Torres v. Rite Aid Corp.

• Citation: 412 F.Supp.2d 1025
• Decision Date: 27 January 2006
• Docket Number: No. C 05-02136 WHA.,C 05-02136 WHA.
• Parties: Jesus TORRES, Plaintiff, v. RITE AID CORP., Defendant.
• Court: U.S. District Court — Northern District of California

412 F.Supp.2d 1025

Jesus TORRES, Plaintiff, v. RITE AID CORP., Defendant.

No. C 05-02136 WHA.

United States District Court, N.D. California.

January 27, 2006.

COPYRIGHT MATERIAL OMITTED

Thomas Nelson Stewart, III, Attorney at Law, Clayton, CA, for Plaintiff.

Aaron L. Agenbroad, Donna M. Mezias, Jones Day, San Francisco, CA, for Defendant.

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT

ALSUP, District Judge.

INTRODUCTION

In this action alleging access discrimination against a visually impaired man, both sides move for summary judgment. Defendant Rite Aid Corp. operates the store that allegedly failed to conform to Americans With Disabilities Act building standards. It moves for summary judgment on plaintiff's ADA and state-law claims. Plaintiff Jesus Torres moves for summary judgment on whether certain in-store displays that protrude into the aisles of a Rite Aid store would violate ADA regulations. Neither side is entitled to judgment as a matter of law. Both motions are therefore DENIED.

STATEMENT

At age four, plaintiff was diagnosed with glaucoma. He has a prosthetic right eye with no vision and limited vision in his left eye. He is generally unable to see objects as he walks indoors, with the occasional exception of shopping carts at a distance of six inches or less (Jesus Torres Decl. ¶ 2 (Nov. 28, 2005) ("Jesus Torres Decl. I"); Jesus Torres Dep. 12-13, 89).¹

The Rite Aid store where plaintiff alleges ADA violations is in Pittsburg, California (Jesus Torres Decl. I ¶ 4; Compl. ¶ 2). Defendant concedes that it operates the store (Br. 4, Def.'s Motion for Summary J.). The store's aisles are lined with shelves that hold merchandise ranging from vodka to diapers (Stewart Decl. ¶ 2, Exhs. 1-3 (Nov. 28, 2005) ("Stewart Decl. I")).² On April 13, 2005, plaintiff and his wife, Mabel Torres, visited the store. Although plaintiff went to the store on other occasions, the April 13 trip is the one primarily at issue in the case. During that visit, Ms. Torres encountered four or five objects sticking out from the shelves. One object was an advertising sign made of plastic and cardboard, which plaintiff felt with his hand. It projected about 9 to 11.5 inches from the shelf (Mabel Torres Decl. ¶¶ 2, 4-5; Torres Dep. 77; Stewart Decl. I ¶ 4, Exh. 2 (image of object)). It apparently consisted of paper attached to a hinged plastic clip that was affixed to a store shelf. The hinge allowed the advertisement to give way if a shopper bumped into it (Aversano Decl. ¶ 9). The other objects were identical or nearly identical to objects plaintiffs counsel later photographed in the store. One stuck out about five to 7.5 inches from a shelf and included hanging merchandise. Another was a plastic box that dispensed coupons from the end that jutted into the aisle. It protruded approximately 5.5 to 8 inches into the aisle. The lower edge of each object was between two feet, six inches and five feet, six inches above the floor. While in the store, Ms. Torres told plaintiff about only one of protruding objects (Mabel Torres Decl. ¶¶ 4-6; Jesus Torres Decl. I ¶ 2; Stewart Decl. I ¶¶ 2-3, 5, Exhs. 1, 3).

The blue plastic advertising sign that plaintiff and Ms. Torres encountered apparently was one of the "Shelftalk" promotions that are common throughout the store. (An example of such a display in a different store is pictured at right.) These displays attach to shelves and project into the aisles, parallel to the floor. The subjects and locations of the promotions change about every four weeks (Aversano Decl. ¶¶ 6-8).

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Torreses went to the store April 13 to buy beer. Plaintiff carried with him the cane he uses to detect objects in his path. He was dragging the cane on the ground to detect obstacles but not using it with the same technique he used when by himself. In addition, Ms. Torres guided plaintiff through the store by holding his arm. Plaintiff was also using his cane to identify himself as visually impaired to passersby who might wonder why he was being guided by another person. The Torreses browsed the merchandise for nearly twenty minutes before getting their beer (Torres Dep. 55, 58-61; Jesus Torres Decl. I ¶ 4).

During the visit, plaintiff did not bump into any of the protruding objects he challenges in this action (Torres Dep. 63-64). His wife guided him around four or five such objects sticking out from shelves (Mabel Torres Decl. ¶ 4). On one occasion, he was walking down an aisle with his right shoulder about an inch from the shelves when his wife abruptly told him to stop. She then told him that his face had almost hit a plastic sign and guided him around it (Torres Dep. 67-68, 71).

After April 13, plaintiff visited the store three times, most recently on December 19. He planned to visit it again if he needs something sold there that he cannot find at an adjacent supermarket. He visits the supermarket about once per month. Pittsburg borders the town where he lives (Jesus Torres Decl. ¶ 2 (Dec. 20, 2005) ("Jesus Torres Decl. II")).

ANALYSIS

Summary judgment is proper where the pleadings, depositions, declarations, attached documents and other evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FRCP 56(c), (e); 28 U.S.C. 1746 (allowing substitution of declaration made under penalty of perjury for sworn affidavits). On summary judgment, 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).

1. Americans With Disabilities Act.

Title III of the ADA bars discrimination against people "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). A sales establishment is a public accommodation. 42 U.S.C. 12181(7)(E). When a portion of a facility is altered in a way that could affect its usability, those alterations must be made in "such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities . . . ." 42 U.S.C. 12183(a)(2). Anyone who is "subjected to discrimination on the basis of disability" in violation of Title III may bring an action for injunctive relief. 42 U.S.C. 12188(a); 42 U.S.C.2000a-3(a).

The Attorney General was required to issue regulations to carry out Title III. 42 U.S.C. 12186(b). Defendant contends that these regulations, which are the foundation of plaintiff's claim, did not cover moveable, protruding objects such as those he encountered at the store. This order now considers the scope of the relevant regulations to determine if they apply. The Attorney General's regulations were binding on all alterations to places of public accommodation and commercial facilities that began after January 26, 1992. There is no dispute here that the protruding objects were added after that day. Alterations after that date must abide by the standards of the ADA Accessibility Guidelines for Buildings and Facilities, 28 C.F.R., pt. 36, App. A. 28 C.F.R. 36.406(a).³

Evaluation of the regulations' scope begins with their stated purpose, which was to guide the "design, construction, and alternation of ... buildings and facilities [of public accommodation]." 28 C.F.R., pt. 36, App. A, § 1. There is no dispute that the Rite Aid store is a public accommodation. The standards' definition of "alteration" is "a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or any part thereof." A "building" is a "structure used and intended for supporting or sheltering any use or occupancy." A facility is "[a]ll or any portion of buildings, structures, site improvements, complexes, equipment . . . or other real or personal property located on a site." A site is a "parcel of land bounded by a property line." Id. § 3.5 (emphasis added). Black's Law Dictionary defines "personal property" as "[a]ny movable or intangible thing that is subject to ownership and not classified as real property." Black's Law Dictionary (8th ed.2004). The regulations' stated coverage of "personal property" suggests that they are not limited to fixed, permanent parts of the building. This is not dispositive of the issue however, because in some cases personal property is fixed to the building. When a commercial tenant affixes personal property to a building it does not thereby become realty, as it would in a non-commercial facility. In a commercial tenancy, such items are trade fixtures, which usually but not always retain the qualities of personal property. See generally William M. Howard, Annotation, What Constitutes Trade Fixture—Modern Cases, 107 A.L.R. 5th 311; see also People v. Klopstock, 24 Cal.2d 897, 903, 151 P.2d 641 (1944) ("Trade fixtures are regarded as personalty as between the tenant and owner of the land ... but as between the tenant and the condemning party they are regarded as a part of the realty . . . . ").

Sections 4.1.3(2) and 4.4.1 of the standards are at the core of the instant case. Section 4.1.3(2) covers alterations and states that "[a]ll objects that overhang or protrude into circulation paths shall comply with 4.4." Section 4.4.1, a subpart of 4.4, states: "Objects projecting from walls (for example, telephones) with their leading edges between 27 in, and 80 in. (685 mm and 2030 mm) above the finished floor shall protrude no more than 4 in. (100 mm) into walks, halls, corridors, passageways, or aisles." 28 C.F.R., pt. 36, App. A, § 4.4.1.

Section 4.4.1 was intended to allow visually impaired people who use canes to avoid crashing into...