COSTOW v. LIVE NATION ENTERTAINMENT, INC. et al

Filing 105

OPINION FILED. Signed by Judge Joseph H. Rodriguez on 3/27/17. (js)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
RICK COSTOW,

:
:
:
:
:
:

Plaintiff,
v.

LIVE NATION ENTERTAINMENT, INC., :
d/b/a BB&T PAVILION f/k/a
:
SUSQUEHANNA BANK CENTER;
:
and
:
CITY OF CAMDEN;
:
and
:
CAMDEN REDEVELOPMENT AGENCY; :
and
:
PARKING AUTHORITY CITY OF CAMDEN;
and
:
NEW JERSEY ECONOMIC
:
DEVELOPMENT AUTHORITY,
:
:
Defendants.
:

Hon. Joseph H. Rodriguez
Civil Action No. 15-cv-664
OPINION

This matter is before the Court on several motions for summary
judgment. The Court heard oral argument on the motions on February 7,
2017 and the record of that proceeding is incorporated here. For the
reasons discussed during oral argument as well as those set forth below, the
Court will deny the motions of Defendant Live Nation Entertainment, Inc.,
d/b/a BB&T Pavilion f/k/a Susquehanna Bank Center [77], Defendant City
of Camden Parking Authority [78], Defendant New Jersey Economic
Development Authority [98]; will grant the motions of Defendant City of
Camden [57] and Camden Redevelopment Agency [76]; and will grant in
part and deny in part the motion of Plaintiff Rick Costow [75].
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Background
Plaintiff Rick Costow is a disabled individual who must use a
wheelchair for ambulation and hand controls for driving. He purchased a
ticket to attend a concert on August 7, 2013 at the BB&T Pavilion located at
1 Harbor Boulevard, Camden, New Jersey. (Third Am. Compl., ¶ 13.) When
Plaintiff arrived at the concert facility, he discovered that the designated
parking area and the route to the admission and seating area were not
accessible to persons with physical disabilities, and there were dangerous
and impassable barriers preventing wheelchair users from accessing and
traversing the areas in question. (Id., ¶ 16.)
Plaintiff was unable to use the designated handicap parking spots in
the facility’s designated parking area (Lot 1) due to the fact that Defendants
had placed immovable objects (portable toilets) on the handicap parking
spots, blocking them from being used by disabled persons. (Id., ¶ 17.)
Plaintiff therefore was directed to park in the lot across the street from the
entrance of the concert venue (Lot 2), much farther from the parking area
exit. (Id., ¶ 18.) Plaintiff alleges that the path from the parking lot to the
concert venue entrance is not wheelchair accessible and includes a slope
that is dangerous and a violation of regulations due to its being too steep
and without railings. (Id., ¶ 20, 22.) Moreover, there is no curb cut at the
end of the slope; the steep slope leads directly to a curb of over four inches
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and then onto the street, making it dangerous and impractical for
wheelchair users. (Id.) This caused Plaintiff inconvenience, pain,
discomfort and distress.
In addition, Plaintiff had significant difficulty entering and exiting the
facility and in traveling between the designated parking area and the
admission/seating area due to significant barriers to access for disabled
persons, including excessively steep inclines and ramps. (Id., ¶ 19, 24.)
According to Plaintiff, the only parking area open to the public that
allows for handicap accessible parking at BB&T Pavilion is “Lot 1.” (Id., ¶
35.) However, Plaintiff alleges that Lot 1 is inaccessible and dangerous to
disabled persons, is not handicap accessible and violates the codes, laws
and regulations of the federal Americans With Disabilities Act (ADA), 42
U.S.C. § 12101, and the New Jersey Law Against Discrimination (LAD), N.J.
Stat. Ann. § 10:5-12. (Id., ¶ 36.) Plaintiff seeks damages and injunctive
relief, including making the facility, seating areas, parking areas, and routes
to and from the facility wheelchair accessible.
Summary Judgment Standard
“Summary judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law.” Pearson
v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing
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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56
(a). Thus, the Court will enter summary judgment in favor of a movant who
shows that it is entitled to judgment as a matter of law, and supports the
showing that there is no genuine dispute as to any material fact by “citing to
particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56 (c)(1)(A).
An issue is “genuine” if supported by evidence such that a reasonable
jury could return a verdict in the nonmoving party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under
the governing substantive law, a dispute about the fact might affect the
outcome of the suit. Id. In determining whether a genuine issue of material
fact exists, the court must view the facts and all reasonable inferences
drawn from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s
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Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand
a properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that contradict those
offered by the moving party. Andersen, 477 U.S. at 256-57. “A nonmoving
party may not ‘rest upon mere allegations, general denials or . . . vague
statements . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of
Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v.
Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed,
the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, 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.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that
a fact cannot be genuinely disputed by showing that “an adverse party
cannot produce admissible evidence to support the [alleged dispute of]
fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party’s motion for summary judgment, the
court’s role is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility
determinations are the province of the factfinder. Big Apple BMW, Inc. v.
BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
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Discussion
Title II of the ADA provides that: “Subject to the provisions of this
subchapter, 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.A. § 12132. For claims under
this title, a plaintiff must show that: (1) he is a qualified individual with a
disability; (2) was excluded from participation in or denied the benefits of a
public entity’s services, programs or activities, or was otherwise
discriminated against by the public entity; and (3) such exclusion, denial of
benefits, or discrimination was based on the disability. Strathie v. Dep’t of
Transp., 716 F.2d 227, 230 (3d Cir. 1983).1
Remedies available to a plaintiff under a Title II claim include
injunctive relief, attorneys’ fees and compensatory damages. However, to
be awarded compensatory damages a plaintiff must show that the alleged

Under Section 504 of the Rehabilitation Act claim, a plaintiff must show
that: (1) he is an individual with a disability; (2) he is otherwise qualified to
receive the denied benefit; (3) he was denied the benefits of a program or
activity by sole reason of his disability; and (4) the program or activity
receives federal financial assistance. See 29 U.S.C. § 794. The terms
“program” or “activity” include the operations of a department, agency,
special purpose district, or other instrumentality of a State or of a local
government. 29 U.S.C.A. § 794. The same standards govern both RA and
Title II ADA claims. Chamber v. Sch. Dist. Of Phila. Bd. Of Educ., 587 F.3d
176, 189 (3d Cir. 2009). Accordingly, an analysis under the Rehabilitation
Act mirrors the analysis under Title II of the ADA.
1

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discrimination was intentional. D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d
260, 269 (3d Cir. 2014). A showing of deliberate indifference satisfies that
standard. Id. Deliberate indifference requires both “knowledge that a
federally protected right is substantially likely to be violated, and failure to
act, despite that knowledge.” Id. Although there is no requirement of ill
will, deliberate indifference requires “a deliberate choice, rather than
negligence or bureaucratic inaction.” Id.
Title III of the ADA prohibits disability discrimination in places of
public accommodation, and sets forth as a “general rule” that, “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(1).2 The statute further provides that,

Similarly, the NJLAD prohibits discrimination in a place of public
accommodation. N.J. Stat. Ann. §10:5–12. “In interpreting the LAD in
disability discrimination claims, ‘federal law has consistently been
considered for guidance.’ Borngesser v. Jersey Shore Med. Ctr., 774 A.2d
615 (N.J. Super. Ct. App. Div. 2001) (applying federal law under Section
504 of the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701–796, as guidance
on a LAD claim) (citing Leshner v. McCollister’s Transp. Sys., Inc., 113 F.
Supp. 2d 689, 691-92 n.1 (D.N.J.2000); Ensslin v. Twp. of N. Bergen, 646
A.2d 452 (N.J. Super. Ct. App. Div. 1994); see also Chisolm v. McManimon,
275 F.3d 315, 324 n. 9 (3d Cir. 2001) (confining discussion to ADA Title II
‘with the understanding that the principles will apply equally to the
Rehabilitation Act and NJLAD claims’).” Lasky v. Moorestown Twp., 42
2

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inter alia, “a motion picture house, theater, concert hall, stadium, [and]
other place of exhibition or entertainment” are “private entities [ ]
considered public accommodations for purposes of this subchapter, if the
operations of such entities affect commerce.” 42 U.S.C. § 12181(7)(C).The
only remedy available under Title III of the ADA is injunctive relief;
monetary damages are not available. 42 U.S.C. § 12188.
Discrimination includes the “failure to remove architectural
barriers...that are structural in nature, in existing facilities...where such
removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). Places of
public accommodation must make alterations to its premises that are
“readily accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.” 28 C.F.R. § 36.402(a)(1). This includes
“remov[ing] architectural barriers in existing facilities” which is “readily
achievable, i.e., easily accomplishable and able to be carried out without
much difficulty or expense.” 28 C.F.R. § 36.304(a)(1). Examples of steps to
remove barriers include, “installing ramps,” “[m]aking curb cuts in
sidewalks and entrances,” and “creating designated accessible parking
spaces.” Id. at § 36.304(b).

A.3d 212, 216-17 (N.J. Super. Ct. App. Div. 2012). Accordingly, an analysis
under the NJLAD mirrors the analysis under Title III of the ADA.
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As an initial matter, the Court finds that Plaintiff has standing to
bring the claims asserted in the Third Amended Complaint.
[T]o satisfy Article III’s standing requirements, a plaintiff must
show (1) it has suffered an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., Inc., 528 U.S. 167, 180-81
(2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561
(1992)). The ADA does not “require a person with a disability to engage in a
futile gesture . . .,” if the disabled person has “actual notice” of a facility’s
non-compliance with the ADA. 42 U.S.C. § 12188(a)(1).
The Court finds that Plaintiff has alleged damage as the result of noncompliant parking at BB&T Pavilion that would be redressed by an
injunction compelling compliance with the ADA. The Court does not
distinguish between Plaintiff’s attempted use of Lot 1 versus Lot 2, but finds
instead that Plaintiff sought handicapped parking at the facility in general.
Plaintiff has clarified that he is not requesting injunctive relief for Lot
2, and acknowledges that any such request would be dismissed as moot
because Lot 2 is no longer utilized as a parking lot, as the Philadelphia
76ers operate a practice facility on what used to be Lot 2. (Voss Dep., p. 20).
Regarding Lot 2, then, Plaintiff is left with a claim for damages. Plaintiff did
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not sustain bodily injury in this case but seeks damages for emotional
distress. However, there is no evidence in the record of intentional
discrimination or deliberate indifference on the part of any Defendant.
Accordingly, summary judgment must be granted on Plaintiff’s prayer for
damages. The Court is left with Plaintiff’s claim for injunctive relief as to
Lot 1 and the interior of BB&T Pavilion.
Pursuant to a lease agreement with Defendant New Jersey Economic
Development Authority, Defendant Live Nation Entertainment, Inc., d/b/a

BB&T Pavilion f/k/a Susquehanna Bank Center is responsible for
maintaining the Amphitheater and for performing any necessary
renovations to the building. (Voss Dep., p. 8; Voss Decl. ¶ 6.) The Third
Amended Complaint alleges that “[w]hen plaintiff got inside the facility in
question . . . [t]he route he was forced to take to get to his assigned seat was
difficult and dangerous, involving an unreasonably long and difficult
journey to his assigned seating area, including going on inclines and ramps
that were excessively steep.” (Third Am. Compl. ¶ 24.)
In his deposition, Plaintiff testified that there may have been
uncovered cables on the ground inside BB&T Pavilion. (Costow Dep. p. 29.)
There does not appear to be an actionable architectural barrier here, as
there is no allegation that the obstruction persisted beyond a reasonable
period of time, or was anything other than a “isolated or temporary
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interruption[ ] in . . . access” under 36.211(b). Regarding the lack of rails or
curbs on the side of ramps descending down aisles to the seating area, the
Court finds that genuine issues of material fact preclude summary
judgment as to Live Nation and NJEDA because the parties’ experts have
submitted conflicting reports as to whether this lack of rails or curbs
constitutes non-compliance with the ADA.
Finally, as to Lot 1, each Defendant argues that it has no
responsibility to maintain or repair the lot. However, the Defendants have
not sufficiently rebutted Plaintiff’s expert report that lists as noncompliant: an insufficient number of handicap parking spaces; there are
handicap parking spaces that do not comply with regulations as to width to
allow for space for doors to open; there are handicap spaces that lack
proper signage; and there is a need for repairs evidenced by cracks,
potholes, and a handicap space with a lamp post in it. Plaintiff’s expert also
cites to non-compliant flangeways for the light rail system at the crosswalks
leading from Lot 1 to the Amphitheater. Because the Defendants have
produced no evidence to dispute Plaintiff’s expert’s report, Plaintiff’s
motion for summary judgment will be granted such that Lot 1 must be
brought into compliance with the ADA.
The record indicates that while Defendant Camden Redevelopment
Agency owned Lot 1 at the time of Plaintiff’s visit, it has since deeded the
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property to Defendant City of Camden Parking Authority. (Asseleta Suppl.
Decl.) Accordingly, summary judgment will be granted as to CRA but
denied as to the Parking Authority which “owns, leases (or leases to), or
operates” Lot 1. In additoin, the City of Camden does not own, lease, or
operate the property in question, nor did the City own or occupy the
property at the time of the incident. Therefore, the City’s motion for
summary judgment will be granted.
In connection with operating the Amphitheater, Live Nation entered
into a license agreement with the Parking Authority regarding Live Nation’s
use of Lot 1, among other parking lots that are located adjacent to the
Amphitheater on the opposite side of Delaware Avenue. (Voss Dep., p. 10;
Voss Decl., Ex. A). The Parking Lot License Agreement provides that the
Parking Authority “shall be responsible . . . [for] [a]ll ordinary and routine
maintenance and repair of [Lot 1] as may be necessary to allow for the
continued operation of [Lot 1] as a first-class professionally operated
parking facility consistent with industry standards . . . [which includes]
sealing of cracks, pothole repair, stripping, patching, fence repair and
things of a similar nature.” (Voss Decl., Ex. A § (8)(d)(1)). Further, the
Parking Lot License Agreement provides that during shows in which Live
Nation licenses Lot 1, the Parking Authority “shall cause an individual
employee to be present . . . who shall have the authority to make decisions
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on behalf of [the Parking Authority] in regard to the operation and function
of the Parking Facilities.” (Voss Decl., Ex. A § 7(j)).
The Agreement further provides that Live Nation “shall, at its sole
cost and expense, be responsible for the management, supervision and
operation of the Parking Facilities during Show Hours on each Show Date.”
(Voss Decl., Ex. A § 7(b)). Live Nation also has the “right and option to
enhance or upgrade the Parking Facilities at any time.” (Voss Decl., Ex. A §
8(b)). Curtis Voss, the manager of Live Nation, testified that the parties
who share in parking revenues from the parking lots that service the
concert venue are Live Nation, the Parking Authority, and Standard
Parking, a sub-contractor of Live Nation. (Voss Dep., p. 60-61.) The Court
finds that Live Nation both leases and operates Lot 1 and as such will be
denied summary judgment.

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Conclusion
For these reasons, the Court denies the motions of Defendant Live
Nation Entertainment, Inc., d/b/a BB&T Pavilion f/k/a Susquehanna Bank
Center [77], Defendant City of Camden Parking Authority [78], Defendant
New Jersey Economic Development Authority [98]. It grants the motions of
Defendant City of Camden [57] and Camden Redevelopment Agency [76];
and grants in part and denies in part the motion of Plaintiff Rick Costow
[75]. An appropriate Order will be filed.

Dated: March 27, 2017

/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ, USDJ

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