Fowler v. Kanawha Valley Fine Jewelry and Loan LLC

Filing 29

MEMORANDUM OPINION & ORDER granting in part and denying in part defendant's 25 MOTION for Summary Judgment; granting insofar as it seeks judgment that the plaintiff may not recover compensatory damages under the ADA or punitive damages for her negligence claim, and is otherwise denied. Signed by Judge John T. Copenhaver, Jr. on 1/13/2015. (cc: attys; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JENNIFER FOWLER,
Plaintiff,
v.

Civil Action No. 2:14-5510

KANAWHA VALLEY FINE JEWELRY
AND LOAN LLC,
Defendant.
MEMORANDUM OPINION & ORDER

Pending is the defendant’s motion for partial summary
judgment, filed October 20, 2014.

I. Factual and Procedural Background

The plaintiff, Jennifer Fowler, relies entirely on a
motorized wheelchair for mobility.
25, 2014.

Fowler Dep. 8:14-20, Sept.

On August 30, 2013, she visited the premises of the

defendant, Kanawha Valley Fine Jewelry and Loan LLC (“KVFJL”),
Compl. ¶ 8; Ans. at 1, at its store located at the eastern city
limits of Charleston, West Virginia.

Parking in front of the

store is provided in a row of lined slots, each of which runs to
a sidewalk on which the building and its entrance fronts.

The

curb of the sidewalk presented an obstacle over which Fowler
could not maneuver her wheelchair.

Fowler Dep. 35:3-11.

Observing no ramp that would have allowed her to gain
access to the store, she asked store employees how she might do
so.

Fowler Dep. 35:3-11.

In response, two male employees who

are not identified by name in the record retrieved a piece of
plywood and positioned it so that it formed a makeshift ramp
bridging the curb of the sidewalk between the storefront and the
parking area.

See Fowler Dep. 35:6-36:1.

Fowler ascended the plywood ramp, entered the store,
transacted her business, then left.

Fowler Dep. 36:4-37:17.

A

store employee held the door for her as she exited and noted
that the plywood ramp was still in place.
38:4.

Fowler Dep. 37:23-

Fowler proceeded slowly, but the wheels of her chair

pushed the plywood off of the curb, and the ramp collapsed.
Fowler Dep. 38:6-19.

Unable to stop, she teetered on the edge

of the curb, and then pitched forward out of her chair onto the
pavement.

Fowler Dep. 39:7-17, 40:9-22.
Fowler struck her head and suffered abrasions to her

hands and knees in the fall.

Fowler Dep. 41:15-20, 42:1-4.

Her

wheelchair was “still moving” but “[t]he control arm broke off
of it.”

Fowler Dep. 44:8-11.

Several of the defendant’s

employees came to check on her, asking if she was alright, and
Fowler replied that she was not.

Fowler Dep. 42:22-43:5.

Instead, she believed she needed to go to the hospital because
2

she was “having a lot of pain, and [her] back . . . neck,
shoulders, [and] upper arms” were “starting to go numb.”

Fowler

Dep. 46:3-9.
The defendant’s employees offered to call an ambulance
for the plaintiff, but she “had [her] power chair, and there was
no way to accommodate it in an ambulance, so [Fowler] called C&H
Taxi,” which has “a handicap van.”

Fowler Dep. 43:21-44:2.

The

defendant’s employees paid the fare for the taxi to take Fowler
to Thomas Memorial Hospital.

Fowler Dep. 44:21-23, 46:20-47:1.

Fowler underwent X-Rays at the hospital, which revealed no
fractures; she was diagnosed with several sprains, given Lortab
for her pain, and sent home.
admitted.

Fowler Dep. 47:2-21.

She was not

Id.
Fowler has not returned to KVFJL since the accident,

although she claims she would like to do so.

Compl. ¶ 31.

She

has, however, gone by the premises and observed that an asphalt
ramp was constructed near the front door to the store.
Dep. 56:10-17.

Fowler

She has not tried to use the ramp, but has, on

several occasions, observed vehicles parked on the ramp.

Fowler

Dep. 57:7-10.
The plaintiff initiated this action on January 29,
2014, charging the defendant with negligence (Count I) and with
violating the Americans with Disabilities Act (“ADA” or “the
3

Act”), 42 U.S.C. §§ 12101-12213 (2012), by failing to remove an
architectural barrier, thereby denying her full and equal access
to the store (Count II and Count III).

See generally Compl.

She seeks a declaration that the store is not accessible, an
order directing the defendant to make the store accessible, and
compensatory and punitive damages.

Compl. at Prayer for Relief.

A few months before the filing of the complaint, on
October 7, 2013, Fowler’s attorney wrote to the defendant,
asking, among other things, that the makeshift plywood ramp be
preserved for inspection.

Plaintiff’s Response to Defendant’s

Motion for Partial Summary Judgment (“Pl.’s Resp.”), Ex. 5
(“Also, I ask that you preserve the wooden ramp in its current
condition.

Please be advised that your failure to do so would

constitute spoliation of evidence.”).

On July 22, 2014, the

plaintiff’s expert, engineer John Sadowski, visited KVFJL to
inspect the wooden ramp and the newly constructed asphalt ramp.
According to his report, “Mr. Tavis Haley, Attorney with Pullin,
Fowler, Flanagan, Brown & Poe PLLC was at the building and
stated the wooden ramp was unavailable to view, [because] the
ramp had been discarded.”

Pl.’s Resp., Ex. 6.

Mr. Sadowski was, however, able to examine photographs
and a video of the wooden ramp, as well as physically inspect
the asphalt ramp.

He opined that both the wooden ramp and the
4

asphalt ramp failed to comply with various ADA accessibility
standards.

In particular, Mr. Sadowski’s report states that the

wooden ramp was neither firm nor stable, was not flush with
surrounding surfaces, and was not protected by a curb sufficient
to prevent a person from slipping off the ramp’s surface.

Id.

Regarding the asphalt ramp, Mr. Sadowski observed that it, too,
was not flush with surrounding surfaces, lacked a slip-resistant
surface and detectable warning features, was improperly sited
such that it projected into traffic and could be obstructed by
parked vehicles, did not have “flared sides”, and was not
located adjacent to an accessible parking space or passenger
loading zone with appropriate signage.

Id.

He concluded that

both ramps were “noncompliant with ADA standards.”

Id.

On October 20, 2014, the defendant moved for partial
summary judgment on two issues.

First, KVFJL asserts that it is

entitled to judgment as a matter of law on the plaintiff’s ADA
claims; second, the defendant seeks summary judgment on Fowler’s
request for punitive damages.

The merits of the negligence

claim are not presented.
The court has federal-question jurisdiction over the
ADA claims, 28 U.S.C. § 1331, and supplemental jurisdiction over
the negligence claim, 28 U.S.C. § 1367, inasmuch as it arises
out of the same common nucleus of facts as the ADA claims.
5

II. Standard of Review

A party is entitled to 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).

Material facts are those necessary to

establish the elements of a party’s cause of action.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable
factfinder could return a verdict for the non-movant.

Id.

The

moving party has the burden of showing -- “that is, pointing out
to the district court -- that there is an absence of evidence to
support the nonmoving party’s case.”
477 U.S. 317, 325 (1986).

Celotex Corp. v. Catrett,

If the movant satisfies this burden,

then the non-movant must set forth specific facts as would be
admissible in evidence that demonstrate the existence of a
genuine issue of fact for trial.

Id. at 322–23.

A party is

entitled to summary judgment if the record as a whole could not
lead a rational trier of fact to find in favor of the nonmovant.
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
Conversely, summary judgment is inappropriate if the
6

evidence is sufficient for a reasonable fact-finder to return a
verdict in favor of the non-moving party.
248.

Anderson, 477 U.S. at

Even if there is no dispute as to the evidentiary facts,

summary judgment is also not appropriate where the ultimate
factual conclusions to be drawn are in dispute.

Overstreet v.

Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).
A court must not resolve disputed facts, weigh the
evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th
Cir. 1995), or make determinations of credibility, Sosebee v.
Murphy, 797 F.2d 179, 182 (4th Cir. 1986).

Rather, the party

opposing the motion is entitled to have his or her version of
the facts accepted as true and, moreover, to have all internal
conflicts resolved in his or her favor.

Charbonnages de France

v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).

Inferences that

are “drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.”
States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

7

United

III. Discussion

A. ADA Claims

The ADA was first enacted in 1990 “to provide a clear
and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.”
U.S.C. § 12101(b)(1).

42

Title III of the Act specifically

prohibits discrimination against individuals “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[.]”

42 U.S.C. § 12182(a).

In order to ameliorate the discriminatory effect that
the physical environment in particular may have on people with
disabilities (including those, like Fowler, with mobility
impairments), Title III imposes a variety of design requirements
on covered facilities, depending on when the facilities were
first constructed or altered.

Facilities built after January

26, 1993 must be “readily accessible to and usable by
individuals with disabilities,” 42 U.S.C. § 12183(a)(2), meaning
that the built environment must comply with the ADA
Accessibility Guidelines (“ADAAG”), “an encyclopedia of design
standards” promulgated by the Department of Justice.

See Oliver

v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011).
8

Similarly, if a facility built before that date is thereafter
altered in certain specified ways, the altered portion must also
comply with the ADAAG.

42 U.S.C. § 12183(a)(2).

Most importantly for purposes of this case, in
facilities built before January 26, 1993 (which seems to be the
case here), that have not been altered within the meaning of
§ 12183(a)(2), “architectural barriers” must, nevertheless,
still be removed where it is “readily achievable” to do so.
U.S.C. § 12182(b)(2)(A)(iv).

42

“[W]hat constitutes an

architectural barrier, as well as the specifications that
covered entities must follow in making architectural changes to
remove the

barrier” are determined by reference to the ADAAG

standards.

See 28 C.F.R. § Pt. 36, App. A (citing 28 C.F.R.

36.304(d)); see also Ralphs Grocery Co., 654 F.3d at 905 (“If a
particular architectural feature of a place of public
accommodation is inconsistent with the ADAAG, a plaintiff can
bring a civil action claiming that the feature constitutes a
barrier that denies the plaintiff full and equal enjoyment of
the premises in violation of the ADA.”).
In this case, Fowler’s ADA claims -- Count II and
Count III -- reduce to one essential allegation:

that KVFJL is

depriving her of the “full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations
9

of any place of public accommodation” because of her disability
in violation of 42 U.S.C. § 12182(a), (Count II), by failing “to
remove architectural barriers . . . in existing facilities . . .
where such removal is readily achievable,” id.
§ 12182(b)(2)(A)(iv), (Count III).

Specifically, she claims

that it was readily achievable for the defendant to “ma[k]e a
curb cut in the sidewalk around the building at the entrance or
otherwise install[] a safe ramp that complied with the ADA” in
order to provide wheelchair access to the store.
34-35.

Compl. ¶¶ 31,

She seeks an order directing KVFJL to “remove

architectural barriers” in order to make the store “readily
accessible.”

Compl. at Prayer for Relief.

KVFJL argues that it is entitled to summary judgment
on Fowler’s ADA claims because the wooden ramp provided, and the
asphalt ramp now provides, adequate accessibility.

Failing

that, the defendant maintains that Fowler has no right to
recover compensatory damages for any alleged ADA violation.
These challenges to the plaintiff’s claims are most
straightforwardly analyzed in reverse order.
With respect to damages, § 12188 of the Act states
that the “remedies and procedures set forth in [§] 2000a-3(a) of
[title 42] are the remedies and procedures” available to “any
person who is being subjected to discrimination on the basis of
10

disability[.]”

42 U.S.C. § 12188.

Section 2000a-3(a), in turn,

provides that an aggrieved person may bring “a civil action for
preventive relief, including an application for a permanent or
temporary injunction, restraining order, or other order.”
U.S.C. § 2000a-3(a).

42

The plain text of that provision, courts

routinely hold, authorizes only prospective relief to enjoin
ongoing violations; money damages for past harms cannot be
recovered.

See, e.g., Goodwin v. C.N.J., Inc., 436 F.3d 44, 50

(1st Cir. 2006); Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d
79, 86 (2d Cir. 2004); Bowers v. NCAA, 346 F.3d 402, 433 (3d
Cir. 2003).

The plaintiff does not dispute this point.

Given the forward-looking nature of the injunctive
relief available to individual plaintiffs under the Act, it
follows that an ADA claim may become moot if the defendant cures
the alleged accessibility violation after the complaint is
filed.

See, e.g., Ralphs Grocery Co., 654 F.3d at 905 (“Because

a private plaintiff can sue only for injunctive relief (i.e.,
for removal of the barrier) under the ADA, a defendant’s
voluntary removal of alleged barriers prior to trial can have
the effect of mooting a plaintiff’s ADA claim.”); Hernandez v.
Polanco Enterprises, Inc., 19 F. Supp. 3d 918, 936 (N.D. Cal.
2013) (same).

The defendant argues that is precisely what

happened in this case following the installation of its asphalt

11

ramp.

See Defendant’s Memorandum of Law in Support of its

Motion for Summary Judgment (“Def.’s Mem.”) at 5 ([P]laintiff’s
claims for injunctive relief . . . have been rendered moot by
construction of an asphalt ramp at the subject store.”).

Fowler

denies that her claims are moot, arguing that “the asphalt ramp
. . . is not even compliant with the ADA.”

Pl.’s Resp. at 6.

That leaves just two relevant questions remaining: (1)
Are the ADA claims moot because the asphalt ramp removed the
barrier to access at the defendant’s store?; and, if not, (2) Is
the defendant nevertheless entitled to summary judgment because
removal of the barrier is not “readily achievable”?
As to the first question, neither party disputes that
a change in level such as a step, or in this case, a curb is an
architectural barrier to access for a person like Fowler who
uses a wheelchair.

See Speciner v. NationsBank, N.A., 215 F.

Supp. 2d 622, 632 (D. Md. 2002) (analyzing whether the removal
of a barrier created by two steps was “readily achievable”);
Simpson v. City of Charleston, 22 F. Supp. 2d 550, 552, 555
(S.D. W. Va. 1998) (discussing the duty to remove architectural
barriers in a case involving a wheelchair curb ramp with a 1.52” vertical rise between the street and the base of the ramp).
Given Mr. Sadowski’s findings that the asphalt ramp is in
several respects not in compliance with ADA standards, and the
12

defendant’s failure to present any evidence concerning the
accessibility of the asphalt ramp, the court concludes that
Fowler’s claim is not moot and that, based on the evidence
adduced thus far, a barrier to access may remain at the
defendant’s store.
Regarding the second question, “[e]xamples of steps to
remove barriers include” installing ramps and making curb cuts
in sidewalks and at entrances, 28 C.F.R. § 36.304(b)(1), (2),
and those steps are “readily achievable” if they are “easily
accomplishable and able to be carried out without much
difficulty or expense,” 42 U.S.C. § 12181(9); see also Compl. ¶¶
35-36 (asserting that both options are readily achievable and
can be “carried out without much difficulty or expense.”).
There is some disagreement concerning which party
bears the initial burden of producing evidence that the removal
of an architectural barrier is, or is not, readily achievable.
See Berthiaume v. Doremus, 998 F. Supp. 2d 465, 474-75 (W.D. Va.
2014) (collecting authority); compare Molski v. Foley Estates
Vineyard & Winery, LLC, 531 F.3d 1043, 1048 (9th Cir. 2008) (“By
placing the burden of production on the defendant, we place the
burden on the party with the best access to information[.]”),
with Colorado Cross Disability Coalition v. Hermanson Family
Ltd. Partnership, 264 F.3d 999, 1002-03 (10th Cir. 2001)
13

(“Accordingly, we conclude [p]laintiff must initially present
evidence tending to show that the suggested method of barrier
removal is readily achievable under the particular
circumstances.

If [p]laintiff does so, [d]efendant then bears

the ultimate burden of persuasion that barrier removal is not
readily achievable under subsection (iv).”).

Most courts place

the initial burden of production on the plaintiff, at least to
some degree.

See, e.g., Roberts v. Royal Atl. Corp., 542 F.3d

363, 373 (2d Cir. 2008) (articulating a “middle road” approach
that requires the plaintiff to “articulate a plausible proposal
for barrier removal, the costs of which, facially, do not
clearly exceed its benefits,” but declining to require the
plaintiff to submit proposals that are “exact or detailed”).
But it’s not necessary to decide that issue in this
case, because it appears essentially uncontested based on the
evidence in the record that installing a ramp at the defendant’s
property was “readily achievable.”

Indeed, the defendant admits

that it has already constructed “an asphalt ramp at the subject
store,” and both parties have submitted photographs of that
ramp.

See Defendant’s Motion for Summary Judgment, Ex. D; Pl.’s

Resp., Ex. 6.

Thus, even assuming that Fowler bears the burden

of production, the evidence of the ramp’s existence introduced
by both sides tends to show “that the suggested method of

14

barrier removal is readily achievable under the particular
circumstances.”

Colorado Cross, 264 F.3d at 1002-03.

offers no argument to the contrary.

KVFJL

At the very least, the

defendant has failed to show “that there is an absence of
evidence to support the nonmoving party’s case,” Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986), and, as a result, is not
entitled to summary judgment.
In sum, the evidence at this stage indicates that an
architectural barrier exists at the defendant’s store that
appears to be readily removable by means of installing a
compliant ramp; the plaintiff has offered evidence that the
asphalt ramp presently installed is not compliant; the defendant
has offered no evidence regarding the asphalt ramp’s efficacy
and makes no argument that building a compliant ramp is not
readily achievable.

Consequently, the defendant’s motion for

summary judgment on the merits of Count II and Count III is
denied.

On the other hand, the defendant is correct (and, as

noted, the plaintiff does not dispute) that injunctive relief is
the only remedy available to Fowler under Count II and Count
III.

As a result, the defendant’s motion for summary judgment

is granted to the extent it seeks judgment that compensatory
damages are not available to Fowler for her ADA claims.

15

B. Punitive Damages

Under West Virginia law, punitive damages are not
appropriate in cases of “simple negligence,” Bennett v. 3 C Coal
Co., 379 S.E.2d 388, 394 (W. Va. 1989), but are instead reserved
for “actions of tort [] where gross fraud, malice, oppression,
or wanton, willful, or reckless conduct or criminal indifference
to civil obligations affecting the rights of others appear,”
Alkire v. First Nat’l Bank of Parsons, 475 S.E.2d 122, 129 (W.
Va. 1996).

An award of punitive damages is reserved for

“extreme and egregious bad conduct” -- it “is the exception, not
the rule,” and “the level of bad conduct on the part of the
defendant must be very high in order to meet the punitive
standard.”

Perrine v. E.I. du Pont de Nemours & Co., 694 S.E.2d

815, 909-10 (W. Va. 2010).
KVFJL maintains that, because there is no evidence
that it “acted in a manner that would support an award of
punitive damages,” Fowler should not be permitted to proceed
with her claim for punitive damages on her negligence theory.
Fowler responds that she “will present evidence that” KVFJL
“failed to maintain its premises in a safe manner, failed to
provide reasonable access to its store, and . . . blatantly
failed to comply with” the ADA.

Pl.’s Resp. at 7.

She also

argues that she “will present evidence that the makeshift,
16

plywood ramp that was provided was completely ineffectual,
dangerous, and caused her significant injuries.”

Id.

The evidence the plaintiff has submitted thus far is
that the plywood ramp “was in a deteriorated condition,” “not
stable or firm,” and “not attached to the curb,” Pl.’s Resp.,
Ex. 6, but the defendant’s employees nevertheless permitted her
to use it, Fowler Dep. 36:4-40:22.

Those facts do not reflect

the degree of extreme, egregious, wanton, willful, or reckless
conduct that warrants the imposition of punitive damages.

There

is no indication, for example, that the defendant’s employees
ignored warnings that the plywood ramp was likely to fail in the
manner that it did, nor is there any evidence that they were
aware of any previous accident involving use of a similar ramp
at their premises but failed to take corrective action.

Cf.

Workman v. United Artists Theatre Circuit, Inc., 84 F. Supp. 2d
790, 793-94 (S.D. W. Va. 2000) (“Here, plaintiffs have brought
forward some evidence of [defendants’] failure to correct a
known hazardous condition where large numbers of the public,
including [p]laintiffs are business invitees.

This showing is

sufficient to preclude summary judgment.”).
Even the plaintiff’s complaint characterizes KVFJL’s
conduct with respect to the plywood ramp as no more than
“negligent[] and careless[].”

Compl. ¶¶ 18, 24-26.
17

To the

extent she accuses the defendant of the requisite degree of bad
behavior, she appears to do so in connection with her ADA claims
rather than her negligence claim.

See Compl. at Prayer for

Relief (requesting “punitive damages . . . for the willful,
wanton, and/or reckless disregard for her legal rights[.]”).
Fowler echoes that theory in her opposition to the motion for
summary judgment, arguing that punitive damages are appropriate
because KVFJL’s “violation of the ADA constitutes per se
negligence and demonstrates its reckless indifference to its
disabled patrons’ safety and equal access.”

Pl.’s Resp. at 7.

She adds that “discrimination is, by its nature, malicious,
oppressive, willful, and constitutes reckless indifference,” and
cites case-law upholding the availability of punitive damages
for claims of employment discrimination under the West Virginia
Human Rights Act.

Id.

Fowler is correct that the state Human Rights Act
authorizes punitive damages in some statutory discrimination
cases.

See Haynes v. Rhone-Poulenc, Inc., 521 S.E.2d 331, 345-

48 (W. Va. 1999).

But, as noted, individual plaintiffs cannot

recover any form of money damages -- compensatory or punitive -for claims under Title III of the ADA.

Even in cases brought by

the Attorney General (in which the General may request money
damages for aggrieved individuals), the Act specifically

18

provides that punitive damages are not available.

See 42 U.S.C.

§ 12188(b)(2)(B) and (b)(4) (“[T]he term ‘money damages’ . . .
does not include punitive damages.”).

Given that Congress did

not statutorily authorize punitive damages as a tool for
encouraging compliance with Title III, there is no reason to
think that a violation of Title III’s requirements, if
established, should automatically warrant punitive damages under
a negligence theory.
Accordingly, KVFJL’s motion for summary judgment on
the issue of punitive damages is granted.

IV. Conclusion

For the foregoing reasons, it is ORDERED that the
defendant’s motion for summary judgment be, and it hereby is,
granted insofar as it seeks judgment that the plaintiff may not
recover compensatory damages under the ADA or punitive damages
for her negligence claim, and is otherwise denied.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and any
unrepresented parties.
DATED: January 13, 2015

19

John T. Copenhaver, Jr.
United States District Judge