Berg vs. Bed Bath & Beyond, Inc.
ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT BED BATH & BEYOND, INC.'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 93 ) re 133 - Signed by JUDGE HELEN GILLMOR on 4/24/2017. "Defendant Bed Bath & Beyond, Inc.'s Motion f or Summary Judgment (ECF No. 93) is GRANTED, in part, and DENIED, in part. Defendant Bed Bath & Beyond, Inc.'s Motion to for Summary Judgment (ECF No. 93) is GRANTED as to Count II. Defendant Bed Bath & Bey ond, Inc.'s Motion to for Summary Judgment (ECF No. 93) is DENIED as to Counts I and III." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BED BATH & BEYOND, INC.;
STANLEY ACCESS TECHNOLOGIES,
BED BATH & BEYOND, INC.,
STANLEY ACCESS TECHNOLOGIES,
STANLEY ACCESS TECHNOLOGIES,
BED BATH & BEYOND, INC.,
CIVIL NO. 15-00361 HG-KSC
ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT BED BATH
& BEYOND, INC.’S MOTION FOR SUMMARY JUDGMENT
(ECF No. 93)
Plaintiff Glenda Berg, a disabled person, has filed a
complaint against Bed Bath & Beyond, Inc. and Stanley Access
Plaintiff claims she was injured by automatic
sliding doors, which were manufactured by Stanley Access
Technologies, LLC and installed at Bed Bath & Beyond, Inc.
Defendant Bed Bath & Beyond, Inc. seeks summary judgment.
Defendant Bed Bath & Beyond’s Motion for Summary Judgment
(ECF No. 93) is GRANTED, in part, and DENIED, in part.
On September 15, 2015, Plaintiff Glenda Berg filed a
(ECF No. 1).
On August 15, 2016, Plaintiff filed a FIRST AMENDED
(ECF No. 59).
On August 25, 2016, Defendant Bed Bath & Beyond, Inc. filed
DEFENDANT BED BATH & BEYOND, INC.’S ANSWER TO FIRST AMENDED
COMPLAINT FILED AUGUST 15, 2016; DEMAND FOR JURY TRIAL; FIRST
AMENDED CROSS-CLAIM AGAINST DEFENDANTS STANLEY BLACK & DECKER,
INC. AND STANLEY ACCESS TECHNOLOGIES, LLC.
(ECF No. 60).
On August 26, 2016, Defendant Stanley Access Technologies,
LLC, filed DEFENDANT STANLEY ACCESS TECHNOLOGIES LLC’S ANSWER TO
FIRST AMENDED COMPLAINT, FILED ON AUGUST 15,2016; DEFENDANT
STANLEY ACCESS TECHNOLOGIES LLC’S CROSS-CLAIM AGAINST DEFENDANT
BED BATH & BEYOND, INC.
(ECF No. 65).
On December 21, 2016, Defendant Bed Bath & Beyond, Inc.
filed DEFENDANT BED BATH & BEYOND, INC.’S MOTION FOR SUMMARY
JUDGMENT (ECF No. 93) and DEFENDANT BED BATH & BEYOND, INC.’S
CONCISE STATEMENT OF MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR
(ECF No. 96).
On December 27, 2016, the parties filed a STIPULATION FOR
DISMISSAL WITH PREJUDICE OF PLAINTIFF’S CLAIMS AGAINST DEFENDANT
STANLEY BLACK & DECKER, INC., CROSS-CLAIM OF DEFENDANT BED BATH &
BEYOND, INC. AGAINST DEFENDANT STANLEY BLACK & DECKER, INC. AND
DEFENDANT STANLEY BLACK & DECKER, INC.’S CROSS-CLAIM AGAINST
DEFENDANT BED BATH & BEYOND, INC.
(ECF No. 99).
On January 10, 2017, Defendant Stanley Access Technologies,
LLC, filed DEFENDANT STANLEY ACCESS TECHNOLOGIES LLC'S MEMORANDUM
IN OPPOSITION TO DEFENDANT BED BATH BEYOND, INC.'S MOTION FOR
SUMMARY JUDGMENT (ECF No. 105) and DEFENDANT STANLEY ACCESS
TECHNOLOGIES LLC'S CONCISE STATEMENT OF MATERIAL FACTS IN SUPPORT
OF ITS MEMORANDUM IN OPPOSITION TO DEFENDANT BED BATH & BEYOND,
INC.'S MOTION FOR SUMMARY JUDGMENT.
(ECF No. 104).
On January 11, 2017, the Court issued a Minute Order
striking Plaintiff’s memorandum in opposition and concise
statement of facts for failing to comply with District of Hawaii
(ECF No. 106).
On January 23, 2017, Plaintiff filed PLAINTIFF’S MEMORANDUM
IN OPPOSITION TO DEFENDANT BED, BATH & BEYOND, INC.’S MOTION FOR
(ECF No. 114).
On January 23, 2017, Plaintiff also filed an AFFIDAVIT OF
(ECF No. 116).
On January 24, 2017, Plaintiff filed PLAINTIFF’S SEPARATE
AND CONCISE STATEMENT OF FACTS IN OPPOSITION TO DEFENDANT BED
BATH & BEYOND, INC.’S MOTION FOR SUMMARY JUDGMENT.
On February 6, 2017, Defendant Bed Bath & Beyond filed
DEFENDANT BED BATH & BEYOND, INC.’S REPLY MEMORANDUM IN SUPPORT
OF ITS MOTION FOR SUMMARY JUDGMENT.
(ECF No. 127).
On February 23, 2017, a hearing was held on Defendant Bed
Bath & Beyond, Inc.’s Motion for Summary Judgment.
The Parties Do Not Dispute the Following Facts:
Plaintiff Glenda Berg is a disabled woman who resides in
Santa Monica, California.
(Deposition of Glenda Berg (“Berg
Depo.”) at p. 5, ECF No. 94-6).
Defendant Bed Bath & Beyond,
Inc. is a retail chain incorporated in the State of New York and
registered to do business in the State of Hawaii.
Complaint at ¶ 7, ECF No. 59).
Defendant Stanley Access
Technologies, LLC (“Stanley”) is a Delaware limited liability
corporation registered to do business in the State of Hawaii.
(Id. at ¶ 8).
Plaintiff uses crutches to ambulate.
She visited Bed Bath
and Beyond at the Pearlridge store location on September 21,
The store is equipped with automatic sliding doors, which
were manufactured by Stanley.
As Plaintiff was leaving Bed Bath & Beyond, the automatic
doors shut before she could make it through.
Plaintiff fell to
The parties do not dispute that Plaintiff was
Timothy Muleady, manager of Bed Bath & Beyond, was notified
of the incident.
The incident was captured on Bed Bath & Beyond’s
(Deposition of Timothy Muleady (“Muleady
Depo.”), at p. 30, ECF No. 118-3). Muleady stated that he
attempted to save the recording, but he was unable to for an
The recording is not available.
At some time after the incident, the sensors on the door
were replaced and are not available for inspection.
Professional Engineer David J. Sitter (“Sitter Report”), at p. 4,
ECF No. 105-6).
The Parties Dispute the Following Facts:
Manner of Occurrence
The parties dispute the manner in which Plaintiff was
Plaintiff has provided two different accounts as to how
she was struck by the doors.
In her deposition, Berg stated that
the door hit her left side first.
(Berg Depo., at pp. 58-59, ECF
In a response to Bed Bath & Beyond’s request to for
documents, Plaintiff provided a chart and an explanation stating,
“As I was exiting the doorway, I noticed the doors were closing
and I could not jump out of the way.
One door hit my right side
first, then the other door hit my left.”
to Bed, Bath & Beyond’s 1st Request for Documents, at p. 5, ECF
Defendant Bed Bath & Beyond’s store manager Timothy Muleady
provided a third account of what happened based on what he saw on
the missing surveillance recording: “I viewed Ms. Berg exiting
the store, and the doors closed on her crutches.”
Depo., at pp. 33-35, ECF No. 105-2).
Adequacy of Equipment
The parties dispute the adequacy of the safety equipment
that was installed on the doors.
Plaintiff claims the sensors on the doors were inadequate,
out of date, and too few.
(Report of Warren F. Davis, Ph.D.
(“Davis Report”), at pp. 6-14, ECF No. 94-1).
Defendant Stanley asserts that the sensors that were
installed at the time of the incident were safe if they had been
Stanley also claims the lack of holding beams
did not render the entry at Bed Bath & Beyond unsafe.
Report, at p. 4, ECF No. 105-6).
Defendant Bed Bath & Beyond
disagrees with Stanley’s conclusions.
(Report of Paul Sheriff
(“Sheriff Report”), at pp. 1-2, ECF No. 119-1).
Plaintiff and Defendant Stanley dispute whether warning
labels on the door are mandatory.
(Sitter Report, at p. 5, ECF
No. 105-6; Davis Report, at p. 10, ECF No. 94-1).
Maintenance of the Doors
Plaintiff asserts that prior to the incident, the doors and
sensors were not maintained properly.
ECF No. 94-1).
(Davis Report, at p. 17,
Plaintiff claims that Defendants failed to meet
industry standards that require annual safety checks by a
(Id. at p. 16).
Defendant Stanley points out that Bed Bath & Beyond lacks
records of preventative maintenance for the doors.
criticizes Bed Bath & Beyond’s choice of an “on demand” service
plan to fix problems as they arose rather than providing regular
maintenance and review of the doors.
Defendant Bed Bath &
Beyond denies these allegations and conclusions.
Report, at p. 1, ECF No. 119-1).
Adequacy of the Safety Checks
The parties dispute the adequacy of Bed Bath & Beyond’s
daily safety checks of the doors.
Plaintiff claims that industry standards require a more indepth daily safety check rather than “only so-called ‘walk
(Davis Report, at p. 13, ECF No. 94-1).
Defendant Stanley claims Bed Bath & Beyond failed to perform
appropriate daily safety checks of the door.
(Sitter Report, at
p. 6, ECF. No. 105-6).
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(c).
summary judgment there must be sufficient evidence that a
reasonable jury could return a verdict for the nonmoving party.
Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.
The moving party has the initial burden of “identifying for
the court the portions of the materials on file that it believes
demonstrate the absence of any genuine issue of material fact.”
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809
F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)).
The moving party, however, has no
burden to negate or disprove matters on which the opponent will
have the burden of proof at trial.
The moving party need not
produce any evidence at all on matters for which it does not have
the burden of proof.
Celotex, 477 U.S. at 325.
The moving party
must show, however, that there is no genuine issue of material
fact and that he or she is entitled to judgment as a matter of
That burden is met by pointing out to the district court
that there is an absence of evidence to support the non-moving
party’s case. Id.
If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the absence
of probative evidence tending to support its legal theory.
Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282
(9th Cir. 1979).
The opposing party must present admissible
evidence showing that there is a genuine issue for trial. Fed. R.
Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044,
1049 (9th Cir. 1995).
“If the evidence is merely colorable, or
is not significantly probative, summary judgment may be granted.”
Nidds, 113 F.3d at 916 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986)).
The court views the facts in the light most favorable to the
State Farm Fire & Casualty Co. v. Martin, 872
F.2d 319, 320 (9th Cir. 1989).
Opposition evidence may consist
of declarations, admissions, evidence obtained through discovery,
and matters judicially noticed.
477 U.S. at 324.
Fed. R. Civ. P. 56(c); Celotex,
The opposing party cannot, however, stand on
its pleadings or simply assert that it will be able to discredit
the movant’s evidence at trial. Fed. R. Civ. P. 56(e); T.W. Elec.
Serv., 809 F.2d at 630.
The opposing party cannot rest on mere
allegations or denials.
Fed. R. Civ. P. 56(e); Gasaway v.
Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir.
When the non-moving party relies only on its own
affidavits to oppose summary judgment, it cannot rely on
conclusory allegations unsupported by factual data to create an
issue of material fact.
Hansen v. United States, 7 F.3d 137, 138
(9th Cir. 1993); see also National Steel Corp. v. Golden Eagle
Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997).
Defendant Bed Bath & Beyond seeks summary judgment on all
three causes of action stated in Plaintiff’s First Amended
Count I is a claim for negligence.
Count II is a claim for discrimination pursuant to Title III
of the American with Disabilities Act.
42 U.S.C. § 12182.
Count III is a claim for discrimination pursuant to Hawaii
Revised Statutes chapter 489.
Premises Liability Negligence
To prevail on a negligence claim, Plaintiff must prove:
a duty, or obligation, recognized by the law,
requiring a defendant to conform to a certain
standard of conduct;
a failure on a defendant's part to conform to
the standard required (a breach of the duty);
a reasonably close causal connection between
the conduct and the resulting injury; and,
actual loss or damage.
Takayama v. Kaiser Found. Hosp., 923 P.2d 903, 915–16 (Haw.
An occupier of land has a duty to use reasonable care for
the safety of all persons reasonably anticipated to be on the
premises, regardless of the status of the individual as invitee,
licensee, or trespasser.
Winfrey v. GGP Ala Moana LLC, 308 P.3d
891, 900 (Haw. 2013) (citing Pickard v. City and Cnty. of
Honolulu, 452 P.2d 445, 446 (Haw. 1969)).
Bed Bath & Beyond, has
a duty to exercise reasonable care for the safety of its patrons.
A claim of negligence is generally not susceptible to
summary judgment unless the facts are “undisputed or lend
themselves to only one reasonable interpretation or conclusion.”
Rodriguez v. Gen. Dynamics Armament and Tech. Prods., Inc., 696
F.Supp.2d 1163, 1177 (D.Haw. 2010).
There are numerous facts in
dispute here, including: the cause of the doors closing, the
maintenance of the doors, the manner in which Plaintiff was
injured, and the adequacy of the safety checks on the doors.
There are genuine disputes of fact that render summary judgment
inappropriate as to the negligence claim.
Res Ipsa Loquitur
Plaintiff argues that the doctrine of res ipsa loquitur is
Defendant Bed Bath & Beyond contends that the
doctrine does not apply.
State of Hawaii courts have held that three conditions must
be present for res ipsa loquitur to apply:
The event must be one which ordinarily does
not occur in the absence of someone's
It must be caused by an agency or
instrumentality within the exclusive control
of the defendant.
It must not have been due to any voluntary
action or contribution on the part of the
Carlos v. MTL, Inc., 883 P.2d 691, 699-700 (Haw. Ct. App.
The Event Must Be One Which Ordinarily Does Not
Occur in the Absence of Someone's Negligence
The first element is met “if, in the abstract, the event at
issue is one that gives rise to the reasonable probability that
in the ordinary course of events the incident would not have
occurred without negligence.”
Id. at 700.
The comments in the Restatement (Second) of Torts explain
how to determine if an event meets this standard: “In the usual
case the basis of past experience from which this conclusion may
be drawn is common to the community, and is a matter of general
knowledge, which the court recognizes on much the same basis as
when it takes judicial notice of facts which everyone knows.”
Restatement (Second) of Torts § 328D cmt. d (Am. Law Inst. 1965).
It is common knowledge that automatic sliding glass doors,
in the ordinary course, do not close on those passing through.
Exclusive Control of the Agency or Instrumentality
The second element of res ipsa loquitur requires that the
injury “be caused by an agency or instrumentality within the
exclusive control of the defendant.”
Carlos, 833 P.2d at 699-
Control of an instrumentality can rest with more than one
Ashland v. Ling Temco Vought, Inc., 711 F.2d 1431,
1439 (9th Cir. 1983).
Plaintiff's burden can be sustained by
establishing a specific cause of the event that was within one or
both defendants' responsibility, or by showing that one or both
defendants were responsible for all reasonably probable causes of
Defendant Bed Bath & Beyond disputes the applicability of
res ipsa loquitur, claiming that Berg has not ruled out other
causes attributable to third parties.
at pp. 5-6, ECF No. 127).
(Bed Bath & Beyond’s Reply
Whether Plaintiff has shown that Bed
Bath & Beyond, and not a third party, was responsible for the
reasonable probable causes of the accident is a question of fact.
Carlos, 883 P.2d at 701.
The Court cannot make factual determinations on a motion for
Lack of Voluntary Action or Contribution on the
Part of the Plaintiff
The final element of res ipsa loquitur requires that the
injury must not be due to any voluntary action or contribution on
the part of the plaintiff.
Carlos, 883 P.2d at 700.
Defendant has produced any evidence that Berg’s injury resulted
from her voluntary action or contribution.
When viewing the pleadings in the light most favorable to
Plaintiff, Defendant Bed Bath & Beyond has failed to show that
res ipsa loquitur cannot apply here.
Title III of the American with Disabilities Act
(42 U.S.C. § 12182) Claims
Title III of the Americans with Disabilities Act (“ADA”),
42. U.S.C. §12181 et seq., prohibits places of public
accommodation from discriminating against individuals on account
of a disability.
For Plaintiff to establish ADA Title III standing, she must
show that she “has suffered an injury-in-fact, that the injury is
traceable to the Store’s actions, and that the injury can be
redressed by a favorable decision.”
Chapman v. Pier 1 Imports
(U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011).
Since injunctive relief is the only available remedy to an
ADA plaintiff, she “must demonstrate a ‘real and immediate threat
of repeated injury’ in the future.”
Littleton, 414 U.S. 488, 496 (1974)).
Id. (quoting O’Shea v.
Past exposure to illegal
conduct does not in itself present a case or controversy
regarding injunctive relief if unaccompanied by any continuing,
present adverse effects.
City of Los Angeles v. Lyons, 461 U.S.
95, 101-05 (1983); see also Mayfield v. United States, 599 F.3d
964, 970 (9th Cir. 2010) (“Past exposure to harmful or illegal
conduct does not necessarily confer standing to seek injunctive
relief if the plaintiff does not continue to suffer adverse
A plaintiff can establish standing to sue under the ADA in
A plaintiff can establish standing to sue for
injunctive relief either by demonstrating deterrence, or by
demonstrating injury-in-fact coupled with an intent to return to
a noncompliant facility.
Feezor v. Sears, Roebuck and Co., 608
F. App’x. 476, 477 (9th Cir. 2015) (quoting Chapman, 631 F.3d at
1. Berg’s Stated Intentions
In her deposition, Berg stated that she did not have any
plans to return to Hawaii and that she did not have any intention
to return to the Pearlridge Bed Bath & Beyond.
pp. 133, 166, ECF No. 94-4).
(Berg Depo. at
Plaintiff then sought to clarify
her deposition testimony in an affidavit attached to her
opposition. She claims that at the time of her filing the
lawsuit, she was reluctant to return to Bed Bath & Beyond in
Hawaii because she did not want to experience discrimination
(Plaintiff’s Opposition at p. 8, ECF No. 114).
affidavit Plaintiff stated that although she has not made
arrangements, she intends to return to Hawaii for the trial.
(Affidavit of Glenda Berg at p. 3, ECF No. 116).
2. Practical Considerations
In cases establishing standing based on deterrence, courts
have taken into consideration the distance and frequency of
travel near the public accommodation.
In Doran v. 7 Eleven,
Inc., a plaintiff lived over 500 miles from a 7-Eleven
convenience store where he met architectural barriers. 524 F.3d
1034, 1038 (9th Cir. 2008).
The plaintiff in Doran had visited
that store on ten to twenty prior occasions.
Id. at 1040.
plaintiff planned to visit the city in which the store was
located at least once a year.
The Doran court held that
“[n]otwithstanding the distance between Doran’s home and the 7Eleven, there is an actual or imminent threat that, during his
planned future visits to Anaheim, Doran will suffer harm as a
result of the alleged barriers.”
Id. at 1041.
The court took
into consideration both the distance from the store and the
frequency of travel.
See also Pickern v. Holiday Quality Foods,
Inc., 293 F.3d 1133, 1135-39 (9th Cir. 2002) (considering a
plaintiff’s distance from the public accommodation and weekly
travel near the area in determining standing based on
In the present case before the Court, Plaintiff lives over
2500 miles, across the Pacific Ocean, from the store.
only visited the island of Oahu once.
Unlike the plaintiffs in
Doran and Pickern, Berg’s distance from Bed Bath & Beyond and her
one-time visit to Oahu weigh against the possibility of her being
It is illogical that Plaintiff could be deterred from
the store when it is so far from her home in a place to which she
has only traveled once.
Intent to Return
The second way an ADA plaintiff may obtain standing under
Article III is by showing an injury-in-fact coupled with an
intent to return.
Feezor, 608 F.App’x at 477.
The intent to
return must be more concrete than merely a “some day” intention.
Parr v. L & L Drive Inn Rest., 96 F.Supp.2d 1065, 1078 (D.Haw.
District Courts in the Ninth Circuit have typically looked
at four factors to determine the intent to return: (1) the
proximity of the place of public accommodation to plaintiff's
residence, (2) plaintiff's past patronage of defendant's
business, (3) the definitiveness of plaintiff's plans to return,
and (4) the plaintiff's frequency of travel near defendant’s
Molski v. Mandarin Touch Rest., 385 F.Supp.2d
1042, 1045 (C.D. Cal 2005).
Courts look at the totality of the
circumstances to determine whether these factors establish
Parr, 96 F.Supp.2d at 1080.
Proximity of the Place of Public Accommodation to
“As the distance between the plaintiff’s residence and the
public accommodation increases, the likelihood of future harm
Molski, 385 F.Supp.2d 1042, 1045 (C.D. Cal.
2005)(collecting cases that held that distances over 100 miles
decreases the likelihood of future harm.)
In Molski, the plaintiff visited a restaurant and was unable
to use the restrooms due to a narrow door.
The plaintiff’s home
was 116 miles away from the restaurant, and he had only visited
the restaurant once, the time at which he encountered the
noncompliant restroom door.
The court held that Molski did not
have standing to pursue a case, determining that the considerable
distance weighed against finding a likelihood of future harm.
Here, Plaintiff lives in Santa Monica California, over 2500
miles away from Defendant’s place of business.
The distance is
considerable and weighs against Plaintiff’s claim that she will
Plaintiff’s Past Patronage of Defendant’s Business
A plaintiff’s history of patronage of a store or chain may
evidence the possibility of future injury.
See Parr, 96
F.Supp.2d at 1065.
In Jones v. Sears Roebuck & Co., the plaintiff visited a
department store in Sacramento, CA, 156 miles away from her home.
No. 2:05-cv-0535-MCE-KJM, 2006 WL 3437905, at *2-3 (E.D. Cal.
Nov. 29, 2006).
She met architectural barriers that made it
difficult for her to have full and equal access to the store
during her visit.
Id. at *2.
The plaintiff had only visited the
store in Sacramento once before the visit at which time she was
met with the barriers.
Id. at *3.
The court noted that she
failed to show a specific preference for, or a regular pattern of
shopping at Sears.
The court viewed that her lack of
patronage at the Sacramento location and her sparse patronage of
the chain in general both weighed against finding standing. Id.
Here, Berg has only visited the Pealridge location of Bed
Bath & Beyond once.
She has only visited the island of Oahu
In her affidavit, Plaintiff states, “I am a frequent
shopper at Bed Bath & Beyond,” without providing any further
(Berg Affidavit at p. 4, ECF No. 116).
does not provide a context as to how often Plaintiff shops at Bed
Bath & Beyond.
Berg is similar to the plaintiff in Jones because
she lacks a history of patronage at the Pearlridge location of
Bed Bath & Beyond and has displayed no regular pattern of
patronizing Bed Bath & Beyond or a specific preference for the
Berg’s one-time visit to the Pearlridge location
weighs against finding standing.
The Definitiveness of Plaintiff’s Plans to Return
Generally, an ADA plaintiff must have a plan that is more
concrete than a “some day” intention.
Parr, 96 F.Supp.2d at
Concrete plans can be exhibited by things such as a hotel
reservation, or an airplane ticket.
Id. at 1079 (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 579 (1992)).
In O’Campo v. Ghoman, the plaintiff failed to establish
standing under the intent to return theory because he did not say
when he intended to return to the location of his injury or
provide any other information indicating his return was likely.
622 F.App’x 609, 609-10 (9th Cir. 2015).
Plaintiff stated, “even though I have not made arrangements,
I intend to return to Hawaii for the trial.”
(Berg Affidavit at
p. 3, ECF No. 116). Plaintiff indicates that she will return to
the store prior to the trial to see how the doors are operating,
and to help her prepare to testify at trial.
Frequency of Travel Near Public Accommodation
Courts look to whether a plaintiff is often in the vicinity
of the public accommodation.
Molski, 385 F.Supp.2d at 1045.
In Wilson v. Costco Wholesale Corp., the plaintiff visited a
store in the city of Chula Vista, San Diego County, California
and encountered architectural barriers that made it difficult for
him to have full and equal access to the store during his visit.
426 F.Supp.2d 1115, 1116-17 (S.D. Cal. 2006).
lived 512 miles northwest of Chula Vista, in a city named Dixon,
California, located near Sacramento.
Id. at 1122.
stated in his deposition that he used to live in San Diego, and
traveled to San Diego “at least three or four times a year.”
The court in Wilson ruled that although Wilson was in the
geographic vicinity of the noncompliant store three to four times
per year, his visits were insufficient to confer standing.
Here, Plaintiff Berg has only visited the State of Hawaii
twice, and the island of Oahu once.
Just as the plaintiff in
Wilson, Berg is not a likely visitor to the geographic area of
the Defendant’s store.
Three of the four factors to be considered weigh against
finding standing for Plaintiff.
Based on the totality of the
circumstances, Plaintiff lacks standing to pursue an ADA claim.
Defendant Bed Bath & Beyond’s Motion for Summary Judgment on
Plaintiff’s claim under the Americans with Disabilities Act is
Discrimination under Chapter 489 of the Hawaii
Hawaii law prohibits practices that deny, or attempt to deny
a person the full and equal enjoyment of public accommodations
based on disability.
Haw. Rev. Stat. § 489-3.
stated that the purpose of H.R.S. chapter 489 is to protect
people from discrimination in public accommodations.
The law is to be construed liberally to further its
H.R.S. § 489-1(b).
There have been very few judicial opinions interpreting
H.R.S. 489-3 in the context of disability discrimination.
The Supreme Court of Hawaii, when interpreting Hawaii
discrimination laws, has looked for guidance to analogous federal
laws by federal courts.
Shoppe v. Gucci America, Inc., 14 P.3d
1049, 1058 (Haw. 2000)(“we have previously looked to the
interpretations of analogous federal laws by the federal courts
Hawaii law, H.R.S. chapter 489, differs from the ADA in the
remedies available for a plaintiff.
Hawaii law allows for
plaintiffs to sue for damages.
When viewing the facts in the light most favorable to the
Plaintiff, a claim pursuant to H.R.S. chapter 489 may lie.
Bed Bath & Beyond’s Motion for Summary Judgment is DENIED as
to Count III.
In its Memorandum in Opposition, Stanley raises the issue of
Bed Bath & Beyond’s failure to preserve the video recording as
required by Federal Rule of Civil Procedure 37(e).
declines to decide on the issue of spoliation of evidence and
what measures may be necessary to cure any prejudice that may
have arisen from the loss of evidence at this time.
determination is premature.
Defendant Bed Bath & Beyond, Inc.’s Motion for Summary
Judgment (ECF No. 93) is GRANTED, in part, and DENIED, in part.
Defendant Bed Bath & Beyond, Inc.’s Motion to for Summary
Judgment (ECF No. 93) is GRANTED as to Count II.
Defendant Bed Bath & Beyond, Inc.’s Motion to for Summary
Judgment (ECF No. 93) is DENIED as to Counts I and III.
IT IS SO ORDERED.
DATED: April 24, 2017, at Honolulu, Hawaii.
Glenda Berg vs. Bed Bath & Beyond, Inc., and Stanley Access
Technologies, LLC.,; Cross-Claimant Bed Bath & Beyond, Inc. vs.
Cross-Defendant Stanley Access Technologies, LLC.; Cross-Claimant
Stanley Access Technologies, LLC, vs. Cross-Defendant Bed Bath &
Beyond, Inc.; Civ No. 15-00361 HG-KSC; ORDER GRANTING, IN PART,
AND DENYING, IN PART, DEFENDANT BED BATH & BEYOND, INC.’S MOTION
FOR SUMMARY JUDGMENT (ECF No. 93)
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