reserve or "hold back" from sale a certain number of ADA-compliant wheelchair-accessible seats in various areas of the Superdome for use in case a disabled patron requests to be relocated on the day of a concert. If a patron requests to transfer from a conventional seat to an accessible seat, the patron is directed to the Guest Services Desk or Guest Relations Center, where the ticket may be exchanged. The policy regarding holding back seats is posted on the Superdome website, a printout of which was introduced at trial as Exhibit 7. For the Guns N' Roses concert, SMG sold approximately sixty (60) accessible seats and reserved or "held back" approximately one hundred and fifty (150) accessible seats.

Under SMG's ticket transfer policy, SMG staff members do not affirmatively offer wheelchair users the relocation option because SMG does not wish to assume wheelchair users who purchase tickets for conventional seats cannot use those seats. SMG staff only offer the option when a wheelchair user informs an SMG staff member he or she cannot get out of the wheelchair, cannot sit in the conventional chair, or would be uncomfortable sitting in the conventional chair.⁸

SMG's policy with respect to wheelchair storage is that, when a staff member sees a wheelchair user leaving a wheelchair on the Superdome concourse or in an aisle, the staff member approaches the wheelchair user and informs the patron that the wheelchair cannot be left on the concourse or in the aisle. The staff member then offers the patron two options: either (1) to check the wheelchair at the Guest Relations Center at Gate A and be wheeled to the conventional seat by SMG staff in an SMG wheelchair or (2) to have a companion wheel the patron to his or her seat and then check the...